San Diego Criminal Lawyers Blog

January 9, 2026

What Happens at a Parole Hearing?

Anyone who is serving a long prison sentence may eventually petition the parole board for early release. There are things that can be done in advance of this important hearing starting right at sentencing so that as the parole hearing date nears, one will have more confidence in the possibilities. Prisoners will be allowed to make a statement, as will victims. While there is no real way to impact what victims may say, a petitioner can surely take steps to make a good showing.

Showing Remorse

An important issue the parole board will be looking at is whether a prisoner’s remorse is sincere. They will expect a detailed explanation of the events leading to incarceration and will scrutinize prison conduct, including the programs and educational opportunities taken advantage of, as well as any negative incidents that occurred. This will all be indicators of personal growth, reform, and regret, or the lack thereof.

Having a Post-Release Plan

The board will also be interested to hear about intentions post-release. They will want to know whether the root causes of the criminal behavior have been examined and addressed. Their concerns will include future employment and housing plans, support networks, and the ability to avoid people and circumstances deemed dangerous to one’s ability and willingness to contribute to society while avoiding illegal entanglements.

Victim Impact

Victims will be allowed to make statements and send letters to try to influence the board’s decision, and the impact of your crimes on victims will be weighed, in addition to any details and special circumstances relating to the crime.

The Risk Assessment

A statistical calculation that looks at criminal history and other risk factors, such as substance abuse, education level, and job options, will be created based on all of this information. This risk assessment will use all available data to estimate the likelihood of recidivism—or reoffending. It is all thrown together to come up with a risk score to assist the parole board in balancing the value of granting early release against public safety considerations.

Following the Hearing

The parole board will consider the case in its entirety after the hearing to determine whether to grant a petition for early release. If granted, a release with severe supervision and clear expectations will follow, with total compliance expected in lieu of being returned to prison. If release is denied, reasons will be given, and reapplication may occur at a later date if certain conditions are met. Continue reading

January 2, 2026

Is a Polygraph a Good Idea?

by David M. Boertje

You are all about demonstrating your innocence, so when law enforcement asks you to take a polygraph test, it seems logical to comply. You have nothing to hide, after all. You couldn’t be more mistaken! There are lots of reasons to steer clear of lie detector tests.

Just Say No

Along with the fact that the results of your polygraph test will not likely be admitted in court, and the fact that a “conclusive” result showing you to be telling the truth will not persuade police to release you, there are some very compelling reasons to avoid taking one, including:

The police are not interested in helping to prove your innocence. If you are a police suspect, there are no laws or rules for police about lying to you in order to confuse or frustrate you. You may have passed with flying colors, only to be told by detectives that the test confirmed your guilt in the hopes that you’ll crumble and confess.
On the other hand, there’s the chance that you might actually fail the test. If the test indicates deception in the slightest, it might energize law enforcement to come at you even more vigorously.
Despite the results of the polygraph likely never making it into a courtroom, anything that you say can still be used against you, whether it was said in the pre-polygraph interview or during the test itself.
The tests are not considered reliable (thus the hesitancy of courts to allow test results as evidence). The machines used in polygraph testing measure a person’s physiological reactions to various questions—including heart rate, perspiration, and so forth. Is it conceivable that a person might experience changes in pulse, breathing, or perspiration simply as a result of their worry or apprehension? Do blameless people ever fail the test? Can guilty people who feel no remorse or who have psychopathic tendencies pass the lie-detector test? The answer to these questions is a categorical yes.
When you consent to take a polygraph test, you give up your Fifth Amendment right to remain silent. That, in itself, may be the biggest mistake anyone on the radar of law enforcement can make.

Instead…

There is no requirement that you take a lie detector test. You have no legal compulsion to agree to this law enforcement request, regardless of the amount of pressure exerted by authorities. A better option is to respectfully request to see your attorney. That is the one person who is guaranteed to be in your corner, irrespective of the circumstances or charges. When you are a suspect in a criminal case, your defense attorney is the person who can help you through every stage of your defense. Continue reading

December 26, 2025

Know the Terminology in an Investigation

by David M. Boertje

Following the horrific Brown University shooting spree, police quickly released photos of an individual they called a person of interest. Tips from the public led to a quick apprehension, and that man was held and released in a matter of hours. Just four days later, another video was released, with the expectation that the public could again assist law enforcement in getting in touch with this new individual, identified as a person of interest. It all resulted in lots of public dialogue about the mysterious person in the video and about what it means to be a person of interest.

