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

The Death Penalty and the Right to Self-Representation

Posted by Chris Morales on Wed, Oct 07, 2015 @ 10:00 AM

Is it the defendant's right to throw in the towel when capital punishment is on the line?

On November 5, 2009, Army psychiatrist Nidal Hassan opened fire at Fort Hood, Texas, killing 13 people and wounding another 31. There isn’t much doubt about these facts since, when representing himself at his August, 2013 trial, he admitted them. He informed a military jury that he committed the attacks in response to what he perceives to be the United States war on Islam. He reportedly told mental health officials that he wanted to be considered a martyr.

Lawyers charged with assisting Hassan reported that the soldier wanted the death penalty. He rebuffed invitations to present evidence and respond to accusations, and refused to present any mitigation evidence at the penalty phase of his trial. Not surprisingly, the jury sentenced him to death.

A Formidable Right

The right to self-representation emanates from the Sixth Amendment to the U.S. Constitution. It’s a formidable right, as there’s very little courts can do to stop most defendants from representing themselves. Forcing a lawyer on a defendant generally requires severe mental incompetence or attempts to obstruct court proceedings. Otherwise, the accused are pretty much free to represent themselves, regardless of how bad that idea that is. (Faretta v. California, 422 U.S. 806 (1975).)

There are certain conditions courts can attach to defendants’ self-representation. For example, judges generally must receive a “knowing and intelligent” waiver of the right to counsel after warning defendants of the risks of proceeding without a lawyer. (One of the detriments is the inability to claim ineffective assistance of counsel when appealing a conviction.) In some cases, courts can also appoint stand-by counsel—lawyers who are ready to take over if defendants can’t or won’t continue to represent themselves.

Rigging the Fight

The right to self-representation is somewhat intuitive: If someone’s life or liberty is on the line, shouldn’t that person be allowed to decide how the case is litigated?

But what if the defendant wants to be convicted, or even executed?

Courts have generally held that defendants can represent themselves however they see fit, regardless of their motivation. The issue occasionally arises in capital cases like Hassan’s (except that his occurred in military court, which doesn’t alter the analysis).

At a death penalty trial, if the jury finds the defendant guilty, the case proceeds to a penalty phase. At that point, the prosecution can present aggravating evidence to convince the jury to order the defendant’s execution. The defense is free to present mitigating evidence to counteract the prosecution’s presentation. The case essentially becomes a battle over the value of the defendant’s life.

The New Jersey Supreme Court, for one, has taken the position that the need for a meaningful determination of a life-or-death sentence should trump the right to self-representation. It held that defendants shouldn’t be able to prevent presentation of mitigation evidence, evidence that might save their lives. (State v. Reddish, 181 N.J. 553 (2004).)

Up to the Defendant

But most courts throughout the U.S. have held that defendants who represent themselves in capital trials can elect not to offer mitigating evidence. For example, a federal appeals court in 2002 held that a trial judge was wrong to appoint a lawyer to represent a defendant at a penalty phase. The defendant didn’t want a lawyer or a mitigation presentation (apparently because he theorized that the chances of a court overturning the conviction on appeal were better with a death sentence). (U.S. v. Davis, 285 F.3d 378 (5th Cir. 2002).) That court, and others since it, said it’s up to the person on trial to make the ultimate decision.

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Tags: right self representation, trial, court, conviction, defendants, death penalty, jury, lawyer

Sentencing Partners - September 2015 (Part III)

Posted by Chris Morales on Fri, Oct 02, 2015 @ 02:30 PM

We would like to thank our friends Joaquin & Duncan, L.L.C. for sharing this information with us.

Published By Joaquin & Duncan, L.L.C.;
A Law Firm of Federal Sentencing Attorneys

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Tags: defendant, guilty, drugs, federal, jury, firearm, compensation

Sentencing Partners - September 2015 (Part II)

Posted by Chris Morales on Wed, Sep 30, 2015 @ 09:35 AM

We would like to thank our friends Joaquin & Duncan, L.L.C. for sharing this information with us.

Published By Joaquin & Duncan, L.L.C.;
A Law Firm of Federal Sentencing Attorneys

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Tags: defendant, guilty, drugs, federal, jury, firearm, compensation

Lesser Related Offenses

Posted by Chris Morales on Fri, Mar 06, 2015 @ 12:00 PM

Lesser Related Offenses

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Tags: court, marijuana, lesser related offenses, possession, jury, crime, prosecution

What is a lesser included offense?

