I'm off for a few days to celebrate 2012 with family and friends. We've declared a three day truce with crime to ring in the new year so I figured this was a good time.
I'll be back next year with plenty of interesting topics - gangs, witness tampering, more on the life of an ADA, criminal vs. civil law, federal vs. state, humorous stories from court, and some interviews with other writers and bloggers and crime fighters.
Feeling nostalgic? Stick around and check out some of the old posts. Happy New Year and stay safe.
Friday, December 30, 2011
Wednesday, December 28, 2011
You (or Someone You Know) Is Under Arrest
Have you ever been in a seminar, training, or classroom where this happened?
The instructor demands you look to your left. Then, to your right. He then says, "one of you won't make it through this ______ (fill in the type of course)." You all look around and swear silently it won't be you.
Apparently, that is the case for anyone under the age of twenty-three in America. Researchers at the University of North Carolina just completed a study that shows just over 30% of Americans currently twenty-three and under have been arrested for something other than a traffic ticket.
That's one-third! What is happening? I should point out that this study's criteria for an arrest is expansive. It includes crimes from disorderly conduct through murder. Still, that number is staggering.
Here are some theories on the huge percentage:
Reasons:
What reasons do you have for the number? What do you think of the increased arrests for less serious crimes?
The instructor demands you look to your left. Then, to your right. He then says, "one of you won't make it through this ______ (fill in the type of course)." You all look around and swear silently it won't be you.
Apparently, that is the case for anyone under the age of twenty-three in America. Researchers at the University of North Carolina just completed a study that shows just over 30% of Americans currently twenty-three and under have been arrested for something other than a traffic ticket.
That's one-third! What is happening? I should point out that this study's criteria for an arrest is expansive. It includes crimes from disorderly conduct through murder. Still, that number is staggering.
Here are some theories on the huge percentage:
Reasons:
- Increased criminal statutes: The number of behaviors considered crimes have increased through the years
- Increased enforcement: Police make more arrests for incidents that would not have resulted in arrests when I was growing up (fights in schools, graffiti). Plus, governments have enforced using the "broken windows" theory. This means arresting and prosecuting quality of life crimes like trespass and graffiti will help put a dent in overall crime rates. If a wall is always filled with graffiti, everyone thinks that is appropriate behavior in the neighborhood and will mirror it. If you remove the cause of the graffiti and the graffiti, crime rates will drop.
- Increased DWI prosecution: This gets a separate category. The number of DWI arrests increases annually. The legal limit has lowered to .08, and legislature's enact new laws every year regarding vehicular assaults and homicides. The days an officer would drive you to your home after he pulled you over are gone. Now he drives you to the lock-up.
- Increased access to drugs: We see younger and younger defendants with criminal possession charges
- Burgeoning population: The population is skyrocketing. This matters when you consider the other factors.
- Decreasing number of two parent households: Kids need two adults in their lives who provide structure and guidance. Since 1970 the number of children living in single parent households has increased from 11% to 32%. That's especially interesting when noting the arrest rate is 30% for a similar age group. In most of my juvenile cases, the father has never been in the child's life. Usually, my defendants are raised by their mothers who have to work and they are left unsupervised during a large part of the day.
- Economics: The increasing population puts a strain on the economy and the access to high paying jobs.
What reasons do you have for the number? What do you think of the increased arrests for less serious crimes?
Monday, December 26, 2011
Bail and Bonds
New York Governor Andrew Cuomo just vetoed a bill that allows charitable groups to post bail and bonds for incarcerated defendants.
That doesn't seem in the Christmas spirit does it?
The point of bail is not to punish, but to make sure the defendant appears for all court proceedings. The judge can consider the following factors when analyzing bail:
1) the defendant's character and mental condition,
2) employment and financial resources,
3) community ties,
4) criminal record,
5) prior failures to appear in court or warrants,
6) the weight of the evidence against him, and
7) the sentence he's facing.
Bail exists because a person is more likely to return to court if they have a significant financial reason to do so. If the defendant doesn't show up to court, the money he puts at risk to gain freedom is forfeited. Otherwise, what's to stop the defendant facing twenty-five to life from running to Columbia?
The primary types of bail are cash, bond, or property. An example will explain all three. The judge orders the defendant held on $100,000 bail. The judge also says the defendant can post that money in the form of cash, bond, or property. For the defendant to secure his release he must post $100,000 cash which the court holds until the case is completed.
He can also apply to a bail bondsman. The bondsman will post the $100,000 and in exchange the defendant will pay a non-refundable fee. The fee is usually ten percent of the total. In our example, the defendant would pay the bondsman $10,000, and the bondsmen would put the $100,000 at risk. The $10,000 is the bondsman's fee for risking his $100,000 if the defendant doesn't return to court.
Property means that the defendant can use real property as collateral, if they have enough equity in the property. He can pledge his $120,000 house to make bail.
The charitable groups discussed in the article act like the bondsman. They agree to put up the money for the defendant's release. The problem is that they do not seek anything in return. The defendant has no financial stake in returning for court proceedings. If he fails to appear, the defendant does not lose anything because he never posted anything. This brings us back to the reason for bail in the first place.
On top of that, the charitable groups are not regulated and licensing is not required. We can see the pitfalls. What is to stop a group of drug dealers from raising money and placing it in a charitable group whose purpose is to bail out those who get arrested? Now only the charity is connected to the money. Money raised through crimes can be laundered through charities whose sole purpose is to free the people who illegally raised the money in the first place.
I am not against a form of this bill. A staggering number of defendants remain in custody on minor charges who cannot afford even $500 bail. A lot of these defendants receive non-jail sentences at the conclusion of the case. The legislature needs regulate and license these groups, however. Otherwise, abuse and fraud will reign.
