San Diego Criminal Lawyers Blog

Did you attend a public protest, only to be arrested? You thought you had a First Amendment right to express your views, so why did you wind up behind bars? The laws on the books may seem murky at times, but if you feel you were wrongfully arrested, you need a tough criminal defense attorney fighting for you.  

Your Rights

Anyone is allowed to assemble and speak out in any traditional public forum, including streets, sidewalks, and parks, as well as in front of government buildings. However, blocking access to those buildings is a no-no. A permit is not required to march on sidewalks or streets, but pedestrian or vehicular traffic cannot be obstructed. When you choose to engage in a legal gathering in a public location, you may photograph anything you see, including police interactions. (On private property, you must abide by the owner’s rules.) 

When a Permit is Obtained 

If a permit for the event has been acquired, a march can occur that requires street closures for a few blocks, or just the blocking of traffic. Such protests may use amplification systems, while rallies that don’t have permits cannot. When it comes to private property, everyone must abide by the rules set by the property owner. 

Counter-protesters have the same rights you do.  While police may try to keep groups apart from one another, they should be allowed to be within earshot and sight of one another,

Can Undocumented Individuals Protest?

Everyone in this country, including undocumented individuals, shares the same rights to free speech. That means undocumented people have the right to protest, gather, or march to express their views. However, it’s important to note that the risk of a police encounter could be substantially more dangerous for undocumented individuals, since it could ultimately lead to deportation, whether or not an arrest occurs. While it is true that the First Amendment also protects people from acts of retaliation from the government, we have seen numerous arrests in recent times of students, immigrant leaders, and activists who speak out against policies they disagree with. 

Hope for the Best; Prepare for the Worst

If you choose to participate in a protest of any kind, it’s smart to be prepared for anything to happen. You can increase your chances of escaping problems by taking some cautionary steps:

1. Identify the route of the march and pinpoint potential escape routes before you start;
2. Carry an attorney’s phone number with you;
3. Have a backup plan for childcare or other necessities just in case you do not make it home as planned;
4. If police stop you, ask if you are under arrest or if you are free to go;
5. Legal residents must carry a green card;
6. Exercise your right to be silent;
7. Avoid resisting arrest;
8. Never consent to a search;
9. Either leave your phone at home or turn off the fingerprint and facial recognition system so law enforcement cannot access your phone against your will;
10. Try to get contact information of potential witnesses;
11. Photograph officers’ badge numbers, patrol cars, injuries, and other details that may help later.

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If you are familiar with the Fifth Amendment of the Constitution, you know that it provides protection against self-incrimination. That means you cannot be forced to disclose information that is directly incriminating or that could lead police or prosecutors to discover incriminating evidence against you in the future. It is pretty important for anyone who has been arrested. There is a reason that you are believed to have been involved in criminal activity, being that you have been placed under arrest. But sometimes prosecutors are looking to catch a bigger fish, and really are not too concerned with you, even if they suspect or have strong evidence that you are responsible for a crime. That could mean an opportunity for you to trade information and testimony for your own immunity. But this can be tricky; you always want an experienced criminal lawyer by your side as you make decisions related to immunity. 

Transactional Immunity

Transactional immunity, sometimes called Total immunity, protects you from all future charges related to your testimony. While total immunity is not offered in federal cases, many states, including California, do allow it at the state level.

Use and Derivative Immunity

This type of immunity protects you from having what you say, or any evidence discovered as a result of your testimony, from being used against you. It is basically the protection provided by the Fifth Amendment. Although you could eventually be tried for crimes that you testify about, any charges must rely on evidence that is completely independent of your testimony or evidence related to your testimony. In other words, the more details you testify to, the wider the protections against future prosecution.

Why Offer Immunity?

As mentioned earlier, prosecutors tend to offer immunity to people whom they believe are responsible for minor crimes in the hopes that their testimony will lead to enough evidence to convict someone guilty of more serious crimes. It is not uncommon for these deals to be made in cases related to gang or organized crime activity. The low man on the totem pole is offered a deal to get immunity if they agree to testify against a ringleader. If you change your mind and back out of testifying, you will likely wind up in jail.