Legal Terminology Worth Understanding: In terms of criminal law, most Americans are pretty well acquainted with much of the lingo thanks to the many TV shows and movies on the subject. But being aware of the language and truly understanding it can often be two very different things. Let’s take a look at some common terms used in the world of law enforcement:

A Person of Interest: Although it’s not a legal term, a person of interest is a casual reference to a person that law enforcement would like to talk to about the facts of a particular case. It’s a term that helps police and other law enforcement agencies to gather intelligence without the need to formally accuse that person. Additionally, police do not need probable cause, which is required to make an arrest. Eventually, that person may have information relevant to the case and might later become a witness, an accomplice, or a suspect.
An Accomplice: An accomplice to a crime is a person who intentionally aids and abets someone else in committing a crime. Generally speaking, the accomplice can be held liable for the crime even if they were not directly involved, which means they could wind up with the same punishments as the principal in the crime.
The Principals: The principal in the first degree is the person who actually committed the crime, while any accomplices who assisted or who were present are called principals in the second degree.
The Suspect: A suspect, unlike a person of interest, is someone who is believed to be guilty of a crime based on evidence collected by law enforcement. Typically, police have reasonable grounds to believe that the suspect is the person responsible for the crime, even if they do not yet have enough to formally charge that person.
Unsub: Unsub is another informal term that is shorthand for “unidentified subject.” It denotes a perpetrator of a crime whose identity remains unknown.
Perp: A perp is the person who actually committed the crime—short for perpetrator.

December 19, 2025

Getting into the Minds of the Jury

by David M. Boertje

If your future is in the hands of a jury, you are undoubtedly wondering what jurors think as evidence and witnesses are offered up in a trial. How supportive are they of a defense attorney’s argument? How influential is a specific piece of evidence? It is a multifaceted and ever-changing puzzle that attorneys are relentlessly working to predict and understand.

A Juror’s Background

Everyone is a blend of their history and experiences. Jurors come to the task with their own feelings, passions, and predispositions, and each piece of evidence in a trial will be filtered through those biases. Although jurors are instructed to reach their conclusions based only on the factual evidence presented in court, it’s impossible to know just how much power their backgrounds will exert on their thinking. For example:

Most people have preexisting views about the justice system, police officers, race, gender, sexual orientation, and more, even if that bias is not a conscious thing.
Financial standing, education, employment status, living arrangement, and even zip code can sometimes be a window into a particular person’s worldview.
Sometimes ,jurors may be experiencing personal stress in their personal lives that impacts their views and emotions.
Past experiences will have led to emotional inclinations or predeterminations for or against certain people or circumstances.
Some people may be deeply empathic and will sympathize so entirely with one party that they cannot view a situation with a logical perspective.

Cognitive Bias

Another aspect of the way jurors evaluate a case is the degree of cognitive bias. Some jurors may seize on evidence that validates their existing beliefs, while others may be heavily impacted by first impressions and be closed off to later revelations in a trial. Still others may zero in on a specific positive (or negative) quality in a person and be unable to see any other side to that person.

Voir Dire

The voir dire process is the opportunity for attorneys to select jurors for a particular trial. Lawyers for each side have the chance to question each potential juror, and they do so with an eye toward any bias that may impact a juror’s ability to weigh the evidence in an impartial manner.

What Impacts Thinking?

How can a juror’s mind be swayed? In addition to the facts of a case, the presentation style of attorneys is critical. Additionally, each witness will be viewed as either credible or self-serving. Finally, the deportment of the defendant will be scrutinized. In some cases, prior knowledge about a case will influence a juror’s thinking. In a best-case scenario, the judge’s instructions will have the weightiest impact and will guide each juror to a fair and impartial assessment of the facts, overshadowing any previous biases. Continue reading

December 12, 2025

Holiday Crime Spike

by David M. Boertje

The holiday season typically sees a rash of certain types of crime. That’s partly because, while many people are busy shopping or attending holiday parties with friends, colleagues, and family, there are those among us who have something a little less festive on their minds. If you have been charged with one of these crimes, it would behoove you to speak to a local experienced criminal defense attorney right away.

