Articles Posted in Criminal Defense

If you have been found guilty of violating crimes in California, you will undergo a presentence interview before you ever get to the sentencing phase of the process. This is basically an investigative interview with a probation officer who will be tasked with making recommendations related to your sentencing, so making a good impression is probably a good idea. The report will be confidential, with only your counsel and the prosecutor receiving a copy. 

Topics of the Interview

The interview will cover a broad set of topics and might also include: 

• Family background;
• Previous education;
• Ties you may have to the community;
• Employment history;
• Criminal history;
• Associations with known criminals;
• Financial stability;
• Addiction issues;
• Physical health issues;
• Attitude accepting or declining responsibility for current offense(s);
• Mental health concerns.

Records of Interest

Your interviewer will likely review documentation related to your personal history, including things like:

• School transcripts;
• Providers of substance abuse and/or counseling treatment;
• Records related to employment;
• Records related to financial status;
• Records related to military service;
• Records of previous criminal activity;
• Documentation of physical and/or mental health issues;
• Documents related to your trial, including transcripts, pleas, and other reports.

Further Investigation

The probation officer will continue to look for information about you by interviewing others who may have relevant data, including individuals from law enforcement, the prosecutor involved in your case, your employer, family, and friends. A home visit will be scheduled if possible, during which your living conditions will be assessed.

Can I Refuse to Answer Questions?

While you absolutely have the right to decline to answer some questions, it could result in the probation officer simply seeking the requested information from another source. If your attorney has advised against sharing certain information, or if you just resolve not to answer of your own volition, you can count on that being reported to the court with a notation stating the reason for your lack of cooperation. There is always the possibility that refusing to cooperate could have a negative impact on the sentencing recommendation.

After the Interview

Once the report is written, it will be given to both the prosecutor and defense attorney, either of whom may object to anything contained in the document. The recommended sentencing guidelines that are based on the information in the report may be challenged, as well. Those objections, along with the probation officer’s responses, will then be included in an addendum to the report, which is what the judge will receive (as well as both attorneys). 

If the judge sentences you to prison, the report will follow you to the Bureau of Prisons, but it remains confidential and cannot be shared outside this tiny circle. Continue reading

Let’s say you pleaded guilty—or even a no-contest—and have since thought about it and decided that you made the wrong move with that plea. Maybe it was part of a plea agreement, and you were so frightened by the thought of a long prison sentence that you copped to lesser charges just to avoid that scenario. But with time, you just cannot stomach the idea of saying you did something when you are innocent.  Even though a no-contest plea does not necessarily admit to guilt, it does result in legal penalties. In your case, the paperwork’s been signed, so are you stuck in a deal you do not like? Maybe, maybe not. 

California Law

According to California Penal Code 1018, there are circumstances under which a defendant may withdraw a plea. It is not simply something you can choose willy-nilly, though. The law requires you to show good cause in order to file a motion to withdraw your plea. That means one of the following must be true:

You agreed to the plea before you had a lawyer to advise you;

• You had a lawyer but believe they were incompetent/ineffective;
• When you agreed to the deal, you did not understand the potential consequences;
• Law enforcement and/or prosecutors failed to advise you of your constitutional rights;
• You agreed to the plea deal, but it was presented in a language other than your native tongue, and you did not completely understand what you were doing.

What is the Timeline and Process?

As a defendant, you can feasibly back out of the plea arrangement any time before you have actually been sentenced or within six months of the judgment being entered. (Under limited circumstances, you can change your plea after being convicted and sentenced, but it is a much more time-consuming and complicated process!) Prior to sentencing, your attorney will simply file the paperwork and then attend a hearing with you to try to demonstrate to the court that you have good cause to change your plea. Things can go one of two ways from there:

• The judge can deny the motion and will sentence you based on the charges you pleaded guilty to; OR
• The judge will grant the motion, and you will go back to the beginning, where you plead not guilty to charges at the arraignment. (Obviously, any benefits you might have reaped by agreeing to the deal are forfeited at this point).

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Rumor has it that attorneys in some states hope for jury nullification at the end of a trial, knowing that it would be nearly impossible to get a “not guilty” verdict based on the facts of the case.  What is jury nullification, and what makes it so attractive in some cases? 

Defining Jury Nullification

Jury veto, juror pardon, or conscientious acquittal: sometimes, juries understand that a defendant may be guilty while opting to reject the evidence in the case because they believe the result of a guilty verdict would be unjust. Sometimes juries may be attempting to send a message about issues larger than the case at hand and believe they have the right to send that message through their verdict. In other situations, they may simply believe that the specifics of the particular case they are hearing warrant a not-guilty verdict in spite of a belief that the law was likely broken by the defendant. Here in California, our Supreme Court has taken that right away from juries, fearful of runaway juries who, in defending the conscience of the community at large, snub the laws on the books.

