David M. Boertje

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We all know that various kinds of evidence is important to the outcome of a criminal trial. Whether you are talking about witness testimony, documents, or physical evidence, it all adds up to a verdict in the end. But what if there are legal issues with the way the evidence was obtained? That is when your attorney can ask the judge to exclude it, meaning the jury will never know about it.

 A Motion to Suppress

Before a trial even begins, a criminal defense attorney can ask for particular evidence to be excluded. There are plenty of reasons that could justify such a request: 

  • If the evidence was obtained from an unlawful traffic stop or arrest;
  • If someone’s Miranda rights were violated and that led to the police getting their hands on the evidence;
  • If police conducted an illegal search or seizure;
  • If an unreasonable search occurred without a search warrant;
  • If a search warrant was issued, but was in some way defective (no probable cause);
  • If evidence other than what was in the warrant was seized;
  • If constitutional rights of a suspect were violated in order to get the evidence;
  • If there was a problem with the chain of custody related to the evidence;
  • If police ignored standard procedures while handling the evidence.

What Kinds of Evidence Could be Excluded?

All kinds of evidence may be subject for exclusion, including:

  • Testimony from witnesses;
  • Financial records;
  • Written statements;
  • Confessions;
  • Pictures and videos;
  • Audio recordings;
  • Blood, breathalyzer, or urine tests;
  • Forensic evidence.

What is the Process?

A suppression motion, sometimes called a 1538.5 motion, is generally filed as part of a preliminary hearing or a pretrial hearing that is held specifically for this purpose, called a suppression hearing. The burden of proof is on the party bringing the motion, (the defense team) and they will need to demonstrate with a preponderance of evidence that there is a legal justification to exclude the evidence. If you have ever watched a crime-drama on television, you have probably heard of “fruit of the poisonous tree,” the idea that anything that is learned by the prosecution as a result of unlawful means should not be able to be used against a suspect. The prosecution will likely contend that they’d have discovered the evidence anyway or that they had other means to learn of it. It will be up to your skilled legal defense team to squash those kinds of claims in order to successfully get such evidence suppressed. Continue reading

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If you have been convicted of a criminal offense in California, there is a good possibility that at some point you will experience adult supervision through a California parole program. What can you expect? 

Parole

Parole services are individualized based on a parolee’s needs and the need to protect the community. Reintegration can be a difficult process, so intensive supervision and support are available as needed, and can be adapted with time. Some of the services include:

  • Re-entry supervision at regular and intensive levels is available to help the individual make a successful transition from an institution into the community.
  • Electronic supervision may be used for parolees who require more structured requirements.
  • Specialized programs to assist with issues such as substance use disorders, mental health issues, anger management, as well as programs to address the unique needs of sex offenders and former gang members are available. 
  • GED preparation courses are available, along with employment services and life skills classes.
  • Personal assistance in the form of clothing, cash, transportation aid, parenting classes, and other forms of counseling are available for those who could benefit.
  • VIP—Volunteers in Parole—assigns attorneys who volunteer to mentor parolees.  

Rules for Parolees

Life is no picnic for parolees, as they are held to strict requirements until their stint with the program ends. Parolees need to be ready to give up some of their self-determination and color within the lines.  Just some of the conditions of parole include:

  • You and everything you own, as well as your residence, can be searched at any time for no reason at all.
  • Your Parole Officer (PO) needs to know where you live and work at all times, and must be notified of changes before they occur.
  • A warrant for your arrest can be issued if you miss any meetings with your PO.
  • You need your PO’s permission to travel more than 50 miles.
  • If you want to leave the county for more than two days you need your PO’s okay.
  • A travel pass from your PO is required for any out of state travel.
  • You cannot be anywhere near weapons, especially guns and ammunition, even toy weapons that look real.
  • You can’t have a knife with a blade longer than two inches.
  • If you work with knives, you need your PO’s permission, and cannot have the knives outside of work unless you have a note from your PO on your person at all times.

Continue reading

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Everyone knows that the media has an intense impact on modern society.  Whether you are talking about television, radio, and other digital forms of media, you can find virtually any information you want, from the current score in a college ball game to weather information across the globe and the latest in politics from your state, the nation, or the world. So, it is certainly not a shock to learn that the media has the potential to influence attitudes and beliefs.  While the value of this is debatable, it can, in fact, be problematic when media coverage influences attitudes about current criminal cases. That is because the criminal justice system relies on the open-mindedness of jurors when deciding a case. When a juror has heard about a case, it could influence their feelings about a defendant. Additionally, cameras in the courtroom could influence the way witnesses or jurors behave. It is a big deal, especially when defendants are facing serious penalties. 

