What Is The National Sex Offender Registry?

Tue, 21 Oct 2008 19:01:54 GMT

Information about sex offenders from all 50 states is provided in the National Sex Offender Registry. While different states have different requirements as to exactly what should be included on the National Sex Offender Registry, there are certain pieces of information that are required of all sex offenders. Generally, people who have been convicted of sexually violent behavior and certain other sexual acts or crimes against children are included on the registry. The minimum amount of information required to be provided by convicted sex offenders to the Registry includes:

Names and any aliases
Internet names and addresses
Telephone numbers
Social security numbers
Residence information
Temporary residence information: it is thought that sex offenders might be more likely to commit a crime when they are traveling if they only have to report their primary residence address. Therefore, they should also report the location of any temporary residences such as a hotel or a relative’s home at which they are staying.
Travel and immigration documents
Employer name and address
Other employment information
Professional licenses
School information
Vehicle information
Birth date
Physical description and current photograph
Description of registration offense and a criminal history
Finger prints, palm prints and DNA
Driver’s license or state identification card

In July 2008, the U.S. Department of Justice Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) issued National Guidelines for Sex Offender Registration and Notification. The guidelines were written to assist states in implementing the Sex Offender Registration and Notification Act of 2006 (SORNA). SORNA set the minimum standards with which states must comply when setting up their own sex offender registries. SORNA establishes three groups or tiers of sex offenders. The tier determines how long a person remains on the registry, the frequency with which the convicted sex offender needs to check in and verify the information on the registry and the information that is included on the registry. That said, the national guidelines make clear that states can always exceed SORNA requirements. Therefore, states can decide to make the requirements for Tier III offenders applicable to all offenders.

The Department of Justice maintains a National Sex Offender Registry website. The purpose of the website is to allow members of the public to search for the location of registered sex offenders. It is thought that this information will help keep the public, particularly children, safe.

Some, but not all of the information collected by the Sex Offender Registry is available to the public on the National Sex Offender website. Some protection is made for the sex offender. For example, the sex offender’s social security number is not shared on the website. It would not provide any benefit to the public and it could be potentially harmful to the sex offender. However, his or her name, aliases, addresses and employment information is shared.

At all times, the Sex Offender Registry must carefully balance the safety needs of the public with the constitutional rights of the sex offenders. It is a difficult, yet important balance to achieve.

For more information on the national sex offender registry, contact a criminal law attorney today.

Can the Cops Search My Car?

Thu, 06 Nov 2008 19:23:29 GMT

There are many situations when a law officer can legally stop the driver of a motor vehicle. Many cars are stopped for speeding every day, for example. However, if the police officer wants to search the driver’s car then one of the following four things must happen: (1) the police officer must have consent; (2) the police officer must have probable cause to think that the vehicle has incriminating evidence; (3) the incriminating evidence must be in plain sight; or (4) the police officer must reasonably believe that he or she has to search the car for his or her own safety.

Consent

A law enforcement officer can always search a car if the owner of the car gives consent to the search. If the owner gives his or her consent then the officer does not need to articulate a reason for the search. The results of the search would be admissible in court.

Plain Sight

A law enforcement officer can request that a driver pull to the side of the road if he or she believes that the driver has broken the rules of the road. For example, an officer can pull over a driver for speeding and approach the window of the car. If the officer sees anything illegal in the car then the officer can take the evidence and it can be admissible in court. In most jurisdictions, for instance, it is illegal to have an open container of alcohol in an automobile. If the officer pulls the driver over for speeding and sees an open beer can then the officer may take the evidence and it may be admissible in court.

Probable Cause

An officer may also search if he or she has probable cause to believe that the vehicle has incriminating evidence. The officer may have observed the driver of the car buying marijuana shortly before entering his car. In most jurisdictions, the officer can pull over the car’s driver and search the car without a search warrant. Often, search warrants are not necessary for the search of a car because cars move around so quickly and can be so quickly unloaded. However, the officer must still have probable cause just as the officer would if he or she was seeking a warrant to search a person’s home.

Safety

If the police officer reasonably believes that his or her safety is in jeopardy then the police officer may make a protective search of the car. This rule exists because it is easy for a driver or passenger to hide a weapon in the glove compartment, under the car seat or in another concealed area of the car.

In order to determine if the police officer’s actions were reasonable, one must consider what another qualified police officer would do in that jurisdiction when confronted with a similar situation.

While one does not have the same expectation of privacy in one’s car as one does in his or her home, that does not give the police officer an unlimited right to search one’s car. Instead, the officer must be reasonably afraid for his safety, see evidence of a crime in plain sight, have probable cause to believe that there is evidence of a crime in the car or have the car owner’s consent to the search.

For more information on your rights, contact a criminal law attorney today.

Double Jeopardy

Thu, 16 Oct 2008 23:03:24 GMT

The Fifth Amendment to the United States Constitution provides, in part, that, “…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…” This is known as the double jeopardy clause and it protects people from being tried for the same crime on the same set of facts more than one time by the same government.

While the Fifth Amendment double jeopardy clause only applies to the federal government, the U.S. Supreme Court found in Benton v. Maryland that double jeopardy is a “fundamental ideal in our constitutional heritage” and therefore applies to state governments, as well as to the federal government, through the Fourteenth Amendment to the U.S. Constitution.

The Double Jeopardy Rule

Double jeopardy protects a defendant who has already been found not guilty from being tried again for the same crime by the same government. Double jeopardy allows a defendant who has been found not guilty of an alleged crime to begin to rebuild his or her life secure in the knowledge that the government will not prosecute again based on the same facts.

A criminal trial is both financially and emotionally expensive and double jeopardy protects a person who is found to be not guilty from reliving that ordeal and it allows that person to begin to pick up the pieces of his or her life that were put on hold.

Exceptions to the Rule

That said, there are times when a defendant can stand trial again based upon the same set of facts without the government violating the defendant’s Fifth Amendment right to be protected from double jeopardy.

Different governments may try the same defendant for the same crime on the same facts. For example, a defendant could be charged by both the federal and the state government for the same or similar crimes arising from the same events.

The U.S. Supreme Court has held that if a jury finds a defendant guilty and the judge overrules that conviction that the prosecution may appeal the judge’s action. This is a limited exception, however. If the judge finds the defendant not guilty prior to the jury’s determination then the decision is not appealable.

The government may also decide to retry a defendant if he or she was originally found guilty by a jury or trial judge and that conviction was overturned on the defendant’s appeal.

Further, double jeopardy only applies to criminal charges, not civil charges. For example, a defendant could be acquitted of felony murder charges and still have to stand trial for the civil charge of wrongful death even if the charges arise from the same set of facts.

Double jeopardy furthers two important objectives. For the prosecution, the prohibition against trying a defendant twice for the same crime means that it must put its best evidence forward and be as thorough as possible in order to get a conviction. For the defendant, it means that there is certainty in acquittal and that the defendant can get back to the business of living once he or she is found not guilty.

How Bad Lawyering Can Result in Wrongful Convictions

Fri, 22 May 2009 02:43:32 GMT

While the U.S. Constitution guarantees a defendant the right to representation by an attorney in a criminal case, there is no guarantee that the attorney will be effective, thorough, or even competent. For the majority of defendants charged with serious crimes, coming up with the thousands of dollars necessary to hire a renowned private criminal defense attorney is simply out of reach. These defendants are left with the services of court-appointed counsel, whose abilities and caseloads vary widely. For most defendants, they receive ethical, competent, and experienced representation by an attorney accustomed to handling criminal defense cases. However, some defendants are left only with representation by an almost universally overburdened and poorly paid, often inexperienced, and sometimes barely competent court-appointed defense attorney. As a result, some defendants run the very realistic risk of being wrongfully convicted of a crime.

Ineffective Assistance of Counsel Claims on Appeal

A common ground for appealing a criminal conviction is to claim ineffective assistance of counsel, or that the defendant was not properly represented by his or her attorney. As a routine matter, these claims are not always successful; however, where serious and substantial lawyer incompetence has occurred to the point that the defendant did not receive a fair trial, appellate courts have overturned convictions on this basis. A criminal defendant who has been convicted under state law can appeal his or her conviction to the state appellate court, to a higher appellate court, such as a state supreme court, and, ultimately, to the U.S. Supreme Court. Any of these appellate review courts has the ability to review the conviction, including the performance of the defense attorney, and overturn the conviction if the defendant did not receive a fair trial for any reason, including ineffective assistance of counsel.

Unfortunately, extreme cases of bad lawyering do result in wrongful convictions. In some cases where DNA testing has later exonerated defendants of serious crimes, the defendants’ attorneys were found to have been sleeping, drunk, and/or completely overwhelmed at the time of the trials or appeals, which resulted in wrongful convictions – and years lost to wrongful incarceration - for the defendants. While most defense attorneys are ethical, hardworking attorneys who zealously strive to give defendants the best defense available, there are a few defense attorneys who have not properly represented their clients, and, therefore, some defendants who have been wrongfully convicted.

Grounds for Ineffective Assistance of Counsel

Ineffective assistance of counsel claims can stem from a variety of actions – or inaction – by defense counsel during trials or appellate proceedings. One common basis for an ineffective assistance of counsel claim is the failure of the attorney to perform routine, necessary investigative work that would benefit the defendant. For instance, a defense attorney might fail to investigate or present any evidence as to an alibi for the defendant. A defense attorney might fail to question, subpoena, or even contact a witness that might have information pointing to the defendant’s innocence. A defense attorney might fail to hire an expert witness to counter the prosecution’s expert witness. Any of these common missteps by overworked and inexperienced court appointed defense attorneys can be fatal to a defendant’s ability to prove his or her innocence.

How Much Does An Initial Consultation Cost With a Criminal Defense Attorney?

Fri, 07 Nov 2008 00:55:17 GMT

A good attorney can often influence the outcome of a legal dispute. However, the skills and expertise of your attorney are, arguably, never more important than they are if you are a criminal defendant. It can be frightening and overwhelming to be arrested for a crime. You may be facing incarceration, a significant fine or both. Therefore, you want to make sure that you find the right attorney to defend you.

The Initial Consultation: Private Defense Counsel

If you are in a position to hire a criminal defense attorney then you will likely want to interview a few attorneys before hiring one. Most attorneys will offer you a free initial consultation. This is a time to discuss the attorney’s strategies, expertise and fees as well as the facts of your case. In order to make the most of your free consultation, it is essential that you share as much information as possible with the attorney so that you both have a realistic picture of your defense. The consultation is also a time for you to determine whether or not you are comfortable with the attorney and whether or not you trust the attorney to represent you in a criminal matter.

