Articles Tagged with California criminal defense attorney

Anyone who has seen a courtroom drama on the big screen or on television has heard lawyers make motions. Although you have probably never really thought about them, the truth is they can make an enormous difference in the outcome of a trial. 

What are Motions?

Motions are written requests made by prosecutors and defense attorneys in criminal courts for the judge to make certain decisions—judgments– before or during a trial. They are formal appeals for rulings that will boost their odds of success in the trial.

Motions Commonly Made 

There are many types of motions that may be requested in a criminal trial. Some of the most common motions include:

• A Motion to Dismiss:  In some cases, a request is made for the judge to dismiss a case completely before it even starts. The request could be on the grounds that the court does not have jurisdiction on the matter, there is not enough evidence to support the charges, the alleged facts do not amount to a crime, or the statute of limitations has run out, for example.
• A Motion for a Change of Venue: In widely publicized trials, pre-trial publicity may threaten the impartiality of any potential jurors, so an attorney may ask that the trial be moved to another county or state in order to protect the right of a defendant to a fair trial.
• A Motion to Suppress:  This is a request for the judge to exclude particular evidence at trial. There could be multiple reasons for this, such as because one side believes the evidence has been tampered with, it was illegally obtained, there were problems with the chain of custody, or there is some other issue with the evidence in question.
• A Motion for Discovery: There are times when the opposing party drags their feet in sharing documents, witness lists,  and other information they have uncovered during the discovery process, even though the law requires them to provide such information to opposing counsel. An attorney may file a Motion to Compel, which can force them to produce information, witnesses, and documents they have been withholding.
• A Motion for Summary Judgment: One party may ask the judge to decide the case midway through a trial based on what has already been presented. It is based on a belief that the material facts of the case point to an obvious conclusion that is indisputable. If the judge agrees that the facts of the case are not in dispute, a summary judgment can wrap things up quickly and easily.

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Movies about bank robberies are fan favorites, always packed with intrigue and action. From popular westerns like The Ballad of Buster Scruggs and The Long Riders to more modern films such as Ambulance and Now You See Me, bank robberies have been romanticized and somewhat glorified. But how often do they happen in real life, and when they do, are they glorious adventures? The short answer is that yes, they do occur, and no, the penalties often make outcomes anything but glorious. If you have been charged with bank robbery, you need a tough criminal defense attorney at bat for you. 

California Bank Robberies in the News

There have been multiple bank robberies in the Golden State in recent years, including: 

• A pair of individuals were charged with ten bank robberies in Antioch, Benicia, Concord, Sacramento, Suisun City, and Vallejo;
• An Anaheim bank was robbed by a man who also took a hostage before surrendering to police;
• A Lake Forest bank robbery involved a gunshot and a fleeing suspect.

Bank Robbery Penalties 

If you think you are safe enjoying the spoils of a bank robbery, if you were not actually there for the heist, think again. Federal law clearly states that you can be criminally penalized for receiving the stolen money. If the amount involved is under $1000, you are facing a year in prison in addition to fines. When the amount exceeds $1,000, it could mean bigger fines and 10 years in a federal prison. Importantly, these are the exact same penalties that the person who actually robbed the bank could face if they managed the heist without making threats or executing any form of violence.

Things get much more sober when a bank robbery includes intimidation. Even without physically harming anyone or shooting off a gun, just the threat of such harm doubles the potential prison sentence to 20 years. If a victim does suffer harm as a result of the bank robbery, another five years can be tacked on, meaning 25 years behind bars. If anyone is killed during the course of bank robbery, the offender is looking at life in prison, with the possibility of the death penalty in some cases.

The Defense You Deserve

A vigorous defense of these kinds of charges must begin with an exhaustive investigation that includes viewing footage of the robbery in question, meeting with witnesses, evaluating forensic evidence, and looking for exculpatory evidence—that which plays in your favor—in the hopes of exonerating you. After getting a good handle on what the prosecutor has to work with, a good defense attorney will develop a strategy to defend you. That could mean a lot of things, including: 

• Presenting alternate theories of the case;
• Focusing on technical or procedural errors;
• Demanding accountability for utter constitutional violations by law enforcement or prosecutors.

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Many people do not realize it, but police routinely interrogate a suspect and lie about the possibility that leniency can be traded for cooperation or even about the evidence they have. Richard Leo, a renowned expert on interrogation techniques, calls deception the most defining and salient feature of interrogations in this country. 

