Articles Tagged with California criminal defense attorney

Because defendants are presumed innocent until proven otherwise, it makes sense that the Founders believed in giving the accused their day in court as quickly as possible. The  6th Amendment of the Constitution guarantees the right to a speedy trial. It is important for many reasons, not the least of which is that it quickly clears the names of innocent people in a court of law. But what constitutes a speedy trial? 

Defining Speedy

Under California law, a misdemeanor criminal case must be tried within 45 days of charges for individuals who are not being incarcerated and just 30 days for anyone in custody. Felony charges must be tried within 60 days. More specifically, formal charges are required within 15 days of an arrest, and misdemeanors are tried within 45 days of arraignment.  Felonies must be tried within 60 days of arraignment. If that fails to occur because the state’s case is not ready yet and they have failed to demonstrate good cause for a delay, the case may be dismissed with a Serna motion, the claim that a speedy trial was denied.

Benefits of a Speedy Trial

 The benefits of having a speedy trial are many:

• Defendants who have been wrongly accused are able to move on with their lives rather than be indeterminately burdened with unresolved charges.
• Locating witnesses to the event in question will be less challenging if the trial occurs soon after an alleged crime.
• Witnesses will likely remember their experiences more clearly.
• A speedy trial can reduce the time behind bars since the accused is often jailed while awaiting trial. 
• A speedy trial will reduce the stress and trauma for defendants.

Trial Delays

There are numerous reasons that any trial might be delayed, some legitimate, and others not so much:

• Information may be passed along to the prosecution from law enforcement slowly.
• The prosecution may be slow to disclose information to the defense.
• State labs may be slow due to backlogs, leading to delays in essential forensic testing.
• Complicated cases have a great deal of evidence that takes an extraordinary amount of time to review.
• The prosecution may be short-handed, and therefore need more time to prepare.
• Backlogged court dockets may make scheduling a timely court date a challenge. 
• In some situations, the prosecution may intentionally delay the case for their own reasons.

The Fight for a Speedy Trial

If a person’s right to a speedy trial is violated, an aggressive defense attorney might charge that the prosecution was sloppy and disordered, leading to unnecessary delays.  It may be possible to find evidence of intentional delays by the prosecution in an attempt to provide gain time to ferret out additional evidence against the defendant. Since the right to a speedy trial was largely intended to safeguard the presumption of innocence, any uncommon or problematic delays might be a reason to fight for a case dismissal. Continue reading

As an unsuspecting woman prepared her two daughters for school one February morning, she was shocked to find six armed police officers at her door. They requested she step outside and promptly arrested her for carjacking. The woman, compliant, was stunned.   

Is This for Real?

The woman had no idea what was happening or why they thought she was connected to a carjacking. At eight months pregnant, she was in no condition to pull off a carjacking and would never be compelled to participate in that kind of activity anyway. Even so, police handcuffed her and took her to jail. She spent 11 hours detained, locked in a holding cell, and being questioned relating to a crime she knew nothing about. Finally, she was released on a $100,000 bond. Then she went to a local hospital, where she was treated for dehydration. One long month later, the charges against her were dropped.

Why Was This Woman a Suspect?

The evidence leading to the woman’s arrest began with facial recognition technology (FRT). Videotape from the crime scene was run against a criminal mugshot database, which came up with the innocent suspect. Her face was there due to a 2015 arrest for driving under an expired driver’s license. Police included the woman’s photo in a photo lineup that was shown to the victim, who identified her as his assailant. And therein lies the problem: When a person appears similar to the perpetrator, facial recognition technology and humans can both make the same identification mistakes.

Can FRT Be Trusted?

There is general agreement that facial recognition technology is extremely accurate under model conditions. However, in most cases captured in video surveillance from things like convenience store security cameras or traffic cameras, conditions are appreciably less than ideal. Indirect angles, shadows, and aging have adverse effects on the reliability of FRT. One study found that the technology’s accuracy rate at sporting venues was between 36% and 87%. That is a substantially lower rate than in, for example, an airport, where security cameras are placed at boarding gates in well-lit, eye-level conditions. It brings into question how law enforcement can be so confident in FRT results.

Race and FRT

Another serious problem with this technology is the problem related to race and FRT. Research is clear: The rate of error is over a third higher for dark-skinned people than for light-skinned people, with black women experiencing the highest error rates when attempts to identify them were tested. It makes one wonder why law enforcement would rely on FRT at all. Continue reading

Criminal charges are serious business, requiring a serious response. At the Law Offices of David M. Boertje, a skilled defense attorney is committed to fighting for your best interests. Part of that means we strive to keep clients informed every step of the way. Although every case is different, here is generally what you can expect: 

• A straightforward, no-nonsense appraisal of your situation: We will assess the facts in hand and give you the best advice we can based on California law.
• 100% effort on your behalf: That means responding to concerns, tracking down leads, and following through with commitments.

