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.
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.
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.)
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.)
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.
You must be legally "competent" before a judge will allow you to represent yourself in a criminal trial.
Defendants cannot represent themselves unless a judge determines that they are competent to do so. The community as a whole has an interest in achieving justice. A trial in which an incompetent defendant self-represents does not constitute a fair trial.
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?
Or are you not allowed to record what you see and hear? Could your act of recording be considered some form of interference, for example?
Recording Officers and the First Amendment
Almost every court to consider the issue has determined that the First Amendment gives you the right to record (pictures, video, and audio) an officer in public while he is performing his duties. But that doesn’t mean you’re allowed to record if you’re doing so surreptitiously (secretly), interfering with the officer, or otherwise breaking the law. (See Is it legal to film or record the police?)
The courts' primary rationale for allowing police officer recording is that the First Amendment includes the right to freely discuss our government, and the right of freedom of the press and public access to information. Given the prevalence of personal filming devices, more and more “news” is being gathered and disseminated by members of the public. The courts have found that freedom of the press applies to citizen journalists and documentarians just as it does to formal members of the press. (See, for example, Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).)
Exceptions to the Right to Record
As with most constitutional rights, the right to record officers has limits. There are limits having to do with the time, manner, and place of recording. And complicating matters is the fact that the exceptions differ depending on where you are.
Interfering With an Officer
The First Amendment means police will have to endure some amount of observation and public, verbal challenge. Likewise, they must endure the critical, documentary eye of a recording. However, they don’t have to endure the act of recording if it interferes with their ability to do their jobs. (City of Houston v. Hill, 482 U.S. 451(1987); Glik v. Cunniffe, supra.)
Uniformed officers may legitimately order citizens to cease recording if the recording is interfering with or obstructing their law enforcement duties. You might be obstructing an officer (and thereby committing a crime) if, for example, you are standing close to him while he is attempting to arrest someone and your recording is clearly provoking the arrestee or other bystanders to become hostile or violent. (Gericke v. Begin, 753 F. 3d 1 (1st Cir. 2014); Glik v. Cunniffe, supra.)
When State Wiretapping Laws Protect Police
An audio recording of an officer that you might have the right to make in one state might run afoul of another state’s laws. Wiretapping, electronic surveillance, and eavesdropping laws might prohibit you from recording surreptitiously, without the officer’s knowledge or consent. Such laws are meant to protect the privacy interests of citizens—and sometimes even police performing their official duties—in their words that they reasonably believe are and will remain private.
In some jurisdictions with such laws, courts have found that police have a reasonable expectation that the oral statements they make to citizens “privately” are confidential. Where this is the case, the officer’s right to privacy trumps the citizen’s First Amendment right to make a surreptitious recording of the officer. This is the state of the law even if a citizen is recording his own arrest or the recording may prove useful as evidence of police misconduct. (Com. v. Hyde, 434 Mass. 594 (2001).)
If you record an officer, these laws may make it critical that you use your recording device in an open and obvious way. If you don’t, you may be subject to arrest and prosecution.
For more detail on the law regarding secret recordings of police officers, including what “privately” means in this context, see Is it legal to secretly audio record the police?
When Recording Constitutes Some Other Crime
The right to record doesn’t give you a right to break other laws while recording. Among other offenses, your recording could result in an allegation that you have committed disorderly conduct, harassment, stalking, or trespass. Whether you can be prosecuted for such crimes will depend on the facts of each case.
Where there’s no evidence that the arrest of a citizen is motivated by, in retaliation for, or meant to suppress the citizen’s recording, the arrest may be valid. Recording an officer during an arrest for stalking, for example, might be part of the stalking offense. In that situation, the general freedom to record isn’t a defense to stalking. If the officer has probable cause to believe you are stalking her and isn’t motivated to make the arrest because you are recording her, the arrest may well be lawful.
But such criminal allegations are unlikely to stick where the courts see them as attempts by officers to retaliate against and suppress the exercise of the First Amendment right to free speech or political activism.
Talk to a Lawyer
Some jurisdictions may have specific laws, regulations, or state constitutional provisions related to recording officers. Some states may be more protective of the right to record officers, while others may be less so.
