Criminal Defense

March 15, 2024

Should You Testify in Your Own Criminal Trial?

It is a decision that must be weighed very carefully: should you testify in your own defense? About half of all defendants decide to take the stand to proclaim their innocence. Defendants with prior felony convictions are less likely to testify, often concerned that juries will discover they have had past problems with the law. Likewise, those accused of charges related to gang activity seem to believe juries will be biased against them and are usually reluctant to take the stand. What about you? Will you be able to make the case for yourself that no one else could?

Possible Benefits

Every defendant has the right to testify. Some reasons it may be a good idea include:

The obvious plus side of testifying in your own defense is that you get to set the narrative. You can directly challenge the testimony of other witnesses, clarify misunderstandings, and demonstrate your innocence by directly confronting the charges against you.
If you present as a sincere and credible person, the jury will have the opportunity to see you as a human being deserving of fair consideration and empathy.
The jury will be instructed not to infer guilt if you choose not to testify. Even so, the fact that you are willing to testify demonstrates your confidence in yourself, taking away juror questions about what you may be hiding by refusing to take the stand.

Potential Risks

Although it is your right to defend yourself by taking the stand, doing so is not without potential pitfalls:

Prosecutors will take the opportunity to aggressively question you in the hopes of unnerving you, discrediting you, and generally undermining you.
While you may have a clear understanding of your own perspective, you likely do not understand the legal nuances related to the case.
Anything you say can be used by the prosecution to weaken your case. They will set traps, hoping you open the door to further inquiries along new lines. They can also call additional rebuttal witnesses to contradict your version of events.

If You Do Testify

If testifying is definitely something you want to pursue, keep these tips in mind:

Understand the allegations and thoroughly prepare your testimony, with plenty of rehearsal.
Be calm, respectful, and attentive.
Particularly during cross-examination, maintain eye contact, and answer only as much as you are asked.
If questions are misleading or unclear, rephrase them to get the information out that you want out.
Maintain positive body language.

March 8, 2024

I Have Just Been Charged with a Felony: What Should I Do?

by David M. Boertje

If you have been arrested for a felony, you are doubtlessly feeling frightened. What is in the cards for you? Should you accommodate police requests for information to demonstrate your innocence? Should you do anything and everything to get out of custody? No, and no! If you are looking at felony charges, your initial decisions will have a massive effect on your case. So sit tight and remember your rights.

Fifth Amendment

Regardless of how pleasant or how threatening investigators may be, it is crucial that you remain silent. It is the first step toward avoiding self-incrimination and is your Constitutional right under the Fifth Amendment. This is the number one instruction to remember. Outside of identifying yourself, answer nothing. Then, courteously request an attorney, zip your lips, and stay cool. It will not necessarily be easy, especially if you believe you are innocent and you are being pressured by authoritative figures. Were you wrongfully arrested? Was excessive force used? Maybe. But it will require an attorney to get to the bottom of it, so forget the temptation to defend yourself or to accuse officers of misdeeds. It will not get you anywhere except in deeper trouble.

Pronto: Call an Attorney Right

It is important to have experienced legal counsel by your side immediately. And that means a knowledgeable criminal defense attorney, not your hairdresser’s divorce guy. A good defense attorney will know all the tricks in the book and will protect you from saying things that will lead to trouble or signing a bogus plea deal. Remember: prosecutors and police are in cahoots to lock you up. A criminal defense attorney is working for you.

Tell Your Attorney the Truth

Any defense attorney will tell you there’s nothing worse than being blindsided by new information presented by the prosecution. You help your own defense when you spill it all, knowing that attorney-client privilege keeps that information private. It is the best way to build a strong defense.

Stay Mum Otherwise

It may be tough, but do not talk about the case on social media with reporters who want to know what you have to say for yourself or even with family or friends. And remember, what you say to friends is not protected—so if anyone gets the wrong idea or you reveal a defense strategy, the prosecution could get a hold of it. Let your attorney defend you in court and keep quiet otherwise.

