Articles Tagged with California criminal attorney

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If your future is in the hands of a jury, you are undoubtedly wondering what jurors think as evidence and witnesses are offered up in a trial. How supportive are they of a defense attorney’s argument? How influential is a specific piece of evidence? It is a multifaceted and ever-changing puzzle that attorneys are relentlessly working to predict and understand. 

A Juror’s Background

Everyone is a blend of their history and experiences. Jurors come to the task with their own feelings, passions, and predispositions, and each piece of evidence in a trial will be filtered through those biases. Although jurors are instructed to reach their conclusions based only on the factual evidence presented in court, it’s impossible to know just how much power their backgrounds will exert on their thinking. For example:

  • Most people have preexisting views about the justice system, police officers, race, gender, sexual orientation, and more, even if that bias is not a conscious thing.
  • Financial standing, education, employment status, living arrangement, and even zip code can sometimes be a window into a particular person’s worldview.
  • Sometimes ,jurors may be experiencing personal stress in their personal lives that impacts their views and emotions.
  • Past experiences will have led to emotional inclinations or predeterminations for or against certain people or circumstances.
  • Some people may be deeply empathic and will sympathize so entirely with one party that they cannot view a situation with a logical perspective.

Cognitive Bias

Another aspect of the way jurors evaluate a case is the degree of cognitive bias. Some jurors may seize on evidence that validates their existing beliefs, while others may be heavily impacted by first impressions and be closed off to later revelations in a trial. Still others may zero in on a specific positive (or negative) quality in a person and be unable to see any other side to that person.

Voir Dire

The voir dire process is the opportunity for attorneys to select jurors for a particular trial. Lawyers for each side have the chance to question each potential juror, and they do so with an eye toward any bias that may impact a juror’s ability to weigh the evidence in an impartial manner.

What Impacts Thinking?

How can a juror’s mind be swayed? In addition to the facts of a case, the presentation style of attorneys is critical. Additionally, each witness will be viewed as either credible or self-serving. Finally, the deportment of the defendant will be scrutinized. In some cases, prior knowledge about a case will influence a juror’s thinking. In a best-case scenario, the judge’s instructions will have the weightiest impact and will guide each juror to a fair and impartial assessment of the facts, overshadowing any previous biases. Continue reading

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The holiday season typically sees a rash of certain types of crime. That’s partly because, while many people are busy shopping or attending holiday parties with friends, colleagues, and family, there are those among us who have something a little less festive on their minds. If you have been charged with one of these crimes, it would behoove you to speak to a local experienced criminal defense attorney right away. 

  • DUI: Unquestionably, drinking and driving don’t mix. Sadly, plenty of people imagine they can manage it, and wind up with charges that could land them behind bars for up to six months for a first offense, and 10 years in prison if it’s a second offense. Accidents that cause injury or death have even tougher penalties—and all of this is on top of fines, penalties, having an ignition interlock device installed in your car, having a license suspension, and mandatory classes.
  • Theft: Anyone who is tempted to steal merchandise from a crowded store, thinking they can get away with it, may be surprised by undercover security who show up just in time to make an arrest. A first offense could result in six months in jail and a $1,000 fine. Felony charges involving larger values could mean three years in state prison on top of a $10,000 fine.
  • Identity theft: Identity theft can occur in different ways, resulting in a variety of penalties. Using a fake ID to purchase alcohol or get into a bar, for instance, could result in a $250 fine and 32 hours of community service, on top of losing your driver’s license for a full year. Those penalties increase with subsequent incidents. Something more nefarious, like major identity theft or credit card fraud, however, could mean three years in state prison. Fines are often attached to these crimes, as well, which could mean $10,000 out the window. Restitution may be ordered for victims, as well.
  • Residential burglary: Anyone charged with burglary—breaking into a home to steal personal property—is facing felony charges. That translates into up to six years in prison and $10,000 in fines. If the accused uses a deadly weapon or if anyone is injured, the penalties increase. Another thing to consider is the fact that a conviction counts as a strike against the Three Strikes Law, which means even harsher sentences are on the table. 
  • Commercial Burglary: When charged as a misdemeanor, a conviction could put you behind bars for a year and slap you with a $1,000 fine. A felony conviction brings the possibility of three years in state prison and a $10,000 fine. All of these penalties increase if the value of stolen property is over $200,000.
  • Robbery and Jugging: Robbing a home or vehicle, or jugging—watching people in banks and at ATMs and later robbing them—can be charged as a felony. A conviction could mean six years in prison and a $10,000 fine. 