This also raises the question of whether lawyers should be allowed to bail out their clients. Looks like a conflict of interest, doesn't it?
That doesn't seem in the Christmas spirit does it?
The point of bail is not to punish, but to make sure the defendant appears for all court proceedings. The judge can consider the following factors when analyzing bail:
1) the defendant's character and mental condition,
2) employment and financial resources,
3) community ties,
4) criminal record,
5) prior failures to appear in court or warrants,
6) the weight of the evidence against him, and
7) the sentence he's facing.
Bail exists because a person is more likely to return to court if they have a significant financial reason to do so. If the defendant doesn't show up to court, the money he puts at risk to gain freedom is forfeited. Otherwise, what's to stop the defendant facing twenty-five to life from running to Columbia?
The primary types of bail are cash, bond, or property. An example will explain all three. The judge orders the defendant held on $100,000 bail. The judge also says the defendant can post that money in the form of cash, bond, or property. For the defendant to secure his release he must post $100,000 cash which the court holds until the case is completed.
He can also apply to a bail bondsman. The bondsman will post the $100,000 and in exchange the defendant will pay a non-refundable fee. The fee is usually ten percent of the total. In our example, the defendant would pay the bondsman $10,000, and the bondsmen would put the $100,000 at risk. The $10,000 is the bondsman's fee for risking his $100,000 if the defendant doesn't return to court.
Property means that the defendant can use real property as collateral, if they have enough equity in the property. He can pledge his $120,000 house to make bail.
The charitable groups discussed in the article act like the bondsman. They agree to put up the money for the defendant's release. The problem is that they do not seek anything in return. The defendant has no financial stake in returning for court proceedings. If he fails to appear, the defendant does not lose anything because he never posted anything. This brings us back to the reason for bail in the first place.
On top of that, the charitable groups are not regulated and licensing is not required. We can see the pitfalls. What is to stop a group of drug dealers from raising money and placing it in a charitable group whose purpose is to bail out those who get arrested? Now only the charity is connected to the money. Money raised through crimes can be laundered through charities whose sole purpose is to free the people who illegally raised the money in the first place.
I am not against a form of this bill. A staggering number of defendants remain in custody on minor charges who cannot afford even $500 bail. A lot of these defendants receive non-jail sentences at the conclusion of the case. The legislature needs regulate and license these groups, however. Otherwise, abuse and fraud will reign.
This also raises the question of whether lawyers should be allowed to bail out their clients. Looks like a conflict of interest, doesn't it?
Friday, December 23, 2011
Happy Holidays
Thank you all for following the last few months. The response has been overwhelming and I couldn't imagine the number of people visiting the site in such a short time.
A Merry Christmas and Happy Holidays to everyone.
Stay safe and spend as much time as you can with the family and friends you love.
A Merry Christmas and Happy Holidays to everyone.
Stay safe and spend as much time as you can with the family and friends you love.
Wednesday, December 21, 2011
What's in a Name?
We hear it in every newscast. We read it in every paper. A grand jury indicted Sal B. on drug possession charges. Devon T. was arraigned today on an indictment charging him with murder in the second degree.
What does that even mean? We know it's serious. We know something happened. But what happened? How did it get to this point?
An indictment is simply a document that notifies the defendant what crimes he is charged with. It's a piece of paper. It begins the formal proceedings against a defendant that results in either a plea of guilty or trial. Without an indictment, the case doesn't move forward.
Selecting a Grand Jury
It starts with selecting grand jurors. A grand jury is a group of citizens from the county they reside in selected to sit for a period of time (usually a month) and deliberate on cases presented by the prosecuting agencies.
In English, it's a group of people who listen to evidence the prosecution presents and decide if there's enough to charge a person with a crime.
In New York, that grand jury consists of between sixteen and twenty-three people. Depending on the size of the county, the grand jury can meet once a month or every day of the week.
This is different than a trial jury which is selected by the attorneys for each side. A grand jury is selected by a judge with help from an assistant district attorney. Trial jury selection is open to the public along with the trial. A grand jury's proceedings are closed and secret. It's a crime for anyone to disclose what happens in the grand jury, unless the witness testifying chooses to discuss it publicly.
How the Grand Jury Works
The prosecutor presents evidence in the form of testimony and physical evidence to the grand jury. Once that is complete, the prosecutor submits charges for the grand jurors to consider. The prosecutor is the grand jury's legal advisor in the proceedings. There isn't a judge in the room. The defendant isn't there. There's no defense attorney either. The prosecutor is required to provide impartial legal guidance to the grand jury. A prosecutor takes on the role of the judge and defense attorney.
The grand jury considers the charges submitted and decides if the evidence provides reasonable cause that the defendant committed the crime. The grand jury doesn't need to be unanimous in their vote. At least twelve grand jurors must vote for either a true bill (indictment) or no bill (dismissal).
The grand jurors can request additional evidence, direct the prosecutor to issue subpoenas, or consider charges the prosecutor did not submit.
Does the Defendant Testify?
The defendant has the right to testify at the grand jury. This is dangerous, however, because he does not have any discovery at this point. Therefore, the defendant has no idea what the evidence against him is. He doesn't know if there is a video of the crime, DNA, fingerprints, recorded phone calls, or who the witnesses are. Most attorneys advise their clients against testifying in the grand jury for this reason.
I've seen a case where a defendant testified that he was somewhere else when the crime occurred. We call this an alibi. After the defendant left the prosecutor submitted a crystal clear video of the defendant burglarizing the store. The grand jury voted on their own to consider perjury in that case.
The Indictment
If the grand jury votes to indict, the paper indictment is prepared notifying the defendant what he's charged with. A judge then arraigns the defendant on those charges. Then, the case moves toward trial.
