Pending Criminal Charges and A Criminal Record: Effect on Employment

Posted by Chris Morales on Fri, Dec 04, 2015 @ 09:00 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: California, conviction, criminal record, criminal charge, record, expunged, rights

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

How Judges Set Bail

Posted by Chris Morales on Fri, Nov 13, 2015 @ 07:10 AM

Judges set bail based initially on a "bail schedule," but they can raise or lower the amount, based on the circumstances of the case.

Judges ordinarily set a bail amount at a suspect’s first court appearance after an arrest, which may be either a bail hearing or an arraignment. Judges normally adhere to standard practices (for example, setting bail in the amount of $500 for nonviolent petty misdemeanors). However, judges can raise or lower the standard bail, or waive bail altogether and grant release on the defendant's "own recognizance," or O.R., based on the circumstances of an individual case.

(For related information, see Can you appeal a judge's bail order?)

Defendants do not need a lawyer to to arrange for bail. They can either post cash bail personally, or phone a bail bond seller and arrange for a bond. Relatives or friends can come to a jail or court and post cash bail for an arrested person or purchase a bond from a bail bond seller.

Factors That Influence Bail Amounts

In addition to the seriousness of the charged crime, the amount of bail usually depends on factors such as a defendant’s past criminal record, whether a defendant is employed, and whether a defendant has close ties to relatives and the community.

Judges may legally deny bail altogether in some circumstances. For example, if another jurisdiction has placed a warrant (hold) on a defendant, a judge is likely to keep the defendant in custody at least long enough for the other jurisdiction to pursue its charge. And bail may be denied to a defendant who is likely to flee the jurisdiction before the case concludes.

Example: Rosie Olla is arrested and charged with managing a large prostitution ring. Rosie is a naturalized American citizen born in Spain, and her family still lives in Barcelona. While searching Rosie after her arrest, the police found that she was carrying a passport and $5,000 in cash. Under these circumstances, a judge will probably be very reluctant to set bail for Rosie. Her family background and the fact that she was carrying a passport and a large amount of cash suggest that Rosie may flee to Spain if she is released on bail. Unless Rosie can explain to the judge why she was carrying the passport and cash, and can also demonstrate strong ties to the local community, a judge is likely to deny her request for bail.

Bail Schedules

In many areas of the country, defendants can post bail with the police even before they are brought to court for a bail hearing or an arraignment. Many jails have posted bail schedules, which specify bail amounts for common crimes. An arrested defendant can obtain release immediately after booking by paying the amount of bail set forth in the jailhouse bail schedule. Bail schedules can vary considerably according to locality, type of crime, and residency.

As a general rule, bail for offenses classified as felonies is five to ten times the bail required for misdemeanors. The more serious and dangerous the crime, the higher the amount of bail is likely to be. As a general rule, a jailhouse bail schedule is inflexible. The police will not accept bail other than as set forth in a schedule; suspects wanting to pay less must go before a judge.

As an alternative or in addition to jailhouse bail schedules, some areas have duty judges. A duty judge is available to fix bail over the phone, without the necessity for a formal court hearing. Like a jailhouse bail schedule, using a duty judge is an option for arrested persons who are anxious to bail out of jail before going to court.

Police Practices That Affect Bail Amounts

Unfortunately for many suspects who want to bail out of jail quickly, the police tend to arrest suspects for the most serious criminal charge that can possibly be supported by the facts at their disposal. For instance, the police may treat possession of a small amount of marijuana (a misdemeanor in most states) as an arrest for possession of marijuana with intent to sell (a felony in all states). Even though such a charge will almost certainly be reduced to a misdemeanor later in the case, it is a felony for the purposes of the bail schedule, and bail will be set accordingly.

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: defendant, judge, arrest, criminal record, suspect, misdemeanors, petty, bail, crime, police

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

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

Posted by Chris Morales on Wed, Jul 15, 2015 @ 07:25 AM

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.

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Tags: criminal defense attorney, criminal record, expungement, ex-offenders, attorney, crime

8 Ways to Clean Up your Criminal Record

Posted by Chris Morales on Tue, Jan 06, 2015 @ 09:30 AM

In this blog, I have included 8 ways to clean up your criminal record

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Tags: California, Criminal Defense, criminal defense attorney, criminal record, clean up record

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

Posted by Chris Morales on Mon, Sep 15, 2014 @ 10:30 AM

The Morales Law Firm would like to share this article: Criminal Record Holding You Back? Learn How to Overcome These Obstacles published by NOLO for more information visit www.NOLO.com. 

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.

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.

Be Prepared to Tell the Truth

Employers and landlords are increasingly asking about applicants’ criminal histories. Screening often involves a background check, or at least a Google search. Assume that your record will become known, and prepare now to handle it.