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Why do the feds pursue some cases and let others go? The Take Care Clause from Article II of the United States Constitution, as the Department of Justice (DOJ) gives prosecutors discretion when it comes to weighing whether to pursue a case. The provision necessitates that the president take care to execute the laws of the country faithfully, so when a new administration takes power, it can make a judgment as to where to focus and how to enforce criminal laws. Because no justice department has the resources to pursue every single crime, as administrative priorities change, a federal prosecutor has wide discretion in choosing which crimes to pursue, given there is probable cause to bring a case to a grand jury. That discretion encompasses a prosecutor’s ability to discuss diversion agreements and guilty pleas, to negotiate sentencing recommendations, and to deliver immunity in criminal cases. 

Prosecutorial Limits

Charging decisions within the scope of a prosecutor’s discretion must contemplate equal protection and due process requirements. Similarly, rules of professional responsibility address statutory provisions related to following clear protocols, including an obligation for prosecutors to act when confronting a wrongful prosecution. Overall, any limits on prosecutorial discretion lean toward a prosecutor’s decision to bring charges, not their decision to decline them.

The Fifth Amendment 

Prosecutors are limited in some ways by the Fifth Amendment of the Constitution. For instance, charges require a grand jury indictment for felony offenses. In other words, a grand jury must be offered enough evidence to conclude that there is probable cause to believe a felony offense has been committed. Furthermore, the Fifth Amendment:

  • Prohibits selective prosecution based on arbitrary classifications such as gender or race;
  • Prohibits vindictive prosecution based on retaliatory justifications;
  • Does not allow for charging someone for the same crime twice (double jeopardy);
  • Prohibits the deprivation of life, liberty, or property without due process.

Murky Requirements

Prosecutors are not only authorized but are required by law to bring cases involving specific civil rights violations. Likewise, when Congress refers someone for contempt, they expect the DOJ to pursue the case. Nonetheless, the DOJ has taken the position that these requirements cannot supplant prosecutorial discretion–and the Supreme Court has not taken a stand on the matter, leaving the bottom line a bit cloudy.

Another questionable matter lies in a judge’s ability to accept or reject a plea agreement. If the prosecution has agreed to lessen or drop charges, as prosecutorial discretion allows, the ability of a judge to rebuff the deal is in question. It all boils down to the fact that there are no absolutes here. Continue reading

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The U.S. Constitution provides that when someone is suspected or has been convicted of committing a crime in another state, that person can be surrendered from their current state residence to the state where the alleged crime took place in order that the suspect stand trial and/or serve a sentence for the crime in question. The process of moving a suspect from one state to another is known as extradition. 

The Extradition Clause

If one state demands that another deliver a criminal felon who has fled justice, the state receiving the demand—referred to as the asylum state– must comply according to the Constitution’s Extradition Clause. This interstate extradition occurs regularly across the country following a mandatory extradition proceeding. The requirements include:

  • Having an official demand from another jurisdiction from which the suspect has absconded;
  • Having an affidavit or indictment indicating a crime, felony, or treason charge from the executive authority making the extradition demand;
  • Having the indictment or affidavit certified by the chief magistrate or the governor of the requesting jurisdiction;
  • The asylum state arresting the accused and notifying the demanding authority of that arrest;
  • Either the requesting authority receives the prisoner, or the prisoner is released within 30 days of arrest. 