The initial consultation is often free because it is to the benefit of the attorney to evaluate the case before entering an attorney client relationship. If at some point during the consultation, the client decides to hire the attorney and an attorney client relationship is formed then the attorney may decide to charge the client for that portion of the meeting that took place after the attorney client relationship was formed. As with all legal fees, it is important for the client to understand exactly what the attorney will and will not be charging for and the amount of those fees.

Some attorneys do not offer free consultations. If you are interested in working with an attorney who does not offer a free consultation then you should ask about the fee for the consultation when you make an appointment with the firm. Also, it is important to ask whether the fee will be discounted, waived or applied to your account as a credit if you decide to retain that attorney.

The Initial Consultation: Public Defenders

If you are arrested then you should have been provided your Miranda rights at the time of your arrest. Those rights include the right to have an attorney appointed to you if you cannot afford to hire one. The criteria that are used to determine whether or not you can afford to hire a private attorney vary from state to state. If you think that you cannot afford an attorney then you simply request that the police provide you with a public defender and fill out a financial questionnaire.

If the financial questionnaire reveals that you are eligible for a public defender pursuant to the state guidelines for such an appointment then one will be provided to you. Most often, the initial consultation and all resulting attorney work will be provided to you free of charge. However, some states do have sliding fee scales that would require you to pay a percentage of the public defender’s fees depending on your income. In that case, your initial consultation may be subject to the sliding fee scale as well.

Finding the right criminal defense attorney to defend you is a very important decision. That decision starts with the initial consultation. So, it is important to understand the fees, if any, that are associated with the initial consultation.

How a Criminal is Sentenced for a Crime

Thu, 16 Oct 2008 22:21:07 GMT

The final phase of a criminal case, absent an appeal, is sentencing. It is during the sentencing phase that the judge decides what a convicted criminal’s sentence will be for the crimes that were committed. There are both objective and subjective factors that come into play during sentencing, making it one of the most important and controversial stages of any criminal case.

How a Judge Decides a Sentence

A criminal sentence most often includes a fine, incarceration or probation or any combination of these three types of punishments. The judge must consider several different things when determining the sentence. First, the judge must consider the sentencing guidelines for that particular crime in that particular jurisdiction. The sentencing guidelines take into account the particular crime committed and the defendant’s criminal history. This is to ensure that an individual who is convicted of murder and who has a prior criminal history of violent crimes receives a harsher sentence then a first time convicted criminal who is found guilty of tax evasion. Second, in some jurisdictions, judges may also take into account special circumstances and the testimony of character witnesses when deciding a criminal’s sentence.

Multiple Sentences for Multiple Crimes

If a criminal is convicted of multiple crimes during the same trial then the judge must decide if the sentences for each crime will be served consecutively or concurrently. For example, if a defendant is convicted of a home invasion and an armed robbery in the same trial and is sentenced to 10 years for each offense, then the judge must decide if the defendant will serve both sentences at the same time for a total of 10 years in prison or serve each sentence separately for a total of 20 years in prison.

Why Consistent Criminal Sentencing is Important

Sentencing criminals serves several important functions. Sentences are meant to deter future criminals, punish and rehabilitate convicted criminals and protect society from convicted criminals.

Some scholars argue that in order for criminal sentences to have the desired deterrent effect on future criminals, that the sentences imposed must be consistent so that would be criminals understand the likely consequences of any criminal conduct.

Each individual sentence is most applicable to the defendant who must serve the sentence. Sentences are designed to both punish and rehabilitate the criminal so that the criminal pays his or her debt to society and learns not to repeat the same mistake. The effectiveness of the American system of criminal punishments on the rehabilitation of criminals is often debated. Of course, the other benefit to criminal sentences is to protect society against a person who has been convicted of a crime.

In 2004, state and federal courts convicted over 1 million adults of crimes with the vast majority of those being convicted in state court. The state courts sentenced over 70% of those convicted to time in jail or prison. Another 28% of those convicted received probation.

Therefore, sentencing is an important topic for both those who have been convicted and the people who live in their communities.

For more information on criminal sentencing, contact a criminal law attorney today.

How the False Testimony of Snitches Results in Wrongful Convictions

Sat, 16 May 2009 02:49:10 GMT

In some criminal cases involving wrongful convictions, the main evidence against the defendant is testimony by a police informant, who is commonly referred to as a “snitch.” Unfortunately, in weighing this evidence, a jury may be unaware that the snitch has received favorable treatment or a reduced sentence in exchange for his testimony, or that he regularly has acted as a jailhouse snitch, testifying in multiple criminal cases. In this respect, the snitch’s testimony could be unreliable, in that it is motivated by something other than the sheer desire to confess the truth about the accused. As a result, a snitch’s testimony has proven to be false in some cases, which in turn leads to wrongful convictions.

Incentives for a Snitch to Give False Testimony

When an inmate has little recourse in his own criminal case, and is facing stiff penalties as a result of his crime, the temptation and desperation may prove too much, thus resulting in voluntary testimony that negatively implicates a fellow inmate. At that point, the snitch has nothing to lose; at worst, he will not get the incentive he has been promised, and, at best, he might receive a lighter sentence, reduced charges, and/or more pleasant accommodations while incarcerated, such as placement near family members. This all-too-common phenomenon of incentives in exchange for testimony can result in false testimony, and wrongful convictions.

Even worse, a jury considering evidence in a criminal case is likely to be totally unaware of any incentives that a snitch may be given by the prosecution in exchange for his or her testimony. Therefore, if the snitch otherwise appears to be credible during his or her testimony, and gives a relatively plausible, the jury will have no reason to suspect that the snitch may have an alternate motive for his or her testimony.

Pressures on Snitches by Law Enforcement Officials to Give False Testimony

On the other hand, snitches are sometimes approached by corrupt law enforcement officials seeking evidence to support a conviction in a certain case. In some situations, the snitch has received extensive information about a particular criminal case so that his or her testimony will be more believable. Additionally, the snitch may be offered some sort of incentive in exchange for corroborative testimony, or even threatened with harm or less favorable conditions of confinement if false testimony is not given. Given the choice between potential incentives and/or punishment, jailhouse snitches are likely to follow law enforcement officials’ leads and provide the false testimony as requested.

False Testimony by Snitches Results in Wrongful Convictions

The implications of wrongful convictions due to false testimony by snitches is highlighted in a 2005 report by the Center on Wrongful Convictions, Northwestern University of Law, Chicago, which profiles 38 death row defendants, convicted on the basis of false testimony by snitches, whose convictions were later overturned. According to the Center’s report, snitch testimony is the leading cause of wrongful conviction in capital cases, which obviously can have devastating results for the criminal justice system as a whole, not to mention its potentially irreversible impact on the innocent defendant, who loses years of his or her life to incarceration, or even life altogether.

Overturning Wrongful Convictions Based on a Snitch’s False Testimony

If you or someone that you know has been wrongfully convicted due to false testimony by a snitch or informant, you should consult an attorney right away for help in appealing your conviction. While you can immediately ask the trial judge to review your conviction for errors, you are not required to do so before filing a formal appeal with the appellate court in the state of your conviction. The state court of appeals will review your conviction in order to see if any errors were made. If a snitch’s false testimony was the main basis for your conviction, you may have a basis for the appellate court to overturn your conviction. Furthermore, even if the appellate court denies your appeal, you can further appeal your conviction to the state supreme court, or the highest appellate court in the state of your conviction, which will give you another chance of having your conviction overturned.

Infraction, Misdemeanor or Felony: What is the Difference?

Fri, 30 May 2008 19:36:24 GMT

Criminal charges and wrongs are typically classified as infractions, misdemeanors or felonies depending on the severity of the wrong. The more serious the charges, the more serious the punishment usually is as well.

Infractions

Infractions are violations of law or ordinances that are typically pretty minor, including traffic infractions. An infraction is less serious than a misdemeanor and may not technically be considered a crime, depending on the circumstances. A person who commits an infraction will usually get a ticket or citation - not jail time or other heftier punishments. Many times, an experienced lawyer can help negotiate a reduction of misdemeanor charges to the level of an infraction for first-time offenders in an effort to avoid a criminal record.

Misdemeanor

Misdemeanors are more serious than infractions, but less serious than felonies. Misdemeanors typically result in a heavier fine than what someone would pay if they committed an infraction; or if sentenced to jail, for a term that is less than a year. If a jail sentence is imposed, it is served at a local, city or county jail rather than a state or federal prison (penitentiary). A person convicted of a misdemeanor usually does not lose the right to vote, serve on juries, practice in a licensed profession or serve in the military. Most importantly, misdemeanors are not counted as "strikes" in states that have adopted three strikes laws.

Felony

Felonies are the most serious types of crimes, and each state has different punishments for these offenses. A standard definition of a felony is any crime punishable by more than one year in prison. Unlike misdemeanors, defendants convicted of felonies serve their sentences in a state or federal prison rather than a local, city or county jail. Additional criminal procedures apply with felonies, and the right to a court-appointed lawyer if the defendant can’t afford one is one of the rights guaranteed in felony cases.

In some jurisdictions, felonies can only be charged upon a grand jury indictment. In the case of a felony charge, not only are the procedural laws different than they are for misdemeanors, but the substantive laws can also be affected. For example, under some statutes an accidental death would be considered a murder if it occurs in the commission of a felony--like armed robbery or kidnapping. However, if it occurs in the commission of a lesser crime like a DUI, it is only manslaughter.

Wobbler

A wobbler is a crime that could be charged as either a felony or misdemeanor. Even if a wobbler begins as a felony, it may be reduced to a misdemeanor at sentencing, or the completion of successful probation.

If you are facing misdemeanor or felony charges, it is in your best interest to contact a criminal defense lawyer right away. An attorney may be able to negotiate a plea bargain wherein the charges are reduced or successfully represent you and get the charges dropped.

Miranda Rights: The Who, What, Where, When and Why

Thu, 16 Oct 2008 22:58:24 GMT

“You have the right to remain silent. Anything you say can and will be used against you in a court of law….” And, so begins many police dramas and legal novels. Some fans of police dramas believe that a police officer needs to provide every person whom they stop or with whom they speak their Miranda rights. However, that is not accurate. The Supreme Court has explained who needs to be informed of these rights and when.

What are the Miranda Rights?