DUI: Unquestionably, drinking and driving don’t mix. Sadly, plenty of people imagine they can manage it, and wind up with charges that could land them behind bars for up to six months for a first offense, and 10 years in prison if it’s a second offense. Accidents that cause injury or death have even tougher penalties—and all of this is on top of fines, penalties, having an ignition interlock device installed in your car, having a license suspension, and mandatory classes.
Theft: Anyone who is tempted to steal merchandise from a crowded store, thinking they can get away with it, may be surprised by undercover security who show up just in time to make an arrest. A first offense could result in six months in jail and a $1,000 fine. Felony charges involving larger values could mean three years in state prison on top of a $10,000 fine.
Identity theft: Identity theft can occur in different ways, resulting in a variety of penalties. Using a fake ID to purchase alcohol or get into a bar, for instance, could result in a $250 fine and 32 hours of community service, on top of losing your driver’s license for a full year. Those penalties increase with subsequent incidents. Something more nefarious, like major identity theft or credit card fraud, however, could mean three years in state prison. Fines are often attached to these crimes, as well, which could mean $10,000 out the window. Restitution may be ordered for victims, as well.
Residential burglary: Anyone charged with burglary—breaking into a home to steal personal property—is facing felony charges. That translates into up to six years in prison and $10,000 in fines. If the accused uses a deadly weapon or if anyone is injured, the penalties increase. Another thing to consider is the fact that a conviction counts as a strike against the Three Strikes Law, which means even harsher sentences are on the table.
Commercial Burglary: When charged as a misdemeanor, a conviction could put you behind bars for a year and slap you with a $1,000 fine. A felony conviction brings the possibility of three years in state prison and a $10,000 fine. All of these penalties increase if the value of stolen property is over $200,000.

Robbery and Jugging: Robbing a home or vehicle, or jugging—watching people in banks and at ATMs and later robbing them—can be charged as a felony. A conviction could mean six years in prison and a $10,000 fine.

December 5, 2025

AI Hallucinations and the Law

by David M. Boertje

When prosecutors demanded that a California man who faced illegal gun possession charges be held without bail, the man’s defense team argued that the charges simply did not warrant such a harsh response. Prosecutors had pages and pages of explanations to support their argument. Unfortunately, for them, their extensive documentation was riddled with errors.

AI Issues

As it happens, the prosecutor’s office was using AI to beef up paperwork in several cases, and in each situation, there were serious misinterpretations of law, as well as quotations that did not exist in the cited text. Ultimately, there were clear indications that AI was the culprit behind the mistakes. It led defense attorneys to take the case to the California Supreme Court, in hopes that they would find a pattern of erroneous legal interpretations and case citations. That led to some interesting revelations.

Problems

Defense attorneys had 22 technology researchers and legal scholars alongside them in court. These professionals advised that the unchecked use of artificial intelligence in the legal field could lead to wrongful sentencing and convictions. Legal documents have been notably peppered with errors as a result of the use of Gemini and ChatGPT, which have been commonly used to prepare anything from essays and emails to legal briefs. When the use of AI goes unimpeded, the pitfalls can be disastrous, since these tools have been proven to contrive fictional answers to legal questions.

Arizona State University law professor Gary Marchant conceded that inaccuracies in court papers that are the result of AI are more likely an indication of negligence than deliberate deception. Nonetheless, because sycophancy is a known characteristic of AI, the truth is often stretched in an effort to divulge an answer that supports a specific argument. Commonly referred to as hallucinated content, roughly 600 cases have been detected worldwide, more than 60% of which occurred in U.S. courts. That leads to some gripping questions:

Since studies indicate that as many as 82% of legal queries on chatbots result in hallucinations, prompting extreme caution from Supreme Court Chief Justice Roberts in 2023, can court documents created with AI be trusted?
With 75% of lawyers planning to use AI in their work, how will legal outcomes be affected?
Should there be restrictions on the use of AI in legal work, since even AI tools that claim to reduce hallucination issues produce errors in 17% to 34% of uses?

November 28, 2025

Federal Prosecutorial Discretion

by David M. Boertje

Why do the feds pursue some cases and let others go? The Take Care Clause from Article II of the United States Constitution, as the Department of Justice (DOJ) gives prosecutors discretion when it comes to weighing whether to pursue a case. The provision necessitates that the president take care to execute the laws of the country faithfully, so when a new administration takes power, it can make a judgment as to where to focus and how to enforce criminal laws. Because no justice department has the resources to pursue every single crime, as administrative priorities change, a federal prosecutor has wide discretion in choosing which crimes to pursue, given there is probable cause to bring a case to a grand jury. That discretion encompasses a prosecutor’s ability to discuss diversion agreements and guilty pleas, to negotiate sentencing recommendations, and to deliver immunity in criminal cases.

