Articles Tagged with California criminal defense attorney

Anyone facing criminal charges is hoping for an outcome other than a guilty verdict. That can come through an acquittal, although sometimes it is quicker and easier to have the charges dropped or dismissed before ever reaching a courtroom. How can any of these results find their way to your case? 

Dropped Charges

Criminal charges are filed when a prosecutor thinks they have enough evidence to get a guilty verdict if the case makes it to trial. If the prosecutor has doubts about that, they may drop the charges and tell the police to find further evidence if they want the case to move forward. This can occur at any stage of the process.

Dismissed Charges 

When the prosecution believes they have proof beyond a reasonable doubt, they will press forward with the case. The issue of reasonable cause is weighed by a magistrate judge during a preliminary hearing, where the judge takes a look at the evidence at hand. If the judge believes there is probable cause to move forward, it is a green light to the prosecutor. If there is not a strong foundation for a case, on the other hand, the complaint will be dismissed, and the defendant is free to go.

What if the Victim Wants the Charges Dropped

Sometimes victims want charges to be dropped, but the final decision is the prosecutors. If the prosecutor thinks it is in the interest of public safety to continue on, they may have to ignore a victim’s request. However, if the victim fails to cooperate, it may destroy the prosecution’s case, resulting in dropped charges anyway. This happens in cases of domestic violence, for example, when victims choose not to testify against their abusers.

Reasons Prosecutors/Judges May Choose to Drop or Dismiss Cases

There are plenty of situations when cases are dropped or dismissed, and a defendant walks away from the whole thing. While there may be a possibility that the case comes back to haunt a defendant later down the road, sometimes the case takes a turn in a whole new direction. Circumstances that could lead to a reprieve include:

  • Lack of evidence to support a guilty verdict;
  • Request by the victim to drop the case;
  • New information that contradicts the original theory of the crime;
  • Problems with evidence being inadmissible for one reason or another;
  • Issues relating to a defendant’s constitutional rights being violated;
  • An acceptable plea deal is reached wherein a defendant pleads guilty to lesser charges in exchange for lesser penalties.

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If criminal charges have you headed for a trial and you are determined to testify in your own defense, be prepared for a rough cross-examination experience. Prosecutors know how to paint people in a negative light, and they will undoubtedly be prepared to try to overwhelm you with a variety of questions and techniques 

Prosecutors’ Goals

A prosecutor is single-mindedly trying to undercut your story by attempting to catch you in discrepancies and inconsistencies. They will try to get you to confirm the facts that they have presented while simultaneously dinging your credibility, all in pursuit of a guilty verdict. You can anticipate a premeditated and planned-out attack.

The First Amendment guarantees the right to free speech in this country. Nonetheless, we hear about judges issuing gag orders in high-profile cases, clearly restricting the speech of individuals connected to both civil and/or criminal trials. What gives? 

The Point of Gag Orders

Judges typically issue gag orders—sometimes called non-dissemination orders– to restrict people from talking about a case publicly. They can apply to witnesses, attorneys, plaintiffs, and defendants. Protecting the integrity of the court system is the goal of these orders, as judges strive to keep potential jurists from hearing about the case outside of the courtroom. Even so, they are quite controversial because limiting speech is contrary to the First Amendment. 

Hazing occurs in high schools and colleges across the country, notwithstanding extensive publicity detailing the dangers associated with it, in concert with laws on the books penalizing those who perpetuate it. Here in California, we have seen our fair share of hazing resulting in horrendous outcomes: 

  • A high school football player in Rancho Cucamonga pleaded with teammates to stop while held in a chokehold and beaten with a belt in the locker room of the school.
  • A student attending a Riverside college died of heart failure in the course of five weeks of physical abuse.

Here in California and across the nation, police use spit hoods to protect officers from being spit on or bitten when individuals engage in this behavior or threaten to, during arrests, transfers, or otherwise, as necessary. It is understandable that police want to avoid such attacks—but there are real concerns about the safety of these hoods.  

More About Spit Hoods

These hoods are really just mesh sacks that are placed over an offender’s head, sometimes made with material like what is used in medical masks on the bottom. They have an elastic ring around the opening. The mesh is made to allow wearers to breathe and see while containing any fluids that may be ejected.