Preparing for a Trial

We always fight for the best possible outcomes. From beginning to end, we strive to achieve the results that have the least harmful impacts. While getting charges dropped or reduced is often ideal, sometimes a plea bargain to reduce sentencing, commuting sentencing, or an attempt to participate in alternative programming is a good outcome. If the case goes to trial, a vigorous effort toward a verdict of innocence is always the goal. You can count on a strong courtroom presence through preparation and critical thinking, and the effective development of a counternarrative to the prosecution’s story. All in all, we have a no-holds-barred approach:

• Understanding the approach of the particular judge overseeing the trial;
• Respecting the system and working effectively within it;
• Organizing materials, plans, and strategies in a way that makes sense;
• Communicating effectively with all parties;
• Getting the facts by interviewing witnesses and clients;
• Finding expert witnesses to address evidence;
• Conducting extensive research to develop a theory of the case and find precedents to support our theory;
• Filing motions on behalf of the client in order to strengthen our position;
• Participating in discovery sharing according to the law;
• Preparing a believable story to counter what the prosecution presents;
• Subpoenaing witnesses, documents, and other evidence to support our case;
• Crafting a strong, sincere opening argument to present to the jury;
• Preparing you and other witnesses to testify on your behalf;
• Acquiring photos, records, and other documents relevant to the case;
• Producing exhibits related to the incident in question;
• Considering specific objectives during jury selection;
• Challenging testimony and evidence provided by the prosecution;
• Anticipating the potential moves of the prosecution and being prepared for them;
• Thinking on our feet and addressing issues as they arise;
• Delivering strong, forceful closing arguments;
• Submitting jury instructions to the judge;
• Keeping accurate records in the event an appeal is appropriate.

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If you have been charged with criminal activity, the police and the district attorney have concluded that you are the most likely suspect connected to a crime. Your arrest has you frightened and worried about your future. What is next for you? 

The Arrest

Unless they caught you in the act, they have likely already collected evidence against you, including witness statements, physical evidence, photos, and more. A warrant that has been approved by the prosecutor says they have probable cause to believe you are guilty, and that gives them the right to put you behind bars until you are arraigned. 

The Arraignment

Whether you have been charged with a misdemeanor or a felony, this will be the first time you appear in court on the charges. There, you are formally informed of the charges and told of your rights according to the constitution, such as the right to a trial before a jury of your peers, the fact that you are presumed innocent until proven otherwise, and so forth. You are given the opportunity to plead guilty, not guilty, or no contest.  Bail and other conditions are decided.

The Pretrial Proceedings

Before the trial even starts, there may be motions by either side for the judge to make decisions related to the trial. Perhaps the defense will ask the judge to exclude certain evidence or will ask the judge to consider reasons that they believe you should not have to stand trial. Sometimes a plea deal is offered that the judge will have to weigh in on.

The Trial

If the case goes to trial (meaning charges were not dropped or a plea deal did not work out), the prosecutor has the burden of proving your guilt beyond a reasonable doubt. The trial can be held before the judge alone or before a jury. If you are found to be not guilty, you are free and clear and cannot be retried on the same charges. If the final verdict is guilty, a new date will be set for sentencing.

Pre-Sentencing Report

If found guilty, the probation department is tasked with putting together a final sentencing report detailing the crime, your criminal history, the victim’s statements, and a sentencing recommendation.

Sentencing

The judge approves the final sentencing based on guidelines in California law.  Continue reading

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

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

After experiencing an arrest, you are probably experiencing a jumble of emotions, including trepidation, disbelief, embarrassment, and fury. How will an arrest impact your immediate and long-term future? Regardless of the circumstances, when you have an experienced and tenacious criminal defense attorney by your side, the outcomes will likely be better for you.  

Understanding Your Miranda Rights

If the arresting officers have done their job right, you have been advised of your Miranda rights.  Listen carefully and understand that the Miranda warning is no joke! When you were told that you have the right to remain silent and that whatever you say could be used against you in court, they are not kidding. So stay calm, and respectfully tell them that you will not speak with them until your attorney is present. Do not allow officers to bait you into responding to their queries or commentaries; do not defend yourself or try to explain your side of things. Remain silent.

If You Were Not Mirandized

There are only certain situations in which an officer may not Mirandize you:

• The officer was not acting in accordance with the law.
• When the questioning by police occurs before an arrest or custody.
• When public safety is in jeopardy, such as when an assailant is at large.
•  In some DUI or other cases when there is no intention of interrogating you following arrest.
• When the arrest involves a juvenile, who cannot legally be questioned without their parents or guardians present.
• When questioning is being done by someone other than police, like perhaps a security guard at a store.
• When police are simply getting your identifying information.

When Your Attorney Arrives

Once your attorney is present, they will advise you about how much you should say to the police. Your attorney will guide you and will outline your options and potential defense strategies. Depending on the circumstances, you may discuss the following:

• Convincing police to dismiss all charges: In some cases, the police will quickly learn that they have the wrong person in custody.
• Demanding a reduction in charges: Law enforcement may be convinced to offer lesser charges that are more appropriate in your case.
• Striking a plea deal: You may be willing to trade information/testimony for lesser charges.
• The potential for inclusion in a diversion program: You may be eligible for drug court, mental health court, or military diversion rather than incarceration.
• Fighting all charges: You may wish to plead not guilty and fight all charges.
• A guilty plea.

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