California criminal defense attorney

March 27, 2026

Why is Truthful Testimony Deemed Not Credible?

The anxiety is very real for anyone who has been in an interrogation room or on the witness stand and cannot provide basic details about a crime for which they are a suspect. It is clear that questioners doubt the veracity of the answers provided. Why is it that some people are completely unable to recall the type of vehicle, the style of clothing of others at the scene, or other important facts? Why can’t they remember? They were present, after all! While some prosecutors may view this inability to produce details as a sign of suppression or lies, there may be a more feasible explanation: aphantasia.

Aphantasia: Understanding the Condition

When a person can’t produce a mental picture of previous events, it may be because they have a condition called aphantasia. This condition can affect anyone, irrespective of a person’s intelligence level, attention level, or degree of sincere effort to recall. It is a cognitive ability that is simply non-existent for about four percent of the population. Sufferers find that it is literally impossible to summon up an image of a scene, a person, or, in some cases, even the sequence of events relative to a particular experience. This is not a problem of merely having a bad memory. It is the inability to picture things in one’s mind and recall those things at will.

Why is it a Problem in Court?

The obvious drawback for individuals with this condition in a courtroom is that credibility is generally associated with accuracy and truthfulness, as judges, juries, and others evaluate. As such, a person who produces inexact or nominal details, whether as a witness or as a suspect, can seem unreliable, which can mushroom into unbelievable. When a judgment is made that testimony in an interrogation room or on the stand is coming from someone who is not credible, it can stain the entire case in a damaging way, with the ultimate possibility of generating a wrongful conviction.

Addressing Negative Impressions Caused by Aphantasia

We all know that it can be extremely difficult to change initial impressions. That is why it’s important for a defense attorney to recognize Aphantasia, educate the jury about its effects, and establish that typical law enforcement interrogations do not serve those with the condition very well. Reliability factors are flexible, so stressing the other strengths of a case that back a version of events in which the defendant’s account is believed is the goal. Above all, it is important to demonstrate to jurors that the lack of a visual memory is not tantamount to a lack of credibility. Building a defense, then, should lean more heavily on elements other than visual memory, such as:

Diagrams that order events for individuals who are spatial thinkers;
Timelines of events created based on known facts;
Calendar entries that might prod a defendant’s memory;
Receipts that can clarify questions of what, where, or when;
Time stamps, audio recordings, or video recordings;
Phone, email, and other digital records;
Anchors or routines of the defendant.

March 13, 2026

Are Strip Searches in Schools Legal?

by David M. Boertje

Although it sounds incomprehensible, there have been multiple accusations of school personnel, such as counselors, teachers, principals, nurses, and school security police, strip-searching students in elementary and secondary schools across the country. In some situations, the adults were on a search for contraband like vape pens or marijuana. Other cases involved a concern that there may be signs of abuse, while about one in ten cases were based on a search for weapons. Is this legal?

Disturbing Allegations

If it sounds improbable, consider these documented cases:

An eighth-grade girl who has special needs and was menstruating was required to strip, lift her breasts, and spread her legs in front of the school principal, who was looking for marijuana.
A 7-year old girl who was accused of stealing $3.00 from her teacher was forced to remove both her leggings and underwear by the school’s administrator.
A male high school student who has autism was ordered by a security officer to undress in a classroom while other students were nearby. The student was required to pull down both his pants and his underwear as the officer looked for a vape.
A 5-year-old suffered through multiple vaginal exams by school nurses who were looking for indications of abuse.

Troubling Statistics

The reported cases are cause for concern:

More than 80% of searches were conducted by school staff, with the remainder being conducted by school resource officers;
Students in over 12% of cases were stripped down to only underwear;
Three in ten documented incidents involved students being forced to pull down their pants and/or lift up their shirts;
In 15% of cases, students were directed to remove their underwear;
In just under 1% of situations, vaginal exams were performed;
45% of the time, officials from the schools were looking for drugs, vapes, or money;
10% of these searches involved a quest for weapons (in which none were found);
Adults were looking for signs of abuse in 30% of cases;
In nearly 40% of cases, the search was conducted by an adult of the opposite gender.