Posted by Chris Morales on Mon, Sep 22, 2014 @ 08:00 AM

The Morales Law Firm would like to share this article: What is a lesser included offense? published by NOLO. For more information please visit 

You can't commit a greater crime without committing its lesser included offense.

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Tags: drugs, prosecutors, offense, possession, lesser, jury

The Psychology of Eyewitness Identification

Posted by Chris Morales on Wed, Aug 20, 2014 @ 10:50 AM

Studies show the prevalence of mistaken identifications, while experts try to advise juries of the relevant factors to consider in evaluating a given ID.

Cognitive psychologists have conducted literally thousands of experiments examining factors that might affect the accuracy of eyewitness identifications. These experiments give us reason to be skeptical of a crime victim who points to the defendant in court and professes certainty. (For information on the process of indentification in criminal cases, see Nolo's page forEyewitness Identification issues.)

Even identifications that sound quite convincing can be mistaken. The human memory doesn’t act like a machine, accurately recording, storing, and retrieving images on demand. Eyewitnesses, like all of us, construct and interpret what they as they see it. And the construction and interpretation process occurs well past the event itself. As one expert puts it, “Some memories are elaborations created by witnesses over time based on their own rationalizations for what must have happened and suggestions from others.” (Geiselman, Eyewitness Expert Testimony, pp. 74-75, Eagle Publishers, 1995.)

Factors Leading to Mistaken Identification

Some of the factors associated with mistaken identifications are matters of common sense and everyday experience. For example, all of us recognize the difficulty of making an accurate identification based on a “quick glance” as opposed to a “long look.” Similarly, you don’t have to be a cognitive scientist to know that lighting, distance, and the witness’s physical condition (for example, fatigued) can also compromise an identification. But here are some of the less obvious factors that have led eyewitnesses to make mistakes:

Stress. While many people tend to believe that “stress sharpens the senses,” research consistently shows that people who are under stress when they observe an event are more likely to misidentify the culprit.

Presence of a weapon. Eyewitnesses confronted by a weapon are apt to focus on the weapon rather than the person holding it.

Confidence level. Eyewitnesses who express great confidence in their identifications are no more accurate than those who admit to uncertainty. Confident eyewitnesses sometimes have higher error rates.

Cross-racial identification. Eyewitnesses are less accurate when asked to identify someone of a different race. This factor affects members of all racial groups.

Pressure to choose. Eyewitnesses are more likely to make mistakes when they feel pressure to make an identification, even if they are told that they don’t have to make a choice.

Influence after the fact. Eyewitnesses are more likely to make mistakes when they rehash events with other observers. In these situations, witnesses may alter their memories so that they can be in agreement with others.

Transference. Eyewitnesses may make a mistaken identification because they saw the person they identify on a different occasion.

Multiple perpetrators. Identification accuracy decreases as the number of people involved in an event increases.

Absence of an “employment boost.” Eyewitnesses who regularly interact with the public (store cashiers, bank tellers) are no better at making identifications than other people.

Uncovering Errors with Experts

Many cognitive psychologists not only do research experiments, but also testify as expert witnesses at trial. Based on the factors surrounding the commission of a crime, they can testify to how those factors might have affected eyewitness’s ability to make an accurate identification.

Defendants who can’t afford to hire a cognitive psychologist as an expert may ask a judge to appoint an expert at government expense. However, few court systems have enough money to allow judges to appoint eyewitness identification experts in every case in which their testimony is relevant. A less expensive option is for a judge to give a jury instruction that summarizes factors that might affect eyewitness accuracy.

No opinions, though

When they testify at trial, eyewitness identification experts don't usually opine as to whether the identifications in that case are accurate. Qualified experts can “educate the jury” by talking generally about factors that studies have shown tend to lead to inaccurate identifications. But experts have no way of assessing whether a particular eyewitness is accurate.

Example: Sal Mander, a Caucasian male, is on trial for robbing Delores, an African American female. After Delores identifies Sal as her attacker, Mander’s eyewitness identification expert testifies about factors that existed at the time of the robbery that might cast doubt on Delores’s ability to observe and recall accurately. However, the expert probably cannot testify, “In my opinion, there’s less than a 50% chance that Delores’s identification is accurate.” Eyewitness identification experts can talk about factors that have been associated with mistaken identifications in experiments, but they themselves admit that they cannot authoritatively determine the accuracy of a particular identification.

The testimony of eyewitness identification experts can aid jurors in understanding the psychology of mistaken identifications, but jurors ultimately have to try to decipher the accuracy of an identification on their own. Given what we know about the vagaries of eyewitness ID, this can be a difficult task.