Pre-Trial Publicity

When it comes to finding jurors who can look beyond their own bias, high-profile cases can be especially challenging when the media has implied innocence or guilt. A juror’s impartiality is scrutinized during voir dire, the selection process. At that time, both the prosecution and the defense attorneys are permitted to question members of the jury pool. Some of that questioning could relate to each juror’s exposure to various media reports related to the case. Judges and attorneys recognize that media can prejudice people, even though they may not realize it themselves.  In cases where a juror does believe that they can act with impartiality and follow the instructions issued by the judge, they may be eliminated for cause by either side. 

Bias on the Bench

Of course, judges are people, too, and thus are equally susceptible to the media they consume.  One study concluded that elected judges are susceptible to thoughts relating to public views of crime, which results in more punitive sentencing when cases are widely reported. 

Capital Cases

Capital cases can be particularly tricky, both because they are emotionally charged and because they have had top media coverage. In these cases, jurors must be “death qualified.” They will be questioned as to whether they believe they will be able to weigh the evidence presented, including aggravating or mitigating evidence, and truly contemplate a possible sentence of execution and/or life in prison. This can be difficult for anyone, especially if the media has had a strong impact on one’s view of the case before it gets to trial. Research indicates that death-qualified jurors are more likely to watch the news daily and lean toward the prosecution.  Continue reading

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Whether you are elated or disgusted by the fact that former President Trump was indicted, you are likely curious as to what that means. The district attorney from Manhattan, Alvin Bragg, pursued charges, announced the indictment, and arraigned Mr. Trump after years of questions about the former president’s involvement in a hush-money scheme, surprising many onlookers.  How did it all happen, and how will Trump’s experience with a criminal indictment parallel that of a typical person? 

What is an Indictment, Anyway?

While most people have heard the term “indictment,” many are unsure as to what it really is. In a nutshell, an indictment is simply the formal term used to encompass an accusation of legal wrongdoing. In criminal court, it means that the district attorney calls for a grand jury made up of randomly picked typical people to hear evidence against a particular individual. Unlike a regular jury, this panel of people weighs information without the presence of a judge, questioning witnesses at will. A simple majority ultimately must determine that there is enough evidence to pursue an indictment. 

More About the Grand Jury

A grand jury’s work is done outside of the public eye. The evidence they hear is one-sided because they are dealing with the question of whether or not there is evidence of criminal activity worth pursuing. Later, as in the case of Mr. Trump, if the grand jury votes to indict, the defendant will have an opportunity to stand trial before a jury of peers who hear both sides of the case in a more adversarial setting. Prior to any trial, however, attorneys for the defense may move to have the case dismissed. It could take months, or even years, for a case to finally land in a courtroom for the trial.

After the Indictment

Once a defendant is indicted, they are Mirandized and arrested. That often involves negotiation as to how and when the defendant surrenders to have mug shots and fingerprinting done. Unlike most defendants, Mr. Trump did not have a mugshot taken, largely because it was deemed unnecessary due to his public status. From there, the defendant is given the opportunity to plead guilty or not guilty (Trump pleaded not guilty). The judge then rules on conditions for release by setting bond, releasing on recognizance, and so forth.

Worth Noting

It is important to emphasize a few key points:

  • In this country, a defendant is still considered innocent until proven guilty. The prosecution must prove guilt; the defense has no obligation whatsoever.
  • An indictment is an accusation, not a conviction.
  • Prosecutors must rely on the vote of a grand jury before they are able to indict anyone.
  • Following an indictment, the conviction rate is over 90% Continue reading

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If you paid any attention at all to the trial of Alex Murdaugh, you already know that cell phone data had quite an impact on the outcome. In addition to video taken from the victim’s cell phone that proved Murdaugh was in the vicinity of the murders at the time they occurred, cell phone data also exposed the movements of Murdaugh and his victims and the time frame in which that movement occurred. It may lead some to wonder just how much police can discover and use cell phones during the investigation of a crime. 

Phones Aid Police Investigations

Expert testimony in the Murdaugh trial revealed that a single device could generate up to 9,000 pages of information from a set time period. The types of things that cell phones might be used for in a given criminal investigation are numerous, with this list of a dozen uses for starters:

  • Phones can provide investigators with contacts, frequently visited locations, etc., that could provide leads;
  • The phone’s GPS can be used to locate suspects;
  • Phones can be pinged by cell towers to determine their general location;
  • A person’s cell phone can be linked to a precise location at a certain time;
  • A phone’s movements, as well as the number of steps taken by the person carrying it, can be tracked;
  • Data related to phone calls can be preserved;
  • The time that facial recognition was activated can be determined;
  • The times that the phone was picked up and set down are recorded;
  • Social media posts can be retrieved;
  • Data searches can be recovered (such as how to slowly poison someone, for example);
  • Investigators can discover with whom calls occurred and the duration of those calls;
  • Text messages, emails, and photos can all be retrieved.