Concerns of the Asylum State

The goal of the asylum state is simply to fulfil the demand of the requesting state. They have no legal interest in whether the charges against the prisoner are valid or sufficient. Nevertheless, if the fugitive in question is incarcerated for crimes committed in the asylum state at the time of the request, the rendition request can be delayed until that sentence has been fulfilled. Executive discretion in the asylum state determines the outcome, since the governor is entitled to keep the prisoner or may choose to surrender the fugitive to the demanding state. For example, imagine a situation in which the fugitive is accused of stealing a car in Nevada and has since driven across state lines to California, where the fugitive then allegedly killed someone in an auto accident. Nevada may demand extradition in the hopes of trying the accused on auto theft charges. California can either agree to the extradition or choose to instead try to potentially imprison the accused on the vehicular homicide charge. Ultimately, the fugitive will likely be tried on both charges; the question is which trial will come first. The decision is in the hands of the California governor, who is under no obligation to consider the wishes of the fugitive.  Continue reading

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Surveillance by law enforcement has had extensive growth in recent years, advancing capabilities to an often-worrisome level. Inarguably, it has made it easier to capture criminals. But it has led to some sober ethical questions, as well.

License Plate Readers 

What could possibly be troublesome about automated license plate readers (ALPRs)? It seems they are everywhere these days, helping police to monitor traffic infractions and much, much more. They can identify stolen vehicles, trace victims of human trafficking and kidnapping, and assist in crime-solving. Moreover, they provide information to inform policymakers about traffic flow and potential transit interventions. 

Conversely, privacy intrusions are a major concern. Innocent people can have their conduct and whereabouts tracked, which ultimately means their habits and activities exist in a database somewhere.  There are documented instances of data being compromised, misused, or leaked. That can be particularly egregious when one considers the possibility of certain communities being targeted based on their zip code, race, religion, or other such grouping.

But You Have Nothing to Fear if You are Innocent…

The timeworn adage offered by some is that if you have done nothing wrong, you have nothing to worry about. But taking that logic a few steps further, its simplicity and inadequacy become clear. The “you have nothing to worry about” mantra becomes problematic when the problem extends outward. What if the government required all citizens to carry location trackers? Even the most avid enforcement proponents would admit that seems pretty invasive. But modern technology allows the government to track people’s mail, phones, purchasing patterns, online activities, and driving habits. In other words, full-on tracking is already possible, whether or not citizens consent to carrying tracking devices.

The slippery slope society is on is dangerous. What might be the future of, say, biometric tracking? Nearly 30 years ago, former NYC Mayor Rudy Giuliani advanced the idea of collecting the DNA data of newborns.  In Britain, police now want to collect the DNA of kids who “exhibit behavior indicating they may become criminals later in life.” Is that, or is it not, a breathtaking leap in government intrusion?

Sure, modern abilities help law enforcement to pinpoint and capture criminals. But databases are also vulnerable to hacks, misuse, abuse, and theft. How can the use of such technologies be balanced against the potential for injury? 

Questions Worth Considering

MIT professor Gary Marx, who studied the issue, suggested it is worthwhile to evaluate surveillance methods before implementing them by considering:

  • Does the public know and consent to its use?
  • Are the goals of the community served?
  • Does the technology lead to unjustifiable psychological or physical harm?
  • Are the people responsible for the surveillance subject to it, as well?
  • Are conclusions subject to human review?
  • Can decisions be challenged and grieved?
  • Are less expensive/problematic approaches available?
  • Are legitimate ends being sought?
  • Are sufficient safety measures in place to guard against misuse?

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If you have had a run-in with the law, make no mistake: hiring the wrong criminal defense attorney is a regret you will carry long into the future. You want someone whose communication style fits your own, and who can help you to understand exactly what the strategy is, what your role in decision-making will be, and any potential outcomes. You need someone who is ethical, hard-working, and creative as they attack your issues. It is certainly worth your effort to find out about any potential firm that may be representing you, and it is easy enough to do with just a few simple questions. 