At the state level, the judge overseeing the case reviews the entire record created in the grand jury. The judge decides if the prosecutor acted fairly towards the defendant, provided accurate legal instructions, and presented appropriate evidence for the crimes charged. It's essentially a check on the prosecutor's power over the grand jury proceedings.
This is merely an overview of a complex system that's existed for hundreds of years. There are too many legal intricacies to discuss in one blog post. Submit any specific questions you have and our staff will do our best to answer them.
What does that even mean? We know it's serious. We know something happened. But what happened? How did it get to this point?
An indictment is simply a document that notifies the defendant what crimes he is charged with. It's a piece of paper. It begins the formal proceedings against a defendant that results in either a plea of guilty or trial. Without an indictment, the case doesn't move forward.
Selecting a Grand Jury
It starts with selecting grand jurors. A grand jury is a group of citizens from the county they reside in selected to sit for a period of time (usually a month) and deliberate on cases presented by the prosecuting agencies.
In English, it's a group of people who listen to evidence the prosecution presents and decide if there's enough to charge a person with a crime.
In New York, that grand jury consists of between sixteen and twenty-three people. Depending on the size of the county, the grand jury can meet once a month or every day of the week.
This is different than a trial jury which is selected by the attorneys for each side. A grand jury is selected by a judge with help from an assistant district attorney. Trial jury selection is open to the public along with the trial. A grand jury's proceedings are closed and secret. It's a crime for anyone to disclose what happens in the grand jury, unless the witness testifying chooses to discuss it publicly.
How the Grand Jury Works
The prosecutor presents evidence in the form of testimony and physical evidence to the grand jury. Once that is complete, the prosecutor submits charges for the grand jurors to consider. The prosecutor is the grand jury's legal advisor in the proceedings. There isn't a judge in the room. The defendant isn't there. There's no defense attorney either. The prosecutor is required to provide impartial legal guidance to the grand jury. A prosecutor takes on the role of the judge and defense attorney.
The grand jury considers the charges submitted and decides if the evidence provides reasonable cause that the defendant committed the crime. The grand jury doesn't need to be unanimous in their vote. At least twelve grand jurors must vote for either a true bill (indictment) or no bill (dismissal).
The grand jurors can request additional evidence, direct the prosecutor to issue subpoenas, or consider charges the prosecutor did not submit.
Does the Defendant Testify?
The defendant has the right to testify at the grand jury. This is dangerous, however, because he does not have any discovery at this point. Therefore, the defendant has no idea what the evidence against him is. He doesn't know if there is a video of the crime, DNA, fingerprints, recorded phone calls, or who the witnesses are. Most attorneys advise their clients against testifying in the grand jury for this reason.
I've seen a case where a defendant testified that he was somewhere else when the crime occurred. We call this an alibi. After the defendant left the prosecutor submitted a crystal clear video of the defendant burglarizing the store. The grand jury voted on their own to consider perjury in that case.
The Indictment
If the grand jury votes to indict, the paper indictment is prepared notifying the defendant what he's charged with. A judge then arraigns the defendant on those charges. Then, the case moves toward trial.
At the state level, the judge overseeing the case reviews the entire record created in the grand jury. The judge decides if the prosecutor acted fairly towards the defendant, provided accurate legal instructions, and presented appropriate evidence for the crimes charged. It's essentially a check on the prosecutor's power over the grand jury proceedings.
This is merely an overview of a complex system that's existed for hundreds of years. There are too many legal intricacies to discuss in one blog post. Submit any specific questions you have and our staff will do our best to answer them.
Monday, December 19, 2011
Notices
We call it a 710.30. It refers to the section in the NY Criminal Procedure Law that requires us to notify the defendant within fifteen days of his arraignment of any statement he made to the police that we want to use against him at trial. Otherwise, we can't use it.
As part of the arrest paperwork, police officers provide this notice in writing to the defendant. The statements are then litigated later on to determine if they were voluntarily made.
As part of our pro se series I'd like to introduce 710.30. These are statements defendants have actually made to police officers before or after arrest.
The police were called to a store for complaints of a person stealing. By the time the police arrived, the defendant had left. The store video crystalized his image forever, however.
With the video, the police were able to locate a suspect matching the person seen stealing in the store video.
They brought him back to the store and showed him the video. The questions that followed:
Defendant: (while watching video) That's not me.
Officer: Unless you've got a twin, that's you.
Defendant: I do got a twin.
Officer: (thinking he may have made a mistake) What's his name?
Defendant: Jamaar
Officer: (believing he may indeed have the wrong person) What's his date of birth?
Defendant: I don't know that.
Officer: You're under arrest.
Defendant: Why?
Officer: His date of birth is the same as yours.
Defendant: Oh yeah. Ya got me.
As part of the arrest paperwork, police officers provide this notice in writing to the defendant. The statements are then litigated later on to determine if they were voluntarily made.
As part of our pro se series I'd like to introduce 710.30. These are statements defendants have actually made to police officers before or after arrest.
The police were called to a store for complaints of a person stealing. By the time the police arrived, the defendant had left. The store video crystalized his image forever, however.
With the video, the police were able to locate a suspect matching the person seen stealing in the store video.
They brought him back to the store and showed him the video. The questions that followed:
Defendant: (while watching video) That's not me.
Officer: Unless you've got a twin, that's you.
Defendant: I do got a twin.
Officer: (thinking he may have made a mistake) What's his name?
Defendant: Jamaar
Officer: (believing he may indeed have the wrong person) What's his date of birth?
Defendant: I don't know that.
Officer: You're under arrest.
Defendant: Why?
Officer: His date of birth is the same as yours.
Defendant: Oh yeah. Ya got me.