If you plan to record officers, whether to report on the actions of your local police, in the course of filming a documentary, or for any other reason, you may want to consult an attorney. If you’ve been arrested or prosecuted as a result of an interaction with the police, make sure to speak with a lawyer. A knowledgeable lawyer will be able to explain your jurisdiction’s laws, give you advice, and protect your rights.
There are two kinds of immunity, one more common than the other.
“You have the right to remain silent” is perhaps the most recognized adage in our criminal justice system. This rule comes from the Fifth Amendment to the U.S. Constitution, which guarantees that “no person . . . shall be compelled in a criminal case to be a witness against himself.” But the Fifth Amendment doesn’t provide an absolute right to remain silent and not answer any questions. Rather, it protects people from having to answer incriminating questions about themselves.
A witness who is asked to provide information that could be incriminating in any way can invoke the Fifth Amendment privilegeand refuse to answer. Incriminating questions require a witness to give answers that could be used to convict the witness of a crime. A question is incriminating when it calls for an answer that provides either:
- direct evidence of a crime (for example, “I robbed the bank”) or
- information that could lead to evidence of a crime (for example, the name of someone who could testify to the fact that the witness robbed the bank).
But even if a witness invokes the Fifth Amendment privilege, a prosecutor can override the privilege by giving the witness immunity from prosecution in exchange for testimony.
There are two basic types of immunity from prosecution.
Transactional immunity is the broadest type of immunity; it offers complete protection from future prosecution for any matter mentioned in the immunized testimony. Because it’s so broad, transactional immunity is also commonly referred to as “total” or “blanket” immunity.
Although transactional immunity offers the most protection for a witness, it doesn’t prevent prosecution for criminal activities that are unrelated to something discussed in the immunized testimony. And transactional immunity isn’t always available—for example, the federal system doesn’t use it.
To illustrate, suppose Witness and Defendant commit an armed bank robbery. The prosecution grants Witness transactional immunity in exchange for admitting his participation in the robbery and testifying against Defendant at Defendant’s trial. During his testimony, Witness reveals that he used his portion of the money stolen from the bank to purchase cocaine from Dealer.
Can Witness be successfully prosecuted for bank robbery? No. The grant of transactional immunity protects him.
Can Witness be successfully prosecuted for buying cocaine? No. Transactional immunity guarantees that Witness cannot be prosecuted for any criminal activity he discussed during his immunized testimony.
What if the prosecution learns elsewhere about a different drug purchase? If, after Witness testifies in Defendant’s trial, the prosecution learns from Dealer that Witness came to him two months before the bank robbery and purchased heroin, Witness won’t be so fortunate. The prosecution can charge him for that purchase because it’s unrelated to the events Witness testified to: The purchase of heroin occurred before the bank robbery and was unrelated to either that crime or the cocaine purchase he mentioned.
“Use and Derivative Use” Immunity
Use and derivative use immunity is more common (used by both state and federal prosecutors) and narrower than transactional immunity. It prevents the prosecution from using the witness’s statements (“use”) or any evidence derived from those statements (“derivative use”) against the witness in a criminal prosecution. In theory, use and derivative use immunity provides as much protection as the witness not testifying.
However, use and derivative use immunity doesn’t prevent prosecutors from gathering additional, independent evidence to later use against a witness. If, while testifying, a witness gives an indication of having committed a crime and the prosecution obtains independent evidence of that crime (from a source distinct from the witness), then the witness is subject to prosecution for that crime.
For example, suppose the prosecution grants Witness use and derivative use immunity for testifying in Defendant’s armed robbery trial. Witness states that after he and Defendant robbed the bank, he took some of the stolen money and used it to buy 100 kilograms of cocaine from Dealer. Witness then sold the 100 kilograms of cocaine to Buyer.
Can the prosecution get Witness for armed robbery? Yes, but the prosecution cannot use Witness’s immunized testimony against him. It must rely on independent evidence that Witness robbed the bank—for example, a tip from someone who saw the crime take place.
Can the prosecution go after Witness for cocaine sale? Suppose Addict was present when Witness sold the cocaine to Buyer. Addict is later arrested and reveals that he saw this sale. In that scenario, the prosecution has proof of the sales crime from an independent source (Addict). The prosecution can use Addict’s testimony to prosecute Witness for the crime.