This is Serious

If you are convicted of a felony, it could mean time in prison and hefty fines. And the punishment does not end after you have paid your debt to society. That is when you could re-enter a society that has no concern with your ability to find a home, a job, professional certifications, or happiness. Remember this and make smart decisions going forward. Continue reading

March 1, 2024

The Witness Protection Program

by David M. Boertje

The federal Witness Protection Program is operated by U.S. Marshals, with the goal of providing new identities to individuals who face the possibility of vengeance from organized crime groups like the Mafia, for example, when testifying against them. Groups like these who terrorize communities or are otherwise involved in violent crimes may be a real threat to witnesses. The government understands that government cooperation can be a serious safety concern for witnesses and their families and has been tasked with protecting them since 1971 as part of the Organized Crime Control Act of 1970. Since that time, almost 20,000 people have been hidden and protected by the Marshalls, and the feds are proud to say that no person in the program who has adhered to the guidelines has ever been injured or killed by an adversary. Even so, entry into the program is factually a mammoth disruption to life. What do you need to know about it?

What to Know About Witness Protection

Some little-known facts about witness protection should be considered before agreeing to placement in the program:

The U.S. Attorney, the U.S. Marshals, and the Department of Enforcement Operations Eligibility must successfully vet and sponsor anyone entering Witness Protection.
Mental and physical testing is required of individuals prior to entering the program.
Appropriate jobs in the new location are determined through extensive skills testing.
New surnames are provided, although first names may remain the same.
Documentation, including new social security numbers, birth certificates, and driver’s licenses that support new identities, is provided.
The school records for minor children will be amended.
Although plastic surgery was offered prior to 1990, it is no longer part of the program.
Witnesses are provided with financial assistance for about six months in order to have time to develop self-sufficiency.
Furnished homes in neighborhoods with schools and churches will be provided.
After witnesses are asked where they would like to go, they are sent anywhere else so that no one can anticipate the move, although an effort is made to place them in an area in which they would be comfortable.
Witnesses may make phone calls to loved ones left behind on a secure line and are allowed to write letters through a secure system (although letters must be destroyed after being read).
Witnesses generally are contacted by the Marshals about once per year to make sure things are going satisfactorily.
Even if they get married later, people in the program can NEVER reveal their history.
When they leave, witnesses are not allowed to tell people where they are going. They must simply just disappear from their lives.
About 90% of witnesses in the program have a history of criminal activity themselves.

February 23, 2024

A Speedy Trial?

by David M. Boertje

We hear about the right to a speedy trial—a constitutional guarantee provided by the Sixth Amendment. Nevertheless, we hear about people who are behind bars awaiting trial all the time, which makes one wonder, what does the term “speedy” really mean in this context? And why are nearly 45,000 people sitting in county jails across California even though they have never been convicted or sentenced? Moreover, why have over 1,000 been rotting in jail for over three years, and why have another 332 been there for over five years?

Speedy is Debatable

There is no actual definition of “speedy” in the Constitution, so scholars have landed on the term “reasonable” to describe the length of time someone must wait for a trial to occur. Unfortunately, that word is no more definitive than the word we were originally trying to understand! We can look at legal precedent and see that the U. S. Supreme Court defined a speedy trial as essentially a balancing act where the conduct of both the prosecution and the defendant are contemplated. If that makes the definition sufficiently muddy, perhaps the four items to be considered will help:

The length of a delay;
Reasons for a delay;
Prejudice to a defendant;
Whether the defendant requested a speedy trial.

Still feeling a bit confused? Thankfully, the Speedy Trial Act puts some meat on the bone. In general, a suspect must be charged with a federal crime within 30 days of a summons or arrest. Assuming the person pleads not guilty, a trial must be scheduled for no more than 70 days beyond that date or the date the person appears in court. Local statutes differ by state, but have similar deadlines. Here in California, Penal Code 1382 PC has the following time limits:

Within 15 days of arrest formal charges must be filed;
Trials must occur within 45 days of arraignment for misdemeanors and infractions;
Felonies must go to trial within 60 days of arraignment.

