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Your Rights If Arrested, Find a Jewish Criminal Lawyer

ArrestedGet A Criminal Defense Lawyer, Find A Criminal Lawyer

If you are a law-abiding citizen, your chances of being arrested are slight. It is important, though, that you know “Your Rights If Arrested.” An informed and alert citizenry is the best guarantee that these rights will be upheld for the benefit of all persons at all times. The basic rights of a citizen under arrest are stated in the Fifth, Sixth and Eighth Amendments of the “Bill of Rights” of the United States Constitution. — “No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law . . .” (Fifth Amendment). — “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.” (Sixth Amendment).

If  You  are arrested  and  want  Jewish Criminal Lawyer Call  877 522-2123

DUI-DWI Drunk Driving Criminal Defense License Revocation Hearings White Collar Crimes Violent Crimes Traffic Offenses Theft Crimes Sex Crimes Probation Violations Juvenile Crimes Expungement Drug Crimes Criminal Enterprises Federal Drug Trafficking Bribery Counterfeiting Public Corruption Obstructing Justice Resisting without Violence Trespass Disorderly Conduct Disorderly Intoxication Boating Under the Influence Dealing in Stolen Property Community Control Violations Fraud Offenses Insurance Fraud Organized Fraud Stalking Aggravated Stalking Weapons Offenses Concealed Firearm Forgery & Counterfeiting Uttering a Forged Instrument Bad Check Offenses Worthless Check *  Early termination of probation * Early appearance * Bond appearance (bond hearing) * Bond reduction hearing * Sentencing hearing * Sentence reduction * No Contact Orders — “Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel and unusual punishments be inflicted.” (Eighth Amendment). Since the adoption of the Fourteenth Amendment to the Constitution, the states have also had to guarantee these rights. This amendment provides: “No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States . . .” WHO CAN MAKE AN ARREST Any law enforcement officer such as a policeman, sheriff, deputy sheriff or state trooper can make a lawful arrest. The arrest may be made with a warrant or, under certain circumstances, without a warrant. A warrant is an order describing the person to be arrested and the charge made; it is issued by a magistrate or judge upon the complaint of someone. It directs all law enforcement officers of the state or, in some cases, authorizes a private person by name to arrest the person named in the complaint. The arrested person is to be brought before the Court issuing the warrant or, if that is not possible, before the most accessible Court in the same county. A law enforcement officer must have a warrant for your arrest unless one of the following circumstances exists: * The law enforcement officer has reasonable ground to believe that a warrant for your arrest has been issued in this state or in another jurisdiction. * You committed or attempted to commit a crime in the presence of the officer. * The officer has reasonable ground to believe both that a crime has been committed and that you are the person who committed it. CITIZEN’S ARREST A private citizen may make an arrest under certain circumstances. The law permits a citizen to detain, or place under arrest a person who commits or attempts to commit a criminal offense in his presence other than an ordinance violation. All the person making the arrest has to do is prevent the accused from leaving. He may take the person by the arm and say something like, “Stop. I’m holding you for the police.” WHAT NOT TO DO IF ARRESTED Do not resist a law enforcement officer who attempts to arrest you – even if you are innocent. The fact that you are innocent will not make the arrest illegal if the officer’s action conformed to the requirements of a legal arrest as stated above. If the arrest is legal and you resist, you may be guilty of the crime of resisting lawful arrest. If the arrest is illegal, you are entitled to bring an action against the law enforcement officer for false arrest. It is best not to resist a citizen’s arrest, although you can’t be prosecuted for resisting arrest. You may be found guilty of assault and battery. The person making a citizen’s arrest cannot be liable for damages for false arrest if he had reasonable ground for believing a crime had taken place and you are the person who committed it. Do not resist a law officer’s attempt to search or “frisk” you. It is legal for an arresting officer to search your person and the area in your immediate presence. Even if he does not arrest you, an officer – after identifying himself – may stop you in any public place if he has reason to believe that you have committed, are committing or are about to commit a crime. He may demand your name and address and an explanation of your actions. If he reasonably suspects that he or another is in danger of being attacked, he may search you for weapons. YOUR RIGHTS AFTER ARREST The U.S. Supreme Court has ruled that as soon as you are taken into custody you must be informed of the following: 1. You have a Constitutional right to remain silent. 