Friday, December 16, 2011
Priorities
Every case tells a story. Some funny, some sad, but always different.
When a juvenile is treated like an adult it is because the charges are so serious, usually involving serious injuries to the victim. But, the defendant is so young. I always learn more about young defendants than the older ones as defense attorneys and judges delve deeper into their background to see if there is any help.
In a recent case, the defendant, along with a few others, set up a delivery driver for a robbery in an abandoned house. They used guns and a two by four to do the job, leaving her some permanent head injuries together with some permanent memories.
We had a very strong case against the defendant. There wasn't much room for the defense attorney to maneuver, except to work out a plea. The defendant plead guilty. His attorney claimed mental deficiencies and behavior disorders caused the defendant to follow others.
The attorney hoped the judge saw fit to seal his record and give him probation. If not, the defendant faced up to fifteen years in jail.
A psychologist interviewed the defendant regarding his mental abilities at the attorney's request. The psychologist asked the defendant what was going to happen to him at sentencing. He wanted to assess the defendant's feelings about going to jail.
The defendant hunches his shoulders, slouches in his chair. He scuffs his feet against the floor and casts down his eyes. Finally, he speaks:
"That judge ain't gonna let me smoke weed again."
Jail didn't bother him too much. He just didn't want to give up his hobby. Funny and sad.
When a juvenile is treated like an adult it is because the charges are so serious, usually involving serious injuries to the victim. But, the defendant is so young. I always learn more about young defendants than the older ones as defense attorneys and judges delve deeper into their background to see if there is any help.
In a recent case, the defendant, along with a few others, set up a delivery driver for a robbery in an abandoned house. They used guns and a two by four to do the job, leaving her some permanent head injuries together with some permanent memories.
We had a very strong case against the defendant. There wasn't much room for the defense attorney to maneuver, except to work out a plea. The defendant plead guilty. His attorney claimed mental deficiencies and behavior disorders caused the defendant to follow others.
The attorney hoped the judge saw fit to seal his record and give him probation. If not, the defendant faced up to fifteen years in jail.
A psychologist interviewed the defendant regarding his mental abilities at the attorney's request. The psychologist asked the defendant what was going to happen to him at sentencing. He wanted to assess the defendant's feelings about going to jail.
The defendant hunches his shoulders, slouches in his chair. He scuffs his feet against the floor and casts down his eyes. Finally, he speaks:
"That judge ain't gonna let me smoke weed again."
Jail didn't bother him too much. He just didn't want to give up his hobby. Funny and sad.
Wednesday, December 14, 2011
Mistakes, I've Made a Few
You can hear it in their voice. You see it in their hesitation. It is the final trial preparation with your witness. You are telling them how to handle cross-examination. You've just told them the defense attorney will ask a lot of uncomfortable questions about their past.
Witness: But, they can't ask me about that.
Pros. Dis: They can and will.
Witness: You can't let 'em.
Pros. Dis: I'll stop them when it's inappropriate. But they can ask you about your convictions.
Witness: But that's years ago. I did my time.
Pros. Dis: I know and that's what you tell the jury. Just be honest about it.
This post discusses when an attorney can bring up a witness or victim's prior bad acts during trial. It follows the previous post about showing the jury the defendant's previous convictions.
There are different rules for civil and criminal trials. This post deals only with criminal trials.
A witness's credibility is at issue in every trial. It's the reason we require live testimony instead of just reading a witness's prior statement. Credibility means whether a person is telling the truth.
So, what do we look for when someone is telling the truth? Two things:
1) If the actual words a person says make sense, and
2) How they say those words. Are they avoiding eye contact, looking away, acting evasive?
Since a witness's credibility is at issue, prosecutors are required to disclose a witness's prior convictions to the defense attorney prior to trial. That means a defense attorney is allowed to ask the witness about those prior convictions no matter how old they are.
What is a conviction? A list of what it is not:
1) a dismissed case
2) an arrest without formal charges
3) a bad act that didn't result in a conviction
4) an acquittal
It must be an actual criminal conviction. The defense attorney is allowed a lot more freedom in questioning a witness with a criminal record than we are when questioning a testifying defendant. They can ask about the facts that created the conviction and the conviction. A hearing is not required to determine if it is prejudicial.
A juror wants to know the whole picture of the witness. Are they an upstanding citizen? A murderer? A thief? Have they committed fraud? A DWI? This way they can make an accurate judgment on credibility based on the full picture.
Since credibility is so important in a trial, a witness's criminal history is something we have to consider in assessing the strength of our case. This does not mean we dismiss a prostitute who claims a man raped her, or that we won't proceed in a robbery case where our victim is a homeless drug addict. It is merely one of many considerations. in what the final resolution should be.
The best strategy is to take the sting out of this information. Discuss it early and often so that when the jurors hear it from the witness stand, it won't be a big deal.
Ask the jurors if they can listen to a witness who has a criminal record during jury selection. Can they hold off their credibility judgment until the witness has testified? Or does the fact the witness is a criminal mean the juror will never believe them.
Also, bring the conviction out during the witness's testimony. This takes the sting out of cross-examination. It is not such a factor if it is sandwiched in between their testimony that the witness watched a brutal murder or had a gun put in their face.
Then, address it on closing. Doesn't the fact the witness got on the stand and admitted his past make him more credible? It's a difficult thing for anyone to do. Get up in front of a group of strangers and air all your dirty laundry. The witness didn't hide anything. If they were going to make something up, wouldn't the witness shade their past? Try to make themselves look better? If they were so truthful with all the embarrassing things they did in their lives, doesn't it make sense they were truthful with everything, including identifying the defendant?
There aren't as many protections for a witness as for a defendant. Personally, I never mind a criminal conviction as long as the witness admits to it.