Why Doesn’t This Always Occur According to Time Constraints?

Under certain circumstances, these rules may be modified, which can occur if either party asks the court for a continuance. For instance, the defendant may wish to waive their right to a speedy trial if they need more time to bolster their defense. There may be other reasons to delay the trial, including:

If the case is extremely complicated and more time is needed;
If new evidence changes the route a prosecutor or defense attorney may wish to engage;
If the court calendar is too full to handle the cases in a speedy fashion;
If the defendant becomes ill or otherwise incapacitated and unable to attend trial;
If a natural disaster or other incident (like the pandemic) makes trying the case on time impossible.

February 16, 2024

Is a Change of Venue in Order?

by David M. Boertje

If you are facing criminal charges, there may be circumstances when a change of venue is appropriate. What are those situations, what are the benefits of such a change, and what are the procedures to get a change of venue?

When is a Change of Venue Request Appropriate?

There is an array of reasons for which a change of venue may be requested. Obviously, if the charges were filed in the wrong court, to begin with, there will be a venue change—but there are other reasons for a change, as well. The bottom line is that every defendant deserves a fair and impartial trial. One key reason might be if the defendant believes it will be impossible to find an impartial jury, such as when a case has been locally publicized and there is strong public sentiment about it. Especially if there has been frequent and significant coverage related to the event in question, it may heavily influence prospective jurors. Likewise, if the political climate in an area is decidedly against a particular defendant (for being Black or LGBTQ, for example), it is possible a change of venue might be granted. Additionally, a change might be in order if the judge appears to be prejudiced, if a qualified judge is not available, or if the location of the court is substantially inconvenient for the non-party witnesses involved such that it would interfere with providing an unbiased and timely trial.

Steps in the Change

In order to get a change of venue, a motion must be filed with the court within a particular time frame. If the request is granted, the judge involved will suggest alternate sites for the trial based on the specifics of the case. At that point, the Judicial Council of California looks into other courts to consider issues like security issues, staffing needs, media involvement, costs, the presumed length of the trial, and other considerations specific to the case. The Judicial Council then provides three or more alternative courts that could handle the case to the judge who granted the venue change. A hearing is then held by that judge where the opinions of both sides in the case are considered, and a new venue is chosen. That decision then makes its way to each court that had been under consideration. The whole process generally takes a couple of weeks in most cases. Continue reading

February 9, 2024

Fentanyl Trafficking

by David M. Boertje

If you have been charged with the distribution of fentanyl, you will be facing tougher penalties in the State of California this year. The change in the law was precipitated by the increase in fatalities related to fentanyl overdoses.

Fentanyl’s Use

A synthetic opioid, fentanyl has proved to be fatal even in small doses. Up to 100 times stronger than its cousin morphine, pharmaceutical fentanyl was originally developed as a way to help patients manage the pain of cancer. While it is sometimes sold by itself, it is also frequently used to lace other street drugs such as cocaine or heroin because it is much cheaper. Oxycodone has been co-opted, as well, with counterfeit pills containing the more powerful and dangerous fentanyl. These drugs are available on the streets of California and are extremely easy to get a hold of. Consequently, people wind up unwittingly ingesting the more dangerous drug, fentanyl.

February 2, 2024

Reverse Warrants

by David M. Boertje

We all know that a warrant has many purposes: a search warrant entitles law enforcement to search specific persons or property; an arrest warrant identifies someone who will be going to jail. But what is a reverse warrant, and how does it impact you? The fact of the matter is these reverse warrants literally scoop up huge quantities of private information, never having identified a particular criminal suspect and never showing probable cause that the evidence they are seeking will be found in corporate databases being searched.