2. Anything you say can be held against you. 3. You have the right to legal counsel and that if you cannot afford a lawyer, one will be appointed for you. 4. If you choose, you may have a lawyer present during interrogation. In addition to advising you of your rights, the arresting authorities must respect your rights. For example, you cannot legally be required or forced by a police officer or any one else to talk, to answer questions, or sign any papers. If by threats, by persistent questioning or other means of coercion, you are forced to give incriminating information, you can prevent its use against you in court. Within a reasonable time after you have been taken into custody, you have a right to make a reasonable number of telephone calls or otherwise communicate with an attorney of your choice and a member of your family. If you are transferred to a new place of custody, this right of communication is renewed. If you are not a U.S. citizen, you must be informed without delay of your right to contact your local consulate or embassy. Consular officials may visit you, help you arrange for legal representation, and contact your family. You have a right to an itemized receipt for all money and property taken from your person after you are taken into custody. You have a right to be “booked” within a reasonable period of time. “Booking” is the entry of a charge against you in a record called the “arrest book” or “police blotter.” Should your detention go beyond a reasonable period of time without booking (more than several hours or perhaps overnight), your attorney may go to a judge and obtain a writ of habeas corpus. This is a Court order instructing the police to bring you before the Court so that a judge may decide whether you are being held lawfully. OBTAINING RELEASE ON BAIL You have a right to apply for and post bail as a means of obtaining your release from custody. The Court will normally set bail, even with a charge of murder or other serious crimes, unless the proof is evident or the presumption is great that the person is guilty of the crime. Bail is the money or other security you deposit with the Court as an assurance that you will appear for trial. The Court will accept property (real estate) as bail provided certain detailed conditions are fulfilled. If there is a warrant for your arrest, the amount of bail will be stated on the warrant. For certain minor offenses the amount of bail is fixed by a judge and you have a right to be brought before a judge for that purpose at the next regular Court session. Or, you may be released on your own recognizance – that is, your own word that you will keep your date in Court. YOUR RIGHTS IN COURT You have a right to a reasonable time to prepare a defense before being tried in Court. Whether or not you declined your right to be represented by counsel during police interrogation, you have the right to be represented by counsel in Court. You are entitled to a reasonable time to obtain a lawyer of your own choosing. If you want a lawyer and cannot afford one, the Court must appoint one to defend you. You are entitled to know the charge against you and to have, without cost, a copy of the formal paper that contains the charge. You are entitled to plead “not guilty.” If you do so you will be tried by an impartial jury unless you specifically waive your right to a jury trial. You are not required to testify if you do not wish to do so. If you do not testify, neither the judge nor the jury can consider your silence as evidence of guilt. In the eyes of the law you are innocent unless proven guilty beyond a reasonable doubt by the evidence presented in Court. If you are not a U.S. citizen, the judge must inform you, before accepting a guilty plea, that a criminal conviction could result in immigration consequences, including immigration detention (custody) and deportation from the United States. How you plead and whether you testify are vitally important questions and you should have the advice of a lawyer. Frequently Asked Questions The established methods and practices used to resolve criminal cases are embodied in a set of rules referred to as “criminal procedure.” The rules of criminal procedure are designed to ensure that an accused is given due process of law. If the police don’t read my rights, can my case be dismissed? No, not necessarily. We have all heard the “rights” being read to many suspects on television and in the movies, and this has caused some confusion. The police officer does not have to read anybody their “rights” unless that officer wants to get a statement or confession from a suspect. If the officer does not want to record what you have to say and use it against you, he does not have to read you your rights. However, if the officer wants to ask you some questions other than your name and address, he must advise you that you don’t have to answer his questions, that if you do, anything you say can be used against you and that you have a right to a lawyer before you answer any questions. It is amazing how many people will answer the officer’s questions in some vain attempt to cooperate which gives their defense attorney headaches trying to defend the case later on. Petty offenses, misdemeanors and felonies – what class am I in? Crimes are categorized into classes that are defined by their punishments. Petty Offenses – A petty offense is a sub-group of misdemeanor. Petty offenses typically may be tried before a magistrate in a summary proceeding as the matter typically is handled all on the date of the first appearance by the defendant in court. The defendant may be denied the right to a jury trial without violation of constitutional rights. Offenses such as minor traffic tickets, parking violations, and minor infractions of local ordinances are treated as petty offenses. The typical punishment for violation of a petty offense is the imposition of a fine. Misdemeanors – Violation of a misdemeanor law can result in imposition of punishment greater than that of a petty offense but not as severe as that of a felony (examples might be a heavier fine, or short jail sentence). Felony – A felony crime can result in the imposition of the greatest punishment for violation of law, such as a jail sentence greater than one year and fines exceeding $1,000. The class of a crime is important to consider since the governing substantive law and procedural law are different between the classes. Petty offenses are provided the least amount of protections while felonies have numerous protections built into their treatment by the court system. The punishment for a petty offense is much smaller than the punishment for a felony – which can result in loss of life (death penalty) or liberty (jail). Why is ‘criminal procedure’ different from ‘civil procedure?’ In criminal matters, action is taken by the “state” (a federal, state or local government agency) against an individual or an organization (including, but not limited to, a group of individuals, “business” or other entity) for violation of law. Someone convicted of a crime can be ordered to pay a fine, can be put on probation or to serve time in jail. The sentence imposed upon a defendant who pleads or is found guilty is meant to deter that person from acting in the same manner in the future, to deter others from acting in a similar manner, and to punish the criminal. In a civil matter, the controversy is between two or more “people” (including individuals, businesses or government agencies). The typical result is an award of a money judgment to be paid by one party to the other. The judgment is imposed to make the aggrieved person “whole” for the harm that has been caused by the other. The judgment in a civil matter does not include imposition of a criminal sentence. The rules of civil procedure are different from that of criminal procedure because the results and objectives of the litigation differ. I understand that ignorance of the law is no defense. However, a friend of mine passed a bad check and he got off because he didn’t know it. How come? You are confusing two separate issues. The fact that you do not know an act is a crime defined by statute in your state is no defense if you are charged. On the other hand to be charged with passing a bad check, you must know that there is not enough money in your account to cover the check when presented to the bank. Knowledge that the check is not good when you write it is an “element” of the defense. The state has to prove that you wrote the check with knowledge that it wasn’t good. If your friend wrote the check believing that there was enough money in his account to cover it when presented, he hasn’t committed a crime because one of the elements of the crime is missing. Federal and state constitutions – why should I understand them? The United States Constitution provides fundamental rights which cannot be denied. All law must comply with the basic fundamental rights and guarantees provided by the United States Constitution. The protections afforded under the Constitution of the United States, as well the constitutions of the various states, are provided to all persons. Any law which violates constitutional law may be overturned through the court system and thus prosecution based upon such law would be prohibited. Courts are routinely asked to determine whether the prosecution of a person would violate Constitutional law. The following are some very important provisions of the United States Constitution with respect to criminal matters: The Fourth Amendment prohibits unreasonable search and seizure. It states that a warrant shall be issued based upon probable cause, supported by oath or affirmation which describes the place to be searched and the person or things to be seized. There are many exceptions to the warrant requirement, such as exigent circumstances (an emergency which requires immediate action), consent, and search and seizure incident to an arrest. Some detentions (“seizures of persons”) may proceed upon less than probable cause. The Fifth Amendment provides several critical protections: prohibition against double jeopardy (you may not be tried more than once for the same offense) prohibition against self-incrimination (you may not be forced to testify against yourself) prohibition against deprivation of life, liberty or property without due process of law The Sixth Amendment provides you with: the right to a speedy and public trial by an impartial jury the right to be informed of the law and potential punishment faced for violation of the law the right to confront (examine at trial) witnesses against you the right to compel witnesses in your favor to appear and testify at trial the right to have an attorney for your defense The Eighth Amendment prohibits excessive bail, excessive fines and cruel and unusual punishments. The Fourteenth Amendment: prohibits all States from enacting or enforcing any law which violates the privileges and immunities of the citizens of the United States prohibits all States from depriving a person of life, liberty or property without due process of law mandates that all persons are entitled to equal protection of the laws. States are also prohibited, under Article 1, Section 10 of the United States Constitution, from making any “ex post facto law.” An ex post facto law is a law that applies to crimes which were committed before the enactment of the law. Thus, a person can not be prosecuted for violation of a law which was made after the person committed the crime. In addition to the United States Constitution, each State has enacted its own State Constitution. These state constitutions may provide additional fundamental rights and guarantees. What is the difference between procedural and substantive law? Substantive law defines how the facts in the case will be handled, as well as how the crime is to be charged. In essence, it deals with the “substance” of the matter. Procedural law provides the “process” that the case will go through (whether it goes to trial or not). The procedural law determines how a proceeding concerning the enforcement of substantive law will occur. What are the typical steps in a criminal proceeding? Guilt or innocence of a petty crime, for minor offenses, is usually resolved in a summary proceeding. Your signature on the ticket charging a petty offense acknowledges receipt of it and it contains your promise to pay the fine or appear in court. On