If Prosecutors Try to Prosecute You Anyway

What if you do your part and testify as requested by the prosecutor, and later the prosecutor comes after you despite your promised immunity? You can use your immunity deal as your defense. The prosecution will have to provide specific evidence that is in no way linked to your testimony in order to proceed. Anything they have that is related to the immunized testimony will be excluded from consideration. If they cannot prove they obtained new evidence from another source, it will be the end of their case. Continue reading

Anyone who has seen a courtroom drama on the big screen or on television has heard lawyers make motions. Although you have probably never really thought about them, the truth is they can make an enormous difference in the outcome of a trial. 

What are Motions?

Motions are written requests made by prosecutors and defense attorneys in criminal courts for the judge to make certain decisions—judgments– before or during a trial. They are formal appeals for rulings that will boost their odds of success in the trial.

Motions Commonly Made 

There are many types of motions that may be requested in a criminal trial. Some of the most common motions include:

• A Motion to Dismiss:  In some cases, a request is made for the judge to dismiss a case completely before it even starts. The request could be on the grounds that the court does not have jurisdiction on the matter, there is not enough evidence to support the charges, the alleged facts do not amount to a crime, or the statute of limitations has run out, for example.
• A Motion for a Change of Venue: In widely publicized trials, pre-trial publicity may threaten the impartiality of any potential jurors, so an attorney may ask that the trial be moved to another county or state in order to protect the right of a defendant to a fair trial.
• A Motion to Suppress:  This is a request for the judge to exclude particular evidence at trial. There could be multiple reasons for this, such as because one side believes the evidence has been tampered with, it was illegally obtained, there were problems with the chain of custody, or there is some other issue with the evidence in question.
• A Motion for Discovery: There are times when the opposing party drags their feet in sharing documents, witness lists,  and other information they have uncovered during the discovery process, even though the law requires them to provide such information to opposing counsel. An attorney may file a Motion to Compel, which can force them to produce information, witnesses, and documents they have been withholding.
• A Motion for Summary Judgment: One party may ask the judge to decide the case midway through a trial based on what has already been presented. It is based on a belief that the material facts of the case point to an obvious conclusion that is indisputable. If the judge agrees that the facts of the case are not in dispute, a summary judgment can wrap things up quickly and easily.

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Movies about bank robberies are fan favorites, always packed with intrigue and action. From popular westerns like The Ballad of Buster Scruggs and The Long Riders to more modern films such as Ambulance and Now You See Me, bank robberies have been romanticized and somewhat glorified. But how often do they happen in real life, and when they do, are they glorious adventures? The short answer is that yes, they do occur, and no, the penalties often make outcomes anything but glorious. If you have been charged with bank robbery, you need a tough criminal defense attorney at bat for you. 

California Bank Robberies in the News

There have been multiple bank robberies in the Golden State in recent years, including: 

• A pair of individuals were charged with ten bank robberies in Antioch, Benicia, Concord, Sacramento, Suisun City, and Vallejo;
• An Anaheim bank was robbed by a man who also took a hostage before surrendering to police;
• A Lake Forest bank robbery involved a gunshot and a fleeing suspect.

Bank Robbery Penalties 

If you think you are safe enjoying the spoils of a bank robbery, if you were not actually there for the heist, think again. Federal law clearly states that you can be criminally penalized for receiving the stolen money. If the amount involved is under $1000, you are facing a year in prison in addition to fines. When the amount exceeds $1,000, it could mean bigger fines and 10 years in a federal prison. Importantly, these are the exact same penalties that the person who actually robbed the bank could face if they managed the heist without making threats or executing any form of violence.

Things get much more sober when a bank robbery includes intimidation. Even without physically harming anyone or shooting off a gun, just the threat of such harm doubles the potential prison sentence to 20 years. If a victim does suffer harm as a result of the bank robbery, another five years can be tacked on, meaning 25 years behind bars. If anyone is killed during the course of bank robbery, the offender is looking at life in prison, with the possibility of the death penalty in some cases.

The Defense You Deserve

A vigorous defense of these kinds of charges must begin with an exhaustive investigation that includes viewing footage of the robbery in question, meeting with witnesses, evaluating forensic evidence, and looking for exculpatory evidence—that which plays in your favor—in the hopes of exonerating you. After getting a good handle on what the prosecutor has to work with, a good defense attorney will develop a strategy to defend you. That could mean a lot of things, including: 

• Presenting alternate theories of the case;
• Focusing on technical or procedural errors;
• Demanding accountability for utter constitutional violations by law enforcement or prosecutors.