These masks are viewed as a restraint, like cuffs or leg irons, and not a use of force. However, it seems that the use of hoods in conjunction with takedowns, strikes, pressure points and other uses of force can result in serious consequences.

Other factors that might make hoods more dangerous for wearers include having drugs in their system or suffering a mental health crisis that may have elevated a person’s heart rate and/or impacted breathing.

Study Conclusions

There is a fair amount of research showing that even the most heavyweight spit hoods out there are easier to breathe in than N95 masks. People who tested the masks say they could breathe even when artificial saliva was sprayed on the hoods to copy what a realistic situation might be like. 

But the studies were very different from real life in another way: they lacked the chaos and stress that go hand in hand with a typical arrest. Subjects in the study were not upset; they had not recently tried to escape by running from officers; they had not resisted arrest; and had not suffered tactical maneuvers at the hands of police to get them under control. In other words, they were likely not experiencing a rise in blood pressure, breathing, heart rate, and emotion.

In the Real World

What do people who have had to wear spit hoods outside of a controlled environment have to say about them? It is scary and makes one feel as though they could lose consciousness if things went too far. They also point out that saliva is thicker than the artificial material used in studies, and because arrestees in hoods may bleed or vomit, it makes breathing much tougher than studies imply.

Death Connected to the Use of Hoods

Over the course of ten years, more than thirty in-custody deaths occurred involving individuals who were wearing spit hoods. The hoods were used along with tactical moves or weapons, including stun guns, pepper spray, and hogties, aggravating breathing and heart issues. These facts bring to light the seriousness of decisions made by law enforcement as they arrest and restrain Americans every day. Continue reading

It is a decision that must be weighed very carefully: should you testify in your own defense? About half of all defendants decide to take the stand to proclaim their innocence. Defendants with prior felony convictions are less likely to testify, often concerned that juries will discover they have had past problems with the law. Likewise, those accused of charges related to gang activity seem to believe juries will be biased against them and are usually reluctant to take the stand. What about you? Will you be able to make the case for yourself that no one else could? 

Possible Benefits

Every defendant has the right to testify.  Some reasons it may be a good idea include:

  • The obvious plus side of testifying in your own defense is that you get to set the narrative. You can directly challenge the testimony of other witnesses, clarify misunderstandings, and demonstrate your innocence by directly confronting the charges against you.
  • If you present as a sincere and credible person, the jury will have the opportunity to see you as a human being deserving of fair consideration and empathy.
  • The jury will be instructed not to infer guilt if you choose not to testify.  Even so, the fact that you are willing to testify demonstrates your confidence in yourself, taking away juror questions about what you may be hiding by refusing to take the stand.

Potential Risks

Although it is your right to defend yourself by taking the stand, doing so is not without potential pitfalls:

  • Prosecutors will take the opportunity to aggressively question you in the hopes of unnerving you, discrediting you, and generally undermining you.
  • While you may have a clear understanding of your own perspective, you likely do not understand the legal nuances related to the case.
  • Anything you say can be used by the prosecution to weaken your case. They will set traps, hoping you open the door to further inquiries along new lines. They can also call additional rebuttal witnesses to contradict your version of events.

If You Do Testify

If testifying is definitely something you want to pursue, keep these tips in mind:

  • Understand the allegations and thoroughly prepare your testimony, with plenty of rehearsal.
  • Be calm, respectful, and attentive.
  • Particularly during cross-examination, maintain eye contact, and answer only as much as you are asked.
  • If questions are misleading or unclear, rephrase them to get the information out that you want out.
  • Maintain positive body language.

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The federal Witness Protection Program is operated by U.S. Marshals, with the goal of providing new identities to individuals who face the possibility of vengeance from organized crime groups like the Mafia, for example, when testifying against them. Groups like these who terrorize communities or are otherwise involved in violent crimes may be a real threat to witnesses. The government understands that government cooperation can be a serious safety concern for witnesses and their families and has been tasked with protecting them since 1971 as part of the Organized Crime Control Act of 1970.  Since that time, almost 20,000 people have been hidden and protected by the Marshalls, and the feds are proud to say that no person in the program who has adhered to the guidelines has ever been injured or killed by an adversary.  Even so, entry into the program is factually a mammoth disruption to life. What do you need to know about it? 

