Probation Violations

Posted by Chris Morales on Wed, Dec 16, 2015 @ 12:00 PM
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Tags: jail, felony, violation, sentence, Fines, restitution, attorney, criminal, crime, probation

The Limits of Expunging Your Criminal Record

Posted by Chris Morales on Wed, Nov 25, 2015 @ 06:50 AM

By Janet Portman, Attorney

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Tags: California, San Francisco, criminal defense attorney, court, criminal record, expungement, cases, attorney, sentencing, records

What Are Extenuating Circumstances?

Posted by Chris Morales on Fri, Nov 20, 2015 @ 09:00 AM

A crime may be charged as a lesser offense, or a sentence may be light, if extenuating circumstances (or mitigating factors) convince the prosecutor or judge to cut the defendant a break.

Two people rob a convenience store at gunpoint. One is a 13-year-old girl, with no criminal record, a runaway with a drug problem, who has fallen under the spell of an older man. The other is her 26-year-old boyfriend. He has a long criminal history, including other armed robberies. The robbery was his idea, and he planned the crime and obtained the weapons. Are these two people equally responsible for their criminal conduct? Do they deserve the same sentence? If not, why not?

Extenuating circumstances are facts that tend to lessen the severity of a crime or its punishment by making the defendant’s conduct understandable or less blameworthy. Extenuating circumstances might include a defendant’s young age, mental illness or addiction, or minor role in the crime. For example, people sometimes break the law while acting in accordance with their religious or cultural beliefs, and this might be considered an extenuating circumstance. A parent who is convicted of child abuse for failing to obtain medical care for a child for religious reasons might be considered less culpable than a person who does the same thing due to neglect, and might raise this issue as a defense to a criminal charge.

How Are Extenuating Circumstances Used?

In law, the concept of extenuating circumstances, sometimes called mitigating circumstances, is broad and the term may mean different things to different jurists. Sometimes, it refers onlyto factors that impact sentencing. Other times, it refers to anything short of a defense that makes the defendant’s criminal behavior less blameworthy and results in a less serious charge or sentence. Sometimes, what is an affirmative defense in some situations or states is an extenuating circumstance is others.

For example, possession of any nude or sexual image of a child under the age of 18 is a crime (child pornography). Sometimes, state laws are written in a way that takes extenuating circumstances into account. In such states, a teen who possesses a nude cell phone picture of another teen might be charged with the less serious crime of teen sexting. Even if the law is not explicit in how to deal with the defendant's age, in many states, if the defendant is also under the age of 18 and the teen depicted willingly sent the image, the crime will be punished less severely than if the defendant were an adult with a collection of computer child pornography.

Decision-makers in the criminal justice system, such as police officers, prosecutors, judges and jurors, are always considering extenuating circumstances along with all the other facts in deciding how best to handle a case. If a person with a developmental disability steals a soda from a store, a police officer might decide not to make an arrest, a prosecutor might decide not to charge the person at all or to charge a person with a less serious crime, the jury might decide not to convict, or a judge might sentence the defendant to a lighter sentence than the maximum.

Aggravating Circumstances

In contrast, aggravating circumstances make a crime more severe or serious. Common aggravating circumstances include the defendant's lengthy prior record or that the crime caused serious injury to a victim.

Capital Cases

Normally, judges, not jurors decide a defendant’s punishment, based not only on the law and the facts, but often on a probation report, which often contains many details about a defendant’s life that are not necessarily part of the criminal case. Death penalty cases are unique because, in most states, jurors decide whether to sentence a defendant to life in prison or death.

In making those decisions, jurors are first required to consider any mitigating (extenuating) circumstances. Mitigating circumstances are not defenses or excuses, but factors that tend to reduce the defendant's blame. State laws vary, but in some states, jurors are required to find the existence of aggravating and mitigating circumstances and then assign weight to these circumstances in fixing the verdict. Examples of mitigating circumstances in capital cases include the defendant's:

  • lack of a prior criminal record
  • extreme mental or emotional disturbance at the time of the crime
  • belief that the crime was justified
  • role as a minor participant in the crime
  • old age or youth (including being a minor), or
  • extreme duress.

In addition, the jury may take into account that the victim was participating in the crime with defendant; and consider any mental illness, disability, or serious intoxication that prevented defendant from understanding or controlling his or her behavior, as well as any other circumstances that lessen the severity of the crime.

Obtaining Legal Assistance

If you were arrested or charged with a crime, but believe that extenuating circumstances are present, you should talk to an attorney about your case. An experienced criminal defense attorney will be able to explain the law, and how to best present your extenuating circumstances so that you achieve the best possible outcome in your case.

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Tags: defendant, Criminal Defense, punishment, judge, criminal record, attorney, defense, crime

What Happens During Booking?