the face of the ticket will be your name (as the defendant), the date and time of the offense, the name of the law enforcement officer who issued the ticket, the location and telephone number of the court, and the date for you to appear in court. With many petty crimes, you may simply call the court to find out how much the fine is and then you can plead guilty and send in payment for the fine. If you wish to plead not guilty and have a hearing on the matter, you must show up at the assigned hearing. You may have an attorney present with you at the hearing or defend yourself (appear “in propria persona” [in pro per] and represent yourself). Usually the “trial” of the matter is heard at this first hearing and the sentence rendered after the submission of the evidence. Misdemeanors and felony criminal proceedings are more complex. As with a petty crime proceeding, you may have an attorney appear with you throughout the proceeding, or waive your right to counsel and represent yourself. For most felony proceedings, the following steps typically occur (note: these steps do not apply to juvenile proceedings): A crime is committed, it is reported, an investigation conducted and an arrest made (these may all occur in rapid sequence if the offense is committed in the presence of a law enforcement officer) Booking – an administrative procedure which records the defendant’s name, the crime charged, and other relevant information about the defendant (telephone number and address, photograph, fingerprints, etc.) Arraignment – when the defendant appears in court and enters a plea (guilty or not guilty, or sometimes “nolo contendere” [no contest]). The defendant is presented with a written accusation dealing the facts of the crime and his/her involvement in the crime. The written accusation may be presented by a grand jury, a prosecutor or a police officer. If the defendant enters a not guilty plea, a date for trial is set. Bail or Detention – bail is either set or the defendant is required to be “detained” (kept in jail until the trial). Bail could range from being “released on your own recognizance” (in other words, you are on your honor to appear at the next hearing), to many thousands of dollars. When a higher amount of bail is set, a bail bondsman is often called to provide the bail payment in exchange for a fee and a lien against property (as collateral) of the defendant. If bail is posted, the defendant is released but must show up at the next hearing (or bail will be forfeited). Preliminary Hearing – A hearing in which a judge determines whether the defendant should be held for trial. At the “prelim,” the prosecution has the burden of providing sufficient evidence to the judge that a crime has occurred and that the defendant committed the crime. Trial – opening statements, examination of witnesses and presentation of evidence, closing statements, charging the jury (giving the jury its instructions), verdict rendered by the jury after due deliberation, and entering of the verdict (either guilty, guilty of a lesser included or related offense, or not guilty). After a verdict is issued, the defendant may try a post trial motion, such as a motion for a new trial. Sentencing – when a defendant has been found guilty by trial or has plead guilty, a hearing is set to determine the imposition of the sentence. Sentencing reports, which set forth mitigating and compounding factors (prior payment of restitution may be a mitigating factor, other convictions of crimes may be a compounding factor) are often submitted to the judge and then the judge pronounces judgment at a sentencing hearing (in some jurisdictions juries or sentencing councils render the sentence). Fine, Probation, Jail – the defendant may be ordered to pay a fine, be released but subject to specific terms of probation, or sent directly to jail. If a person violates the terms of his/her probation, s/he may have his/her probation revoked, and be sent to jail. Appeal – after conviction of a crime, the defendant has appellate proceeding which may be available to determine whether all substantive and procedural law issues were properly conducted at the trial. What is a ‘crime?’ A crime is any act that violates the law. The definition of the prohibited act (or the failure to act in a manner that has been mandated) is set forth in writing by local, state and federal governments (in the form of a published statute). However, vestiges of common law crimes exist (common law crimes are defined by the customs of the unwritten law of England and the American colonies prior to the American revolution). Some states, such as California, have a statute stating that common law crimes do not exist; all crimes must be in writing set forth by statute. Not all violations of law forbidding or commanding an act are crimes. To be a crime there must be a defined punishment. If the law does not set forth the particulars of the punishment for the described act or omission, then it is not a crime (unless the state has enacted a “savings clause” which sets forth punishment for violation of law in the absence of a specific defined punishment for the particular act or omission). How private are my conversations? The answer is, “That depends.” You may have a reasonable expectation of privacy in your conversations. A reasonable expectation of privacy may exist in a person’s home, but statements made in the presence of “outsiders” are not protected since the statements are in “plain view” with no intention to keep the matter private. Further, conversations held out in the open that are not protected from being heard would not be considered private. With most telephone conversations, there is a reasonable expectation of privacy (although a possible exception to this is when a public telephone is used). Secretly recorded conversations require further analysis. Federal