Prosecutorial Limits

Charging decisions within the scope of a prosecutor’s discretion must contemplate equal protection and due process requirements. Similarly, rules of professional responsibility address statutory provisions related to following clear protocols, including an obligation for prosecutors to act when confronting a wrongful prosecution. Overall, any limits on prosecutorial discretion lean toward a prosecutor’s decision to bring charges, not their decision to decline them.

The Fifth Amendment

Prosecutors are limited in some ways by the Fifth Amendment of the Constitution. For instance, charges require a grand jury indictment for felony offenses. In other words, a grand jury must be offered enough evidence to conclude that there is probable cause to believe a felony offense has been committed. Furthermore, the Fifth Amendment:

Prohibits selective prosecution based on arbitrary classifications such as gender or race;
Prohibits vindictive prosecution based on retaliatory justifications;
Does not allow for charging someone for the same crime twice (double jeopardy);
Prohibits the deprivation of life, liberty, or property without due process.

Murky Requirements

Prosecutors are not only authorized but are required by law to bring cases involving specific civil rights violations. Likewise, when Congress refers someone for contempt, they expect the DOJ to pursue the case. Nonetheless, the DOJ has taken the position that these requirements cannot supplant prosecutorial discretion–and the Supreme Court has not taken a stand on the matter, leaving the bottom line a bit cloudy.

Another questionable matter lies in a judge’s ability to accept or reject a plea agreement. If the prosecution has agreed to lessen or drop charges, as prosecutorial discretion allows, the ability of a judge to rebuff the deal is in question. It all boils down to the fact that there are no absolutes here. Continue reading

November 21, 2025

Illegal Sports Betting

by David M. Boertje

Turn on the news and you will find all kinds of sports betting fiascos, driven by a number of high-profile scandals that have recently hit the headlines:

ESPN reports that the Lucchese crime family was the mastermind in a network of bookmakers nationwide who facilitated roughly $2 million in illegal betting over time. The family is facing charges of money conspiracy, money laundering, and related gambling offenses involving at least two college athletes and scores of others.
Rigged poker games and illegal sports betting have been uncovered involving a number of NBA teams, including the LA Lakers, Miami Heat, and Portland Trail Blazers.
MLB is dealing with an enormous scandal involving two pitchers who threw prearranged or bad pitches in order to earn thousands of dollars for bettors. Emmanuel Clase and Luis Ortiz face 65 years in prison, and several others have received lifetime bans from baseball.
A 41-game suspension was the punishment for the NHL’s Shane Pinto as a result of sports betting by proxy betters, even though none of those bets involved hockey.

Federal Law

The FBI Corruption in Sport and Gaming (CCSG) task force works to combat illegal sports and gaming, which includes:

Illegal entities and activities involving sports and gaming;
Game manipulation;
Doping charges and athletes;
Bribery from individuals and/or institutions;
Threats and/or extortion of officials, athletes, or sports staff.

Illegal Sportsbooks

The FBI looks into illegal sportsbooks, which frequently operate illegally with no betting limits or reporting requirements. The concern is that, in addition to risks to bettors, organized crime frequently uses the profits made from such illegal gambling sites for their other illegal operations, including the trafficking of weapons, drugs, and humans. When unsuspecting individuals get involved with illegal sportsbooks, it can lead to threats and extortion as a means of debt collection.

Game Manipulation

Athletes, officials, and staff may be contacted by criminal entities demanding game manipulations that impact the outcome of particular plays or games, financially benefiting bettors.

Sports Betting in California

There is no legal sports betting in California, and experts predict it will be a few years before it gets on the ballot again. In fact, a constitutional amendment will be necessary in order to allow a legislative change unless voters go to the polls to make a change, and any gaming expansion down the road will likely require a tribal coalition as well. As far as sportsbooks are concerned, only about 20% of voters want it, so it could be a lengthy wait.