Posted by Chris Morales on Wed, Nov 18, 2015 @ 08:20 AM

Defendants who are arrested and taken to jail are normally booked shortly upon arrival.

Booking records provide information about the people who are brought to jail. Because booking creates an official arrest record, arrested suspects who can post bail immediately often can’t be released until after the booking process is complete. Even suspects who receive citations in lieu of being taken to jail often must go through a booking process within a few days of their arrest.

How Long Does Booking Take?

At its slowest, the booking process may take hours to complete. How long it takes depends on how many of the standard booking procedures are conducted (explained below), the number of arrestees being booked at the same time, and the number of police officers involved in the booking process.

Typical Steps in the Booking Process

Step 1: Recording the suspect’s name and the crime for which the suspect was arrested

In olden days, this information became part of a handwritten police blotter; now virtually all booking records are computerized.

Step 2: Taking a "mug shot"

Mug shots have a variety of possible uses. For instance, a mug shot can help to determine which of two people with the same name was arrested. A mug shot can also help to establish a suspect’s physical condition at the time of arrest. The suspect’s physical condition at arrest can be relevant to a claim of police use of unlawful force or to whether the suspect had been in an altercation before being arrested.

Step 3: Taking the suspect’s clothing and personal property into police custody

At a suspect’s request, some booking officers allow suspects to keep small personal items like a wristwatch. Any articles taken from the suspect must be returned upon release from jail, unless they constitute contraband or evidence of a crime.

Example: Sticky Fingers is arrested for stealing a calculator. The police seize the calculator at the scene of the arrest. During the booking process, the police find a packet of illegal drugs and a stolen camera in Fingers’s backpack. These items will not be returned to Fingers upon his release on bail. The calculator and the camera are evidence of the crime of shoplifting. The drugs are illegal contraband; the police can take them regardless of whether drug charges are filed against Fingers.

Step 4: Taking fingerprints

Fingerprints are a standard part of a booking record, and are typically entered into a nationwide database maintained by the FBI and accessible to most local, state, and federal police agencies. Comparing fingerprints left at the scene of a crime to those already in the database helps police officers identify perpetrators of crimes.

Step 5: Conducting a full body search

Police officers routinely make cursory pat-down inspections at the time of arrest. Far more intrusive (and to many people, deeply humiliating) is the strip search that is often part of the booking process. To prevent weapons and drugs from entering a jail, booking officers frequently require arrestees to remove all their clothing and submit to a full body search.

Strip searches are legal even when the arrestee has been brought in for a relatively minor crime, such as an infraction; and even when there are no facts that would suggest that the arrestee is carrying a weapon or contraband. In a 2012 case, the U.S. Supreme Court ruled that such a search was legitimate even in the case of a person who was stopped for a traffic violation and arrested for failure to pay an outstanding fine (the fine had in fact been paid long ago).  (Florence v. County of Burlington, No. 10-945.)

Step 6: Checking for warrants

The booking officer checks to see if an arrestee has any other charges pending, ranging from unpaid parking tickets to murder charges in other states. Suspects with warrants pending are normally not released on bail.

Step 7: Health screening

To protect the health and safety of jail officials and other inmates, the booking process may include X-rays (to detect tuberculosis) and blood tests (to detect sexually transmitted diseases such as gonorrhea and AIDS).

Step 8: Eliciting information relevant to incarceration conditions

To reduce the likelihood of violence and injuries, jail officials often ask arrestees about gang affiliations, former gang affiliations, and other outside relationships. Depending on the answers, an inmate may have to be placed in protective custody or housed in one section of a jail rather than another. Routine questioning along these lines does not constitute an “interrogation” that requires officers to give a Miranda warning to the suspect. Information that suspects disclose in response to a booking officer’s questions may be admissible in evidence under the “routine booking question exception” to Miranda. (Pennsylvania v. Muniz, U.S. Sup. Ct. (1990); see Exceptions to the Miranda Rule.)

Step 9: DNA sample

Suspects may be required to provide DNA samples that are entered in national DNA databases. (Can officers collect DNA samples from suspects?)

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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Tags: Criminal Defense, jail, defendants, record, suspect, Warrant, booking, attorney, arrested

Getting an Attorney to Handle Your Criminal Case

Posted by Chris Morales on Mon, Nov 09, 2015 @ 08:40 AM

There's a lot at play when it comes to legal representation.

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Tags: defendant, judge, case, jail, court, legal representation, clients, attorney, charges, criminal justice

Where the Police Can Look When Your Roommate Consents to a Search

Posted by Chris Morales on Mon, Oct 26, 2015 @ 11:40 AM

Police need a warrant before they can search a home, unless an exception to the warrant requirement applies. One such exception is consent: If someone with control over the property agrees to a police search request, the subsequent search is legal. Someone with “control” over the property includes a resident of the home, but not someone who is clearly a momentary visitor. (For more on guests, see Ignorance Isn’t Bliss: When Police Search a Home With Only a Guest’s Consent.)