Consult a Lawyer
If you’ve been asked to or think you should testify or otherwise cooperate with the authorities, consult an experienced criminal defense lawyer. Only such a lawyer can explain the ins and outs of immunity and otherwise protect your rights.
The Morales Law Firm would like to share this article "Your rights if arrested" published by NOLO for all.
When most people think of an “arrest,” they envision a police officer cuffing criminal suspects and placing them in the back of a police cruiser. But there’s more to an arrest than taking a suspect into custody. Arrests trigger legal (and emotional) after-effects that include detailed and specific police responsibilities.
What Does it Mean to be Arrested?
A person who reasonably believes that they are deprived of personal liberty and is not free to leave police custody is considered to be "under arrest." A suspect doesn’t need to be cuffed or physically restrained to be under arrest. Nor do the police have to announce the fact. What matters is whether a reasonable person in the same position would believe that they are not free to leave.
Consider a woman who drives to the police station and volunteers to answer questions. At some point, the woman stops answering questions and wants to leave. The police tell her she cannot leave the room until the questioning is finished and when she stands up, an officer motions with his hand for her to sit down. The police actions amount to an arrest.
Not all detentions by the police amount to an arrest. The police may detain an individual in order to issue a citation, for example, for minor traffic infractions or for some criminal misdemeanors. A citation, once signed by the suspect, amounts to an agreement, in lieu of an arrest, to appear in court at a later date. This temporary detention is permissible but is not considered an arrest (although it may still trigger the police officer’s right to search the suspect, as explained below).
How are People Arrested?
An arrest occurs once the police have enough evidence to establish probable cause—a reasonable belief that the suspect has committed a crime. On TV, most arrests are usually made when a suspect is directly observed performing criminal activity and is arrested in the act (or immediately afterwards). In real life, there is often more time between the criminal act and the arrest, as the police investigate the details or as evidence is provided. As a general rule, arrests made at person’s residence require an arrest warrant and also require that the police “knock and announce” their purpose. However, these rules need not apply in urgent situations, such as when evidence may be destroyed or individuals are in danger. An arrest warrant is a court order issued by a judge, based upon statements made under oath (and establishing probable cause).
What Happens Once an Arrest is Made
Every person who is arrested in the U.S. and who is questioned by police must be informed of their legal rights (known as "Miranda Rights," discussed below). In addition, once an individual is arrested, the police may search the person incidental to the arrest. That's because police officers have the right to protect themselves by searching for weapons and to protect the legal case against the suspect by searching for evidence that the suspect might try to destroy. This is even permitted when an officer arrests an individual for a minor offense that results in a citation and not an arrest.
If a police officer does not have probable cause to make an arrest, it is possible that a judge may declare that the evidence seized incidental to the arrest is inadmissible at trial.
What's the Miranda Rule?
If a suspect is under arrest (in police custody) and is being questioned (interrogated) about the criminal activity, the police must inform the suspect of certain Constitutional rights (known as "Miranda Rights"). These rights are summarized in the following statement:
"You have the right to remain silent. You have the right to have an attorney present when we question you, and if you cannot afford an attorney one will be appointed for you. If you waive these rights and talk to us, anything you say may be used against you in court. Do you understand these rights?"
A suspect need not be “Mirandized” if the suspect has not been arrested. The same is true if the suspect has been arrested, but has not been questioned. If a suspect refuses to answer questions after receiving a Miranda warning, the police may return—typically within two weeks—and provide the Miranda warnings again and see if they have better luck. If a suspect asserts rights under Miranda—for example, refusing to talk unless an attorney is present—statements elicited by the police without the attorney present would usually be inadmissible in court.
How Does an Arrested Person Obtain Freedom?
The only way to obtain freedom after an arrest is if the government dismisses charges against the individual, or, assuming that does not occur, if the suspect follows legal procedures that lead to freedom. These legal procedures may include releasing the suspect on bail, or a release based on the suspect’s own recognizance (“release O.R.”). And, of course, freedom may be obtained by proving the suspect’s innocence, or by entering into a plea bargain that permits release from custody.