Category Archives: Legal

The Right to a Fair Trial

Some defendants make the mistake of thinking that they can handle the case on their own. However, the criminal justice system is complex and difficult for individuals to navigate if they are unfamiliar with it. A simple mistake such as missing a deadline can ultimately result in a conviction that has tragic consequences. This makes it incredibly important to hire a criminal defense lawyer who is prepared to fight for the defendant’s rights.

Constitutional Protections

The United States Constitution describe the rights that every citizen is entitled to. This important document and its subsequent amendments explain how the government operates. The Constitution describes the fundamental rights that people have, such as the freedom of speech, religion and the press. The Fourteenth Amendment is important because it basically extends the same federal rights to individuals who are tried in state courts. This is vital since most criminal trials occur in such courts.

Fundamental Rights

The United States Constitution provides for basic fundamental rights. Many of these laws are implicated in the criminal justice system. This includes laws that pertain to the filing of criminal charges. A person has the right to a grand jury in federal felony proceedings. Additionally, he or she has the right to clear notice of criminal charges against him or her. The United States Constitution also prohibits the passing of retroactive laws that criminalize certain behaviors after the fact. Likewise, a criminal defendant cannot be tried more than once for the same offense. If a person is under investigation, he or she has the right to be free from unreasonable searches and seizures as provided by the Fourth Amendment to the United States Constitution.

These fundamental rights also affect the punishment that a person can be subjected to during the proceedings and after. This includes the right to be free from excessive bail. Additionally, a person has the right to be free from cruel and unusual punishment as stipulated in the Sixth Amendment to the United States Constitution.

Many fundamental rights apply to the defendant’s right to a fair trial. These rights include:

The Right to Due Process of Law

The right to due process of law prohibits the federal government from arbitrarily affecting a person’s rights without some type of formal procedure. Due process means that the government must respect the legal rights that the defendant is owed.

Freedom from Self-Incrimination

The Fifth Amendment provides that a person cannot be made to testify against himself or herself. This applies to judicial proceedings, such as not having to testify in open court as well as to investigative questioning in which the criminal defendant can refuse to answer a police officer’s questions.

How the Criminal Appeals Process

At the trial court, the prosecution has the burden of proof to show that the defendant committed each element of the crime by proof beyond a reasonable doubt. The defendant has the right to confront his accusers, to be tried by a jury of his or her peers and to have a fair trial. The trial court is in the best position to judge the credibility of the evidence since he or she is present when this information is presented. Therefore, the appellate court gives deference to the trial court. A criminal defendant has the right to make an appeal to the higher court to have the verdict reviewed. The criminal defendant may go through a number of appeals, each time advancing to a higher level of the court system.

Purpose of Appeal

An appeal is the only way that a criminal defendant can formally make a request to have the verdict reviewed after receiving a guilty verdict. The appellate court reviews the action by the lower court to determine if the verdict meets the necessary criteria.

Reasons for Appeal

There may be a number of reasons why a criminal defendant alleges that the trial court got it wrong. He or she may base an appeal off of a lack of evidence. The appeal may also allege that the defendant’s rights were violated. Additionally, an appeal may be based on an error being made during the criminal procedure. Mistakes made by the judge or jury may provide the basis for an appeal.

Process of Filing an Appeal

The step that initiates an appeal is filing a notice of appeal with the clerk of the trial court where the case was initially heard and tried. This notice of appeal must usually be made within ten days after the trial court has announced the judgment of conviction. Alternatively, this notice of appeal may be made right after sentencing whether the judgment has been officially issued or not. However, the time limit is based on the jurisdiction’s procedural rules and may vary. It is important to seek legal counsel to determine when this notice must be filed. The time limit is mandatory in nature, so if the time limit passes, the defendant’s right to file the appeal can be affected. Many jurisdictions allow a late notice of appeal that is filed within 30 days after the initial time limit has expired. However, the defendant may have to establish that there was excusable neglect that resulted in the late filing.

After preparing the notice of appeal, the record must be prepared. The record is the information that made up the lower court case. This usually includes court reporter’s transcript of the case, which is a word-by-word account of the proceedings in court. This includes the information discussed at trial as well as during pre- and post-trial motions.

Rules that Apply

The rules of appellate procedure apply to the appeals procedure. These rules must be carefully followed. If the case is in federal court, the Federal Rules of Appellate Procedure must be followed. Different rules pinpoint the process that must be followed according to this set of rules. For example, Rule 3 discusses the information that must be provided in the notice of appeal. Rule 4(b) addresses how the notice of appeal must be filed. The appendix section of this set of rules contains a sample form that can be modeled after to prepare the notice.