Witness: But, they can't ask me about that.
Pros. Dis: They can and will.
Witness: You can't let 'em.
Pros. Dis: I'll stop them when it's inappropriate. But they can ask you about your convictions.
Witness: But that's years ago. I did my time.
Pros. Dis: I know and that's what you tell the jury. Just be honest about it.
This post discusses when an attorney can bring up a witness or victim's prior bad acts during trial. It follows the previous post about showing the jury the defendant's previous convictions.
There are different rules for civil and criminal trials. This post deals only with criminal trials.
A witness's credibility is at issue in every trial. It's the reason we require live testimony instead of just reading a witness's prior statement. Credibility means whether a person is telling the truth.
So, what do we look for when someone is telling the truth? Two things:
1) If the actual words a person says make sense, and
2) How they say those words. Are they avoiding eye contact, looking away, acting evasive?
Since a witness's credibility is at issue, prosecutors are required to disclose a witness's prior convictions to the defense attorney prior to trial. That means a defense attorney is allowed to ask the witness about those prior convictions no matter how old they are.
What is a conviction? A list of what it is not:
1) a dismissed case
2) an arrest without formal charges
3) a bad act that didn't result in a conviction
4) an acquittal
It must be an actual criminal conviction. The defense attorney is allowed a lot more freedom in questioning a witness with a criminal record than we are when questioning a testifying defendant. They can ask about the facts that created the conviction and the conviction. A hearing is not required to determine if it is prejudicial.
A juror wants to know the whole picture of the witness. Are they an upstanding citizen? A murderer? A thief? Have they committed fraud? A DWI? This way they can make an accurate judgment on credibility based on the full picture.
Since credibility is so important in a trial, a witness's criminal history is something we have to consider in assessing the strength of our case. This does not mean we dismiss a prostitute who claims a man raped her, or that we won't proceed in a robbery case where our victim is a homeless drug addict. It is merely one of many considerations. in what the final resolution should be.
The best strategy is to take the sting out of this information. Discuss it early and often so that when the jurors hear it from the witness stand, it won't be a big deal.
Ask the jurors if they can listen to a witness who has a criminal record during jury selection. Can they hold off their credibility judgment until the witness has testified? Or does the fact the witness is a criminal mean the juror will never believe them.
Also, bring the conviction out during the witness's testimony. This takes the sting out of cross-examination. It is not such a factor if it is sandwiched in between their testimony that the witness watched a brutal murder or had a gun put in their face.
Then, address it on closing. Doesn't the fact the witness got on the stand and admitted his past make him more credible? It's a difficult thing for anyone to do. Get up in front of a group of strangers and air all your dirty laundry. The witness didn't hide anything. If they were going to make something up, wouldn't the witness shade their past? Try to make themselves look better? If they were so truthful with all the embarrassing things they did in their lives, doesn't it make sense they were truthful with everything, including identifying the defendant?
There aren't as many protections for a witness as for a defendant. Personally, I never mind a criminal conviction as long as the witness admits to it.
Monday, December 12, 2011
Does It Always Stay in Your Past?
"I guess some mistakes we never stop paying for." Roy Hobbs shared this bit of wisdom in The Natural (bonus points if you can name the stadium it was filmed in).
What about a prior conviction? How does that affect a criminal case? Can the prosecution bring it out at trial? What if the victim has a bad record? Or a witness?
This post discusses the three ways a prior conviction affects a defendant in a case.
1) Sentencing
If a defendant has a felony conviction within ten years before his current charge, the sentencing range can be increased. An example of how this works:
Bob was convicted of illegal gun possession in 2004. He served two years. In 2011, he commits a robbery with a gun. This time it's robbery in the first degree. Without the prior conviction, he faced a range of 5 to 25 year in jail. With the prior conviction, he now faces a range of 10-25.
If he had two prior violent felonies? He'd be facing a minimum of 20 years with lifetime parole.
The sentences are increased for repeat offenders. However, the cut off to use a prior conviction to elevate a crime is usually ten years. Meaning, that if Bob's gun conviction was in 1998, it could not be used to elevate his sentencing range in 2011.
2) Can it be used as evidence at trial?
Here we are talking about the prosecution's case, not the defense case. Generally, the prosecution is not allowed to put evidence before the jury that the defendant was convicted of a crime.
The law says it's probative value is far outweighed by its prejudicial effect. What? In layman's terms - the jury will be more likely to convict a person they think is already a convicted felon, no matter what the proof is in the current case.
The prosecution must prove their case based on evidence of the current charges. The court does not allow proclivity evidence. No evidence that says "once a criminal, always a criminal."
There are certain situations when we are allowed to prove the defendant has previous convictions during our case. Elevated crimes are crimes that are felonies solely because the defendant has a previous conviction.
Thus, a misdemeanor DWI becomes a felony if the defendant has a prior DWI in the last ten years. Possessing an unregistered, unloaded gun becomes a felony if the defendant has been convicted of any previous crime.
In prosecuting these cases, we must prove to the jury beyond a reasonable doubt that the defendant currently on trial is the same defendant convicted of the prior offense. It is an element of the crime. The jury then hears evidence the defendant is a convict and we use fingerprint comparisons to show his current prints are the same as his prints from the prior case.
Smart defense attorneys concede this element outside the presence of the jury, so the jurors never hear about it and we're not allowed to discuss it.
3) When the defendant testifies
So, we're not allowed to get into a defendant's criminal past. What about this situation? As a prosecutor, you sit there and watch the defendant testify waiting for an opportunity to cross-examine him. On the stand Bob, who's charged with that pesky gun point robbery, tells the jury he's never touched a gun in his life.