  • Don’t lie. While an employer may be willing to hire a former offender who can show they’re the right candidate for a job, that employer will almost certainly refuse to give the job to liar.
  • Be prepared to explain. Answer questions about your criminal history honestly, without going into detail. Focus on the amount of time that has passed and the progress you have made. It’s also wise to prepare a brief written statement that explains your history. Writing out a simple paragraph can prepare you to talk to a potential employer about your experience. You may also be able to include your written statement when filling out a job application. If you are working with a job assistance program, discussed below, you can get help with these kinds of preparations -- including practicing by answering mock interview questions.

Ask for Letters of Recommendation

A letter of recommendation from a responsible person can be quite helpful. Think about those who can speak to the strength of your character and abilities. Former employers, landlords, and prominent members of your community may be good sources for letters of recommendation. Ask your letter writers to be as specific as possible regarding your character and strengths. For example, it is more encouraging to read, “For the past year, John Harris has been a punctual and reliable employee, whom I placed in charge of our accounts receivable,” than a vague statement, such as, “John Harris is honest and punctual.”

If you have been employed since your conviction by an employer who knew about your background but hired you nonetheless, don’t be afraid to ask that employer to address the issue directly. In fact, such recommendations can be quite powerful: “Although I was aware of Mr. Harris’s criminal record when he applied, I was impressed at the interview with the way he has turned his life around. Upon hiring him, I was not disappointed.” Balancing your criminal record with positive information will increase your chances of success.

Get Help from Supportive Employment Agencies

Many federal, state, and local agencies are geared specifically toward helping former offenders get jobs. Some of these agencies offer job-training programs; they also have established relationships with employers who are willing to hire qualified graduates. Take advantage of the resources that are available to you.

Seek a Pardon

It’s very rare, but some people who have records that don’t qualify for expungement are able to obtain a pardon for the offense. If you are pardoned, your criminal record may not be completely erased, but it will be updated to reflect that the crime was officially forgiven. For more information, see “If I am pardoned for an offense, is that the same as having my record expunged?”

Know Your Legal Rights

As an ex-offender, you have legal rights when seeking a job or housing. While some states generally allow employers and landlords to use past convictions as a reason to turn you away, other states are not so lenient. Your state may prohibit consideration of older convictions, or of those that are not reasonably related to the job you are seeking.

Careful employers will use your conviction information to deny you a job only if the particulars of the offense make you unsuited to the job you’re seeking. For example, if you were recently convicted of theft and you’re applying for a job as a bank teller, the bank would most likely be justified in turning you down. In a housing context, a recent burglary conviction would similarly support a landlord’s decision to turn an applicant away. In a nutshell, the employer or landlord should be able to show that a valid business necessity supports the decision to deny the job or housing.

In 2012, the federal Equal Employment Opportunity Commission (“EEOC”) issued guidelines that, while they don’t have the force of law, counsel employers to stick to the test explained just above when they encounter applicants with criminal histories. Employers are urged to avoid blanket policies that exclude applicants with any criminal record, and instead to determine which offenses are relevant to the jobs being filled (and consider rejecting only those applicants who have committed those crimes). They're advised to give mere arrest records little weight. You can read the guidance on the EEOC website, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

In addition, many states have rules about what employers may legally ask you. For example, California employers (with a few exceptions) can’t ask you about an arrest record. On the other hand, they can ask you about previous convictions, if the questions are business related and aren’t otherwise discriminatory.

For more information about the legal rights and limits that may apply to your job or housing search, connect with an ex-offender job-assistance program near you or contact a qualified employment law attorney who knows the laws in your state.

Make Your Criminal Record an Asset

Yes, you read that right. Federal law gives employers powerful incentives to hire people with criminal histories. Examples of benefits that a business might receive if they hire you include:

  • tax credits for hiring ex-offenders
  • reimbursement for some types of job training, and
  • grants for providing services to former prisoners.

For inspiration, take a look at Ranker’s impressive list of companies that hire felons and former convicts.

Finally, don’t be easily discouraged. Many employers who regularly hire ex-offenders say that they are often ideal employees -- loyal, productive, and grateful. Companies like these may want to give you a second chance.

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Tags: conviction, criminal record, expungement, ex-offender

Bail: Getting Out of Jail After an Arrest

Posted by Chris Morales on Wed, Sep 03, 2014 @ 09:00 AM

The Morales would like to share this article: Bail: Getting Out of Jail After an Arrest by NOLO for more information please visit: www.NOLO.com. 

Everything you need to know about posting bail or a bail bond.

A person's first thought upon landing in jail is often how to get out -- and fast. The usual way to do this is to "post bail."

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Tags: jail, criminal record, violations, judges, bail

Exceptions to Confidentiality of Juvenile Criminal Records

Posted by Chris Morales on Mon, Jul 07, 2014 @ 03:00 PM
The Morales Law Firm would like to share this article: Exceptions to Confidentiality of Juvenile Criminal Records published by NOLO.
 
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, criminal justice system, criminal record, juvenile, confidential