Determination of an Appeal

The lawyers prepare the appeal documents for the court. The court may hear oral arguments in which the lawyers explain their positions. The judges on the appellate court review the briefs and this information to determine whether the case should be reversed, the case should be affirmed or the judgment should be modified.

Legal Assistance

Individuals who have been convicted of a crime may choose to contact a criminal defense lawyer. The lawyer does not have to be the same person who completed the initial trial work, and it is often advised not to use the same lawyer since appellate lawyers need a different skillset than trial lawyers. Additionally, the trial lawyer may have made mistakes during the process which may justify an appeal. A criminal appellate lawyer can provide additional information on this process.

The Right to Legal Counsel

The Sixth Amendment of the United States Constitution gives someone the right to have a lawyer if he or she faces criminal charges.

State Constitutions

Some states specifically provide for the equivalent right to legal counsel in their state constitution. These legal protections generally provide this right for people facing felony charges. Some of these provide a broader scope of this right than the federal constitution provides.

Fourteenth Amendment

The Fourteenth Amendment to the United States effectively provides this right to individuals charged under state crimes. Even if there is not a specific right in the state constitution, individuals charged of state crimes have the right to seek legal counsel.

When the Right Attaches

It is also important to understand when this protection attaches. A criminal defendant has the right to legal counsel at every critical stage of a criminal proceeding. For federal charges, it attaches when the defendant is facing adversary judicial proceedings. Generally, the right attaches when a defendant is indicted, is scheduled for a preliminary hearing, has an information assigned against him or her or is arraigned.

A defendant must be facing actual charges of a crime in order for this right to attach. This right does not arise simply because the defendant is a suspect of a crime or is under investigation. Similarly, an arrest does not automatically trigger this right. However, a person who believes he or she is under investigation has the right to hire a lawyer.

If the right arises, the government cannot do anything to interfere with the defendant’s right to seek legal counsel. The right is afforded only in criminal cases, not in civil or administrative proceedings or in those proceedings associated with suspending a person’s driver’s license.

Court Appointed Lawyer

In order for a defendant to receive a court appointed lawyer, he or she must be considered indigent. This is determined by assessing whether the individual meets criteria established by the court when such criteria exist. Some states do not use a particular formula or income guideline and determine this on a case-by-case basis. In these states, courts look at the totality of the defendant’s financial circumstances, including his or her income, assets, debts and other financial obligations that affect his or her ability to pay for a lawyer.

Defining Domestic Violence

Domestic violence is physical or sexual violence that is perpetrated by a spouse, roommate, person who has a child with the victim, boyfriend, date, person who lives in the same household or has some other type of relationship that falls under the criminal domestic violence statute. Sometimes it is domestic violence between people who have a former relationship, such as an ex-spouse, ex-boyfriend or people who used to live together.

Domestic violence includes physical attacks, including pushing, shoving, throwing objects at someone, hitting someone with an object, punching, slapping, choking, raping or sexually assaulting the victim. Domestic violence crimes generally comprise acts that are otherwise considered assault, battery or sex crimes.

False Allegations

Domestic violence is taken very seriously. However, making these accusations in a false manner is common. A false allegation of this nature may be due to a bitter breakup or because someone wants to come out ahead in a divorce or child custody case. It is vital that someone who is facing false allegations get immediate legal assistance in order to quickly build a defense against the accusations. The case usually starts with a hearing for a temporary order of protection. A criminal defense lawyer can represent the defendant at this hearing in order to prevent an order being issued that is based on false allegations.

Arrests for Domestic Violence

Due to the heightened awareness of domestic violence, many law enforcement agencies take calls regarding domestic violence very seriously. Law enforcement may be sent to the defendant’s location immediately. He or she may be quickly arrested with little or no investigation. Even when the victim has no signs of injuries and no credible evidence is available, such an arrest may occur. There may be no witnesses that can substantiate the victim’s claims. Instead, law enforcement often solely relies on the word of the victim.

