Is a traffic stop an arrest within the meaning of Miranda?

Posted by Sample HubSpot User on Mon, May 15, 2017 @ 11:50 AM

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Tags: Criminal Charges, Miranda rights, know your rights, DUI Bay Area, Miranda Waiver

Discovery: What and When the Prosecution Must Disclose

Posted by Chris Morales on Wed, May 10, 2017 @ 03:21 PM

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Tags: Criminal Charges, criminal defense attorney, San Francisco Criminal Attorney, criminal cases, discovery, San Francisco Criminal

Do juveniles have a right to trial by jury?

Posted by Sample HubSpot User on Mon, May 08, 2017 @ 10:57 AM

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Tags: Criminal Charges, Criminal Defense, San Francisco Crimila Lawyer, juvenile court, jury trial, Juvenile crimes

Are religious beliefs a defense to criminal charges?

Posted by Sample HubSpot User on Fri, Apr 28, 2017 @ 11:28 AM

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Tags: Criminal Charges, Criminal Defense, defense team, Religious

Criminal Statutes of Limitations

Posted by Chris Morales on Wed, Dec 02, 2015 @ 09:00 AM

The statute of limitations defines a time limit within which the prosecution must file criminal charges before they are barred from doing so.

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Tags: prosecutions, Criminal Charges, trial, felony, murder, misdemeanor, Criminal statue of limitations

Criminal Charges: How Cases Get Started

Posted by Chris Morales on Fri, Oct 09, 2015 @ 08:00 AM

How police officers and prosecutors initiate criminal cases.

A criminal case usually gets started with a police arrest report. The prosecutor then decides what criminal charges to file, if any. Some cases can then go to a grand jury for a criminal indictment or to a preliminary hearing, where a judge decides if there is enough evidence to proceed. Here's how this all works.

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Tags: Criminal Charges, jurors, trial, complaint, preliminary hearing, jury, crime

Pending Criminal Charges and A Criminal Record: Effect on Employment

Posted by Chris Morales on Wed, Sep 16, 2015 @ 09:30 AM

An explanation of how a current pending criminal charge affects your record and employment possibility when applying for a job and your rights as an applicant.

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Tags: Criminal Charges, conviction, criminal record, complaint, employment, state law, attorney

Investigating a Criminal Case: Experts, Investigators, and Subpoenas

Posted by Chris Morales on Fri, Jul 31, 2015 @ 09:00 AM

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:

  • Bring in a scientific expert to test evidence or review the work of others, including, for example, police laboratory technicians. It’s often beneficial for such an expert to testify, too.
  • Hire a private investigator to locate and interview witnesses who are—or could be—helpful to the defense. The defense attorney might then be able to meet with those witnesses and prepare them for their eventual testimony. The defense can also serve them with subpoenas that require them to appear in court to testify.
  • Take depositions of friendly or neutral witnesses—in the rare states that allow depositions in criminal cases. These depositions can serve several purposes, including preserving testimony should witnesses later become unavailable or change their stories.

Costs and Benefits

Whether to incur the costs associated with investigative tasks is a judgment for each defendant to make. The defendant should try to determine the likely costs, the chances the tasks will help the case, and the cost (literal and figurative) of conviction. In most instances, it makes sense to do anything within the rules to help your chances at trial. Even if a conviction doesn’t carry jail time or a significant fine, it usually has long-lasting ramifications—for example, making finding a job more difficult.

Hunting and Gathering

Defense attorneys must often pry documents loose from government agencies and private businesses. Those who need to obtain relevant materials from uncooperative people or offices can serve them with subpoenas duces tecum. This term refers to a court order requiring the person or organization in question to deliver the specified documents, records, or objects to court for the judge, defense, or both to inspect.

Subpoenas duces tecum don’t always work the first go round. Some parties who receive them file motions to “quash,” while others simply ignore the subpoenas. In these instances, the defense typically has to file a pleading asking the judge to order the third party to comply with the subpoena. This often means persuading the court that the requested materials are important to the defense’s case or narrowing the information requested in the subpoena. For example, a defense attorney requesting cellphone records of a witness might have to explain that the records could show that the witness was on the phone at the time she claims she was meeting with the defendant. If the phone company objects that the defense has requested too much material, the attorney might have to narrow the timeframe for the requested records.

Others Who Can Help

Plenty of professionals other than lawyers, experts, and investigators can be vital to criminal cases, including but not limited to:

  • photographers (who can document, for example, the scene of the crime)
  • jury consultants (who help the defense attorney pick the jury)
  • trial presentation specialists (who help the defense display information at trial, usually through use of computers), and
  • sentencing experts (oftentimes former probation officers who help the defense present a convincing case for a lenient—or at least reasonable—sentence).