And it is perfectly legal. In fact, the courts are aware of and sanction the practice. Furthermore, deceptive techniques are a part of police training across the country. Of note, while lying is widely used to get confessions and information from people law enforcement has in custody, it is a custom that is either totally prohibited or heavily restricted in the majority of peer nations, including Japan, Germany, France, and England. It makes one wonder why other developed nations are so resistant to law enforcement deception.

Issues 

Arguably, the objective of lying is not necessarily to get to the truth. It is to get information or a confession. By falsely influencing a suspect’s perception of their situation, the suspect can be overwhelmed into thinking they have no option other than to confess to the crime and hope they will be treated with leniency. 

Of course, police frequently get a confession out of a suspect who has been lied to. Unfortunately, those confessions are often not legit. Nonetheless, they weigh heavily on the scale of evidence and can lead to a wrongful conviction. When the Innocence Project successfully fought to overturn 375 wrongful convictions, they discovered that almost one-third involved false confessions that police had induced. And when it came to murder convictions that were overturned, more than 60% involved false confessions. While a critical problem, this is not the only concern with the police practice of lying to suspects:

• To be clear, any suspect is innocent until proven guilty. The ethics of lying to a suspect is dubious at best. Teaching officers to use techniques to deceive citizens seems likely to promote a permissive stance toward deception and diminish the public’s view of law enforcement.
• Research demonstrates that lying in this context often leads officers to lie in other, more troubling areas. Officers who engage in this behavior are more prone to involvement in perjury and/or the falsification of police reports. They may manufacture consent to search, probable cause, or otherwise twist the truth to suit their purposes. Those things are illegal, though they are difficult to identify and punish. 
• Since police so often get away with lying, and because it carries over into other areas of their duties, constitutional protections get abused, leaving civil liberties, justice, and public trust at a loss.

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If you are headed for a criminal trial, you are relying on your attorney to create reasonable doubt of your guilt in the minds of the jury. What does that mean, and how is it achieved? 

The Meaning of Reasonable Doubt

The prosecution has the burden of proof, meaning they must present proof that you are guilty beyond a reasonable doubt. In other words, the jury must be definitively convinced that you are guilty. If they have any doubts as to your guilt, they must be based on common sense and reason, not simply speculation. Their doubt can be grounded in evidence–or the lack thereof—all of which must have been weighed with vigilance and impartially. Anything short of finding reasonable doubt means a jury must find you guilty. What does that mean for your defense attorney?

Crafting Reasonable Doubt 

The importance of the fact that the law considers you innocent until proven guilty cannot be understated, and proving guilt beyond a reasonable doubt—an extremely high legal standard—is the burden of the prosecutor. Intended to protect innocents from wrongful conviction, the reasonable doubt standard can be difficult to achieve. That being said, your defense attorney will assault the prosecution’s case on numerous levels in order to demonstrate that the prosecution did not prove guilt beyond a reasonable doubt.  Some strategies might include:

• Challenging witness credibility by emphasizing a witness’s criminal history, hidden motivations, or potential biases that might sway their testimony;
• Highlighting any procedural errors made by police, including there being issues with the legality of a search, a failure to Mirandize you, or mishandling of evidence, for example;
• Pointing out issues with the analysis of the evidence by bringing in expert witnesses who interpret the evidence differently or who question the soundness of the analysis or the science behind the technology;
• Underscoring inconsistencies in the prosecution’s case, such as conflicting witness statements or ways in which various evidence points to different conclusions;
• Emphasizing the lack of convincing evidence provided by the prosecution and insisting that the prosecution did not meet its burden of proof;
• Providing a strong alibi for you, showing how and why you could not have committed the crime;
• Offering alternate theories of the case by suggesting different timelines, suspects, or motivations that seem plausible.

Goals

Naturally, any defendant is hoping and praying for an acquittal, allowing you to go on with your life and put the trial behind you.  Other favorable scenarios that are possible a strong defense is presented include: 

• Dismissal: The judge might find that the prosecution simply cannot meet the high burden of proof and could dismiss the case before it ever gets to the jury.
• Plea Bargain: The prosecution could fear a shift in the jury toward the defense and offer an advantageous plea deal for you to consider.