Getting Their Hands on Data

There are many ways in which police can tap into phone data:

  • With a person’s permission;
  • With a judge’s order; 
  • With a subpoena.

To get a subpoena, police must show that they have probable cause to suspect that data on the phone will connect to a crime. The number of criminals who are convicted of crimes in part due to cell phone data increases by the day. Civil rights watchers note that there is a gray area around obtaining such data, however, noting that hundreds of monthly requests for tracking in real-time are made to the largest carriers of wireless plans. Are innocent people at risk of having their privacy invaded? The courts have not said a lot on that topic.

Other Ways Cell Phones Help

Who doesn’t have a cell phone these days? That means the public has the ability to report crimes the second they occur. Even people who are hesitant to interact directly with police make use of anonymous tip lines, often available for texts and/or calls. Another great use of cell phones:  people everywhere video crimes are in progress. Continue reading

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When facing criminal charges, people are often consumed with anxiety about the future. What will happen to you if you are found guilty? Will the prosecutor aggressively pursue charges, or is there any chance the charges could be dropped before things get that far? These questions and more can be answered by an experienced criminal defense attorney. 

Factors Impacting Possible Dismissal

Without question, the best-case scenario would be for the charges to be dismissed early on in the case. That is a possibility, based on purely practical deliberations by the prosecutor, who knows that limited resources might be better spent elsewhere on more serious or more sure-to-win cases. Prosecutors are sometimes willing to drop the charges for first-time offenders, especially when low-level or non-violent crimes are involved. Certainly, there are always cases where prosecutors are willing to plea bargain away possible incarceration, depending on what you might have to offer. Lastly, dismissals sometimes occur due to an error or misconduct by police or prosecutors, including:

  • Errors in charging documents or criminal complaints;
  • Chain of custody issues relating to evidence in the case;
  • Tainted or missing evidence;
  • Improper searches or stops;
  • Arrests lacking probable cause;
  • Changes in witness testimony.

Elements of a Crime

It is conceivable that defense attorneys convince prosecutors that they do not have enough evidence, being that the prosecution has the burden of proving their case beyond a reasonable doubt. What does that entail?

  • A crime occurred due to the actions or omissions of the defendant (Actus Reus).
  • The defendant knew that their action (or lack thereof) would result in a crime (Mens Rea).
  • If the crime is identified by some sort of harm, additional issues must be proven beyond a reasonable doubt.
  • Either a specific victim or society, in general, was harmed by the actions of the defendant.
  • The harmful outcomes were the result of a crime.
  • Other issues related to the crime (known as attendant circumstances) include the time and place of the crime, relevant facts about the victim, procedures involved in the crime, motives, and other facts specific to the crime must also be explained to a jury and convince them beyond a reasonable doubt.  

When a prosecutor believes they do not have the facts to prove their case, it gives the defense more ammunition to argue for a dismissal. Continue reading

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Attorney-client privilege is intended to protect lawyers from having to testify against a client and to keep communications related to a client’s defense secret. And who would argue against this basic benefit afforded to those seeking legal advice and those dispensing it? After all, how could a client ever reveal the details of their experience if they had to worry that those details would later be revealed? 

In the case of former President Donald Trump, attorney-client privilege has been ruled secondary to what is known as the crime-fraud exception, and the former president’s defense attorney, Evan Corocan, must testify as to what he knows about the potential mishandling of classified documents. Additionally, both hand-written and transcribed notes related to Corcoran’s representation of Mr. Trump in the matter will be made available to the court. So, it seems attorney-client privilege is not always as clear-cut as one might imagine. For clients counting on the privilege, it is worth understanding what it entails and when it may go up in smoke.

Confidential Communications 

Any communications, oral or written, between a client and their attorney related to legal advice that occur with the expectation of confidence are protected by attorney-client privilege, and that includes the attorney’s staff who may facilitate communications. Even prospective clients who seek and receive legal advice are protected by the privilege, assuming the attorney made no attempts to deter them from relying on that advice.

Keeping it Confidential

In order to maintain the privilege, the material must remain confidential. Discussing matters outside the legal relationship or with a third-party present could nullify the privilege. Even something as simple as communicating through a work email account constitutes giving up confidentiality.