Historical Jury Nullifications

Jury nullification has been around for centuries! Fugitive Slave Laws were undermined when people who harbored escaped slaves were found to be “not guilty” by juries, despite stacks of evidence pointing to guilt. Alcohol prohibition laws were minimized when juries declined to convict guilty parties who’d violated laws related to alcohol control, a move in support of community values. More recently, Dr. Jack Kevorkian was found “not guilty” of murder three times when his involvement in “mercy killings” was relatively clear. In other situations, juries who believed drug laws were much too harsh have been unwilling to punish minor drug offenders in multiple states. When the enforcement of written laws is rejected, eventually laws around certain matters are simply unenforceable.

Is Jury Nullification Legal Elsewhere? 

While not necessarily encouraged, jury nullification is completely legal across the country. Sometimes prosecutors and/or judges will warn juries that jury nullification would be a relinquishment of their duty, but it is nonetheless a power that juries have in most of the United States. These verdicts cannot be overturned, and jurors cannot be punished for their verdict. Supreme Court Justice Sonia Sotomayor, one of the most powerful legal minds in the world, publicly affirmed that she believes there is a place for jury nullification in our justice system. Whatever one’s thoughts on the issue, one study divulges that in 19% of cases, juries acquit when a judge would have leaned toward conviction, and roughly one-fifth of these acquittals were a result of jury nullification. 

How Do Jurors Know About this Option?

Since the late 1800’s courts have been reluctant to inform juries of jury nullification, let alone encourage it. In fact, in most cases, judges tell juries that it is, indeed, their duty to apply the law precisely as it is provided to them, even if they disagree with the law. In fact, some courts have determined that a juror who intends to nullify the law may be removed when reported by another juror. Though defense teams may wish for jury nullification, they are usually not allowed to propose it in their closing arguments. Unless a juror already knows about it, it likely will not happen. Nonetheless, it is something that dangles as an option in many courtrooms across the country. Continue reading

Anyone facing criminal charges is hoping for an outcome other than a guilty verdict. That can come through an acquittal, although sometimes it is quicker and easier to have the charges dropped or dismissed before ever reaching a courtroom. How can any of these results find their way to your case? 

Dropped Charges

Criminal charges are filed when a prosecutor thinks they have enough evidence to get a guilty verdict if the case makes it to trial. If the prosecutor has doubts about that, they may drop the charges and tell the police to find further evidence if they want the case to move forward. This can occur at any stage of the process.

Dismissed Charges 

When the prosecution believes they have proof beyond a reasonable doubt, they will press forward with the case. The issue of reasonable cause is weighed by a magistrate judge during a preliminary hearing, where the judge takes a look at the evidence at hand. If the judge believes there is probable cause to move forward, it is a green light to the prosecutor. If there is not a strong foundation for a case, on the other hand, the complaint will be dismissed, and the defendant is free to go.

What if the Victim Wants the Charges Dropped

Sometimes victims want charges to be dropped, but the final decision is the prosecutors. If the prosecutor thinks it is in the interest of public safety to continue on, they may have to ignore a victim’s request. However, if the victim fails to cooperate, it may destroy the prosecution’s case, resulting in dropped charges anyway. This happens in cases of domestic violence, for example, when victims choose not to testify against their abusers.

Reasons Prosecutors/Judges May Choose to Drop or Dismiss Cases

There are plenty of situations when cases are dropped or dismissed, and a defendant walks away from the whole thing. While there may be a possibility that the case comes back to haunt a defendant later down the road, sometimes the case takes a turn in a whole new direction. Circumstances that could lead to a reprieve include:

• Lack of evidence to support a guilty verdict;
• Request by the victim to drop the case;
• New information that contradicts the original theory of the crime;
• Problems with evidence being inadmissible for one reason or another;
• Issues relating to a defendant’s constitutional rights being violated;
• An acceptable plea deal is reached wherein a defendant pleads guilty to lesser charges in exchange for lesser penalties.

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If criminal charges have you headed for a trial and you are determined to testify in your own defense, be prepared for a rough cross-examination experience. Prosecutors know how to paint people in a negative light, and they will undoubtedly be prepared to try to overwhelm you with a variety of questions and techniques 

Prosecutors’ Goals

A prosecutor is single-mindedly trying to undercut your story by attempting to catch you in discrepancies and inconsistencies. They will try to get you to confirm the facts that they have presented while simultaneously dinging your credibility, all in pursuit of a guilty verdict. You can anticipate a premeditated and planned-out attack.