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The implementation of social media by prosecutors and police to investigate and prosecute criminal activity has seen a marked increase in recent years. Because relatively few legal restrictions on the use of such media exist for them, it’s an easy access point. Social media—including posts in places like Instagram and Facebook, texts, and emails, can provide a range of potential evidence that can be used by police and prosecutors to build a case against any given suspect. Social justice advocates and others, though, have concerns that vulnerable fragments of society are being marginalized and stigmatized when social media is used in this way. Public defenders, as well, have grievances related to their disadvantage when having access to certain social media. 

How is Social Media Impacting Investigations?

There are several ways in which law enforcement can use social media during a criminal investigation: 

• Determining the location of a suspect through geo-tagging; 
• Monitoring posts for evidence of criminal associations or activities;
• Interfacing with suspects using undercover profiles;
• Influencing the direction an investigation takes.

Additionally, since many law enforcement agencies have their own public social media sites these days, they can paint a picture of who they believe is involved in crime, which often fortifies stereotypes. One study, in fact, found that although Blacks made up just 20% of those arrested for those crimes,  they were called out in about one-third of posts related to crime.

Using it as Evidence in the Courtroom

When prosecutors introduce evidence from social media, it can be very damaging to defendants. Many assume that social media accurately reflects an individual’s reality, even though we know that a lot of bravado and swagger goes into posting, as people attempt to impress various audiences. Without question, the social norms dictating behavior in various communities could easily be misinterpreted, leading to suspicion and negative conclusions directed at young Black men and others. This has been a consistent concern in gang cases and in cases related to sexual violence.

Unequal Access

Much of this type of evidence is protected by privacy laws from non-government agencies, which are therefore barred from accessing it. Instead of getting the cooperation given to law enforcement in so many of these cases, defense attorneys find themselves struggling to get social media companies to share information. Even when they do get access, it is often very limited, making it much less useful in court.

Defendants Should Avoid Social Media

After being charged with a crime, defendants are encouraged to stay away from social media because it will likely be monitored by opposing counsel. Anything prosecutors get their hands on could later be presented in a negative light.  Best for unwitting defendants to avoid giving prosecutors ammunition to use against them in court. Continue reading

What would you do if you came upon a dead body? Call 911, of course! As much as that is the proper thing to do (what else would you do, after all), it’s a bit alarming to know that police departments across the country have been participating in training classes designed to help them determine the innocence or guilt of a 911 caller, simply by listening to the 911 call. People are going to prison based largely on the analysis of these calls. This is even though many consider the science behind 911 call analysis to be shoddy, at best. 

The Assertions

Tracy Harpster, the creator of the theory that a 911 analysis can detect guilt in a caller, claims that by studying 20 variables in a 911 call, one can determine a caller’s involvement in a homicide. That is right; simply by going through a checklist related to the manner in which a caller relays events, their speaking cadence, their grammar, the degree of urgency in the call, and more, analysts can determine guilt. After studying 200 calls, some of the conclusions include:

1. Callers who comment on the victim’s eyes are generally guilty;
2. When a caller asks if they should touch the body, it is an indication of guilt;
3. Callers who say, “huh?” are more likely to be guilty;
4. Guilty callers refer to blood, while callers who are innocent will refer to bleeding;
5. About eight in ten callers who ask for help immediately are innocent;
6. Guilty callers acknowledge that someone has died, while innocent callers cannot accept that fact;
7. Discussing an earlier conversation between oneself and the victim with the dispatcher indicates guilt.

Questions About the Science

There are several issues related to Harpster’s study. Harpster documented 100 calls that had been analyzed (and later another 100), though he provided no transparency relating to whether those calls were selected randomly. Also unknown is whether analyzers were aware of the outcome of the cases prior to conducting the analysis. Additionally, only calls by sober English speakers were included in the study. There were no guidelines to address issues related to a host of potential caller characteristics, including anxiety, cognitive issues, education level, speech impediments, and those for whom English is a second language, for example. 

Study Replications

Attempts have been made to replicate Harpster’s study, but none of the follow-up studies involved significant numbers, and some were related to other areas of the law, including cases of missing children and cases of military law enforcement. Not a single study has topped 200 participants in a study sample—and at least one study conducted by the FBO found major contradictions in their conclusions.  They stated that using the analysis could lead to major bias in conducting an investigation. 