Effects on Students

Invasive? Harrowing? Humiliating? Embarrassing? These words and more describe strip searches for students in schools. The American Bar Association, in fact, notes that strip searches are harmful because they violate a child’s sense of dignity, and even and impacts healthy brain development. The truth is, many, if not most, schools have no policy addressing strip searches. And as debasing as it may be, it is not illegal, as long as there was reasonable cause to conduct the search. What that means is up for debate: Justice David Souter of the Supreme Court wrote that the “content of suspicion” must “match the degree of intrusion.” Continue reading

March 6, 2026

A Look at New Federal Sentencing Guidelines

by David M. Boertje

In late 2025, Federal Sentencing Guidelines were updated and took effect with an eye toward reducing circuit splits, reforming sentencing procedures and outcomes, and giving judges more discretion by basing sentencing more heavily on individual situations, as well as by revising various other sentencing rules. The Guidelines Manual is now available for anyone to see, and the impacts will be felt across multiple areas, from supervised release to sentencing and legal interpretations.

Enhancements for Fentanyl Misrepresentations

Fentanyl deaths have been rampant in the country, and often occur when the user of a substance doesn’t realize that the pill they are taking contains fentanyl. Defendants were formerly able to get around federal enhancement rules by claiming that even though they did not know that the substance they were selling as, say, cocaine, contained fentanyl. Their claims of “I had no idea” were helpful in avoiding certain enhancements unless the prosecutor could show that there was willful blindness associated with the claim. That standard has been changed to require a defendant to display reckless disregard, which will be less difficult to demonstrate.

Machine Gun Definitions Aligned

Semiautomatic guns can be transformed into completely automatic weapons using machine gun conversion devices (MCDs). These kits, often called auto sears or Glock switches, have been defined differently in the Gun Control Act and the National Firearms Act, which has led to some confusion and varying applications. The new law clarifies that MCDs are to be treated as machine guns, bringing about a more unified approach to potential enhancements.

Enhancements for Restraining Victims

There have been differing interpretations among circuit courts as to what constitutes restraining a victim during the commission of a crime. New rules tapered the definition of restraint to mean only the physical restriction of a person by tying them up or through similar physical means. Courts will no longer interpret the restricted movement of a victim through intimidation with a gun or other weapon as a possible enhancement for sentencing, which will decrease the ability of prosecutors to add time to charges when actual physical restraints were not used.

Supervised Release

New rules focused on reducing supervision for people who may not require it following a period of incarceration are on the books. Personalized sentencing determinations within guidelines are intended to provide options to assist with rehabilitation efforts, rather than simply serving as an extension of punishment. The latest requirements call for the following:

Contemplating the circumstances of the crime, along with the characteristics and history of the defendant in question;
Ensuring that sentences are proportionate to the seriousness of the crime and are geared toward public protection, criminal deterrence, and providing the education and medical care necessary for success;
Making an effort to reduce sentencing disparities;
Meeting victim compensation needs following a conviction.

Retroactivity

Since some of these changes will reduce sentences, the Commission is required to determine whether the changes will apply retroactively to people who are currently incarcerated. Continue reading

February 6, 2026

Was it a Crime of Passion or Just Plain Old Murder?

by David M. Boertje

An offense committed in the heat of intense emotion, such as rage, despair, or jealousy, is sometimes called Crime passionnel and more commonly referred to as a crime of passion. That emotional surge presumably affects a person’s capacity to think lucidly and wisely. It is a concept with well-defined parameters in the legal world, and could mean the difference between being convicted of premeditated murder or the lesser charge of manslaughter.

Provocation is Key

Crimes of passion are always provoked and occur with no foresight and with no time to cool down. Liability and penalties, though not entirely eliminated, are often reduced because the criminal activity was not premeditated. The common example of coming home to find your spouse in bed with someone else is the classic case that demonstrates how enraged one might be, making their actions somewhat more understandable. The legal principle is based on how a reasonable person might act at the height of this emotion. To be clear, the crime of passion defense is certainly not an attempt to pardon the individual of all wrongdoing; it is simply a way contextualize the crime and to help jurors relate to the situation in the hopes that it will result in a lesser sentence.