What to Know About Witness Protection

Some little-known facts about witness protection should be considered before agreeing to placement in the program:

  • The U.S. Attorney, the U.S. Marshals, and the Department of Enforcement Operations Eligibility must successfully vet and sponsor anyone entering Witness Protection.
  • Mental and physical testing is required of individuals prior to entering the program.
  • Appropriate jobs in the new location are determined through extensive skills testing.
  • New surnames are provided, although first names may remain the same.
  • Documentation, including new social security numbers, birth certificates, and driver’s licenses that support new identities, is provided.
  • The school records for minor children will be amended.
  • Although plastic surgery was offered prior to 1990, it is no longer part of the program.
  • Witnesses are provided with financial assistance for about six months in order to have time to develop self-sufficiency.
  • Furnished homes in neighborhoods with schools and churches will be provided.
  • After witnesses are asked where they would like to go, they are sent anywhere else so that no one can anticipate the move, although an effort is made to place them in an area in which they would be comfortable.
  • Witnesses may make phone calls to loved ones left behind on a secure line and are allowed to write letters through a secure system (although letters must be destroyed after being read).
  • Witnesses generally are contacted by the Marshals about once per year to make sure things are going satisfactorily.
  • Even if they get married later, people in the program can NEVER reveal their history.
  • When they leave, witnesses are not allowed to tell people where they are going. They must simply just disappear from their lives.
  • About 90% of witnesses in the program have a history of criminal activity themselves.

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We hear about the right to a speedy trial—a constitutional guarantee provided by the Sixth Amendment. Nevertheless, we hear about people who are behind bars awaiting trial all the time, which makes one wonder, what does the term “speedy” really mean in this context? And why are nearly 45,000 people sitting in county jails across California even though they have never been convicted or sentenced? Moreover, why have over 1,000 been rotting in jail for over three years, and why have another 332 been there for over five years? 

Speedy is Debatable

There is no actual definition of “speedy” in the Constitution, so scholars have landed on the term “reasonable” to describe the length of time someone must wait for a trial to occur.  Unfortunately, that word is no more definitive than the word we were originally trying to understand! We can look at legal precedent and see that the U. S. Supreme Court defined a speedy trial as essentially a balancing act where the conduct of both the prosecution and the defendant are contemplated. If that makes the definition sufficiently muddy, perhaps the four items to be considered will help:

  • The length of a delay;
  • Reasons for a delay;
  • Prejudice to a defendant;
  • Whether the defendant requested a speedy trial.

Still feeling a bit confused? Thankfully, the Speedy Trial Act puts some meat on the bone.  In general, a suspect must be charged with a federal crime within 30 days of a summons or arrest. Assuming the person pleads not guilty, a trial must be scheduled for no more than 70 days beyond that date or the date the person appears in court. Local statutes differ by state, but have similar deadlines.  Here in California, Penal Code 1382 PC has the following time limits:

  • Within 15 days of arrest formal charges must be filed;
  • Trials must occur within 45 days of arraignment for misdemeanors and infractions;
  • Felonies must go to trial within 60 days of arraignment.

Why Doesn’t This Always Occur According to Time Constraints?

Under certain circumstances, these rules may be modified, which can occur if either party asks the court for a continuance. For instance, the defendant may wish to waive their right to a speedy trial if they need more time to bolster their defense. There may be other reasons to delay the trial, including: 

  • If the case is extremely complicated and more time is needed;
  • If new evidence changes the route a prosecutor or defense attorney may wish to engage;
  • If the court calendar is too full to handle the cases in a speedy fashion;
  • If the defendant becomes ill or otherwise incapacitated and unable to attend trial;
  • If a natural disaster or other incident (like the pandemic) makes trying the case on time impossible.

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A new fingerprint study is in—and plenty of scientists and forensic experts are taken aback: it claims to turn previous understandings about fingerprints upside down and to revolutionize fingerprint analysis in police work.  How significant is this study? 

The Old Mode of Analysis

Analysts in the fingerprint business have focused on the endpoints and branching in the ridges of fingerprints—called the “minutiae”—as they attempted to match fingerprints with suspects. This has been the emphasis for forensic experts for literally hundreds of years. Never before has the correlation between fingerprints on the same person been studied.