In your hands you hold his criminal history displaying his plea of guilty to possessing a gun a few years ago. But, you're not allowed to talk about his criminal history. What happens? Admit defeat? The jury leaves without the whole picture of the defendant? They acquit based on a lie?
Not at all. Prior to the defendant testifying (usually prior to jury selection) the court listens to arguments on whether the prosecution can question the defendant about his criminal past if he testifies. It's called a Sandoval hearing. The defense attorney argues that asking his client about prior convictions will be too prejudicial to him and will force him to reconsider testifying, a constitutional right.
The prosecution argues that the convictions are relevant on the issue of the defendant's credibility. Without giving the jury a full picture of the defendant, they will inflate his credibility. He cannot use the fact he is a prior felon as an impenetrable shield when testifying.
The court generally issues a compromise - we are allowed to ask the defendant if he's ever been convicted of a crime or a felony, but not allowed to ask about the facts underlying the conviction.
What about Bob who lied on the stand? Well, that is what we call "opening the door" to specific questions about his criminal past. It's the moment trial lawyers wait for. The court will allow the prosecution to ask specific convictions about the old conviction because he opened the door by lying. Then we get to slam it in his face.
Should the prosecution be allowed to ask questions about prior convictions? Should the jury know?
Check out a post later this week about the use of a witness's criminal history at trial.
What about a prior conviction? How does that affect a criminal case? Can the prosecution bring it out at trial? What if the victim has a bad record? Or a witness?
This post discusses the three ways a prior conviction affects a defendant in a case.
1) Sentencing
If a defendant has a felony conviction within ten years before his current charge, the sentencing range can be increased. An example of how this works:
Bob was convicted of illegal gun possession in 2004. He served two years. In 2011, he commits a robbery with a gun. This time it's robbery in the first degree. Without the prior conviction, he faced a range of 5 to 25 year in jail. With the prior conviction, he now faces a range of 10-25.
If he had two prior violent felonies? He'd be facing a minimum of 20 years with lifetime parole.
The sentences are increased for repeat offenders. However, the cut off to use a prior conviction to elevate a crime is usually ten years. Meaning, that if Bob's gun conviction was in 1998, it could not be used to elevate his sentencing range in 2011.
2) Can it be used as evidence at trial?
Here we are talking about the prosecution's case, not the defense case. Generally, the prosecution is not allowed to put evidence before the jury that the defendant was convicted of a crime.
The law says it's probative value is far outweighed by its prejudicial effect. What? In layman's terms - the jury will be more likely to convict a person they think is already a convicted felon, no matter what the proof is in the current case.
The prosecution must prove their case based on evidence of the current charges. The court does not allow proclivity evidence. No evidence that says "once a criminal, always a criminal."
There are certain situations when we are allowed to prove the defendant has previous convictions during our case. Elevated crimes are crimes that are felonies solely because the defendant has a previous conviction.
Thus, a misdemeanor DWI becomes a felony if the defendant has a prior DWI in the last ten years. Possessing an unregistered, unloaded gun becomes a felony if the defendant has been convicted of any previous crime.
In prosecuting these cases, we must prove to the jury beyond a reasonable doubt that the defendant currently on trial is the same defendant convicted of the prior offense. It is an element of the crime. The jury then hears evidence the defendant is a convict and we use fingerprint comparisons to show his current prints are the same as his prints from the prior case.
Smart defense attorneys concede this element outside the presence of the jury, so the jurors never hear about it and we're not allowed to discuss it.
3) When the defendant testifies
So, we're not allowed to get into a defendant's criminal past. What about this situation? As a prosecutor, you sit there and watch the defendant testify waiting for an opportunity to cross-examine him. On the stand Bob, who's charged with that pesky gun point robbery, tells the jury he's never touched a gun in his life.
In your hands you hold his criminal history displaying his plea of guilty to possessing a gun a few years ago. But, you're not allowed to talk about his criminal history. What happens? Admit defeat? The jury leaves without the whole picture of the defendant? They acquit based on a lie?
Not at all. Prior to the defendant testifying (usually prior to jury selection) the court listens to arguments on whether the prosecution can question the defendant about his criminal past if he testifies. It's called a Sandoval hearing. The defense attorney argues that asking his client about prior convictions will be too prejudicial to him and will force him to reconsider testifying, a constitutional right.
The prosecution argues that the convictions are relevant on the issue of the defendant's credibility. Without giving the jury a full picture of the defendant, they will inflate his credibility. He cannot use the fact he is a prior felon as an impenetrable shield when testifying.
The court generally issues a compromise - we are allowed to ask the defendant if he's ever been convicted of a crime or a felony, but not allowed to ask about the facts underlying the conviction.
What about Bob who lied on the stand? Well, that is what we call "opening the door" to specific questions about his criminal past. It's the moment trial lawyers wait for. The court will allow the prosecution to ask specific convictions about the old conviction because he opened the door by lying. Then we get to slam it in his face.
Should the prosecution be allowed to ask questions about prior convictions? Should the jury know?
Check out a post later this week about the use of a witness's criminal history at trial.
Thursday, December 8, 2011
A Twelve-Year Old Murderer?
Twelve-year old Christian Fernandez is charged with intentionally killing his two-year old brother. His mother is charged with not seeking aid for the ailing child in a timely manner. Check out the full story here.
It's a difficult case for so many reasons, both legally and morally:
- Christian Fernandez's mother was twelve when she had him and, at twenty-four, had four children. One is in jail for murder and the other is dead.
- Allegations of abuse and neglect of Christian Fernandez at the hands of his mother goes back years.
- The mother didn't call 911 for hours after finding her son unconscious. She allegedly searched various websites during that time including a bank, medical information on concussions, and music downloads.