While, Miranda rights are named for the famous Supreme Court case, Miranda v. Arizona, the rights do not have their origin in that case. Rather, the rights that we refer to as the Miranda rights are constitutional rights which the court, in Miranda v. Arizona, decided needed to be provided to certain people in police custody.

The specific constitutional rights that are commonly referred to as the Miranda rights include the right to remain silent, the right against self incrimination and the right to an attorney during questioning and in court. While many jurisdictions require their law enforcement officers to use particular wording, the Court did not require all jurisdictions to adopt the same wording when providing suspects with their constitutional rights. Instead, the court required that the warnings contain at least the same level of information as it set out in its ruling and that the warnings be meaningful for the suspects. Therefore, suspects are asked if they understand their rights and are required to say yes before an officer can begin questioning.

Some jurisdictions add additional warnings to the typical Miranda warnings that they think are important for the people in their communities. For example, some border states require officers to tell suspects that if they are not U.S. citizens that they have the right to contact their country’s consulate prior to questioning.

Who Needs to Hear the Miranda Rights and When

The Miranda rights need to be spoken by a law enforcement official to an individual who is a criminal suspect and in police custody before they begin to question the individual about the circumstances surrounding the crime. A person is considered to be in police custody if a reasonable person would believe that his or her freedom to leave the situation is restrained, regardless of whether the police have formerly arrested the person.

However, in 2004, the Supreme Court did uphold state “stop and identify” laws which allow police to ask biographical information of a person without first providing the person with his or her Miranda rights.

Why are These Rights Important?

In order for incriminating evidence to be admissible at trial, the police need to provide the suspect with his or her Miranda warnings prior to obtaining the evidence. The Supreme Court found that police officers need to provide suspects with their Miranda rights in order to safeguard a person’s right not to self incriminate. That is why a suspect who is in police custody must be informed of his or her rights prior to any police questioning. If a person is arrested and the police do not intend to question the person then the Miranda rights do not have to be provided.

Murders and Manslaughters

Thu, 20 Nov 2008 01:37:18 GMT

If someone commits an action that results in the death of another human being is that person always charged with murder? The answer is not always. The person committing the act can be charged with one of a number of crimes or with nothing at all. Have you ever watched TV or read a news story and wondered why a person was charged with murder instead of manslaughter or murder one instead of a felony murder? The nuances between the different crimes may seem subtle but they are important. Each crime carries a different potential sentence.

The particularities of what constitutes a different degree of murder or type of manslaughter are defined by each state. However, there are some commonalities among the states. The different crimes with which a person who causes the death of another human being may be charged include:

First Degree Murder: This is the most serious charge that a defendant can face for taking the life of another person. Typically, a defendant is charged with first degree murder if the killing was premeditated. Some states also charge a defendant with first degree murder if the killing happened during a violent felony such as rape or arson. Some, but not all, states charge a defendant with first degree murder if the murder was both premeditated and involved special circumstances such as killing a police officer, multiple murders or particularly outrageous and depraved acts. States that are permitted to impose the death penalty may refer to certain first degree murders that carry a potential death penalty sentence as capital murders.
Second Degree Murder: The states differ more significantly on their definition of second degree murder than they do on their definition of first degree murder. In some states the act must be premeditated in order for the defendant to be charged with second degree murder and in other states premeditation is not necessary.
Third Degree Murder and Felony Murder: Not all states have a criminal system that includes third degree murder. Those states that can charge defendants with third degree murder typically do so for any type of murder that is not a first or second degree murder. A felony murder is when the defendant kills someone without the intent to kill but with the intent to commit a different felony (such as rape or robbery).
Voluntary Manslaughter: A defendant who commits voluntary manslaughter may have had the intent to kill his victim; however, the law limits the defendant’s liability because of special circumstances. For example, the law recognizes that a husband who finds his wife in bed with another man or a mother who sees her child being hurt should be held responsible if they kill the adulterer or child abuser but should not punished to the same degree as a murderer who kills his victims without provocation.
Involuntary Manslaughter: Involuntary manslaughter is often the charge if the person had no intent to kill or commit a crime but his criminal negligence or extreme recklessness resulted in a death. This is often the charge if a drunk driver kills another person in an auto accident while intoxicated.

Regardless of the criminal charges, a person who takes the life of another also has to consider the possibility that a wrongful death lawsuit will be brought by the victim’s family.

Both the criminal and civil cases can be complex and it is important for a defendant to have a qualified attorney to help in every step of the legal process.

Not Guilty by Reason of Insanity

Thu, 06 Nov 2008 19:27:16 GMT

Many television and movie defendants are found not guilty by reason of insanity. However, real criminal defendants are not as successful with the insanity defense as popular media seems to suggest. One study found that the insanity defense is only used in about 1% of all court cases and is only successful in about 26% of those cases. So, only approximately one quarter of one percent of cases in the U.S. judicial system end with a defendant being found not guilty by reason of insanity.

What is the Insanity Defense?

The insanity defense is a possible defense to a criminal matter. In order to assert the defense of insanity, a criminal defendant must claim that he should not be criminally liable for breaking the law because he was insane when the alleged crime occurred.

The definition of insanity varies among different jurisdictions. However, it is important to note that for purposes of a legal defense, the term insanity is governed by a jurisdiction’s statutory and case law and not the medical definition of mental illness.

Most jurisdictions require a professional to find that the defendant was not capable of distinguishing between right and wrong at the time of the offense. Some jurisdictions have an additional element where a defendant can be found not guilty by reason of insanity if he was not able to control his behavior at the time of the offense. Still other jurisdictions have abolished the insanity defense, a move that the Supreme Court has upheld.

How Can a Defendant be Successful in His Insanity Defense?

Usually, a defendant will need to have a complete mental evaluation as a first step in his insanity defense. Psychiatrists or psychologists will likely take the stand and testify about the defendant’s likely state of mind at the time of the offense. However, even these professionals cannot decide whether or not a defendant is insane because, as discussed above, insanity is a legal term when used as a criminal defense. Therefore, the jury or judge will decide whether the testimony and evidence support a finding of criminal insanity.

What Happens if the Court Finds a Defendant Criminally Insane?

Often, the defendant will be committed to a psychiatric hospital if he was found to be responsible for the alleged crimes but not guilty by reason of insanity. Typically, the commitment is not for a set amount of time but rather until the individual is deemed not to be a threat to society.

Temporary Insanity

A defense of temporary insanity is also difficult to prove. If a defendant asserts temporary insanity as a defense then he is asserting that he was insane at the time of the alleged crime but is sane now. If a court accepts this defense, then the defendant usually is not committed to a psychiatric facility and is found not guilty of the offense.

While the successful use of the insanity defense may be rare, its existence imposes an important moral check on the legal system. Specifically, it allows the law to impose treatment rather than punishment on people who lack the capacity to understand their actions. It therefore, protects society, while seeking to provide help and possibly rehabilitation to the offender.

Overturning Wrongful Convictions Through DNA Testing

Tue, 26 May 2009 02:17:31 GMT

While DNA testing is a routine procedure used by prosecutors in criminal cases today, it is still a relatively new technology in the criminal justice system. As a result, a large number of defendants who were convicted of crimes prior to the inception of DNA testing are now seeking DNA testing in order to prove their innocence. While there is no question that DNA testing could definitively prove a defendant’s guilt or innocence in many cases, as shown by the 238 post-conviction DNA exonerations that have occurred in the United States to date, DNA testing has still proved to be an elusive goal for many post-conviction defendants, for a variety of reasons. Most states place restrictions on the ability of defendants to obtain DNA testing, and in other jurisdictions, prosecutors actively resist DNA testing following a defendant’s conviction. For these reasons, DNA testing is not always readily available for wrongfully convicted defendants to prove their innocence, even where it is clear that DNA testing would resolve the case.

State Laws on Post-Conviction DNA Testing

Forty-six states have some laws related to post-conviction DNA testing for defendants in criminal cases. However, many of these laws are very restrictive, which means that not all defendants who request post-conviction DNA testing receive it, even after exhausting all of their available appeals. In some states, there are strict time limits, or statutes of limitation, which restrict a defendant’s ability to request DNA testing following his conviction to certain timeframes. In other states, a defendant can request post-conviction DNA testing only under certain circumstances or fact situations, such as if the DNA testing would implicate another suspect. Plus, in four states – Alabama, Alaska, Massachusetts, and Oklahoma – there is no state law that addresses or provides for post-conviction DNA testing for defendants at all. In these states, post-conviction DNA testing is not even a possibility, although there is ongoing litigation in some states regarding this issue.

To further complicate matters, many states do not have laws sufficient to guarantee that DNA evidence is preserved from crimes. Currently, only about half of the states have laws that require DNA evidence to be preserved following the defendant’s conviction. However, even these laws are limited in some respects. For example, some state laws only require the preservation of evidence in certain types of criminal convictions. In other states, evidence need only be preserved for a discrete period of time, or the laws are not applicable to evidence in convictions that occurred prior to the passage of the laws. Additionally, other states do not have any laws that require DNA evidence to be properly catalogued and preserved for an adequate period of time. If there is no evidence available to test, because it is lost, destroyed, contaminated, or otherwise not usable, then DNA testing is simply not a possibility for some defendants in some cases, despite its undisputed usefulness.

Prosecutorial Resistance to Post-Conviction DNA Testing

In a recent article (5/18/09), the New York Times detailed the increasingly common phenomenon of prosecutors who actively oppose post-conviction DNA testing, even where such testing would clearly prove either a defendant’s innocence or guilt. According to the article, prosecutors routinely deny post-conviction DNA testing in about one out of five cases. Prosecutors’ opposition to testing most commonly occurs where there is other evidence that was sufficient to convict the defendant of the crime, such as eyewitness identification or testimony, or where there would potentially be more multiple DNA samples in the available evidence. Prosecutors also seem to fear that every defendant will request DNA testing, thus resulting in many overturned convictions, and that defendants will abuse entitlements to DNA testing, such as using testing to delay the criminal justice process.

Police Misconduct Leading to Wrongful Convictions

Thu, 21 May 2009 01:28:11 GMT

While there are many honest and ethical law enforcement officials in the United States justice system, there are also some law enforcement officials who unfortunately commit misconduct with regard to the crimes that they are investigating. Not only do these law enforcement officials adversely impact the credibility of other honest officials, but they can literally destroy the lives of persons who are wrongfully accused and even convicted of crimes. From detectives who do not testify truthfully, to police officers that manufacture, destroy, and/or hide evidence, and even law enforcement officials who have improperly influenced witness identifications and suspect confessions, there have been many instances where police misconduct has resulted in wrongful convictions.