  • Have you been practicing law for very long? Are you someone who is knowledgeable about not only the law itself, but who is familiar with the legal community, procedures, and customs in the area?
  • Have you been involved in cases comparable to mine previously? If so, will that experience impact how you choose to handle my case?
  • Do you have any referrals I can check?
  • How do you define success, and what’s your success rate?
  • How many cases have you taken to trial, and how many have you settled out of court? Are there benefits to plea deals, or am I better off fighting for a favorable verdict in court?
  • What will you expect from me throughout this process?
  • What are the best and worst scenarios for me? Will you be optimistic and fight for me, but also be straight with me if the news is unpleasant?
  • Are you familiar with the judge who’s been assigned to this case? What is your take on the judge?
  • Are there diversion programs that I might be eligible for? What are they like? What can you do for me in that regard?
  • In a trial, would you support my testifying in my own defense? What factors go into that kind of decision?
  • While you are working on my case, how often will you be updating me? How should I get in touch with you?
  • Will you, personally, be working on my case, or will it be assigned out to less experienced attorneys?
  • While awaiting trial, what should I be doing to improve my chances?
  • How long do you anticipate this will take?
  • What is this whole thing going to cost me? Are there payment plans? Are there any fees for the initial consultation?

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Fourth Amendment protections guard Americans from unreasonable searches and seizures. However, the use of dogs in helping to conduct searches for contraband and drugs is quite common throughout the country. That is where the potential for violations of these protections can become a serious issue. 

Traffic Stops

Police dogs are often used during traffic stops.  To be clear, police are required to have a legitimate reason to stop a vehicle in the first place, such as witnessing an improper lane change, for example. You can be pulled over and issued a citation, but they must have probable cause to believe you have committed a crime or see evidence of a crime in order to search the vehicle without your permission. In other words, without your consent, they cannot search, and a dog cannot even circle the outside of your vehicle. Additionally, police cannot force you to wait around longer than necessary in order to get a dog to the scene, and they cannot use the dog to obtain probable cause of a crime without your advance consent. 

If an officer reasonably believes that there are exigent circumstances, they can prolong your stop. That would mean there is evidence to suggest:

  1. You have a weapon on your person or within arm’s length;
  2. You are likely to destroy evidence of a crime.

 How Accurate are Dog Searches When they Occur?

In a study conducted by the Chicago Tribune, researchers concluded that just 44% of dog alerts led to findings of drugs or drug paraphernalia. However, in the case of Latino drivers, the accuracy rate for the dogs dropped to a ridiculously low 27%. Both statistics are alarming, and the discrepancy amplifies concerns. What could be the reason behind this inconsistency? It is illogical to think the dogs could be racist! Dog experts believe the problem lies with the handlers, who can inadvertently or intentionally miscue their dogs when they take them around a vehicle too frequently or too slowly. When handlers are more suspicious of particular individuals, the dogs could be given indications that they should alert.

At Your Home 

Privacy protections in your home are guaranteed by the Fourth Amendment, as well. In order for police to bring a dog to your home,  they must have probable cause. The dog is not allowed at your door or on your porch or unless officers have a warrant, probable cause, or your consent.

Airport Sniffers

In an airport, it is not considered a search when a police dog sniffs luggage randomly, and officers have no need for probable cause when bringing dogs through. There are several types of screening dogs that are commonly found in airports:

  1. Drug-sniffing dogs in search of narcotics;
  2. Bomb-sniffing dogs in search of bomb components,  C-4, and TNT;
  3. Dogs searching for agricultural contraband such as banned foods and/or invasive species.

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Anyone who is looking at charges of elder abuse probably already knows how emotionally charged the topic can be. In addition to criminal charges, the accused may face reputational damage, financial losses, and a tumultuous change in lifestyle. Now, more than ever, you need a criminal defense attorney who is prepared to deal with every aspect of your defense with authority and commitment.  

Defining Elder Abuse

Elder abuse occurs under a variety of circumstances and in many ways. In any case, it is distressing and can result in grim physical and psychological harm, or even premature death. Families can be divided, finances can disappear, and trust can be permanently devastated. This type of victimization occurs in the home of an elderly person, in a nursing home or care facility, or elsewhere, and can involve strangers, family members, friends, professionals, and staff members in care facilities. The abuse falls into five basic categories:

  • Neglect: The failure to provide basic care and assistance necessary for hygienic and healthy living;
  • Physical Abuse: Hitting, kicking, slapping, pinching, unnecessarily restraining, withholding medicine, and so forth causing physical harm;
  • Psychological Abuse: Controlling an elderly person through intimidation, threats, humiliation, etc.;
  • Sexual Abuse: Forced sexual contact, taking unwanted photographs of a sexual nature, and even initiating unwanted conversations of a sexual nature;
  • Financial Exploitation: Withholding an older person’s money, engaging in unauthorized or manipulated spending, or using manipulation to convince an elderly person to sign documents they don’t understand for one’s own financial benefit.