California Statute

Every state handles crimes of passion slightly differently. Here in the Golden State, California Penal Code Section 192(a) actually calls out the crime as a voluntary manslaughter that occurs during the heat of passion following significant provocation. The standard of proof, as in most states, is whether the defendant acted as a reasonable person might under similar circumstances. The crime must occur directly after the incitement, with no time in between to think about the situation or weigh response options. The resulting penalty could range from three years in prison to 11 years.

Less Egregious than Murder

In contrast to a crime of passion, a second-degree murder conviction, one that may not have been premeditated or even that occurred in a turbulent moment of passion, but that occurred with malice, could result in fifteen or more years of imprisonment. First-degree murder– one that is a premeditated and deliberate killing– could put a perpetrator behind bars for a lifetime. Under California’s three-strikes law, sentences can be doubled for a third strike. Continue reading

December 5, 2025

AI Hallucinations and the Law

by David M. Boertje

When prosecutors demanded that a California man who faced illegal gun possession charges be held without bail, the man’s defense team argued that the charges simply did not warrant such a harsh response. Prosecutors had pages and pages of explanations to support their argument. Unfortunately, for them, their extensive documentation was riddled with errors.

AI Issues

As it happens, the prosecutor’s office was using AI to beef up paperwork in several cases, and in each situation, there were serious misinterpretations of law, as well as quotations that did not exist in the cited text. Ultimately, there were clear indications that AI was the culprit behind the mistakes. It led defense attorneys to take the case to the California Supreme Court, in hopes that they would find a pattern of erroneous legal interpretations and case citations. That led to some interesting revelations.

Problems

Defense attorneys had 22 technology researchers and legal scholars alongside them in court. These professionals advised that the unchecked use of artificial intelligence in the legal field could lead to wrongful sentencing and convictions. Legal documents have been notably peppered with errors as a result of the use of Gemini and ChatGPT, which have been commonly used to prepare anything from essays and emails to legal briefs. When the use of AI goes unimpeded, the pitfalls can be disastrous, since these tools have been proven to contrive fictional answers to legal questions.

Arizona State University law professor Gary Marchant conceded that inaccuracies in court papers that are the result of AI are more likely an indication of negligence than deliberate deception. Nonetheless, because sycophancy is a known characteristic of AI, the truth is often stretched in an effort to divulge an answer that supports a specific argument. Commonly referred to as hallucinated content, roughly 600 cases have been detected worldwide, more than 60% of which occurred in U.S. courts. That leads to some gripping questions:

Since studies indicate that as many as 82% of legal queries on chatbots result in hallucinations, prompting extreme caution from Supreme Court Chief Justice Roberts in 2023, can court documents created with AI be trusted?
With 75% of lawyers planning to use AI in their work, how will legal outcomes be affected?
Should there be restrictions on the use of AI in legal work, since even AI tools that claim to reduce hallucination issues produce errors in 17% to 34% of uses?

November 21, 2025

Illegal Sports Betting

by David M. Boertje

Turn on the news and you will find all kinds of sports betting fiascos, driven by a number of high-profile scandals that have recently hit the headlines:

ESPN reports that the Lucchese crime family was the mastermind in a network of bookmakers nationwide who facilitated roughly $2 million in illegal betting over time. The family is facing charges of money conspiracy, money laundering, and related gambling offenses involving at least two college athletes and scores of others.
Rigged poker games and illegal sports betting have been uncovered involving a number of NBA teams, including the LA Lakers, Miami Heat, and Portland Trail Blazers.
MLB is dealing with an enormous scandal involving two pitchers who threw prearranged or bad pitches in order to earn thousands of dollars for bettors. Emmanuel Clase and Luis Ortiz face 65 years in prison, and several others have received lifetime bans from baseball.
A 41-game suspension was the punishment for the NHL’s Shane Pinto as a result of sports betting by proxy betters, even though none of those bets involved hockey.

Federal Law

The FBI Corruption in Sport and Gaming (CCSG) task force works to combat illegal sports and gaming, which includes:

Illegal entities and activities involving sports and gaming;
Game manipulation;
Doping charges and athletes;
Bribery from individuals and/or institutions;
Threats and/or extortion of officials, athletes, or sports staff.