But even when it’s clear that someone has authority to consent to a police search, that person doesn’t necessarily have authority to allow the police to search all parts of the home. This issue frequently arises with roommates, who might share certain areas of the home but not others (such as their bedrooms). When police come knocking at the door and find only one cotenant or roommate home who readily invites the officers in to take a look, is the consent sufficient? If so, what is the scope of that invitation? Where, exactly, can the police search? 

Police Searches When Only One Roommate Consents

The police can enter a home when only one occupant of several is present and consents—the agreement of any other occupant isn’t needed. For example, if college students Alex and Brian share an apartment and the police ask to enter when only Alex is home, his consent is all that’s needed to make their entry legal.

To learn about what happens when there's conflicting consent, see If my roommate tells the cops they can come in, but I tell them they can’t, can they?

One Roommate Consents: Where May the Police Search?

In general, the police may search all parts of the home that the person who gave consent uses. So, they can search any part of the premises the consenting party occupies (such as that person’s private room) and any areas of the home where all roommates or tenants have access. Shared areas generally include places like the living room and kitchen.

Importantly, though, the police generally cannot search the private room or belongings of a person who, either present or not, did not grant consent. To determine whether the police may search a specific part of a home, courts evaluate whether the person who granted consent has access and authority over it. To return to our example of Alex and Brian, the police would not have authority to search Brian’s bedroom, if that room were his alone and not one Alex had use of.

When only one roommate has granted consent for the police to perform a search, courts often look at the relationship and understanding between the roommates to decide how much of the home the police were authorized to examine. For example, searching an entire residence would be justified if the roommates were romantic partners—the assumption is that no areas of the home were off-limits to either partner. But if the residents are simply roommates or cotenants and one doesn’t have permission to use or access another’s bedroom, then that bedroom is off-limits. On the other hand, if Alex and Brian, starving students that they are, can afford only a one-bedroom apartment, then the bedroom and closet that they share means that the consent of one will probably permit the police to search the shared space.

With almost all search issues, the issue is as much how the circumstances reasonably appeared to the police as it is whoactually has access to and uses what in the home.

Private Belongings

The considerations that dictate whether the police may search certain areas of a home also apply to items within the residence. Even if a roommate consents, the police cannot search a closed bag or suitcase of another occupant unless the consenting roommate has access to that item as well. (For a related issue, see Can a host give consent for a search of a guest’s belongings?)

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Tags: Criminal Defense, consent, search, Warrant, legally, attorney, police

How can I find out if the prosecution is hiding helpful evidence?

Posted by Chris Morales on Thu, Oct 22, 2015 @ 01:00 PM

Prosecutors don’t have to actively search for or follow every lead that might lead to information that could help a defendant. But they do have to turn over information that’s favorable to the defense, even if the defense doesn’t ask for it. Defendants are therefore left in the potentially tenuous position of relying on the opposition to help them out, at least to a certain extent. They and their attorneys frequently have the concern (valid or not) that prosecutors have wrongly withheld helpful information. The question is: What, if anything, can they do about it?

The Search for Helpful Information

Though they have an ethical duty to achieve justice, not just to obtain convictions, prosecutors in an excess of zeal may fail to voluntarily reveal favorable information—that is, information that’s either exculpatory or impeaches the prosecution’s case in some way. Defendants should always be alert to the possibility that exculpatory information exists. Defense counsel may learn of it in one of the following ways:

  • by finding a reference to helpful information in a document that the prosecution already turned over, or
  • by actively investigating the case—for example, asking witnesses and police officers who are willing to talk whether they know of any information that might support the defense version of events. Defense attorneys and their investigators may take this tack before, during, and even after trial (in the latter instance, with an eye toward appealing a conviction).

Access to Police and Prosecution Files?

To defendants’ disappointment, neither they nor their attorneys are entitled to rummage through law enforcement documents and objects in search of favorable evidence. However, defense attorneys can file pretrial motions asking a judge to force a prosecutor to give the defense access to police and prosecution files, or at least to review such files and determine whether the defense is entitled to them. Judges won’t allow defense attorneys to go on “fishing expeditions”—rather, the defense must usually show in advance that there's a good chance the information is subject to discovery.

Consult Your Attorney

If you face criminal charges and have an attorney, consult with that lawyer as to how to make sure that the prosecution has turned over all mandated discovery. If you don’t have a lawyer, get one. Only an experienced criminal defense attorney can explain and navigate the ins and outs of the discovery process to make sure you have all the evidence you’re owed.

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Tags: defendant, prosecutors, attorney, criminal, defense, charges, police

Exceptions to Confidentiality of Juvenile Criminal Record

Posted by Chris Morales on Wed, Oct 21, 2015 @ 10:00 AM

Juvenile criminal records are confidential in most circumstances, but the exceptions are significant.