Federal Protections 

There are multiple federal laws on the books to protect older Americans:

A couple of federal laws on the books related to elder abuse enhance protective services, improve interactions between agencies, and develop principles for monitoring and certifying nursing homes. The Elder Justice Act (EJA) and the Nursing Home Reform Act work in tandem toward these ends. The Elder Abuse Prevention and Prosecution Act (EAPPA) allows for the assembling and examination of elder abuse data and delivers support to victims of abuse. 

California Penalties

The state of California takes elder abuse very seriously, with significant penalties associated with each level of abuse that might occur. If an elderly person is killed, it could mean the death penalty for the perpetrator. Rape charges could mean 8 years in state prison. Penalties for lewd acts could lead to a year in jail in the best-case scenario, and up to 10 years in prison for more serious acts. Financial crimes are punished based on the amount of money involved, and offenders could spend as little as one year in the county jail or as much as four years there, in addition to fines. Continue reading

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If you have been involved in a fatal shooting, it is possible you may be charged with manslaughter, or even murder, related to the incident. But was the homicide justified? Is it ever legally acceptable to kill another human being? The fact is, under limited circumstances, such as while defending oneself, other people, or one’s home, lethal force may be legally permissible. 

Is Retreat Required in the Face of Aggression?

California’s Stand Your Ground law is clear in stating that you have no obligation to retreat prior to using force if certain conditions are met:

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Drugs and alcohol abuse impact a person’s life—from their family, co-workers, and friends to the community in general—and the repercussions can be devastating. The weight of addiction reaches far and wide, from schools to prisons and everything in between. In fact, one of the greatest impacts is the connection between addiction and criminal activity. 

Statistics 

It may come as a surprise to learn that the lion’s share of people in prison are there in part due to substance abuse. Four out of five offenders have abused alcohol or drugs, and about half of all inmates experience a clinical addiction. At the time of their arrest, more than 50% of arrestees are under the influence of drugs or alcohol.

Drugs

While there are certainly criminals who do not abuse drugs, and drug users who do not commit crimes, when it comes to the most severe levels of drug use, the correlation between crime and drug use is real. Undoubtedly, significant drug use intensifies and prolongs any preexisting criminal activity in which a person may be involved. There are four basic types of impacts drugs may have on crime:

  • Crimes related to drug use, when a person’s thoughts and activities are influenced by the drug;
  • Crimes related to drug attainment, when crimes are committed in order to pay for a drug habit;
  • Crimes related to procedures, when individuals produce, transport, or sell drugs;
  • Crimes related to rivalries, when turf wars or other violence intensifies among those involved in the drug manufacturing world

Alcohol

  • Individuals with dependence on alcohol commit 40% of all violent crimes.
  • Of convicts currently jailed in this country, 2 million say they were drinking when they were arrested;
  • One out of every two assaults and homicides occur after the assailant, victim, or both, have been drinking;
  • More than 60% of attacks among people who know one another—about half a million– occur while the attacker is using alcohol.

More to Know…

  • Some seedy segments of the adult world do not have the corner on addiction and criminal activity:
  • Eight in ten youths in juvenile detention systems were committing a drug or alcohol offense or tested positive for drugs or alcohol at the time of their arrest. 
  • Annually, more than 500,000 college students under the age of 25 are assaulted by a fellow student who has been drinking.
  • Alcohol is involved in 95% of all violent crimes that occur on college campuses.
  • 90% of sexual assault crimes and cases of date rape that occur on college campuses involve alcohol.

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SAN DIEGO OFFICE
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San Diego, CA 92101
Phone: (619) 229-1870Fax: (760) 230-5888Toll Free: (888) 476-0901Email: dboertje@boertjelaw.com
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Carlsbad, CA 92008
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