Illegal Sportsbooks

The FBI looks into illegal sportsbooks, which frequently operate illegally with no betting limits or reporting requirements. The concern is that, in addition to risks to bettors, organized crime frequently uses the profits made from such illegal gambling sites for their other illegal operations, including the trafficking of weapons, drugs, and humans. When unsuspecting individuals get involved with illegal sportsbooks, it can lead to threats and extortion as a means of debt collection.

Game Manipulation

Athletes, officials, and staff may be contacted by criminal entities demanding game manipulations that impact the outcome of particular plays or games, financially benefiting bettors.

Sports Betting in California

There is no legal sports betting in California, and experts predict it will be a few years before it gets on the ballot again. In fact, a constitutional amendment will be necessary in order to allow a legislative change unless voters go to the polls to make a change, and any gaming expansion down the road will likely require a tribal coalition as well. As far as sportsbooks are concerned, only about 20% of voters want it, so it could be a lengthy wait.

Penalties

Illegal sports betting can lead to fines, misdemeanor charges, and jail time, with repeat offenders looking at felony charges, three years in prison, and fines of up to $10,000. Illegal operators could be charged with a felony and face asset forfeiture. Continue reading

November 7, 2025

Charged with Battery Against a Police Officer?

by David M. Boertje

Let’s say you were alarmed when police approached you unexpectedly. As they attempted to arrest you, in your confusion, you reacted based on your instinct to try to get away. In hindsight, you recognize that you made some decisions that were less than perfect, but that awareness is not going to help you with the charges you are now facing. In addition to resisting arrest, you have been charged with battery. A strong local criminal defense attorney is what you need at this point.

What is Battery?

Battery is any willful, illegal physical contact with someone else that is harmful or offensive. It is not just a couple of teenagers horsing around and winding up injured, or athletes getting roughed up on the basketball court. It is intentionally shoving someone to the ground, punching someone in the nose, or otherwise purposefully hurting them.

A “Wobbler”

The charge of battery of a protected person, which includes health care workers, school employees, sports officials, transit operators, taxi drivers, utility workers, and, of course, peace officers, can be harsher than when battery occurs against, say, a neighbor. The term ‘peace officers’ is a large umbrella, including people who work in corrections, firefighting, the judiciary, and police. Depending on the outcome of the event, charges of battery against any peace officer–police officer, in this case– may have different penalties than when a protected person is not harmed. That is because it is a “wobbler,” meaning prosecutors have the ability to up the charges in these circumstances.

While battery is a misdemeanor and penalties do not usually exceed six months behind bars and a $2,000 fine, when a protected person, such as a police office,r is the victim, the charge can be bumped up to a felony, which could mean a full year in jail on top of the $2,000 fine—and that is if no injuries occurred. If the officer suffers great bodily harm, a conviction could result in years behind bars and $10,000 in fines.

To be clear, an assault of an officer does not necessarily have to be a forceful event like a slap, kick, or punch. Throwing something at an officer, spitting on them, touching them angrily or rudely could all be charged as battery against a protected person.

Defending Charges

A suitable defense examines the situation in question and explores the following issues:

Were the defendant’s actions intentional?
Was the defendant acting in self-defense?
Was the officer on duty at the time of the incident in question?
Did physical contact truly occur, or was it merely a verbal altercation?
Were any injuries sustained by the officer the result of an actual battery, or did they occur in some other context?
Would lesser charges, or no charges at all, be more suitable?

September 26, 2025

Understanding Grand Jury Indictments

by David M. Boertje

If you have been indicted for a federal crime, or with any capital crime or felony at the state level– you likely have questions about the grand jury process. It is a procedure that is cloaked in secrecy, making it something of a mystery to the public. While we hear terms like “grand jury” and “indictment” in relation to high-profile cases, making sense of the terms when they directly affect you can be seriously troubling.

Understanding the Role of the Grand Jury

A cross-section of adults living in the area where a purported crime occurred will comprise any grand jury. Randomly identified individuals are notified by mail that they’ve been called to serve. Police and/or other investigative bodies have already delivered evidence to a prosecutor, who will then present that evidence—including documents, witness testimony, and more– to the grand jury. At the conclusion of this presentation, the jury will weigh the evidence and decide whether the prosecutor has demonstrated that the crime occurred at the hands of the accused. To put it more succinctly, they will decide if there is probable cause to justify bringing the case to trial.