The New Node of Analysis

A study relying on artificial intelligence (AI) has changed the focus. Using this technology—which is the same technology used in facial recognition–researchers studied 60,000 pairs of fingerprints presented to AI. While some pairs of prints belonged to the same person but with different fingers or angles on the prints, others belonged to different people altogether. Scientists wanted to know if the technology could spot the prints that belonged to the same person or not.

Results of the Study 

After examining the curves and angles at the center of each print, the computer was able to determine that the prints belonged to the same individual just under 80% of the time. These similarities disprove the old theory that every single fingerprint is different. 

Implications

Although this initial research is relatively small, and researchers concede that their study needs replication using a larger and wider database of prints, they think that, ultimately, the findings will impact criminal investigation in huge ways. Innocent people who are suspects in a case can now be off the hook as suspects when their prints—using the new analysis– clear them. And more criminals could be caught with this analysis.  Cold cases could be reopened, too.  When investigators have only one print on file, AI can still make a match of latent prints, and new leads could be scrutinized as prints at the scene are identified when different fingers identify a suspect.  

On the Other Hand…

While the study itself is not disqualifying, some critics say the authors have largely overstated the importance of their work. They say analysts have known all along that fingerprints are different but similar and that the prints on different fingers of the same person are very similar. 

When it comes to the claim that reliance on AI can be the basis to reopen cold cases if the prints found at a crime scene are from different fingers than the police have on record, that is pretty much bunk, too. That is because it is common practice for officers to take all 10 fingerprints from suspects who are arrested—so how does the research really impact common practice in the legal field?

What’s Next?

As the study of fingerprints intensifies, one thing is certain: AI can provide insights previously overlooked that can help forensic scientists who are hoping to link suspects to crimes. While it is generally established that further study is necessary, the notion of looking at fingerprints in a whole new way is bringing new clarity to the conclusions reached by investigators and others. Continue reading

Who hasn’t seen videos of police manhandling citizens who were allegedly involved in criminal activity? Such accounts, usually recorded by interested onlookers, have informed the public of the unnecessary use of force by officers across the country. Imagine how little we would know about Rodney King, Eric Garner, Tamir Rice, Walter Scott, George Floyd, and many, many others had no one taken the time to record the horrendous incidents. But beyond simply videotaping arrests and other police interactions with the public, is it legal to actually livestream them? While livestreaming might benefit the fight for civil rights, might it also hamper an officer’s ability to do their job and even lead to uprisings and riots? After all, we have seen as much with the use of video; wouldn’t livestreaming be even more evocative? 

The First Amendment

The right of people to videotape law enforcement officers when they are performing public duties has been repeatedly upheld in courts across the country, which have found that it is unmistakably a right guaranteed by the First Amendment. But livestreaming is another thing altogether, allowing the public broadcast of an officer interaction in real-time. What does the law say about that?

Legal Precedent

Plenty of officers are uptight about livestreaming when they are on duty, saying it interferes with their ability to do their jobs properly and creates the potential for additional dangers. While the law is evolving on this issue, the Fourth Circuit has provided some direction regarding the legality of livestreaming.

The February 2023 case (Sharpe v Winterville Police Department) involved a motorist who was stopped by police. At the beginning of the interaction, a passenger began to livestream the occasion. The officer attempted to take the passenger’s phone, explaining that while the passenger videotaping the interaction was permissible, livestreaming was not because it could lead to an unwanted hazard if others viewing the stream showed up and caused problems at the scene of the traffic stop.

The passenger was having none of that, and challenged the officer’s contentions in court, maintaining First Amendment Rights had been violated. The Fourth Circuit agreed with the plaintiff, writing that livestreaming does contribute to the information the public has about law enforcement activity and is protected by the First Amendment under these circumstances.

Nonetheless, the court did appreciate that officer safety might be an issue in some situations: 

  • In the event an individual became proximate to the officer, inhibiting the ability to perform duties; 
  • In the event viewers of the livestream were invited to the scene in order to demonstrate or otherwise impede the officer’s actions. 

Under these circumstances, officers potentially could have more leeway legally to claim that First Amendment protections were limited and might not include livestreaming. Continue reading

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