Police Misconduct as a Basis for Appeals

The defense counsel’s role in a criminal case is to raise reasonable doubt in the mind of the jury. Any sort of misbehavior by law enforcement officials, or any evidence that negatively impacts the credibility of the evidence produced by police, can constitute sufficient reasonable doubt to result in a hung jury or an outright acquittal. In those cases, the justice system works as it should.

However, in other cases, police misconduct is not apparent to the jury, or the defense is unable to definitively prove during trial that any misconduct has occurred. These are the cases in which a person may be – and has been – wrongfully convicted of a crime. Fortunately, criminal convictions are subject to appellate review, which may result in police misconduct coming to light. If an appeals court reviewing a criminal conviction determines that police misconduct has occurred to the extent that it violated the defendant’s constitutional rights or impeded his or her ability to have a fair trial, or that the proffered evidence was insufficient to support the conviction, then the appeals court has the power to overturn the criminal conviction.

Police Giving False Testimony

While there are literally thousands of upstanding law enforcement officials, there are also some police officers who are less than honest. Whether their dishonesty stems from an attempt to cover up shoddy police work, a lack of willingness to do their jobs thoroughly and appropriately, or a simple desire to convict suspects whom they believe are guilty, police officers sometimes give testimony that is exaggerated, not fully accurate, and/or just plain fabricated. Due to the respect and credibility that many community members attribute to law enforcement officials, it is easy to see how a police officer’s false testimony could result in a wrongful conviction.

Police Improperly Handling Evidence

Law enforcement officials typically are the first responders to a crime, and thus are responsible for properly gathering, preserving, and documenting evidence that can later be used in a criminal prosecution of the crime’s perpetrator. Therefore, there is the potential not only for human error by police officers, but also for intentional misconduct. Police mishandle, suppress, doctor, or fabricate evidence for a variety of reasons. Some police officers might wish to cover up a mistake or omission that they made during the initial investigation. Other police officers are convinced that a certain suspect is guilty of a crime, and to choose to improperly manipulate the evidence in order to build a stronger case against that suspect. In any case, police misconduct with regard to evidence in a criminal case can result in wrongful convictions, and form a basis to overturn any convictions on appeal.

Police Coercing Witnesses and Suspects

As part of their job duties, law enforcement officials have the task of interrogating witnesses, eliciting confessions, and interviewing witnesses to crimes. During this process, police officers may inadvertently or purposefully influence the statements of both witnesses and suspects. For instance, a police officer who believes a suspect to be guilty of a crime might place undue or inappropriate pressure on the suspect to confess to a crime that he or she did not commit. Likewise, a police officer who shows a photo array to a witness or administers a line-up might somehow suggest to the witness which person is the subject in question. Improper police tactics such as these can not only result in wrongful convictions, but also can be an appealable issue that might later exonerate the suspect.

Prosecutorial Misconduct Leading to Wrongful Convictions

Wed, 20 May 2009 02:19:08 GMT

Prosecutors often are under a great deal of pressure to quickly convict criminals, particularly where high-profile or violent crimes have occurred. Combined with the pressures of an elected office, overwhelming caseloads, and an honest desire to seek justice, prosecutors sometimes act unethically with regard to the crimes that they are prosecuting. As a result of prosecutorial misconduct, people have been wrongly convicted of crimes in some cases. There has been no shortage of cases in the news recently where courts have overturned criminal convictions based on the improper actions of a prosecutor. While honest mistakes are sometimes made by prosecutors, prosecutorial misconduct can occur when a prosecutor focuses on a convenient suspect rather than the correct suspect, when a prosecutor suppresses, hides, or even fabricates certain evidence, or when a prosecutor improperly relies on an unreliable witness. All such incidences of prosecutorial misconduct can lead to the overturning of the conviction on appeal.

Focusing on the Wrong Suspect

In the rush to hastily convict and severely punish criminals, a prosecutor can focus too closely on a certain suspect, despite the existence of factors and/or evidence that points to a different perpetrator. Due to the nature of their profession, prosecutors tend to operate in the public eye, subject to intense scrutiny by the media and constituents, particularly in cases involving serious, shocking, and/or violent crimes. As a result, prosecutors sometimes make the mistake of devoting all resources to the prosecution of a certain suspect, rather than searching for other possible motives or evidence that might lead to another suspect. A prosecutor’s doggedness and zeal in this regard can cause him or her to simply ignore potentially exculpatory evidence or other factors that point away from the suspect at issue. Even when it appears quite possible that another person committed the crime, prosecutors can be tempted to disregard such evidence and focus solely on obtaining a conviction, even if it results in a wrongful conviction.

Suppressing or Fabricating Evidence

The most common incidence of prosecutorial misconduct involves the suppression or fabrication of exculpatory evidence, or evidence that might lead to the exoneration of the person suspected of the crime. Once a prosecutor publicly identifies and detains a viable suspect for a serious crime, thus satisfying public outcry and media inquiry, he or she may be reluctant to deal with any evidence or information that does not support his or her case against the suspect. This situation underscores the tension between a prosecutor’s desire for a conviction and his or her duty to disclose exculpatory evidence to the defense. At a minimum, a prosecutor may downplay or simply ignore exculpatory evidence. At the other extreme, a prosecutor may take steps to actively hide such evidence from the suspect’s defense attorney, destroy evidence, and/or fabricate other evidence in support of his or her case. Obviously, such actions by prosecutors involve serious professional misconduct that can definitely result in the wrong person being convicted of the crime. When evidence is manipulated in such a manner, the justice system, heralded for its ability to convict the guilty and exonerate the innocent, simply cannot function normally, thus leading to wrongful convictions.

Improperly Relying on Unreliable Witnesses

Finally, a prosecutor may commit misconduct and interfere with the proper administration of justice in a criminal case when he or she bases criminal charges primarily on the testimony of an inherently unreliable witness. By using “snitches”, or jailhouse informants, who are readily available to deliver damaging testimony against suspects in multiple criminal cases, in exchange for incentives related to their own criminal cases and/or jail terms, a prosecutor may be utilizing a witness that is totally unreliable. Since the snitch’s motive is purely for self-gain, and the snitch has literally nothing to lose by testifying, it is more likely than not that the snitch may not be telling the truth, or at least the whole truth. When a snitch’s testimony is the primary evidence behind a criminal conviction, it tends to be unreliable, which, in turn, increases the possibility of a wrongful conviction.

Appeals and Prosecutorial Misconduct

While it can be difficult to definitively prove the existence of prosecutorial misconduct in a criminal case, it is not impossible, and certainly has occurred in some cases. If you believe that you have valid and reliable evidence that prosecutorial misconduct has occurred, and that someone has been wrongfully convicted of a crime as a result, you should contact that person’s legal counsel immediately. Evidence of prosecutorial misconduct, including the rejection of other possible suspects, the improper manipulation of evidence, and/or the reliance on notoriously untruthful witnesses, all can constitute grounds for a conviction to be overturned on appeal. Such evidence can be reviewed by the state court of appeals, and even by the state supreme court, or another higher appeals court, and may result in an overturning of the person’s criminal conviction.

Sentencing Guidelines: Fair Sentences or a Denial of Trial by Jury?

Mon, 20 Oct 2008 17:58:39 GMT

In the 1980s, it became apparent to those in the U.S. government that there were wide sentencing disparities in the United States federal court system. Defendants who were convicted of very similar crimes were receiving wildly different sentences. Accordingly, a movement began to develop federal sentencing guidelines. In addition to providing equitable sentences around the country, the sentencing guidelines were meant to impose a specific sentence on defendants. Some courts had been in the practice of issuing sentences with minimum and maximum imprisonment terms. That left the actual amount of time that the person was imprisoned up to the parole board.

Now, those guidelines are in place. They were designed with the intent that it would be mandatory for every presiding federal judge to comply with them. However, in 2005 the United States Supreme Court found in the case of United States v. Booker that the guidelines, as they were then written, violated a defendant’s Sixth Amendment right to a trial by jury. The court also found that judges are required to consider a wide range of factors when deciding individual sentences and that Federal Appeals Courts can review Federal District Court sentences for reasonableness. The remedy was to remove the mandatory requirement from the guidelines. Now, presiding judges are required to calculate the guidelines and to consider them for each criminal conviction. However, they are not required to follow them.

How Are the Guidelines Fashioned?

The federal sentencing guidelines heavily rely on two factors when determining an individual defendant’s sentence. First, the guidelines require that consideration be paid to the particular crime. Then, the criminal’s previous criminal history must be considered. As a whole, some commentators have compared the sentencing guidelines to the tax code because they are long and very detailed. The sentence imposed is based not only on the crime committed and the offender’s previous criminal history but also on things such as whether there were any injuries to victims and the complexity of the crime.

State Guidelines

Approximately half of the states have state sentencing guidelines for state court criminal cases. However, the state sentencing guidelines vary widely. Some state court systems publish the state’s sentencing guidelines on their websites. A 2008 study by the National Center for State Courts studied sentencing guidelines in three states. The three states were Virginia which has voluntary guidelines, Michigan which has guidelines that allow for judicial discretion and Minnesota which has a mandatory guideline system. The study found that in all three states, criminal sentences are generally not influenced by race or class. This was in marked contrast to the discrepancy in sentencing that was found prior to the sentencing guidelines being implemented. Therefore, the study concluded that the sentencing guidelines were the reason that discrimination as not found and that held true regardless of whether they were voluntary or mandatory.

The Benefits and Drawbacks of Sentencing Guidelines

Those opposed to sentencing guidelines often argue that guidelines do not allow judges to take into consideration the individual circumstances that are unique to the person being sentenced. Those in favor of sentencing guidelines usually argue that without the guidelines judges hand down different punishments for the same crime. It is clear that there are both benefits and drawbacks to sentencing guidelines which must be carefully weighed by each presiding judge and for each convicted criminal. For more information on sentencing guidelines, contact a criminal law attorney today.

The Juvenile Court System for Minors Accused of Crimes

Thu, 06 Nov 2008 19:25:38 GMT

Almost every state in the United States has established a juvenile court system to handle the legal matters of minors. Typically, these legal matters fall into three categories including: (1) criminal matters; (2) abuse and neglect cases; and (3) truancy or delinquency cases.

The Minor Accused of a Crime

When a minor commits a crime, it is undoubtedly traumatic for the victim. However, it can also be shocking and painful for the youthful offender and for his or her family. It is thought that minors can be more easily rehabilitated than adults and that minors are not always responsible for their actions because they lack the mental capabilities of an adult. Therefore, juvenile courts were established to hear the cases of minors accused of crimes.

