San Diego Criminal Lawyers Blog

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

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. 

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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

Surveillance by law enforcement has had extensive growth in recent years, advancing capabilities to an often-worrisome level. Inarguably, it has made it easier to capture criminals. But it has led to some sober ethical questions, as well.

License Plate Readers 

What could possibly be troublesome about automated license plate readers (ALPRs)? It seems they are everywhere these days, helping police to monitor traffic infractions and much, much more. They can identify stolen vehicles, trace victims of human trafficking and kidnapping, and assist in crime-solving. Moreover, they provide information to inform policymakers about traffic flow and potential transit interventions. 

Conversely, privacy intrusions are a major concern. Innocent people can have their conduct and whereabouts tracked, which ultimately means their habits and activities exist in a database somewhere.  There are documented instances of data being compromised, misused, or leaked. That can be particularly egregious when one considers the possibility of certain communities being targeted based on their zip code, race, religion, or other such grouping.

But You Have Nothing to Fear if You are Innocent…

The timeworn adage offered by some is that if you have done nothing wrong, you have nothing to worry about. But taking that logic a few steps further, its simplicity and inadequacy become clear. The “you have nothing to worry about” mantra becomes problematic when the problem extends outward. What if the government required all citizens to carry location trackers? Even the most avid enforcement proponents would admit that seems pretty invasive. But modern technology allows the government to track people’s mail, phones, purchasing patterns, online activities, and driving habits. In other words, full-on tracking is already possible, whether or not citizens consent to carrying tracking devices.

The slippery slope society is on is dangerous. What might be the future of, say, biometric tracking? Nearly 30 years ago, former NYC Mayor Rudy Giuliani advanced the idea of collecting the DNA data of newborns.  In Britain, police now want to collect the DNA of kids who “exhibit behavior indicating they may become criminals later in life.” Is that, or is it not, a breathtaking leap in government intrusion?

Sure, modern abilities help law enforcement to pinpoint and capture criminals. But databases are also vulnerable to hacks, misuse, abuse, and theft. How can the use of such technologies be balanced against the potential for injury? 

Questions Worth Considering

MIT professor Gary Marx, who studied the issue, suggested it is worthwhile to evaluate surveillance methods before implementing them by considering:

• Does the public know and consent to its use?
• Are the goals of the community served?
• Does the technology lead to unjustifiable psychological or physical harm?
• Are the people responsible for the surveillance subject to it, as well?
• Are conclusions subject to human review?
• Can decisions be challenged and grieved?
• Are less expensive/problematic approaches available?
• Are legitimate ends being sought?
• Are sufficient safety measures in place to guard against misuse?

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