Processing of Domestic Violence Cases

Due to the swiftness of arresting someone for domestic violence accusations, it can be difficult for a defendant to protect his or her rights. Some jurisdictions have mandatory jail stays for people accused of domestic violence. Many jurisdictions allow for immediate protection orders, which can force an alleged abuser out of a shared home. Once the case has been referred to the prosecutor, he or she has the decision to move forward with the charges or dismiss the case. Even if the victim refuses to cooperate, the prosecutor may still move forward if he or she believes that he or she can still make the case without the victim’s assistance. He or she may have other evidence, such as pictures of the victim’s injuries, witness statements, a 911 call recording or other credible evidence that may not necessitate the victim’s assistance.
Felony or Misdemeanor Charges

The prosecutor often has the choice of filing a case as either a felony or a misdemeanor. Misdemeanor crimes usually have a maximum sentence of up to one year in jail and payment of a fine. Many jurisdictions require alleged abusers to participate in a domestic violence intervention program or anger management classes. Defendants may also be subject to having to complete community service, pay a fine and abide by a protection order.

Felony convictions carry many of the same punishments as misdemeanor charges. However, the penalties tend to be stiffer. Prison sentences may be longer. More community service hours may be ordered. Fines may be higher.

Aggravated Assault Differ

Assault and Battery

Although the charges of assault and battery are often discussed interchangeably, they are actually two different offenses. Battery generally means that there has been some type of unwanted and offensive contact. There must be some form of touch, whether through a shove, punch, slap or hit, to be classified as a battery.

In contrast, assault is committed when a person makes an unlawful threat by word or act to inflict violence on another. There does not have to be actual contact in order for assault to occur and criminal charges can arise nonetheless.

More Specifics

In order for an assault to occur, the words used must be more than a mere threat. Instead, the words must be coupled with the ability for the offender to carry through with the threat and the actual act. For example, if the offender says that he or she is going to hurt someone else and swings a punch at the intended victim, the offender has demonstrated his or her intent to follow through with the act and the ability to perform the act even if no contact was made. Even if the offender is not able to injure another, he or she may still face assault charges based on the intent to harm the victim.

Additionally, the threat must be based on potential imminent harm and cannot be based on a speculative harm in the future. The threat must be one that creates a well-founded fear in the victim.

Aggravated Assault

Aggravated assault charges are based on the same basic elements as simple assault. However, there are other factors present in the case that justify elevating the charge. The elevation depends on state law. It may include such factors as having a deadly weapon at the time the threat is made, the characteristics of the victim, the degree of assault and the defendant’s prior criminal history. In Florida, aggravated assault occurs when the defendant commits an assault and uses a deadly weapon during this assault with the intent to commit a felony. A deadly weapon may be one that can be used to present a great danger or that could cause serious harm. It may include a knife or a gun. However, it may include more innocuous item such as bleach or another form of potential poison.

Florida’s felony offense requirement includes a number of different crimes, including rape, stalking, domestic violence or other felonies.

Potential Penalties

The potential penalties that a person may face depends on whether the charge is for assault or aggravated assault. Additionally, whether the crime is considered a misdemeanor or felony impacts the potential penalties. For example, simple assault is often charged as a misdemeanor offense. The potential penalty for a misdemeanor is up to a year in jail. However, some jurisdictions may further limit the term of imprisonment. In Florida, the potential penalty for a simple assault charge is a jail term of up to 60 days and a fine up to $500.

Domestic Battery Defined

Domestic violence is defined under state law. It usually includes unwanted physical force used against someone. There is usually a mens rea that requires intentional contact rather than accidental contact. Additional, what makes the offense domestic battery rather than simple battery is that the perpetrator and the victim have some type of relationship. This relationship is also defined under state law. It may include people in a current romantic relationship, such as in a dating relationship or current or former spouses. Alternatively, it may involve people living in the same household or former roommates regardless of any lack of familial or legal relationship. It may also concern co-parents of the same child.

Domestic battery is typically defined as deliberate contact that is violate or aggressive. It may include pushing, shoving, choking, throwing an object at the victim, punching, slapping, kicking or any other type of offensive touching. It may include physical abuse or sexual abuse. Threatening abuse is also considered domestic violence.

Proof of Injury

In some jurisdictions, there must be some proof of injury before charges can be brought or before a misdemeanor charge can be elevated to a felony charge. In other jurisdictions, there does not have to be an actual injury in order for the crime to be charged.

Way Domestic Battery Is Charged

Domestic battery may be charged in a number of ways depending on the jurisdiction. It may sometimes be charged as a misdemeanor. It may also be charged as a number of different degrees as a felony charge. The prosecutor often has the discretion to choose how to charge the defendant. This decision is often made by evaluating a number of factors, including the severity of the injuries inflicted, other reports of domestic violence, the alleged abuser’s prior criminal history and whether a deadly weapon was used.