Penalties

Illegal sports betting can lead to fines, misdemeanor charges, and jail time, with repeat offenders looking at felony charges, three years in prison, and fines of up to $10,000. Illegal operators could be charged with a felony and face asset forfeiture. Continue reading

November 14, 2025

Understanding Interstate Extradition

by David M. Boertje

The U.S. Constitution provides that when someone is suspected or has been convicted of committing a crime in another state, that person can be surrendered from their current state residence to the state where the alleged crime took place in order that the suspect stand trial and/or serve a sentence for the crime in question. The process of moving a suspect from one state to another is known as extradition.

The Extradition Clause

If one state demands that another deliver a criminal felon who has fled justice, the state receiving the demand—referred to as the asylum state– must comply according to the Constitution’s Extradition Clause. This interstate extradition occurs regularly across the country following a mandatory extradition proceeding. The requirements include:

Having an official demand from another jurisdiction from which the suspect has absconded;
Having an affidavit or indictment indicating a crime, felony, or treason charge from the executive authority making the extradition demand;
Having the indictment or affidavit certified by the chief magistrate or the governor of the requesting jurisdiction;
The asylum state arresting the accused and notifying the demanding authority of that arrest;
Either the requesting authority receives the prisoner, or the prisoner is released within 30 days of arrest.

Concerns of the Asylum State

The goal of the asylum state is simply to fulfil the demand of the requesting state. They have no legal interest in whether the charges against the prisoner are valid or sufficient. Nevertheless, if the fugitive in question is incarcerated for crimes committed in the asylum state at the time of the request, the rendition request can be delayed until that sentence has been fulfilled. Executive discretion in the asylum state determines the outcome, since the governor is entitled to keep the prisoner or may choose to surrender the fugitive to the demanding state. For example, imagine a situation in which the fugitive is accused of stealing a car in Nevada and has since driven across state lines to California, where the fugitive then allegedly killed someone in an auto accident. Nevada may demand extradition in the hopes of trying the accused on auto theft charges. California can either agree to the extradition or choose to instead try to potentially imprison the accused on the vehicular homicide charge. Ultimately, the fugitive will likely be tried on both charges; the question is which trial will come first. The decision is in the hands of the California governor, who is under no obligation to consider the wishes of the fugitive. Continue reading

November 7, 2025

Charged with Battery Against a Police Officer?

by David M. Boertje

Let’s say you were alarmed when police approached you unexpectedly. As they attempted to arrest you, in your confusion, you reacted based on your instinct to try to get away. In hindsight, you recognize that you made some decisions that were less than perfect, but that awareness is not going to help you with the charges you are now facing. In addition to resisting arrest, you have been charged with battery. A strong local criminal defense attorney is what you need at this point.

What is Battery?

Battery is any willful, illegal physical contact with someone else that is harmful or offensive. It is not just a couple of teenagers horsing around and winding up injured, or athletes getting roughed up on the basketball court. It is intentionally shoving someone to the ground, punching someone in the nose, or otherwise purposefully hurting them.

A “Wobbler”

The charge of battery of a protected person, which includes health care workers, school employees, sports officials, transit operators, taxi drivers, utility workers, and, of course, peace officers, can be harsher than when battery occurs against, say, a neighbor. The term ‘peace officers’ is a large umbrella, including people who work in corrections, firefighting, the judiciary, and police. Depending on the outcome of the event, charges of battery against any peace officer–police officer, in this case– may have different penalties than when a protected person is not harmed. That is because it is a “wobbler,” meaning prosecutors have the ability to up the charges in these circumstances.

While battery is a misdemeanor and penalties do not usually exceed six months behind bars and a $2,000 fine, when a protected person, such as a police office,r is the victim, the charge can be bumped up to a felony, which could mean a full year in jail on top of the $2,000 fine—and that is if no injuries occurred. If the officer suffers great bodily harm, a conviction could result in years behind bars and $10,000 in fines.

To be clear, an assault of an officer does not necessarily have to be a forceful event like a slap, kick, or punch. Throwing something at an officer, spitting on them, touching them angrily or rudely could all be charged as battery against a protected person.

Defending Charges

A suitable defense examines the situation in question and explores the following issues:

Were the defendant’s actions intentional?
Was the defendant acting in self-defense?
Was the officer on duty at the time of the incident in question?
Did physical contact truly occur, or was it merely a verbal altercation?
Were any injuries sustained by the officer the result of an actual battery, or did they occur in some other context?
Would lesser charges, or no charges at all, be more suitable?