The age of children who are eligible to be tried under the juvenile court system varies from state to state. Typically, however, children under the age of seven are found to be too young to be in either the juvenile or the adult court system. Similarly, sometime between age 14 and 19, most states find that the accused are able to stand trial in adult court.

Most states will automatically process anyone under age 18 who is accused of a crime as a juvenile. A few states set that age limit at 16 and other states make the age limit contingent on the seriousness of the alleged crime committed.

What Happens to Youthful Offenders in Juvenile Court?

The answer to that question will depend on the state where the alleged crime was committed, the seriousness of the alleged crime and the strength of the evidence against the alleged offender.

In some circumstances, the case will go forward and the defendant will be tried as a minor in juvenile court. However, if certain circumstances exist then it might be possible for the minor to avoid formal charges. Usually, a juvenile judge and prosecutor will consider the seriousness of the crime, the alleged offender’s age, the alleged offender’s criminal record and the ability of the parents to control the child.

Sentencing in Juvenile Court

If a judge finds that the allegations against the minor have been proven then the judge will find the minor to be a youthful offender. Then the judge will decide the disposition of the case. If the minor is found not to be a threat to others then he or she may receive probation. However, if the minor has been found to have committed a serious crime then the minor will likely be sent to a juvenile correction facility. Juvenile correction facilities are supposed to provide an education and rehabilitation services for youthful offenders.

In 2005, the U.S. Supreme Court held that states may not impose the death sentence on youthful offenders under the age of 17 because to do so constitutes cruel and unusual punishment. This reversed an earlier court ruling that permitted the death penalty for youthful offenders.

The juvenile court system has a simple goal. It is meant to provide the best possible future life for the children in its system. That is true whether the children are youthful offenders, victims of abuse or neglect or delinquents in need of protection from themselves.

The Preliminary Hearing

Thu, 20 Nov 2008 01:35:07 GMT

It is difficult to be a criminal defendant. If the defendant is ultimately found guilty of the crimes for which he was arrested then few people have compassion for the hardships endured by the defendant while he was standing trial. However, for defendants who are arrested for a crime which they did not commit, a criminal trial can be a real burden.

For that reason, there are many stages to a criminal case that are designed to protect the rights of criminal defendants. One of the stages that is most important to protecting the rights of criminal defendants is the preliminary hearing.

What is a Preliminary Hearing?

It is the role of the judge in a preliminary hearing to determine if there is enough evidence against the defendant to go to trial. Judges use the probable cause standard when deciding whether the case should proceed to trial. In other words, the judge must decide if the government prosecutors have enough evidence to convince a reasonable jury that the defendant has committed a crime.

There are parts of a preliminary hearing that resemble a trial. Both the prosecution and the defense are likely to make arguments to the court about why or why not a trial should proceed. The government may call witnesses and introduce evidence at a preliminary hearing and the defense may cross examine the witnesses and refute the evidence.

Other issues such as those about jurisdiction may also be decided at a preliminary hearing. If, for example, the defendant does not believe the case has been brought in the right state or federal court then the judge may decide that issue at the preliminary hearing.

When is a Preliminary Hearing Held?

In states that conduct preliminary hearings, the hearing is usually held as soon as possible after the defendant is arraigned. Some states require preliminary hearings for all cases in which the defendant enters a plea of not guilty and other states only require preliminary hearings if the defendant is charged with a felony.

Alternatives to a Preliminary Hearing

Some states use a grand jury system instead of a preliminary hearing. A grand jury system is a group of ordinary citizens who listen to the evidence produced by the government prosecutors and determine whether or not there should be a trial.

It is important to remember the objective of a preliminary hearing. It is not the judge’s role at the preliminary hearing to decide whether or not the defendant is guilty or not guilty of the alleged crime(s). Instead, the judge must only decide if there is probable cause to believe the defendant committed the crime(s). Even if the judge does find probable cause that the crimes were committed by the defendant and the case proceeds to trial then a jury may still find the defendant not guilty on all counts.

If the judge finds that there is not probable cause that the defendant committed the crime(s) then the case is usually dismissed. If probable cause is found then the matter will proceed according to the rules of the court for the jurisdiction in which the case is being heard.

The Pros and Cons of Plea Bargaining

Thu, 16 Oct 2008 22:36:14 GMT

When faced with criminal charges, a defendant often has one simple goal. That is, to minimize the potential penalty. Of course, being found innocent at trial, and being aquitted, is the best way to avoid jail time and other penalties. However, going to trial can be risky because it is impossible to predict what a jury will decide. Therefore, many defendants choose to enter a plea bargain agreement with the prosecution.

What is Plea Bargaining?

A plea bargain is an agreement between the prosecutor and the defendant in a criminal case. The prosecutor gives the defendant the opportunity to plead guilty to a lesser charge or to the original charge with less than the maximum sentence. For example, the prosecution and the defense may agree to a misdemeanor charge instead of a felony charge or the parties may agree to a sentence of 12 years instead of 20 years if the recommended sentence for that crime is 10-20 years imprisonment.

There are many factors that determine whether a plea bargain will be reached in an individual case and whether a plea bargain is a desirable outcome. Both sides will carefully weigh the strength of their case and decide whether it is prudent to go to trial. The prosecution may also consider the publicity surrounding the case and whether there is public pressure to prosecute that particular defendant to the full extent of the law. The defense will consider the individual defendant’s desire to go to trial and the seriousness of the potential sentence.

The Pros of Plea Bargaining

For the defendant, the most significant benefit to plea bargaining is to take away the uncertainty of a criminal trial and to avoid the maximum sentence.

Society also benefits from plea bargaining since the agreements lessen court congestion and free up prosecutors to handle more cases.

The Cons of Plea Bargaining

The biggest drawback to plea bargaining is for the innocent defendant who decides to plead guilty to a lesser charge in order to avoid the risk that he or she will be found guilty at trial.

Additionally, some attorneys and judges argue that plea bargaining has led to poor police investigations and attorneys who do not take the time to properly prepare their cases. They believe that instead of pursuing justice, the parties rely on making a deal and that the details of what happened and the legal consequences for those actions are less important.

Some attorneys and judges also argue that plea bargaining is unconstitutional because it takes away a defendant’s constitutional right to a trial by jury. If the defendant is coerced or pressured into a plea bargain agreement then this argument may have weight. However, if the defendant, at all times in the criminal case, retains the right to a trial by jury without pressure to make an agreement then the courts have found that plea bargaining remains constitutional.

What Happens When an Agreement is Reached

If both sides agree on a plea bargain then the plea bargain agreement will be clearly stated on the court record before a judge who will issue the agreed upon sentence. Both sides are legally required to follow the terms of the plea bargain and the agreed upon disposition of the case.

Plea bargaining can have benefits for the individual defendant and for society, whose interest is represented by the government prosecutor. However, it is important that both the defendant and the prosecutor carefully weigh their options before reaching a plea bargain agreement.

For more information about Plea Bargaining, Contact a qualified Criminal Law Attorney in your area today.

The Search of Cars at the Time of Arrest

Tue, 19 May 2009 01:06:33 GMT

Things happen quickly when the police make an arrest. Often, the person being arrested doesn’t have time to think about what his or her rights might be because the situation is overwhelming. It is, therefore, important to be familiar with your rights in case you are ever arrested. If you are arrested in or near your car then you need to understand how and to what extent the police can legally search your car at the time of your arrest.

When a Car May be Searched Incident to Arrest

In April 2009, the United States Supreme Court issued a decision in the case of Arizona v. Gant which clarified the power of the police to conduct a search of a vehicle incident to an arrest. The Court ruled that unless the police have a properly executed search warrant for the car at the time of the arrest, that the police can only search the car if:

· The suspect could reach for a weapon.

· The suspect could try to destroy evidence; or

· When it is reasonable for the police to believe that there is evidence in the car that supports the crime for which the person is being arrested.

The Court emphasized that searches conducted without a search warrant are presumptively illegal and that a search of a vehicle incident to an arrest is an exception to that general rule. Since a search of a vehicle incident to an arrest is an exception to the rule, only very limited searches may be allowed.

This ruling limits the law enforcement community’s interpretation of the 1981 Supreme Court ruling in New York v. Belton. Police officers, relying on the Belton ruling, had been routinely searching the passenger compartment of cars whenever a driver or passenger of a car was arrested. This warrantless search was conducted whenever an arrest was made without regard to whether the suspect was in a position to reach for a weapon or destroy evidence and without regard to whether there was reason to believe that there was evidence in the car supporting the arrest.

Application of the Supreme Court’s Decision

The Court’s ruling in Arizona v. Gant requires police officers to reconsider when they may legally search cars at the time of an arrest. For example, if the suspect has been arrested and is securely in police custody then the first two exceptions would not apply because it is no longer possible for the suspect to reach for a weapon or attempt to destroy evidence in the car. Whether the third exception would apply would depend on the reason for the arrest. If the suspect is arrested for a traffic offense such as drunk driving, for example, then the police could not search the car to determine if there is evidence related to a recent robbery in the area since the suspect was not arrested for a robbery but rather for drunk driving.

The Court’s recent ruling makes clear that the prior practice of routine car searches incident to an arrest is illegal. Instead, searches may only happen in certain limited circumstances. It is a decision that law enforcement officials have criticized and that defense attorneys have welcomed. It will be interesting to see the practical effect of the ruling in the months and years to come.

The Truth About Perjury

Mon, 12 Oct 2009 14:04:50 GMT

You hear it all the time on TV dramas and in the movies. A person perjures himself thereby creating legal trouble for himself and often for others. Perjury is a crime that carries a significant sentence. It is, therefore, important to understand the truth about what perjury is and what the consequences of perjury are before you testify under oath in any type of proceeding.

Perjury is a Crime

While many people consider perjury and lying to be interchangeable terms, they are different. Perjury is a federal crime, and like all federal crimes, certain elements must be present in order for a person to be guilty of the crime. The federal crime of perjury is defined in the U.S. Code at 18 USC 1621. According to that law a person perjures himself if:

· He has taken an oath before a competent tribunal, officer, or person,

· In any case in which a law of the United States authorizes an oath to be administered,

· That he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, and

· He willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true.

Therefore, all lying does not constitute perjury. A person must have taken a proper oath promising to be truthful and the untruth must be about a material fact. For example, if a person lies about the number of children he has to hide the fact that he has an illegitimate child and that fact is not pertinent to the car accident case in which he’s testifying then the fact is likely not considered material and a perjury charge is likely unjustified.