Potential Penalties

The type of charge is tied directly to the type of crime charged. For example, in Nevada a misdemeanor is punishable by between two days and six months of incarceration, a fine between $200 and $1,000, 48 to 120 hours of community service and completion of a domestic violence intervention program at the defendant’s expense. In contrast, a third offense of domestic battery that has been committed within the past seven years coincides with a Class C felony in Nevada which is punishable by between one to five years imprisonment and fines up to $10,000. The other penalties may still be imposed. A Class B felony is charged when a deadly weapon is used in conjunction with the offense.

What Is Drug Trafficking

Drug trafficking is defined under state and federal law. It involves the selling and distribution of illegal drugs that are defined in criminal statutes. They may include drugs such as steroids, methamphetamine, marijuana, cocaine and other drugs that are sold in large quantities. Even if a person is arrested with only a small amount of drugs in his or her possession for personal use, he or she may still face federal charges for this crime. State law may consider drug trafficking only when larger quantities are involved and classifying smaller amounts as possession charges.

Criminal Implications

When individuals are found with serious drugs in their possession, certain criminal implications may arise. The United States takes the drug trade very seriously. A defendant may face inflated charges simply for being in possession of certain drugs. He or she may quickly be implicated for this crime even if he or she has no knowledge of the workings of his or her drug dealer.

Penalties of Drug Trafficking

The potential penalties for drug trafficking are quite severe. The punishment is usually based on the type of drug involved and its quantity. It is not uncommon for a person to receive a prison sentence of 20 years for a first time conviction of drug trafficking. A person may also face additional penalties including very large fines, rehabilitation, community service and the imposition of probation or parole. His or her personal belongings may be seized if they are believed to be linked to the crime or received through ill-gotten gains.

Since there are often parallel state and federal crimes when it comes to drug charges, the defendant may find that he or she is charged under both state and federal law. This can happen despite double jeopardy protections. If there is a choice between filing state or federal charges, the federal charges are often brought. This results in the criminal defendant facing minimum mandatory sentencing.

In addition to the criminal consequences of a drug trafficking conviction, a defendant may face many other repercussions. He or she may lose a professional license or CDL. He or she may be barred from pursuing certain types of career trajectories. His or her employment applications may be rejected based on status as a convicted felon. He or she may be barred from going to college or receiving student loans. He or she may also be barred from public housing or other types of housing. His or her professional reputation can easily be ruined by such a conviction.

The Process of Expungement

There are a number of ways that expunging a criminal record can benefit the criminal defendant who no longer will need to worry about this information being publicly accessible.

What Expungement Is

Expunge can mean different things. In some jurisdictions, it essentially means to wipe out, burn or destroy the records associated with the criminal charge that is expunged. In other jurisdictions, it may mean to “seal” or otherwise conceal this information from public view. In any event, the desired outcome is the same: to hide from public view the commission of any crime.

Expungement does not have to be based on any theory of the defendant’s innocence. It is presumed that he or she committed the crime because he or she has already been convicted of the crime. Instead, expungement takes into consideration that a criminal conviction can continue to have a negative impact on a person’s life well after he or she has completed all terms of his or her conviction.

Process of Expungement

How a criminal record is expunged is based on state law. However, the general process is for the defendant to petition the court to expunge his or her record. The expungement is usually based on one particular crime rather than the defendant’s entire criminal record. The petition explains the reason why expungement is being sought, the nature of the charges against the defendant and the reasons why the expungement should be granted. It is usually accompanied by the defendant’s court documents. The expungement application may ask for proof of rehabilitation.

The type of charges that can be expunged vary by each jurisdiction. Some areas restrict expungement to only minor crimes, misdemeanors or juvenile offenses. Others permit additional crimes to be expunged if the defendant was a first time offender. Certain crimes may be excluded from being able to be expunged, including DUIs, sex crimes or violent crimes.

The court reviews the case and the application. The defendant must have usually completed all elements of his or her sentencing, including any ordered probation. Likewise, the defendant may have to wait for a certain period after the conviction or the finishing of all elements of sentencing to establish that he or she will not take part in criminal activity.

Effect of Expungement

If the court grants an expungement, most public entities will not be able to see the conviction or view documents related to the case. However, law enforcement may still be able to access these records. Additionally, a prosecutor may be able to access these records and include the conviction as a prior offense when sentencing determinations are made for a subsequent offense.

Benefits of Expungement

There are a number of benefits to having a criminal record expunged, including:

College

Many expungement requests are made by young people who have a juvenile record due to a misjudgment made during their youth. Having a criminal record expunged may prevent colleges from seeing this negative information.