Understanding Reverse Warrants

Law enforcement personnel have been using reverse warrants for years, and organizations like the ACLU have been increasingly alarmed. That’s because such warrants look at wide groups of people, most of whom are not even suspected of criminal activity. These warrants have several uses, but the most widely used include:

Reverse location warrants, sometimes called geofence warrants, which are used to identify all the people who were within a particular area during a particular time;
Reverse keyword warrants, which are used to identify anyone who entered a specific word or group of words into their search engines during a particular time frame, often in a specific area.

More Reverse Warrants Every Year

Google, the biggest target of reverse warrants, has seen an increase of over 1000% in federal reverse warrants over a two-year period, with an over 800% increase in state/local law enforcement over the same time frame (California’s increase reached 813%).

Google Wants Out of the Geofence Business

The Fourth Amendment prohibits unreasonable search, and it seems clear that throwing out a wide net in hopes of catching a criminal is invasive and unconstitutional. As Google felt pressure building to involve them in data collection, they moved location data that used to be sent to the corporation to now be stored in a user’s phone. Fundamentally, it takes Google out of the geofense equation, as they will no longer have access to user’s location information. As a result, fewer innocents will be dragged into law enforcement dragnets.

Reverse Keyword Searches

Despite progress with geofences, the problem with reverse keyword searches is still a huge issue, particularly in this age of shrinking women’s rights. The government still has access to the computer searches of countless Americans whose involvement in criminal activity is nonexistent. The unchecked power of law enforcement is being challenged in courtrooms across the country, but the battle is slow. Continue reading

January 26, 2024

Swatting is a Crime

by David M. Boertje

Swatting—or placing false calls requesting emergency assistance– is illegal, according to the FBI. These harassing and deceptive emergency calls send response teams to various locations with claims that an emergency is underway. Although the prank calls send SWAT teams and others to a scene where nothing unusual is occurring, officers do not know that the location is actually safe. That means they arrive with weapons brandished– making the potential for accidents distressingly high.

Types of Calls

What kinds of phony emergency service calls are we talking about? Sometimes, callers claim there is a dangerous hostage situation unfolding; other times, they say there are bombs present in a building. Still other calls report rapes, murders, or other criminal activity.

California Case

A recent swatting case here in California involved a 19-year-old man who was stalking a young woman who was underage. The two had become acquainted online, and when things did not work out as planned, the man made multiple calls reporting bombs at the high school attended by the object of his attention. Although explosive devices were never discovered, the school was evacuated repeatedly as a safety measure, interrupting school programming and burning through police resources.

Politicians Targeted

While it is true that many swatting calls focus on public areas like businesses, schools, and airports, there have been a number of recent swatting calls directed at the homes or offices of well-known politicians:

Here in California, Lt. Gov. Eleni Kounalakis was the victim of a swatting call that reported a shooting in her San Francisco home.
Rick Scott of Florida endured a swatting experience when an anonymous call came in reporting that a woman had been shot by her husband with an AR-15 at Scott’s home address.
Republican Brandon Williams, from New York, was stunned when police notified him that they had received a call reporting a crisis in his home. When law enforcement arrived, the Williams family was directed to assemble in the kitchen and to keep their hands in view.
The embattled secretary of state from Maine, Shenna Bellows, was swatted when a man claimed to have broken into her home.
Marjorie Taylor Greene, Georgia’s federal House representative, claims to have been swatted as many as eight times, including on Christmas Day 2023.

January 19, 2024

Double Jeopardy Protections

by David M. Boertje

Anyone who has watched courtroom drama on TV has heard of double jeopardy—the 5th Amendment protections against being tried twice for the same crime. But there is a qualification here — separate prosecutions are permitted when state and federal governments prosecute separately for the same crime. In fact, two different state governments could prosecute in two separate trials for a single offense if both have jurisdiction in the case. And there is one more consideration: civil and criminal trials could pursue different forms of justice for the same act.

An Example of Two Trials for the Same Act in Los Angeles

Originally, the Double Jeopardy Clause applied to just federal cases, but it later was integrated into state laws, as well. While it is true that a criminal trial and its related penalties cannot be held successively for the same act or omission, the Supreme Court has held that both civil and criminal sanctions may be handed down for the same offense after separate civil and criminal trials. So, an offender might be tried criminally for a particular offense, only to later face civil charges in a separate trial based on the same actions.