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Many people do not realize it, but police routinely interrogate a suspect and lie about the possibility that leniency can be traded for cooperation or even about the evidence they have. Richard Leo, a renowned expert on interrogation techniques, calls deception the most defining and salient feature of interrogations in this country. 

And it is perfectly legal. In fact, the courts are aware of and sanction the practice. Furthermore, deceptive techniques are a part of police training across the country. Of note, while lying is widely used to get confessions and information from people law enforcement has in custody, it is a custom that is either totally prohibited or heavily restricted in the majority of peer nations, including Japan, Germany, France, and England. It makes one wonder why other developed nations are so resistant to law enforcement deception.

Issues 

Arguably, the objective of lying is not necessarily to get to the truth. It is to get information or a confession. By falsely influencing a suspect’s perception of their situation, the suspect can be overwhelmed into thinking they have no option other than to confess to the crime and hope they will be treated with leniency. 

Of course, police frequently get a confession out of a suspect who has been lied to. Unfortunately, those confessions are often not legit. Nonetheless, they weigh heavily on the scale of evidence and can lead to a wrongful conviction. When the Innocence Project successfully fought to overturn 375 wrongful convictions, they discovered that almost one-third involved false confessions that police had induced. And when it came to murder convictions that were overturned, more than 60% involved false confessions. While a critical problem, this is not the only concern with the police practice of lying to suspects:

• To be clear, any suspect is innocent until proven guilty. The ethics of lying to a suspect is dubious at best. Teaching officers to use techniques to deceive citizens seems likely to promote a permissive stance toward deception and diminish the public’s view of law enforcement.
• Research demonstrates that lying in this context often leads officers to lie in other, more troubling areas. Officers who engage in this behavior are more prone to involvement in perjury and/or the falsification of police reports. They may manufacture consent to search, probable cause, or otherwise twist the truth to suit their purposes. Those things are illegal, though they are difficult to identify and punish. 
• Since police so often get away with lying, and because it carries over into other areas of their duties, constitutional protections get abused, leaving civil liberties, justice, and public trust at a loss.

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If you are headed for a criminal trial, you are relying on your attorney to create reasonable doubt of your guilt in the minds of the jury. What does that mean, and how is it achieved? 

The Meaning of Reasonable Doubt

The prosecution has the burden of proof, meaning they must present proof that you are guilty beyond a reasonable doubt. In other words, the jury must be definitively convinced that you are guilty. If they have any doubts as to your guilt, they must be based on common sense and reason, not simply speculation. Their doubt can be grounded in evidence–or the lack thereof—all of which must have been weighed with vigilance and impartially. Anything short of finding reasonable doubt means a jury must find you guilty. What does that mean for your defense attorney?

Crafting Reasonable Doubt 

The importance of the fact that the law considers you innocent until proven guilty cannot be understated, and proving guilt beyond a reasonable doubt—an extremely high legal standard—is the burden of the prosecutor. Intended to protect innocents from wrongful conviction, the reasonable doubt standard can be difficult to achieve. That being said, your defense attorney will assault the prosecution’s case on numerous levels in order to demonstrate that the prosecution did not prove guilt beyond a reasonable doubt.  Some strategies might include:

• Challenging witness credibility by emphasizing a witness’s criminal history, hidden motivations, or potential biases that might sway their testimony;
• Highlighting any procedural errors made by police, including there being issues with the legality of a search, a failure to Mirandize you, or mishandling of evidence, for example;
• Pointing out issues with the analysis of the evidence by bringing in expert witnesses who interpret the evidence differently or who question the soundness of the analysis or the science behind the technology;
• Underscoring inconsistencies in the prosecution’s case, such as conflicting witness statements or ways in which various evidence points to different conclusions;
• Emphasizing the lack of convincing evidence provided by the prosecution and insisting that the prosecution did not meet its burden of proof;
• Providing a strong alibi for you, showing how and why you could not have committed the crime;
• Offering alternate theories of the case by suggesting different timelines, suspects, or motivations that seem plausible.

Goals

Naturally, any defendant is hoping and praying for an acquittal, allowing you to go on with your life and put the trial behind you.  Other favorable scenarios that are possible a strong defense is presented include: 

• Dismissal: The judge might find that the prosecution simply cannot meet the high burden of proof and could dismiss the case before it ever gets to the jury.
• Plea Bargain: The prosecution could fear a shift in the jury toward the defense and offer an advantageous plea deal for you to consider.

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