Employment

Having a criminal record expunged can help avoid the barriers to employment that many convicted individuals face. An expunged record will keep most employers from having access to this information if they run a criminal background check. However, if the defendant is seeking employment with the federal government or law enforcement, he or she can expect that this information will still be accessible to these agencies.

Eighteenth Century History of Plea Bargains

Up until the eighteenth century, a jury trial was often conducted without the use of a lawyer. The judge dominated this system. The defendant was denied legal counsel. In some instances, the prosecution was conducted by a lawyer, but in many instances, the judge handled much of the criminal procedure. The defendant would speak continuously at trial and even reply to the witnesses supplied by the prosecution. Due to the lack of legal counsel, cases tended to be handled much more quickly. Courts may try between 12 and 20 felony cases each day. As such, there was no real need for a plea bargaining system.

1960s

During the 1960s the landmark case of Gideon v. Wainwright significantly changed the way that criminal cases are handled. In that case, the Court ruled that indigent defendants have the right to legal counsel. As such, criminal cases now have a lawyer representing the criminal defendant’s rights and another lawyer representing the interests of the state. The need for plea bargains is more significant due to the prevalence of legal representation.

Miranda Rights

Another important distinction between how criminal cases are handled today and how they were handled years ago is the development of Miranda Rights. Among other rights, criminal defendants are now advised that anything that they say can be used against them in court. This reading of rights occurs at the time of arrest or before a suspect is interrogated. As such, more criminal defendants are made away of their right to be free from self-incrimination, which is laid out in the Fifth Amendment to the United States Constitution. As such, many criminal defendants do not say anything to law enforcement and rely solely on their lawyers for their defense. With less ammunition to use against the defendant, a greater need for plea bargains exists.

Modern Pressures

Today, there are many pressures that influence the popularity of plea bargain agreements. There are more cases on the dockets than ever before. Prosecutors lack the time necessary to go through an extensive trial for every case, even if it a winnable case for the prosecutor. Additionally, prosecutors are often overburdened with too many cases at one time.

Public defenders often face a similar set of circumstances. They are often assigned so many cases that they may not meet with the client until the court date. They may try to quickly dispose of cases to move onto the next one. Private criminal defense lawyers who are in demand in the area may also have many cases to balance at one time.

Effect of Wrongful Confessions

While it is good that innocent people were eventually freed, this event often occurred after the defendant had spent years or decades incarcerated. While law enforcement officers may convince a person that if he or she confesses to the crime that he or she is accused of that the law enforcement officer may let the defendant go, a confession usually results in the individual being arrested. From there, he or she is thrust into criminal proceedings. Things can quickly spiral out of control and no one may believe the defendant’s later proclamation that he or she is really innocent. Sometimes it is simply too late after a confession to back pedal. Law enforcement officers may honestly believe that the defendant is guilty because he or she has confessed and may look no further for the real perpetrator of the crime. There is no way of knowing how many people behind bars are really innocent even though they confessed to a crime.

Reasons for False Confessions

The conditions involved in interrogating suspects may result in false confessions. Law enforcement officers often use influential interrogation techniques that may intimidate suspects to say what they believe law enforcement wants to hear even if these statements are not true.

Many interrogations are often physically and emotionally exhausting. At the end of such experiences, often suspects simply want to return home. In one recent exoneration case, the female suspect was denied food and water during the 27-hour long interrogation. She was also verbally threatened and physically pushed. Ultimately, she confessed to the murder of her son.

In a documentary series, a young suspect with a low IQ was continuously promised that he would be able to go home if he just admitted to what police said they already knew. He changed his version of events until detectives were satisfied with it. In the summer of 2016, his confession was thrown out as being involuntary.

Regulation of Interrogation Methods

Law enforcement officers have a lot of leeway when it comes to their interrogation techniques. They are constitutionally allowed to lie to suspects. However, the high number of exonerations that were caused by false confessions suggests that interrogation techniques must be carefully scrutinized. Law enforcement officers should not engage in inhumane treatment such as prohibiting a suspect to eat, drink water or use the facilities for hours on end. Additionally, law enforcement officers should not try to physically intimidate suspects or physically assault them.

To avoid the possibility of receiving false confessions, many police departments institute special training programs that teach law enforcement officers how to properly conduct interrogations without stepping over legal bounds.

Legal Assistance

Individuals may have a difficult time believing that someone may confess to a crime that he or she did not commit. However, many of these same people have never been under the pressure and scrutiny of a police interrogation. When facing a police interrogation, it is important that the defendant seek immediate legal assistance to protect his or her rights and to avoid making a false confession. It is far easier not to say anything than to say the wrong thing and then try to recant later on.