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Investigating a Criminal Case: Experts, Investigators, and Subpoenas

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Preparing for trial shouldn’t involve simply reviewing discovery. Rather, the defense should use various investigative means to present the best possible case.

Interviewing prosecution witnesses can be a critical component of preparing a defense in a criminal case. But there are other forms of investigation that might also provide or reveal essential information. The defense might:

"Outrageous": Police Misconduct as a Defense

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Sometimes the police go too far.

There are limits to what the police can do in the attempt to detect crime. If they go too far—if their conduct is outrageous, they can violate the suspect’s due process rights.

Recording the Police: Legal?

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Do you have the right to record a police officer doing his job?

You see an officer talking to a guy on the street, and things are getting heated. You’re a concerned citizen who has seen how helpful a bystander’s home video can be in determining whether a police officer acted lawfully. After all, isn’t a recording the most accurate way to observe and report police conduct? Aren’t you simply doing your civic duty to document the interaction?

Invoking Your Right to Remain Silent

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Do you ever have to say something in order to invoke your privilege against self-incrimination?

You’ve seen it time after time on primetime television police shows—cops slapping the cuffs on a “perp” and reading him his rights: “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” And so on. Believe it or not, this ubiquitous arrest scene presents a rare instance in which Hollywood stays true (for the most part) to the laws of criminal procedure. Indeed, the (in)famous case of Miranda v. Arizona requires that law enforcement officers advise arrested suspects of certain rights, including the option of saying nothing. ((1966) 384 U.S. 436.) Miranda, which derived from the Fifth Amendment privilege against self-incrimination, also triggered the practice of officers telling arrestees that:

Decisions That Only the Client Can Make

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Your lawyer has a duty to inform you of the best strategies for your criminal case, but you have the final say about many decisions.

Don’t be fooled by movie and TV defense attorneys who often say things to clients like, “Do it my way or else.” As lawyers’ ethical codes recognize, cases belong to defendants, not to their attorneys. It is always the client, not the attorney, who pays the fine or serves the time. Thus, defendants have the right to participate in important case decisions.

On the other hand, lawyers are not “mouth­pieces.” They are not required to fulfill all of their clients’ demands, especially if doing so would conflict with ethical rules or the lawyers’ own professionalism.

Negotiating Before Arraignment and Pleading Guilty at the Arraignment

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Some criminal defendants are better off negotiating with the district attorney early in their case to minimize the consequences.

Defendants who believe the case against them is very weak often ask whether it's possible to negotiate a dismissal before the arraignment. Unfortunately, this possibility generally exists only for defendants who hire private attorneys prior to arraignment. Defendants who are represented by court-appointed counsel often do not even have counsel appointed until the time of arraignment. And a self-represented defendant should not risk additional legal difficulties by discussing the case with a prosecutor before arraignment (assuming that a prosecutor would agree to meet with the defendant in the first place).

The Patriot Act and Electronic Communications

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Electronic communications aren't nearly as private as they were pre-Patriot Act.

When former government contractor Edward Snowden leaked a trove of top-secret spy agency documents, many of us learned for the first time that the government is snooping into our electronic communications. The U.S. government engaged in this covert activity under the aegis of a post-9/11 law called the Patriot Act. This article discusses the Patriot Act as it pertains to government surveillance of email, social media, and other electronic data.

Criminal Record Holding You Back? Learn How to Overcome These Obstacles

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If your criminal record doesn’t qualify for expungement or sealing, don't despair. You can take several steps to make it more likely that you’ll be hired.

Criminal Mischief


Discovery: What and When the Prosecution Must Disclose

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Discovery—the information about the other side’s case—is supposed to promote fair trials and case settlement. Learn how it works.

Discovery is the process through which defendants find out about the prosecution’s case. For example, through standard discovery procedure, they can:

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