- Christian Fernandez is twelve and confessed to the police. In NY, a parent or guardian is required at the interview for anyone under sixteen.
- Christian Fernandez apparently broke his brother's leg by beating him months earlier.
- Christian Fernandez can serve life without parole.
- It will be difficult to prove a twelve year-old intended to kill him with pre-meditation.
- It will be difficult to prove intentional murder if the only evidence is that he pushed him into a bookshelf. The defense will be able to argue anything from accident to the "horsin' around" defense.
- He apparently turned down a plea deal that would have let him out of jail at his twenty-first birthday.
- He's going to serve until eighteen in a juvenile facility, and then be placed in an adult prison.
I do not envy the prosecutor's who are handling the case. In most of my cases, sympathy is tough to garner for the defendant. Sympathy will be flowing out of the courtroom in this case.
At least in NY, we don't have to worry about twelve-year olds. Family court would handle this case. For murder in NY, the minimum is the ripe old age of thirteen. The maximum for murder for a thirteen, fourteen, or fifteen year old is fifteen years to life in prison. So they would be eligible for parole in fifteen years.
Luckily, I haven't had a case like that yet.
My youngest murder defendant? Fifteen years old. He shot and killed a man during a robbery gone bad.
So what do you think? At what age should a person be treated as an adult? Does it depend on the crime? Should the background of the defendant matter at all? Check out a discussion of New York juvenile crime law.
Wednesday, December 7, 2011
A Jury of Your Peers
Trial starts one week from today. It’s a white collar crime case. That means someone stole money from a company.
I know what you're thinking. Who schedules a trial the week before Christmas? We won't complain though. Not much anyway.
I’ve described the jury selection process before. Let’s discuss what prosecutors actually look for and how they pick a jury.
The preparation starts weeks before. We assess our case and discover our strengths and weaknesses. What are the divisive issues? Is it a drug case? If so, do we need to ask jurors about their feelings on drug laws? Is it a gun case? Do we need to speak about gun control? Is there a cooperating witness who got a deal? A witness with a criminal background? Mistakes in the police paperwork?
Once we know our case, we can get ready for jury selection. Jury selection is the process of selecting fair and impartial jurors for your case.
The court weeds out the unqualified jurors – those with medical or family issues or those that cannot be fair to one side or the other. The prosecution uses challenges on jurors sympathetic to the defendant and the defense uses challenges on jurors sympathetic to the prosecution.
This is educated guessing at its best. We’ve heard these citizens speak for a half hour at most. We know a little about their family history, education, and work. Now,we must decide if they will fit our case.
So, how do we decide? In every case, an attorney has an idea of their ideal juror. The ideal juror has a particular background we identified during preparation. It changes in every case depending on the facts.
With this background in mind, we ask questions to jurors. These are questions based on the divisive issues. I describe the case a little. I ask jurors’ feelings on gun laws. Or drug laws. I tell them one of our witnesses got a deal to testify and watch their reaction. I describe why DNA is important or is not important in this case.
Their answers are important. So are their reactions. How a juror says something is just as important as what they say. Did one juror sigh when I asked about DNA? Is one asleep? Is one not paying attention? Do two jurors argue with each other?
Its an inexact science at best. It’s the only time in the trial, I get to speak directly to the people who decide the case. While I’m sizing them up, they’re also sizing me up. I let them know their time is important, just like this case. I relate to them using humor and letting them see my personality. Hopefully, they see how well prepared we are too.
If the jury is against you from the start, then your terrific opening and closing won’t matter. Your dynamite proof won’t matter.
We do the best we can and never know if our guesses are correct until the verdict.
I know what you're thinking. Who schedules a trial the week before Christmas? We won't complain though. Not much anyway.
I’ve described the jury selection process before. Let’s discuss what prosecutors actually look for and how they pick a jury.
The preparation starts weeks before. We assess our case and discover our strengths and weaknesses. What are the divisive issues? Is it a drug case? If so, do we need to ask jurors about their feelings on drug laws? Is it a gun case? Do we need to speak about gun control? Is there a cooperating witness who got a deal? A witness with a criminal background? Mistakes in the police paperwork?
Once we know our case, we can get ready for jury selection. Jury selection is the process of selecting fair and impartial jurors for your case.
The court weeds out the unqualified jurors – those with medical or family issues or those that cannot be fair to one side or the other. The prosecution uses challenges on jurors sympathetic to the defendant and the defense uses challenges on jurors sympathetic to the prosecution.
This is educated guessing at its best. We’ve heard these citizens speak for a half hour at most. We know a little about their family history, education, and work. Now,we must decide if they will fit our case.
So, how do we decide? In every case, an attorney has an idea of their ideal juror. The ideal juror has a particular background we identified during preparation. It changes in every case depending on the facts.
With this background in mind, we ask questions to jurors. These are questions based on the divisive issues. I describe the case a little. I ask jurors’ feelings on gun laws. Or drug laws. I tell them one of our witnesses got a deal to testify and watch their reaction. I describe why DNA is important or is not important in this case.
Their answers are important. So are their reactions. How a juror says something is just as important as what they say. Did one juror sigh when I asked about DNA? Is one asleep? Is one not paying attention? Do two jurors argue with each other?
Its an inexact science at best. It’s the only time in the trial, I get to speak directly to the people who decide the case. While I’m sizing them up, they’re also sizing me up. I let them know their time is important, just like this case. I relate to them using humor and letting them see my personality. Hopefully, they see how well prepared we are too.
If the jury is against you from the start, then your terrific opening and closing won’t matter. Your dynamite proof won’t matter.
We do the best we can and never know if our guesses are correct until the verdict.
Monday, December 5, 2011
Practice Makes Perfect
This past Saturday morning, I could be found at my law school. The purpose - to judge a mock trial competition.