Get a Lawyer

If you’re facing criminal charges, consult an experienced criminal defense lawyer. Only such a lawyer can protect your rights and effectively investigate your case. An attorney will also be able to tell you what you should—and shouldn’t—do to help. For example, your lawyer may ask you to provide all the information you can possibly think of regarding witnesses, locations, events, and even people who have nice things to say about you.

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Tags: Criminal Charges, subpoenas, trial, Investigation, witnesses, discovery, criminal defense lawyer

Criminal Charges: How Cases Get Started

Posted by Chris Morales on Fri, Jun 19, 2015 @ 07:10 AM

How police officers and prosecutors initiate criminal cases.

A criminal case usually gets started with a police arrest report. The prosecutor then decides what criminal charges to file, if any. Some cases can then go to a grand jury for a criminal indictment or to a preliminary hearing, where a judge decides if there is enough evidence to proceed. Here's how this all works.

Arrest Reports and Criminal Charges

After an arrest, the police report goes to a prosecutor, whose job it is to initiate and prosecute cases. An arrest report summarizes the events leading up to the arrest and provides numerous details, such as dates, times, locations, and witness names and addresses (if available).

The prosecutor will typically either:

  • determine that the case should be charged (as a felony or a misdemeanor), and file a “complaint” (the charging document may go by a different name) with the court
  • decide that the case would be a felony and should go to a grand jury, which will decide what charges, if any, to file, or
  • decide not to pursue the case.

A police officer specifies the crime or crimes that serve(s) as the basis for an arrest. Officers may recommend that the prosecution file additional charges, too. But prosecutors get to make the ultimate decision on what the charges will be. (See How do prosecutors decide whether to file criminal charges?)

A defendant typically learns what the formal charges will be at the first court appearance. To learn about that appearance, and how quickly after arrest it must occur, see Arraignment: Getting to Court.

Keep in mind that prosecutors' initial charges are subject to change. For example, a prosecutor may not make a final decision on what charges to file until after a preliminary hearing, which may take place more than a month after arrest.

The Role of a Grand Jury

If a felony is involved, prosecutors sometimes leave it to grand juries to decide whether charges should be filed. Grand juries are similar to regular trial juries (called "petit juries") in that they are made up of randomly selected individuals. The grand jurors listen to evidence and decide whether charges should be brought against an individual—that is, they decide whether to "indict" someone.

However, unlike petit juries, which sit only on one case, grand juries involve a time commitment that typically lasts between six and 18 months. The grand jurors may address many cases in the course of their service. In addition, these crucial differences exist:

  • Petit jurors decide whether defendants are guilty. Grand juries decide whether there is enough evidence to warrant a trial.
  • Grand juries meet in secret proceedings. Petit juries serve during public trials.
  • Grand juries tend to be bigger than petit juries. In federal court, for example, they consist of 16 to 23 people. By contrast, a petit jury usually comprises six to 12 people.
  • Petit juries generally have to be unanimous to convict a defendant. (But see Do criminal jury verdicts have to be unanimous?) Grand juries need not be unanimous to indict. In the federal system, for example, an indictment may be returned if 12 or more jurors agree to indict.

How a Grand Jury Works

When a prosecutor brings a case to a grand jury, he presents the jurors with a "bill" (the charges) and introduces evidence—usually the minimum necessary, in the prosecutor's opinion—to secure an indictment. The proceedings are secret; it is standard practice to call witnesses to testify against the suspect without the suspect or the suspect's lawyer present. But indicted suspects can sometimes later obtain transcripts of grand jury proceedings; the availability of a transcript is a big reason why prosecutors like to keep the evidence to the minimum.

Although prosecutors can also call suspects as witnesses, they typically don’t. When suspects are called, they often refuse to testify by invoking their privilege against self-incrimination under the Fifth Amendment to the U.S. Constitution.

If the grand jury decides to indict, it returns what is called a "true bill." If not, the grand jury returns a "no bill". But even if the grand jury returns a no bill, the case isn’t always closed. Prosecutors can return to the same grand jury with more evidence, present the same evidence to a second grand jury, or (in jurisdictions that give prosecutors a choice) bypass the grand jury altogether and file a criminal complaint.

How a Preliminary Hearing Works

Typically, if the prosecutor decides to file a complaint rather than present the case to a grand jury, and the case is a felony, the defendant is entitled to a preliminary hearing. At that hearing, the prosecutor must show that the state has enough evidence of the crime to warrant a trial.

But normally, if the case proceeds by grand jury indictment, no preliminary hearing need be held.

For much more on this stage of a case, see our section on Preliminary Hearings.