Exceptions

In general, attorney-client privilege protects material from showing up in a trial, although there are certain exceptions to that rule:

  • Corporations do not enjoy attorney-client privilege when pitted against shareholders if shareholders can establish cause to breach it;
  • When it can be demonstrated that there is an overriding public policy interest, the privilege may be revoked;
  • When the client communicates with the attorney with the intention of covering up a crime or fraud—known as the crime-fraud exception.

Detailing the Crime-Fraud Exception

Certain information is not protected by attorney-client privilege because it falls under the crime-fraud exception:

  • Threats made by a client against others, including adversaries in the case, witnesses, the judge, etc., must be reported by the attorney representing said client;
  • When an attorney knows their client has lied or will lie in sworn testimony, it must be reported.  It is incumbent upon attorneys not to knowingly present false or perjured evidence to the court;
  • When the attorney has knowingly helped to cover up a crime, they may be compelled to testify as to what they know.

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If you have been accused of criminal negligence, you likely are experiencing a range of emotions. While you may have anger or regrets about what occurred that may have led to another person’s suffering or death, those feelings are poised right next to feelings of fear and anxiety about how criminal negligence charges could impact your future.   

What Constitutes Criminal Negligence?

When charging criminal negligence, a prosecutor must prove that a defendant’s actions were so reckless that they resulted in serious injury or death to someone, that the defendant exhibited a callous disregard for another person’s well-being, and that any reasonable person in the same situation would have known better and behaved differently to avoid harm or death to another person. Criminal charges may be filed to address egregious missteps that result in horrific injuries or death. These charges occur across many areas:

  • Charges of criminal negligence might be brought against a medical professional or caregiver who allegedly administers a lethal dose of medication to a patient, who over-prescribes opiates, who neglects to respond appropriately to a patient’s complaints, who makes surgical errors, or who is connected to any number of medical mishaps.
  • Parents whose decisions lead to harm or death of someone could lead to these charges. A parent who leaves a child in a hot car could be charged with criminal negligence, for example. Likewise, adults who leave a loaded gun out where children can access it could face charges if the children’s use of the weapon leads to injuries or fatalities.
  • A driver who causes a collision due to texting while behind the wheel might be charged with criminal negligence. The same goes for a driver who speeds through a school zone.
  • If someone brings an aggressive dog with a history of biting to an off-leash park and that dog attacks someone, they could be criminally charged.
  • A company that knowingly ignores safety guidelines issued by OSHA, particularly if a previous warning has been issued, may face criminal negligence charges.

Penalties 

While every case of criminal negligence is different, a guilty verdict can result in an array of penalties, including probation, a prison sentence, significant fines, restitution to the victim, loss of privileges (such as the ability to drive or to own a firearm), community service, and more. The other consequences could include job loss, family alienation, rehousing, depression, anxiety, and significant changes to the future you may have been planning on. Continue reading

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Anyone who has ever been charged with a crime knows that, more often than not, the case is settled long before it goes to trial. According to Pew Research, only two out of every 100 federal criminal cases make it that far. In 90% of these cases, people pleaded guilty, likely in exchange for lesser charges, and the charges are dropped in the remaining eight percent of federal cases. State cases are tried with more frequency, though still only at a rate of about 5% to 10%. All these statistics are the reality for the majority of people charged with a crime. But what about those who do go to trial? What can be expected? 

The Narrative

For starters, defendants can expect the prosecution to present a narrative with a particular theme highlighting the character flaws of the alleged criminal. Greed, indifference, callousness, negligence — these are all characteristics that could be nailed onto the defendant to win the jury over to the prosecution’s way of seeing the evidence. 

Continue reading

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On television, confidential informants (CIs) help to put the bad guys behind bars, right? Except that, even Hollywood sometimes depicts these individuals as self-serving criminals who are willing to say and do whatever it takes to secure a better deal for themselves and their own legal hassles. And since the use of these informants is basically unregulated by courts, law enforcement has free reign as they wheel and deal in order to “prove” their cases and nab their suspects. 

False Testimony 

The incentive to lie is indisputable in most cases because CIs generally work under a give-and-take agreement: information is exchanged for benefits—like perhaps some assistance with their own legal perils. If an informant can significantly reduce their own time behind bars by giving investigators the juice they are looking for, why not? If law enforcement does not validate information by corroborating with another trustworthy source who is not getting a benefit for the testimony, why wouldn’t an informant who could use a little good luck, or one who battles addictions or other mental health issues, make a deal to improve their circumstances even if they have to embellish a little bit?

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