One More Thing…

Harpster is making plenty of cash on his little theory—charging thousands of dollars for each 8-hour training class for over a decade. Then, those involved in the training are permitted to show up in court and testify as expert witnesses. This, despite the fact that the intricacies of human thought and behavior are boiled down to 20 markers in a decidedly charged situation, makes little sense to begin with. Continue reading

If you have been charged with a criminal offense, you know it is a jarring experience, even if you are innocent—or maybe especially if you are innocent.  Some may tell you not to fret—the truth always wins out in the end.  But the fact of the matter is that innocent people are convicted of crimes and locked up every single day across this country. What you need more than anything at this point is a hard-hitting, straightforward criminal defense attorney fighting on your behalf. 

Don’t Buy it!

Law enforcement is legally allowed to mislead—aka lie—to you in order to squeeze information out of you. So just because they tell you something, it doesn’t mean it’s grounded in fact. Additionally, television may have left you with some misconceptions. For example: 

• If you are not read your Miranda Rights before being interrogated, a recent Supreme Court decision determined it is not a violation of a constitutional right. Instead, it violates a constitutional rule, which means you can never collect damages for violations. It turns out, sadly, that Miranda Rights are not all they are cracked up to be.
• Officers may say that things will go well for you if you just cooperate, but that is not necessarily the case. Never say anything without your attorney present because whatever comes out of your mouth could be twisted out of context and used against you later.
• You may be told that there is clear and damning evidence and/or testimony implicating your guilt. But police could be a police fantasy story! Don’t fall for it!
• Police may say that if you just confess, things will get easier for you. Of course, never, never make a verbal or written confession without the advice of your attorney. You just can’t know how binding any deal the police offer you will be without your lawyer there.
• Perhaps you will be told that if you just cooperate, you will be home in a snap. Don’t count on it. Unlike the fast-paced cases that occur every week on your favorite crime-drama TV show, once enmeshed in a criminal case, it could be a very long time before you are in the clear.
• After charges are filed, you may think that they can be rapidly and effortlessly dropped, but in truth, the whole thing must go through a court process, which can take time.
• You may believe that since you are innocent, going to trial is your best option–no matter what. In fact, with a trial, there will be costs in money, time, stress, and worry, and after all that, you still may be found guilty. In some cases, a plea deal is a good option, so listen to your attorney before making any decisions.

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If you are facing criminal charges, you may be hoping that charges will be dropped or dismissed, eliminating the tension and cost of a trial. While plenty of defendants are not so lucky, it is certainly a possibility in many cases. 

Dropped and Dismissed Charges are Not the Same

There is a distinct difference between having charges dropped and having them dismissed:

• Dropped Charges: Charges may be dropped at any time during a case if a prosecutor loses confidence in their chances of winning. Even if charges have not yet been officially filed, they may be dropped.
• Dismissed Charges: Charges can only be dismissed after they have been filed, and this must be done by a judge.

Why Might Charges be Dropped or Dismissed?

There are plenty of reasons that a case might not make it to trial and a verdict. Some of the most common scenarios include:

• A strong case cannot be developed with the evidence currently available, so proof beyond a reasonable doubt is unlikely.
• A victim may request that the charges be dropped and refuse to cooperate with the prosecution, weakening the case.
• There could be errors in the criminal complaint.
• The prosecutor may lack the resources to pursue the case.
• The defendant may be exonerated based on new evidence– even after a conviction.
• Information central to the case may have been illegally obtained and is therefore inadmissible.
• The rights of the suspect may have been violated—such as through an illegal search or failure to Mirandize, leading to a decision to drop it.
• A plea deal may have been negotiated between the prosecution and the defense that drops certain charges in exchange for a guilty verdict or cooperation in testifying against others.
• Venue issues may lead to dropped charges.
• A Plea in Abeyance may be offered, requiring rehabilitative classes, for example, in exchange for dropped charges (although failure to complete the requirements would result in a mandatory guilty plea on the charges).

Is it the Same as Being Acquitted?

Having charges dropped or dismissed is definitely not the same thing as getting an acquittal. In the case of an acquittal, a judge or jury found that there was not enough evidence to convict the defendant. That means the defendant can never be retried on those charges—that would be Double Jeopardy. Conversely, if the charges were simply dropped or dismissed, the prosecutor could refile the exact same charges at a later date when they believe they have a stronger case. 

What Appears on My Record?

Both dismissals and acquittals will appear on one’s criminal record unless the record is expunged. Of course, neither will have the crushing impact on employment or housing that a guilty verdict has. Continue reading