Get a Lawyer

Charging procedure differs significantly between federal and state court, from one state to another, and even between locales within the same state. If you’ve been arrested, consult an experienced criminal defense attorney. Such a lawyer will be able to fully explain the applicable law and guide you through the process. You can check out Nolo's trusted Lawyer Directory to find a criminal defense attorney in your area.

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Tags: Criminal Charges, grand jury, preliminary hearing, officers, arrest reports, police

Incest Laws and Criminal Charges

Posted by Chris Morales on Mon, May 18, 2015 @ 08:50 AM

Learn what constitutes incest and the penalties associated with it.

Incest, which is sexual relations between (non-spouse) family members, is outlawed in most countries, including the United States. Incest laws aim to promote security and unity with the family, and to prevent the genetic problems that often occur in babies whose parents are related.

In the U.S., incest is regulated by state, not federal law, and every state has one or more laws banning this problematic behavior. And while states sometimes vary in defining the outer boundaries of who is considered “family” and the exact behaviors that are off-limits, the underlying goals or policy considerations remain consistent among states.

Recognizing the disruptive nature of incest on healthy family relationships and power dynamics, all state incest laws outlaw sex between close blood relations, and many states also include step-, foster, and adoptive relations, too. And in some states, even unconsummated marriage between close relations is considered incest.

What is “Family?”

For the purposes of incest laws, “family” can mean several things: blood relations, family by adoption or marriage (including step-family members), foster families, and sometimes even “family-like” situations (such as a parent and child who live with the parent’s boy- or girlfriend).

All states include close blood relations— parents, children, aunts, uncles, and grandparents—in the definition of “family.” Closely-related cousins, such as the children of a parent’s sibling, are also included in most states, although more distant cousins are sometimes exempted from incest laws.

In general, the more distant the relation, the less likely that it will be considered as "family" for purposes of incest law. However, other factors (for example, distant cousins being raised in the same household like siblings) can make an otherwise non-problematic relationship incestuous.

Prosecution and Defenses

Often, a situation involving incest also implicates other criminal laws. For example, child abuse and rape (and statutory rape) may be charged as well. Local prosecutors have discretion about whether to bring charges under the state incest law or other applicable laws. Similarly, if a relationship is too attenuated to qualify as an incest crime, the prosecutor will usually have other laws (such as those covering molestation, lewd acts, or rape) under which to prosecute the defendant.

Consent not a defense

A defendant may be convicted of engaging in incest if he knowingly engaged in a sexual encounter with a family member (if no encounter actually took place, the prosecutor may charge the defendant with attempted incest). Because of this, the consent of the other party is not a defense. Of course, as noted, if the victim did not consent and was forced, or was underage, a defendant may face charges for other sex offenses—such as rape and statutory rape—instead of (or in addition to) the incest charge.

For more on rape, see Statutory Rape. And to learn more about statutory rape, see Rape Laws, Defenses, and Penalties.

Who is charged?

Although the ages of the parties are not relevant in proving that incest took place (and are not a defense to such charges), the age of the parties may be relevant as far as who is prosecuted for the crime. For example, if an adult parent has consensual sex with a minor son or daughter, the parent may be prosecuted, while the child will be considered a victim

But where two siblings of similar age are sexually involved with each other, they might both be prosecuted (although many states handle crimes committed by minors through juvenile or family court). For more on crimes committed by minors, see The Juvenile Justice System.

Old cases and the statute of limitations

All states set time periods in which a crime may be prosecuted, such as five or ten years after the incident. Such laws are intended to ensure that cases are handled relatively quickly, and recognize the danger in prosecuting old cases where the facts may be difficult to discern. In some states, if a long time has passed since the time of an incestuous encounter or relationship and a prosecution, the defendant may claim that the statute of limitations has run.

For more information on state statutes of limitation, with state-by-state information, see Criminal Statutes of Limitations.

Penalties

Penalties for an incest conviction vary according to state law, but may include separation of family members (if a child is involved, the child may be placed in foster or other care), or a jail or prison term of several months to many years.

For information on felony charges and sentences on a state-by-state basis, see Classification of Crimes: Felonies & Misdemeanors.

Help for Incest Survivors

If you or someone you know is a victim of incest or another sex crime, there is free and confidential help available to you. Contact the Rape, Abuse & Incest National Network (RAINN) for online help and local resources.

Talk to a Lawyer

If you are facing an incest charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. A lawyer can evaluate the strength of the prosecution’s case against you, help develop any defenses that might apply to your case, and will know how local prosecutors and judges typically handle cases like yours.

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Tags: Criminal Charges, incest laws, penalties, federal law, defense, prosecution