The states have similar statutes about perjury that are applicable if the perjury occurred pursuant to an oath given by a state court or in a state court proceeding.

Possible Criminal Sentences for Perjury

The usual federal sentence for perjury includes a fine, a prison term not to exceed five years, or both a fine and a prison term. Different sentences exist for those convicted of perjury under state law.

It is important to note that perjury, like all other crimes, requires a prosecutor to bring a lawsuit against the accused in court. It is not enough for an attorney to claim that you perjured yourself. In order to be sentenced, you must be formally charged with the crime and provided the same rights as other accused criminals including the right to a jury trial.

Hiring an Experienced Criminal Defense Attorney

It is important to seek the assistance of an experienced criminal defense attorney if you have been formally charged with perjury so that all of your rights are protected and the strongest possible defense is mounted on your behalf. However, you might also seek the assistance of a criminal defense attorney earlier in the process. For example, you might seek the counsel of an attorney prior to testimony if you are concerned about telling the truth on the stand or you might seek counsel after your testimony if you believe that you may have perjured yourself.

The American system of justice is dependent on people respecting oaths and telling the truth. When people do not tell the truth under oath about material facts then a miscarriage of justice can occur. Therefore, perjury is a serious crime with a serious sentence and those accused of perjury should seek immediate legal representation.

The White Collar Crime of Insurance Fraud

Thu, 20 Nov 2008 01:39:48 GMT

Many Americans have many different types of insurance that are designed to protect them from the high financial consequences of certain situations. For example, many Americans pay for automobile insurance, homeowners or renters insurance and health insurance. Those types of insurance policies protect policy holders in the event a qualifying situation such as a car accident, home robbery or illness occurs. Insurance companies can pay out a lot of money to cover those types of expensive incidents. For that reason, some people try to commit the white collar crime of insurance fraud to try and get insurance proceeds in the absence of a qualifying event.

The Crime of Insurance Fraud

There are several different ways in which someone who makes a fraudulent insurance claim may be held accountable. The vast majority of states have made insurance fraud a state crime and the federal government has made making fraudulent claims to a health insurer a federal crime. It is also important to note that those who make fraudulent insurance claims may also be held civilly liable for breaching their insurance contract.

Some states classify insurance fraud into two different categories. The first category is hard fraud which is defined as a claim by someone who purposely plans or invents the loss in order to receive payment. For example, a person might desire a new car and therefore vandalize his or her car and seek a monetary insurance payment. The second category is soft fraud which is defined as a legitimate claim that is exaggerated for the purpose of obtaining additional financial benefit. A person could, for instance, experience a burst pipe in his or her home and claim that the water did damage to valuable clothes and books that actually dried out just fine.

Professionals are also in a unique position to commit insurance fraud. Since some professionals regularly bill insurance companies in order to receive payments they could add a few claims in for work that was not actually completed. Doctors and dentists, for example, could bill health insurers for procedures that they did not perform or auto mechanics could bill auto insurance companies for repairs that they did not make.

Possible Sentences for Insurance Fraud

Most state governments and the federal government impose both a fine and a prison sentence on those convicted of insurance fraud. The exact penalties vary from state to state and depend on the level of fraud for which the defendant is convicted.

It is often said that white collar crimes are victimless crimes because they are not violent. That description is not accurate, however. We all pay for the crime of insurance fraud by paying the cost of higher insurance premiums. It is a real problem that affects every insured American and it is a crime that carries a significant punishment for the perpetrator.

Therefore, the state and federal governments have an important responsibility in prosecuting the white collar crime of insurance fraud in order to make sure that the insurance system works fairly and efficiently and that honest Americans can continue to afford quality insurance policies.

Violating Probation

Mon, 12 Oct 2009 14:00:34 GMT

Convicted criminals are sentenced for their crimes. The range of criminal sentences varies significantly depending on the crime committed and the perpetrator’s criminal record. Probation is often part, or all, of a criminal sentence. Instead of serving jail time during the probation period, the criminal is “out” or “free” on probation under the supervision of a probation officer who is responsible for making sure that the person follows the terms of the probation as decided by the sentencing judge. The terms of the probation vary according to the severity of the crime, the other parts of the imposed sentence and the criminal history of the criminal. A judge may, for example, require that the person not leave the jurisdiction, remain employed, remain drug free, respect a curfew, and not have any contact with children, for example. If the criminal breaks any of the terms of probation then he or she has violated his probation.

The criminal’s probation officer has the responsibility to notify the court or the prosecutor if he or she suspects that probation has been violated. While the probation officer does have some discretion and may not report the first violation of a curfew, for example, the probation officer is likely to report all repeated violations or serious violations of probation. The prosecutor can file a complaint and the judge can hold a probation revocation hearing to determine if probation was violated. The prosecutor must prove that the defendant violated his probation by a preponderance of the evidence at the probation revocation hearing unless the violation of the probation involved the possible commission of a new crime, such as drug use. If it is determined that the terms of probation were violated then probation may be revoked and the criminal may be incarcerated for the remainder of the probation period. Sometimes, upon finding a criminal guilty of violating the terms of probation, a judge may decide not to incarcerate the individual. Instead, the judge may reissue a sentence of probation. However, this time the terms of probation are likely to be more severe and the supervision of the probation is likely to be more significant. A criminal has the right to appeal a revocation of his or her probation.

What to Do If You’ve Been Accused of Violating Probation

It is important to contact a criminal defense attorney if you have been accused of violating your probation terms. The consequences for violating probation can be significant, as described above. Your criminal defense attorney can help you make sure that your legal rights are protected at each stage of the proceeding and that you receive a fair hearing. There are defenses that you can raise if you are accused of violating your probation. For example, in some states the violation must have been willful and substantial. Your criminal defense attorney will advise you about the laws in your state and represent you in all probation violation hearings and appeals.

What Comes Next After the Arrest?

Fri, 16 May 2008 21:23:36 GMT

Have you been arrested for a crime or are you a suspect in a crime? The criminal justice process varies from state to state, and the federal criminal justice system has its own rules, procedures, and terms for processing those accused of federal crimes. However, in many cases, the following outlines the general process involved when you are charged with a crime.

Grand Jury Indictment

The criminal justice process starts with a complaint or information filed with the court by the prosecutor or a grand jury indictment. The Fifth Amendment to the U.S. Constitution requires that all federal felonies must be brought by a grand jury indictment but the states are not bound by this rule so they can use grand juries or not.

The Arrest

The arrest can occur at either the scene of a crime or based on warrants or sworn statements ordering a court appearance, typically after the complaint, information or grand jury indictment is filed. All arrests must be based on probable cause or a reasonable belief by an officer that an offense has been committed and the defendant may have committed the offense. The police must advise a defendant of his or her Miranda Rights in connection with making an arrest, taking the suspect into custody, and conducting a custodial questioning of the defendant. The Miranda rule requires the police to advise a suspect of his or her privilege against self-incrimination, the right to remain silent, and the right to have an attorney present during questioning if so desired.

The Initial Appearance

At the Initial Appearance the defendant will be notified of the charges and given the opportunity to plead guilty or not guilty. After entering a plea the defendant may also have their bail set or be released, or the judge may order the defendant held in jail until the trial.

The Arraignment

An arraignment is the formal presentation of charges in open court and where a judge considers evidence the prosecutor presents to decide whether there is probable cause to support the charges against the defendant. The judge may downgrade or dismiss the charges and an arraignment may take place several days or weeks after the arrest, depending on the court calendars.

Plea Negotiations

In many cases, the prosecutor and a defendant’s lawyer will negotiate a plea, also known as plea bargaining. In a plea bargain, the prosecutor may offer to reduce or dismiss some of the charges, or recommend a lighter sentence in return for a guilty plea.

The Trial

If a plea agreement is not reached the defendant will have a trial. Defendants have a constitutional right in both the federal and state courts to a jury trial, but may waive this right and have a bench trial. In federal court a jury verdict must be unanimous while juries in state courts may have divided verdicts. The Supreme Court has not established a firm rule on how divided a jury may be, but it must be larger than just a simple majority to convict.

The Verdict

Once the case is submitted to the jury for deliberation, the jurors retire to deliberate in secret. When the jury reaches a verdict, their finding is read to the defendant in open court. In a bench trial the judge will deliberate as well, but normally a judge does not take as long as a jury to reach a verdict.

Sentencing and Sanctions

If the defendant is found guilty, the judge may set a future date for the defendant to be sentenced. In determining the sentence a judge may use a pre-sentence report which provides a uniform assessment of a defendant’s overall family, medical and criminal background. In most cases the judge decides on the sentence, but in some jurisdictions the sentence is decided by the jury, particularly for capital offenses. Possible sentences range from jail time, fines, time already served or probation.

Post-Conviction Appeals and Motions

After the trial a defendant may request appellate review of the conviction or sentence. In some cases defendants have a right to an appeal.

Corrections

If a defendant is convicted they may go into some form of custody, either probation, jail or some other alternative. Probation means that the convicted felon does not go to prison but is allowed to return home, usually with some restrictions on what they can do and where they can go. Prison terms are typically served in a city or county jail if the sentence is for a year or less or in a state penitentiary if it is for more than a year.

Whether you were arrested at the crime scene, or after a complaint or a grand jury indictment was filed you should hire a criminal defense lawyer right away. If you are questioned, politely tell the law enforcement authorities or other person questioning you that you would like your lawyer present during questioning, and wait until you are provided one. This is your constitutional right.

For more information on arrest, contact a criminal law attorney today.

What Happens When You Face Out of State Criminal Charges?

Thu, 16 Oct 2008 22:39:03 GMT

Any kind of criminal charge can be difficult for the accused to manage. However, if a person is arrested and charged with a crime in a state that is not his or her permanent residence then it might be even more difficult to mount an adequate defense.

Jurisdiction

The state in which the alleged crime occurred is the state that has jurisdiction to prosecute the offense. So, for example if you live in New York and you are arrested for drunk driving in California then the state of California has the right to prosecute you for that offense.

This can lead to some very real logistical problems for the defendant. The criminal process often requires the defendant to appear in court multiple times. If the defendant has been released on bail or other terms pending trial then it can be burdensome to return to the state in which the defendant is tried every time a court appearance is required.

It is important to know that you cannot simply return to your home state and ignore the charges from the other state. The states and territories of the United States are required by the U.S. Constitution to render suspects on the request of another state. This is commonly referred to as extradition.