I'm sad to report this was my first time in that building since graduation. I left for another city after the bar exam and only recently returned. You can imagine the memories flooding back.
The building looked the same. The classrooms were in their proper place. The library was still on the second floor. But it was all different. Smaller maybe. The memories swirled, but they too were different. They were out of focus and came back slowly like waving around photos from a old polaroid camera.
I was one of three evaluators for the students in my room. This was the culmination of their semester's work in a trial technique class. They had practiced their opening and closing statements for weeks and were ready for action.
That's when the vagueness faded and the memories flooded as if the dam holding them shattered. Growing up, I was paralyzed when public speaking. Sweat dripped from my face and armpits. My voice cracked. My breath faltered. I knew every person watched, judged, and waited for my inevitable mistakes. It was all I could think about.
This didn't develop in law school. The flower of my insecurity was planted in elementary school, watered in high school, and grew like a weed in college. There was just something about speaking to a group that threw my insecurity motor into overdrive.
I determined to crush this feeling in law school. There was only one way to do it. Practice. It took me a year to garner the necessary courage. In my second year, I tried out for the national trial team. This is a team that travels around the country competing against other schools in a mock trial.
At the tryout, I gave an opening statement and cross-examined the defendant. Deep breaths didn't work. Sweat billowed from every outlet. My voice cracked like I'd never used it before. It was so bad, the judges even commented on my nerves.
They saw something though. Something I didn't. Something I was trying to see. They let me on the team (although this could be attributed to having more spots available than applicants). It was a life-altering moment. Without it, I never would have practiced so hard. I might not have set food in a courtroom again.
I competed in Atlanta. We lost. I was far from the best in the competition, but my performance was credible. It was a stepping stone. I signed up to read at my church every week. I tried out and made a moot court team. I took the very same trial technique class I now judged. At the end of law school, speaking in public was a breeze. I actually looked forward to it.
Now, when I stand in front of a jury, there are nerves. But these are different. They aren't nerves based on an irrational fear that these twelve men and women were judging me. The nerves are there because I want to do a great job. I worked so hard on the case that the thought of losing is difficult to accept. Today, I just hope I can live up to my new standards. I am far from perfect at anythind I do, but now I accept my mistakes as lessons. I learn every time. Anytime I'm speaking, I know the audience isn't following along on a printed speech. No one even knows when I make a mistake! I act natural and move on.
That's a far cry from just praying I didn't pass out.
The participants I observed on Saturday were all terrific and will have fine careers. Anyone reading, please take it from me. Practice makes perfect. It's part of the reason I started this blog. I love writing and hope all this practice is helping.
What obstacles have you overcome in your life to get to where you are? Your career?
I'm sad to report this was my first time in that building since graduation. I left for another city after the bar exam and only recently returned. You can imagine the memories flooding back.
The building looked the same. The classrooms were in their proper place. The library was still on the second floor. But it was all different. Smaller maybe. The memories swirled, but they too were different. They were out of focus and came back slowly like waving around photos from a old polaroid camera.
I was one of three evaluators for the students in my room. This was the culmination of their semester's work in a trial technique class. They had practiced their opening and closing statements for weeks and were ready for action.
That's when the vagueness faded and the memories flooded as if the dam holding them shattered. Growing up, I was paralyzed when public speaking. Sweat dripped from my face and armpits. My voice cracked. My breath faltered. I knew every person watched, judged, and waited for my inevitable mistakes. It was all I could think about.
This didn't develop in law school. The flower of my insecurity was planted in elementary school, watered in high school, and grew like a weed in college. There was just something about speaking to a group that threw my insecurity motor into overdrive.
I determined to crush this feeling in law school. There was only one way to do it. Practice. It took me a year to garner the necessary courage. In my second year, I tried out for the national trial team. This is a team that travels around the country competing against other schools in a mock trial.
At the tryout, I gave an opening statement and cross-examined the defendant. Deep breaths didn't work. Sweat billowed from every outlet. My voice cracked like I'd never used it before. It was so bad, the judges even commented on my nerves.
They saw something though. Something I didn't. Something I was trying to see. They let me on the team (although this could be attributed to having more spots available than applicants). It was a life-altering moment. Without it, I never would have practiced so hard. I might not have set food in a courtroom again.
I competed in Atlanta. We lost. I was far from the best in the competition, but my performance was credible. It was a stepping stone. I signed up to read at my church every week. I tried out and made a moot court team. I took the very same trial technique class I now judged. At the end of law school, speaking in public was a breeze. I actually looked forward to it.
Now, when I stand in front of a jury, there are nerves. But these are different. They aren't nerves based on an irrational fear that these twelve men and women were judging me. The nerves are there because I want to do a great job. I worked so hard on the case that the thought of losing is difficult to accept. Today, I just hope I can live up to my new standards. I am far from perfect at anythind I do, but now I accept my mistakes as lessons. I learn every time. Anytime I'm speaking, I know the audience isn't following along on a printed speech. No one even knows when I make a mistake! I act natural and move on.
That's a far cry from just praying I didn't pass out.
The participants I observed on Saturday were all terrific and will have fine careers. Anyone reading, please take it from me. Practice makes perfect. It's part of the reason I started this blog. I love writing and hope all this practice is helping.
What obstacles have you overcome in your life to get to where you are? Your career?
Friday, December 2, 2011
Defendant's Letter
I've had letters that contained confessions to crimes, expressed their anger with the police, threatened the judge, threatened me, and provided apologies to the victims.
My office has even received letters containing a defendant's bodily fluids. Thankfully, I haven't received one of those and the letters are screened first.
This is one of my favorites. Clear, concise, and to the point. Especially the part about not wanting to cost the taxpayers any more money.