To a much greater extent that its adult counterpart, the juvenile criminal justice system focuses on rehabilitation and guards against the stigma of being labeled a criminal. To that end, juvenile criminal records are generally confidential. But there are exceptions to confidentiality. (In re Jeffrey T., 140 Cal.App.4th 1015 (2006).)

(To learn more about juvenile court proceedings, which are usually considered civil rather than criminal, see Juvenile Court: An Overview.)

Among the people and entities who may be given access to juvenile criminal records are:

  • parents and legal guardians
  • juveniles’ attorneys
  • school officials
  • law enforcement agencies
  • federal, state, and city attorneys
  • research organizations, and
  • child protective agencies.

Depending upon the state, the above individuals and entities may or may not need court orders in order to inspect, receive, or copy juvenile case files.

Public Access

Under certain circumstances, juvenile criminal records may even be accessible to the general public. As juvenile crime has increased and become more violent, policy makers have had to balance between competing interests: the interests of the community and juveniles’ privacy.

Some courts may allow public access to juvenile delinquency records when “the public’s right to know and the strong interests of the victims outweigh any concern about stigmatizing the minor or endangering his chances of rehabilitation.” (U.S. v. L.M., 425 F.Supp.2d 948 (N.D. Iowa 2006).) However, agencies may have to redact sensitive information about minors in such situations, including their names.

Some states have laws that allow law enforcement agencies to release identifying information under certain circumstances. In California, for example, law enforcement agencies have some discretion to release the names of juveniles accused of crimes that are classified as serious or violent. (Cal. Welf. & Inst. Code §§ 827.2, 827.5, 827.6.) And sealing and destruction of juvenile records aren't allowed for those 14 or older who have committed such offenses. (Cal. Welf. & Inst. Code § 781.) The intent behind the prohibition against record sealing and destruction in California is to hold youthful offenders more accountable for their behavior. (In re Jeffrey T., supra.)

Court Proceedings

Juvenile criminal records may come out in court during trials where the juvenile is a witness and at sentencing hearings.

Right to confront

Criminal defendants have a constitutional right to confront their accusers. In part, the right of confrontation allows a defendant to introduce evidence of a witness’s motive to lie. If a witness testifying against a defendant is a juvenile, the defendant may be able to access the juvenile’s criminal record and at trial introduce evidence relating to it. For instance, the criminal record may show that the juvenile has a motive to lie in exchange for leniency. However, the defense typically needs to establish that the juvenile committed serious acts of delinquency that are related to the juvenile’s testimony. Moreover, prior to disclosing a juvenile’s records, courts scrutinize them to make sure to reveal only relevant information. (For information on a defendant’s right to information, see Discovery. Also see Investigating a Criminal Case.)

Sentencing hearings

Some states authorize courts to consider the juvenile offenses of adult criminal defendants during sentencing hearings relating to later crimes. States may limit the use of juvenile records in this context—for example, allowing consideration of violent juvenile offenses only. (For more on factors that increase sentences, see Aggravating Circumstances in Sentencing.)

Seek Expert Guidance

Exceptions to the confidentiality of juvenile records vary across the states and from state to federal court, and depend on the circumstances. For a more comprehensive overview of juvenile-record confidentiality, consult an attorney experienced in juvenile law. Consult such a lawyer if you have concerns about the privacy of particular records or want to know whether you can access them.

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Tags: rehabilitation, juvenile, court proceedings, testify, confidential, attorney, criminal, records

Refusing to Perform a Breathalyzer or Provide a Blood Sample

Posted by Chris Morales on Mon, Oct 12, 2015 @ 07:45 AM

Refusing to take a test may deprive the prosecution of damning evidence, but it will also usually result in a license suspension. In some situations, a refusal post-arrest can be overcome: a non-consensual blood test may be allowed in rare circumstances.

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Tags: DUI Checkpoints, dui fines, criminal case, attorney, arrested, DUI lawyer, DUI arrests, alcohol Intoxication

The Public Defender in a Criminal Case

Posted by Chris Morales on Mon, Oct 05, 2015 @ 10:00 AM

Public defenders are paid by the government, but they work for you.

Most criminal defendants are legally indigent and can't afford to pay for an attorney. On the other hand, the state can't legally prosecute indigents unless it provides them with an attorney. To satisfy this requirement, many states have set up public defender offices. Typically, each local office has a chief public defender (who may be either elected or appointed) and a number of assistant public defenders ("P.D.s"). P.D.s are fully licensed lawyers whose sole job is to represent indigent defendants in criminal cases. Because they typically appear in the same courts on a daily basis, P.D.s can gain a lot of experience in a short period of time.

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Tags: defendant, judge, prosecutor, criminal case, public defender, appointed, attorney, police