Misdemeanors

Often, out of state residents who are arrested face misdemeanor charges such as driving while intoxicated or breach of the peace. Many states allow the defendant to hire a local attorney who can appear for the defendant in most criminal proceedings. That means that you would not have to bear the expense of traveling to the state in which the alleged misdemeanor occurred nor would you have to lose time from work in order to defend yourself.

If you choose to allow your attorney to appear for you then it is important that you find someone whom you trust and that you stay in close contact with your attorney by telephone or e-mail so that you know exactly what is happening with your case.

Felonies

If you are arrested for a felony then one of the first things that will happen is a bail hearing. If the arrest happens in a state other than your home state then it is unlikely that the judge will release you on your own recognizance because you do not have strong ties to the community. Instead, you will likely be required to post bail. Bail is a kind of guarantee to the court that you will come back for further proceedings.

While bail is often required for in state defendants, it is almost always required for out of state defendants. If the defendant appears in court as required then the bail is refunded. If the defendant does not appear as required then the bail is not returned to the defendant and the defendant is likely to be arrested and held in custody pending trial.

If you are convicted of a crime then in most circumstances the conviction becomes part of the public record. Therefore, your out of state conviction might follow you if future employers or other parties are interested. Thus, it is important to adhere to all of the rules in the jurisdiction in which you are charged and to work with a competent attorney for the best possible outcome.

What are sex offender registry laws?

Thu, 15 Jan 2009 02:36:45 GMT

The Sex Offender Registration and Notification Act (SORNA) is a federal law that sets out the minimum standards for sex offender registration and notification. SORNA applies to all 50 states, the District of Columbia, principal U.S. territories, and federally recognized Indian tribes. In other words, while a particular state’s law can be stricter than the SORNA requirements, a state’s law cannot be less strict than the SORNA requirements.

First, SORNA requires that sex offenders, or persons who are convicted of sex crimes as defined by SORNA, must register in the jurisdictions in which they live, work, and/or go to school. Sex offenders have to provide certain required information about themselves that each jurisdiction must maintain in their files. Plus, much of this information must be posted on state and national sex offender registry websites, which allows public knowledge of who sex offenders are, what they look like, and where they live, work, and/or go to school. This information is also provided to certain law enforcement agencies, schools, social service agencies, public housing agencies, and national databases. Additionally, if you specifically request to be notified about changes in a particular sex offender’s information, or sex offenders in your area, you can request that you receive informational e-mails from your state sex offender website.

SORNA also sets forth the timing of registration requirements for each sex offender. A sex offender must initially register before being released from incarceration, or, if not incarcerated, with three days of their sentencing for the crime. When a sex offender moves to, or starts to work or attend school in, a new jurisdiction, he or she has three days in which to register with local authorities. Plus, even if a sex offender does not change jurisdictions, he or she must periodically update his registration information with local authorities, depending on the severity of the sex crime of which he or she was convicted, which can range from every three months to once a year, or whenever his or her address, workplace, or school status changes.

Sex offenders have to register in this manner for a certain period of time, the duration of which depends upon the severity of the sex crime; registration requirements can range from 15 years to life. However, if some sex offenders maintain a clean record for a certain period of time, then they may be able to reduce the time period during which they must register.

Furthermore, SORNA is retroactive; in other words, SORNA applies to persons who were convicted of sex offenses even prior to the law’s passage. SORNA also applies to juveniles who were convicted of sex offenses as adults, or certain older juveniles who were convicted as juveniles of certain more serious sex offenses.

Every state is required to have criminal penalties for sex offenders who do not comply with registration requirements. A failure-to-register crime can result in imprisonment for up to 10 years under federal law, and can result in various penalties depending on the applicable state law.

When Does Discipline Become Abuse?

Thu, 06 Nov 2008 19:29:22 GMT

Some types of physical actions are clearly abusive. It is never okay for an adult to sexually abuse a child, provide a child with illegal drugs or to burn or choke a child. However, the line between parental and child abuse is not always that clear.

Many families strongly believe in spanking as a means of punishment, for example. Other families believe that spanking is a form of child abuse. Most states do not have a law that prohibits spanking but instead rely on their child abuse statutes to determine if an individual case crossed the line between discipline and abuse.

Parental Discipline

Most states do not prohibit parents from spanking their children in all circumstances. However, all of the states have statutes that define child abuse. If a parent is accused of child abuse because he or she has struck a child then a judge or jury would need to decide whether the parent’s actions constituted abuse, based on the state law as applied to the facts of the specific case.

The federal government has enacted the Child Abuse Prevention and Treatment Act (CAPTA) which provides minimum standards that the states must incorporate into their child abuse statutes. CAPTA requires the definition of child abuse and neglect to include, “Any recent act or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm, sexual abuse, or exploitation, or an act or failure to act which presents an imminent risk of serious harm.”

Pursuant to the CAPTA standard, a short spanking is unlikely to constitute child abuse because it does not result in serious physical or emotional harm. However, if the parent repeatedly spanked the child with a closed fist or on a body part that resulted in significant pain then the parent’s action could constitute child abuse depending on the severity of the actions and the state in which the actions occurred. Further, if the parent’s actions resulted in a physical injury then the action could constitute abuse.

Corporal Punishment

Corporal punishment is the intentional infliction of pain that is designed to punish a person for his or her actions and teach that person not to do it again. In the United States, corporal punishment most often refers to the physical discipline of children in a school setting. About one half of the states including California and Massachusetts have outlawed corporal punishment.

However, in many states corporal punishment remains legal. Corporal punishment seems to be most prevalent in the Southern states such as Florida and Mississippi. In these states, corporal punishment like parental physical discipline is allowed but the right to inflict corporal punishment is not unlimited. School administrators, teachers and other adults must still abide by the state’s child abuse laws.

Physical discipline of children is a hotly contested topic in the United States. Some parents believe it to be an effective means of disciplining their children and other parents believe it to be cruel. The law does not prevent all physical discipline of children but it does provide limits and it seeks to protect children from child abuse.

When is a Search Warrant Necessary?

Thu, 16 Oct 2008 22:33:10 GMT

The Fourth Amendment to the United States Constitution protects Americans from unreasonable searches by the government. That means that absent an emergency situation or other legal exception, a police officer must have a search warrant before conducting a search of your person or property.

How a Search Warrant is Obtained

The Fourth Amendment requires that searches be specific and reasonable. That means that a judge will only approve a search warrant if law enforcement is specific as to the items and location it wishes to search. Law enforcement must also prove that probable cause exists that a specific item is located in a specific place.

Whether the warrant gets issued or not is up to the judge's review. If a judge finds that law enforcement has met its burden of probable cause and has included enough specificity in the request for the warrant, then the judge will issue the search warrant. The suspect is not present during this proceeding and is not given an opportunity to present his or her argument against the issuance of a warrant. However, in later proceedings the suspect may argue that a search warrant was improperly granted.

When a Search Warrant is Not Necessary

There are a few situations when law enforcement is exempt from obtaining a search warrant. Those situations include:

Consent: Law enforcement can request to enter a person’s home or search a person’s belongings. If the person consents to the search and gives law enforcement express permission to conduct the search then a warrant is unnecessary.

Plain View Doctrine: Law enforcement does not need a search warrant to obtain evidence that is in plain sight. For example, if an officer is walking down the street and sees a person with drugs in the park then the officer may arrest that person and keep the drugs as evidence even though a search warrant was not obtained. This exception exists because individuals do not have a reasonable expectation of privacy when they are in plain view.

Emergency Situation: If the police are in hot pursuit of a felon and follow that alleged felon into a home or other private area then they do not need a warrant to obtain evidence that is in plain sight when they enter the building.

For example, a police officer may witness a robbery or an assault and begin to pursue the criminal to make an arrest. If the criminal flees and takes refuge in a private residence then the police may follow him and they do not need a search warrant to enter the home nor to collect evidence that is in plain sight or within the reach of the alleged criminal.

Police may also enter a residence without a warrant if they hear a person screaming for help or have reason to believe that a person or property is in imminent danger and that harm would result in the time it would take to obtain a search warrant.

Search Incident to Arrest: Police officers may search the body and immediate surroundings of a person whom they take into custody. The courts have allowed this exception to the search warrant rule in order to protect police officers from people who may have concealed weapons.

Search warrants are the government’s way of balancing an individual’s Fourth Amendment rights with the societal interest in limiting crime and protecting the public. Therefore, the general rule is that a search warrant must be obtained before the police conduct a search but exceptions to that rule exist to protect police officers and society from harm.

Witness Misidentification

Fri, 15 May 2009 03:41:27 GMT

Witness Misidentification

According to the Innocence Project, a national organization dedicated to overturning wrongful criminal convictions through the use of DNA testing, witness misidentification was the cause of more than 75% of the wrongful convictions that were later overturned using DNA evidence. For various reasons, witness misidentification is a very real human error that can result in people being convicted of crimes that they did not commit, yet eyewitness testimony continues to be one of the mostly commonly used – and commonly believed - forms of evidence in criminal proceedings.

What Causes Witness Misidentification?

Decades of social science research have shown that eyewitness misidentifications often occur. The human memory does not work like a video recorder; it is impossible for most people to recall every detail of a particular moment in time, especially when that moment may involve witnessing an event that occurs quickly, relatively far away from the viewer, or in poorly lighted conditions. Many factors play into eyewitness misidentification, including what experts call estimator variables and system variables. Estimator variables are those influences that are uncontrolled by the criminal justice system, such as lighting, stress, and the races of the suspect and the witness. On the other hand, system variables also affect eyewitness accounts, which are factors that can be controlled by the criminal justice system. System variables include the methods by which law enforcement performs lineups and photo arrays of suspects, so as to minimize the potential for misidentification by eyewitnesses. A review of the many cases of persons who are wrongfully convicted on the basis of eyewitness testimony, and who were later exonerated by DNA evidence, proves the point that witness misidentification is a common factor in many wrongful convictions.

How Can Witness Misidentification Lead to a Wrongful Conviction?

Eyewitness misidentification can potentially lead to wrongful convictions in a number of ways. First, when an eyewitness has initially misidentified a perpetrator of a crime, law enforcement officials become distracted, and lose precious time in pursuing the wrong person, rather than the true perpetrator. Next, eyewitnesses to crimes, when faced with line-ups or photo arrays, typically receive some cues from law enforcement officials that may identify the suspect. Plus, when an eyewitness is shown several photographs or persons, he or she may tend to choose the person who most looks like the person witnessed at the crime scene, rather than a comparison based on his or her memory of the crime. Finally, despite evidence to the contrary, judges and juries tend to believe eyewitnesses, particularly when they are innocent bystanders and/or upstanding citizens who truly believe that they have identified the correct person.