The Indictment

If the grand jury finds that there is probable cause to charge a suspect on one or more counts, they will indicate so by providing an indictment – a formal finding–to the prosecutor. At that point, the prosecutor must either elect to pursue the case in a trial, use the indictment(s) to pressure a suspect into cooperating in a deal that provides immunity in exchange for testimony against someone else, or drop the case altogether.

Grand Juries Differ from Other Juries

Grand juries are made up of everyday citizens who are arbitrarily selected, just like other juries. Still, they differ from other juries in many important ways:

Grand juries are undisclosed until after an indictment is delivered, with the public—and the suspect– typically unaware they are meeting.
Anywhere from 16 to 23 people typically serve on grand juries, higher than in criminal cases.
Grand juries are tasked with deciding whether there is enough evidence to support bringing the case to trial, as opposed to criminal juries, which are charged with determining innocence or guilt.
There is no defense presentation for a grand jury, as it is not a trial.
Criminal juries must unanimously find guilt beyond a reasonable doubt, while only half plus one is required to move the case to trial in a grand jury (a much easier standard to meet).
A defendant attends a criminal trial but is never present for a grand jury proceeding, as he or she is not even aware that a grand jury is looking into them until after there is an indictment.
Unlike typical juries, the grand jury can call witnesses with the help of the prosecutor,
Because a grand jury proceeding is not a trial, double jeopardy does not apply; therefore, if there is no indictment, the prosecutor can always gather more evidence and try again with a new grand jury in the future.

September 19, 2025

Charges of Violating a Protective Order

by David M. Boertje

If you have been accused of violating a protective order, you are not alone. Studies indicate that half of all survivors of domestic violence who have obtained protective orders in the country report their abusers violate those orders, with a result of escalating violence. When those orders are violated, survivors say nothing happens to abusers when the violation is reported to authorities. While that may be the case in some states, in California, the legal consequences for violating a protective order are significant.

Protective Orders

A protective order can be issued in a civil court in an attempt to protect applicants from harassment and harm from another person. An Emergency Order may be granted if the alleged victim of a crime calls 911 and requests help, and typically lasts no longer than one week. If the defendant is ultimately arrested and charged with a crime, a judge can issue a Criminal Protective Order, which is designed to protect alleged victims of domestic violence and witnesses. A restraining order might also be issued, which orders the accused to stay away from the victim while continuing requirements to pay child/spousal support.

August 29, 2025

Defending Against Charges of Date Rape

by David M. Boertje

When someone is accused of acquaintance rape, or date rape, the charge is exactly the same as for any other rape. The fact that the parties knew one another is beside the point. A guilty verdict could result in prison time and having to register as a sex offender. The reputational damage, along with the emotional toll these charges take on a person, cannot be overstated. These are consequences no one wants to live with. If you are facing such charges, you need a no-nonsense criminal defense attorney fighting for your rights.

First Things First

It is a good idea to hire an attorney the minute you realize there could be a legal issue—even before charges are filed. That way, you will have someone by your side who understands the law and who can guide you when it comes to answering questions, submitting evidence, and more. Additionally, it will be necessary to take some additional steps:

Get off all dating sites. Do not communicate with anyone through such a site, the accuser in particular. The problem with these kinds of “blind” communications is that you cannot ever know if the person inquiring about you is an innocent individual who happened to like your profile, or if it is a friend of your accuser who is trying to get some dirt on you.
Do not discuss the case with anyone. The only person who is protected by the attorney-client privilege is you. Friends and family could be compelled to elaborate on anything you say to them in a courtroom.
Assuming both parties stipulate that there was a sexual encounter, DNA evidence will likely not be a major factor in the case. The issue at hand will be whether the sex was consensual. If the victim had an examination, often referred to as a rape kit, we will carefully examine the results, looking for any physiological evidence that might be consistent with your accuser’s claims.
If there was no physical examination, the case will rely more heavily on witness statements and circumstantial evidence. Typically, there are strong protections for alleged rape victims, and it can be difficult to bring up previous actions or relationships.
We will analyze the circumstances and try to determine if there was a misunderstanding of some kind or if your accuser is overtly lying. We will look for omissions and inconsistencies in the accuser’s story and highlight those issues in our defense.