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Tags: defendant, expert, judge, court, victim, jury, crime

Suing the Police for Excessive Force

Posted by Chris Morales on Mon, Aug 18, 2014 @ 10:48 AM

The Morales Law firm would like to share with you this article: Suing the Police for Excessive Force by NOLO. 

If the police roughed you up, read here.

Excessive force by the police during an arrest violates the Fourth Amendment to the U.S. Constitution. A suspect who has been a victim of excessive force may have a viable lawsuit against the arresting officers and even the municipality that employs them.

Civil, not Criminal

A “tort” is a legal term for a civil wrong (as opposed to a criminal wrong) that resulted in some kind of injury to the plaintiff. Many civil claims against police officers involve the torts of assault and battery. Occasionally, these claims involve the tort of negligence.

Most lawsuits against police officers involve the Civil Rights Act of 1871. (42 U.S.C. § 1983.) A section 1983 claim alleges that the defendant, “under color of law,” violated the plaintiff’s constitutional rights. The use of excessive force constitutes a valid claim under section 1983 because it violates the Fourth Amendment prohibition against “unreasonable seizures.” (For information about other kinds of police lawsuits, see Police Conduct and Emotional Distress and Taser Lawsuits Against the Police.)

Excessive Force

Police officers are generally allowed to use whatever force is necessary to make an arrest or defend themselves. In most jurisdictions, when a jury has to decide whether an officer used more force than was necessary to make an arrest, the judge instructs it to consider what a reasonable person with the officer’s knowledge would have deemed necessary under the circumstances.

So, an arresting officer is allowed to use more force to arrest a resisting suspect than if the suspect were compliant, and may use deadly force if threatened with death or great bodily harm. The amount of force an officer may lawfully use against a fleeing suspect depends on whether the person appears to have committed either a felony or a misdemeanor. (For more information on resisting arrest, see Resisting Arrest: Laws, Penalties, and Defense and Resisting Arrest When Police Use Excessive Force.)

Whether an officer’s use of force was excessive is so dependent on the facts that appellate courts often defer to juries’ conclusions in that regard.

Burden of Proof

In a civil suit, the burden is usually on the plaintiff to prove liability by a “preponderance of the evidence” (meaning “more likely than not”). A defendant—in this case an officer—who raises a defense of justification must prove by the same standard that there was a legal excuse for the conduct in question. (The preponderance-of-evidence standard is much lower than that in a criminal case: “beyond a reasonable doubt.”)

But many states treat excessive force cases somewhat differently than typical lawsuits. In some jurisdictions, there is a presumption that the officer acted with the necessary level of force that the plaintiff must overcome. Additionally, some impose a higher burden of proof than “preponderance of the evidence,” instead requiring the plaintiff to prove a claim of excessive force by “clear and convincing evidence” (a standard higher than “by a preponderance of evidence” but lower than “beyond a reasonable doubt”).

All states agree that the plaintiff being guilty of the crime for which the officer arrested him isn’t a valid defense for the officer. But, by the same token, a plaintiff who can prove innocence is more likely to be able to show that the officer’s use of force wasn’t necessary.


Although most jurisdictions have “qualified immunity” statutes, which can relieve public employees of liability for injuries they cause in the course of their duties, many courts (but not all) have held that these statutes don’t apply to claims of excessive force against police officers.

But another potential challenge for citizens who want to sue the police and the city or county is governmental immunity: States are immune from suit by private citizens in federal court under the 11th Amendment to the U.S. Constitution. Additionally, many states have laws immunizing municipalities from equivalent suits. Ultimately, whether the government has a viable “immunity” claim depends on the facts of the case and the jurisdiction it’s in.

Get Legal Help

The law governing excessive force suits can vary greatly from state to state and from state to federal court, especially on issues like the burden of proof and immunity. If you or someone close to you has been the victim of excessive force by the police, seek the help of an experienced attorney. Only a knowledgeable lawyer will be able to advise you of the applicable law and protect your rights.

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Tags: defendant, officer, arrest, tort, jurisdictions, plaintiff, jury, civil wrong

Busting Insider Trading: As Pointless as Prohibition

Posted by Chris Morales on Fri, May 16, 2014 @ 11:02 AM

 The Morales Law Firm would like to share this article: Busting Insider Trading: As Pointless as Prohibition published by the Wall Street Journal. 

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Tags: guilty, prohibition, criminal charge, jury, insider trading

NOLO’s Encyclopedia of Everyday Law (Workplace Rights) Part II

Posted by Chris Morales on Thu, Aug 01, 2013 @ 07:00 AM

How do I assert my rights to a safe workplace?

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Tags: California, background check, jury, work rights