A recent Newsweek article on witness misidentification highlights the truly tragic consequences of this altogether too common occurrence. Timothy Cole was convicted in Texas in 1986 of aggravated sexual assault after being repeatedly identified as the perpetrator the victim. In 2009, DNA evidence cleared Cole, and proved that another defendant, who had also confessed to the crime and later died in prison, was the actual perpetrator of the crime. Not only was Cole wrongfully convicted of a violent crime on the basis of eyewitness conviction, but he also lost over twenty years of his life to unwarranted incarceration. (Newsweek, March 2009)

Overturning a Wrongful Conviction Based on Witness Misidentification

Eyewitness misidentification may be a basis for overturning a wrongful conviction in some circumstances, particularly if there was little other evidence in support of your conviction, or if other evidence in your favor was not taken into account or brought forward in your trial. For instance, in older convictions, DNA evidence was not utilized due to a lack of technology. Now, however, old evidence can be retested using DNA, which has resulted in exonerating people who were convicted on the basis of witness misidentification.

The appeals process in criminal cases is designed to ensure that the correct person is convicted of the crime in question. Every state has procedures for the review of a criminal conviction, which typically starts with reconsideration of the conviction by the trial judge. This request for review is initiated by filing a motion with the trial court, which sets forth the reasons that you believe your conviction was erroneous, as well as any applicable law in support of those reasons; in the case of witness misidentification, your motion would explain why and how the witness made a mistake in identifying the wrong person.

If your request for review by the trial judge is unsuccessful, you still have recourse through the appeals process. When you file a formal appeal, you are asking a higher court, i.e. your state court of appeals, to review your case to see if a mistake was made in terms of your conviction. A mistake that might warrant overturning your conviction could include an error by the trial judge in applying the law, that certain evidence was not properly considered or given enough weight, or that the evidence showed that the witness very well may have misidentified the perpetrator of the crime. If the appeals court rejects your appeal, and thus upholds your conviction, you still can further appeal your case to the highest court in your state, such as the state supreme court.

Witness Misidentification

Thu, 14 May 2009 01:16:21 GMT

Wrongful Convictions

Fri, 15 May 2009 03:36:05 GMT

Despite the extensive constitutional protections built into the American justice system that make it one of the most progressive systems in the modernized world, it is no secret that some people are accused, and even convicted, of crimes that they did not commit. In a perfect world, the justice system would operate in a manner that would prevent such miscarriages of justice. But in a system whose foundation rests on humans, and inevitable human errors, mistakes do occur.

Overturning a Wrongful Conviction

When you are convicted of a crime under state law, a judge or jury has found that you committed the crime beyond a reasonable doubt, and the judge has sentenced you for that conviction, typically based on your state’s sentencing guidelines, which vary widely from state to state. Most wrongful convictions result from mistaken identification or eyewitness testimony, false confessions, snitches or confidential informants, inadequate legal counsel, and police and/or prosecutorial misconduct. All of these incidents may create grounds for the overturning of a criminal conviction. If you believe that you have been convicted wrongfully, and particularly, as a result of one of the factors listed above, you may have grounds to have your conviction overturned.

In order to have your criminal conviction reconsidered, you may first ask the trial judge to review your conviction and/or sentence again, or to correct any errors that have been made, a procedure that is available in many states. Typically, you must ask for this reconsideration quite soon following your conviction. Assuming that the trial judge denies your request for reconsideration or to correct errors, your next step is to file an appeal with the appropriate state appeals court. There are many procedural rules to follow in filing an appeal, and you should consider enlisting the assistance of an attorney to help you prove that you were wrongfully convicted. Essentially, you are asking the appeals court to find that you were wrongfully convicted, due to an error made by the trial court judge or jury. If your appeal still is denied, you have further recourse in that you can appeal to the supreme court of your state, or the highest level of appeals court.

Mistaken Identification by Eyewitnesses

Criminal justice system experts maintain that mistaken identifications by eyewitnesses remain the most common cause of wrongful convictions in the United States today. Because identification of defendants by witnesses are crucial pieces of evidence in criminal cases, and yet are undeniably subject to human error, misidentifications can and do result in wrongful convictions. The reality is that human memory is imperfect, and eyewitness identifications based on split-second events that may have taken place relatively far away, in poorly lit areas, are often simply wrong.

False Confessions

While it may seem difficult to believe that criminal defendants ever give false confessions, this phenomenon does occur, and can result in wrongful convictions. Defendants give false confessions for a wide variety of reasons, which include police pressure, lengthy, stressful interrogations, lack of mental capacity, intoxication, ignorance of the law, or fear of violent consequences if the truth is told. Particularly with defendants who have low IQs or mental illnesses, the potential for manipulation of false confessions is quite high.

Snitches or Informants

Furthermore, criminal charges often rest on the testimony of snitches, which are referred to as confidential informants in some states. Since snitches are typically given some sort of incentive in exchange for their testimony, such as a decreased jail sentence, more favorable treatment while incarcerated, or the dismissal of criminal charges altogether, there is no shortage of desperate jailhouse snitches who are willing to come forward with evidence to help convict other defendants, however fabricated that evidence might be.

Ineffective Assistance of Counsel

For the typical criminal defendant who has no access to funds to pay for a private criminal defense attorney, the only source of representation with respect to their criminal charges is a public defender, or a court-appointed attorney. While there are many, many highly experienced, quality court-appointed lawyers, there are also some such attorneys who are inexperienced, underpaid, and overworked by the sheer number of criminal defense clients assigned to them. As a result, there are cases in which a criminal defendant receives ineffective or inadequate legal representation. While some such cases are overturned on appeal on the basis of ineffective assistance of counsel, a far greater number are upheld for a variety of reasons, even where the attorney’s behavior might appear inadequate, at best.

Police and/or Prosecutorial Misconduct

Like all human beings, police officers and prosecuting attorneys sometimes make misjudgments and errors, and even commit misconduct that results in wrongful convictions. Just recently, a federal court of appeals overturned the conviction of a criminal defendant where the prosecutor had excluded all African-Americans from the jury on the basis of their race, despite the fact that the county population from which the jury was chosen was 55% African-American. The court concluded that the prosecutor had engaged in illegal race discrimination in that case. Other wrongful conviction cases have involved police misconduct, such as where a police officer has coerced a criminal defendant into making a false confession, or where a police officer has lied or exaggerated his testimony during a criminal trial.

Wrongful Convictions Resulting from False Confessions

Sat, 16 May 2009 02:46:08 GMT

In a substantial number of cases involving wrongful criminal convictions, innocent defendants voluntarily plead guilty, or otherwise confess to the crime with which they are charged. While it seems counterintuitive to the normal person to admit guilt to crime that he or she didn’t commit, innocent defendants sometimes erroneously admit guilt for a number of reasons, including fear or intimidation, coercion or duress, impairment, or simple ignorance.

When a person falsely confesses to a crime, it is more likely that that person will be convicted of the crime, even if he or she later recants the false confession. Therefore, false confessions certainly can lead to wrongful convictions. If the underlying basis for the false confession is fear, coercion, impairment, or ignorance, however, then there may be grounds to overturn a wrongful conviction on appeal.

Appealing a Wrongful Conviction Based on a False Confession

Any of the reasons behind a false confession which are described in greater detail below may be sufficient evidence to exonerate you, even where you have falsely confessed. Particularly where your false confession was the result of inappropriate or unlawful police coercion, or if you were impaired at the time of your false confession, there is a chance that your conviction may be overturned by a higher court.

Typically, the first stage of appealing a criminal conviction is to file a formal appeal with the court of appeals in the state of your conviction. While you do have the option of asking the trial judge to reconsider your criminal conviction prior to filing a formal appeal, it is not a necessary prerequisite to filing an appeal. If, after filing your appeal, the appellate court still upholds your criminal conviction, you then can further appeal your case to a higher state court, or the state supreme court.

Fear or Intimidation Leading to a False Confession

When a person is accused by law enforcement officials of committing a criminal act, and, particularly, a violent or serious criminal act, one can not underestimate the normal human reaction to such an accusation. For instance, a person who has not had much interaction with law enforcement may be scared or intimidated by their questions and behavior. Similarly, a person who has had multiple run-ins and other negative experiences with law enforcement may react in a distrustful and even fearful manner. At other times, a person accused of such a crime may have been threatened by the actual perpetrator(s) of the crime, and therefore believes that telling the truth will only result in harm or violence to him and/or his family. As a result of these quite normal human emotions, people sometimes confess, and thus are convicted of, crimes that they simply did not commit.

False Confessions Coerced by Police

Next, a person accused of a crime may experience coercion or duress, particularly in the context of interrogation by law enforcement officials. When police believe that a person has committed a crime, they will use their best efforts in questioning that person to get him or her to tell the truth that has been committed – that is their job. Sometimes, however, interrogation techniques used by police, including detaining a suspect for a lengthy period of time, repeatedly asking the suspect the same questions, and even depriving the suspect of food, drink, and/or sleep, can result in false confessions. Law enforcement officials may exaggerate the evidence against the suspect, or even tell lies, in order to coerce a suspect into confessing to the crime.

Impairments Resulting in False Confessions

Another class of people who are particularly prone to making false confessions includes juveniles, mentally impaired people, and people who are under the influence of drugs or alcohol. All of these types of people are more vulnerable to suggestions by law enforcement in terms of confessing to crimes that they did not commit. For instance, children and people with mental impairments tend to regard police officers as people with authority, and therefore may give answers that they think will please or agree with their interrogators, even if they are not truthful. Likewise, confessions from these types of people tend to be unreliable due to the inherent risk of manipulation by police and even other adults in general. For instance, children may believe that they can see their parents or go home, if only they tell the police what they want to hear.

Ignorance and False Confessions

Finally, some people who are wrongfully accused of crimes are simply ignorant of the law and their rights. A person may believe the police officer that tells her that invoking her right to a lawyer during questioning will only result in a harsher penalty later on. A person may think that if he confesses to the crime, then he will receive a lighter sentence. A person may believe that he will be allowed to leave if he just admits to some involvement in the crime. Although police are required to advise suspects of their rights at certain points, this doesn’t always happen as it should, nor do suspects always understand their legal rights, even if they receive them. As a result, some people falsely confess to crimes out of sheer ignorance.

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