A notorious situation illustrating this ability involves the criminal murder trial of O.J. Simpson seeking incarceration or worse (found not guilty), followed by the civil trial for wrongful death seeking monetary damages after the initial trial (found guilty). Simpson managed to avoid prison time in the criminal trial but was ordered to pay over $33 million in damages after being found responsible for the deaths of Nicole Brown Simpson (his ex-wife) and Ronald Goldman in the civil trial. Same act, different trials, with different goals and different outcomes. But even after being found guilty in the civil trial, Simpson could not be retried criminally for the same offense under double jeopardy protections.

What Constitutes the Same Offense?

When weighing whether an act can be charged a second time, prosecutors must examine whether each offense to be charged has an element that is not encompassed in the previous trial. Without that unique element, it would be considered double jeopardy. In the O.J. Simpson case, for example, because the elements of the case were unchanged, the case could not be retried in a criminal court despite the guilty verdict in the civil trial.

When is Jeopardy Attached?

Jeopardy is attached when:

A jury is sworn in for a jury trial;
Any witness is sworn in in a district court;
Initial evidence is heard in a trial before a judge with no jury;
A guilty plea is accepted by a judge.

In Simpson’s case, the defendant had double jeopardy protections as soon as the jury was sworn in because he had a jury trial. Legal problems pursuant to the civil trial were completely unrelated to the slayings of his ex-wife and Goldman. Continue reading

January 12, 2024

Fingerprints Studied by AI

by David M. Boertje

A new fingerprint study is in—and plenty of scientists and forensic experts are taken aback: it claims to turn previous understandings about fingerprints upside down and to revolutionize fingerprint analysis in police work. How significant is this study?

The Old Mode of Analysis

Analysts in the fingerprint business have focused on the endpoints and branching in the ridges of fingerprints—called the “minutiae”—as they attempted to match fingerprints with suspects. This has been the emphasis for forensic experts for literally hundreds of years. Never before has the correlation between fingerprints on the same person been studied.

The New Node of Analysis

A study relying on artificial intelligence (AI) has changed the focus. Using this technology—which is the same technology used in facial recognition–researchers studied 60,000 pairs of fingerprints presented to AI. While some pairs of prints belonged to the same person but with different fingers or angles on the prints, others belonged to different people altogether. Scientists wanted to know if the technology could spot the prints that belonged to the same person or not.

Results of the Study

After examining the curves and angles at the center of each print, the computer was able to determine that the prints belonged to the same individual just under 80% of the time. These similarities disprove the old theory that every single fingerprint is different.

Implications

Although this initial research is relatively small, and researchers concede that their study needs replication using a larger and wider database of prints, they think that, ultimately, the findings will impact criminal investigation in huge ways. Innocent people who are suspects in a case can now be off the hook as suspects when their prints—using the new analysis– clear them. And more criminals could be caught with this analysis. Cold cases could be reopened, too. When investigators have only one print on file, AI can still make a match of latent prints, and new leads could be scrutinized as prints at the scene are identified when different fingers identify a suspect.

On the Other Hand…

While the study itself is not disqualifying, some critics say the authors have largely overstated the importance of their work. They say analysts have known all along that fingerprints are different but similar and that the prints on different fingers of the same person are very similar.

When it comes to the claim that reliance on AI can be the basis to reopen cold cases if the prints found at a crime scene are from different fingers than the police have on record, that is pretty much bunk, too. That is because it is common practice for officers to take all 10 fingerprints from suspects who are arrested—so how does the research really impact common practice in the legal field?

What’s Next?

As the study of fingerprints intensifies, one thing is certain: AI can provide insights previously overlooked that can help forensic scientists who are hoping to link suspects to crimes. While it is generally established that further study is necessary, the notion of looking at fingerprints in a whole new way is bringing new clarity to the conclusions reached by investigators and others. Continue reading