law prohibits the intentional recording of oral communications under most circumstances. One notable exception to the federal law is when the person making the recording is a party to the conversation, or has consented to the recording (so long as the recording is not for the purpose of committing any criminal or tortuous act). Thus under federal law it may be permissible for a person to record his/her conversations with others and then use the recording as evidence. Some states have laws which differ from the federal approach. For example, in the State of California it is a crime to secretly record a conversation (unless all parties to the conversation consent to its recording). Law enforcement officers are entitled to record conversations under both federal and state law when certain conditions are met. What rights do I have when a law enforcement officer asks me questions? Law enforcement officers routinely ask questions of victims, witnesses and suspects. If you feel that you are a suspect or could later be considered a suspect, you should speak with an attorney before speaking with law enforcement officers. What you say to your attorney is protected from disclosure to others by the attorney-client privilege. What you say to law enforcement can be used against you, regardless of whether there is a physical record (either written or recorded) of the conversation. You can always inform the law enforcement officer that you wish to speak with an attorney before answering any questions. At that point (if you are in custody), the questioning must stop and you will be provided with the opportunity to speak with an attorney. After a reasonable amount of time, law enforcement officers may return and begin to ask you questions again. If you have not spoken with an attorney, you may continue to refuse to answer questions until such time as you have obtained legal assistance. Victims and witnesses are encouraged to report crimes and cooperate in the prosecution of crimes. The reporting of crimes includes answering questions presented by law enforcement officers and officers of the court (including personnel at city, district, state and federal attorneys offices as well as authorized agents of other government agencies). What is meant by criminal procedure and why is it important? The rules of criminal procedure are set down to guarantee constitutional due process to those individuals charged with a crime. Because a person charged with a crime can be subjected to a loss of liberty, subjected to a fine and the loss of civil certain civil rights (to carry a weapon or right to vote) the rules of criminal procedure should be strictly followed. The failure to follow these rules that guarantee certain constitutional rights can result in a conviction being reversed and the charges dismissed. The trend in law today is to retreat from that position as the rights of the state and victims are being given more weight in the balancing of the two positions. Do I have to give consent to a law enforcement officer to search my car? If you feel that you have nothing to hide, and that challenging the law enforcement officer would be more bother than it’s worth, you can give law enforcement officers consent to search your car. With consent, the officer does not need a warrant, does not need probable cause and can take custody of evidence obtained. You do not have to give consent to a law enforcement officer to search your vehicle. While you do not have to consent, bear in mind that the expectation of privacy in a car is less than the expectation of privacy in your home. Based in part on the lessened expectation of privacy in a car, law enforcement officers are permitted to conduct a warrantless search of a car if the officer has probable cause. Probable cause exists where the facts and circumstances would cause a reasonable person to believe that evidence of a crime could be located in the area to be searched. With probable cause, law enforcement officers may search any area of the vehicle where the probable cause leads him/her to believe that evidence may be found. In addition to a probable cause search, any time a law enforcement officer sees evidence of a crime in his/her “plain view,” s/he can immediately seize the evidence without a warrant. What is the difference between a civil offense and a crime? A civil offense is an infraction of a law that is not a crime. This may be something like a routine traffic offense such as speeding. The only penalty for a civil offense is a fine. A crime is a violation of the law that is punishable by a fine or a jail sentence. A Class Three or Class Four misdemeanor in Virginia is only punishable by a fine. These may be violations of noise ordinances or other offenses not involving injuries to other persons or their property. A Class One misdemeanor is punishable by up to 12 months in jail and a $2,500 fine. A Class Two misdemeanors are punishable by 6 months in jail and a $1,000 fine. Felonies are punishable by one or more years in prison and fines of up to $100,000. Detention and arrest – what’s the difference? Law enforcement officers have the right to investigate circumstances when there are facts which, together with reasonable inferences drawn from those facts, warrant further investigation. Thus law enforcement officers may temporarily stop a person in a public place (without transporting the person to another location) for the purpose of (1) requiring the person to justify his/her presence and activity in the location and (2) to identify him/herself. The stop may be accompanied by a “patdown” search for weapons. This enables law enforcement officers, with minimal upset to public tranquility and intrusion into personal rights, determine whether they should arrest a suspect, investigate further or take no action because their initial suspicion proved groundless. An arrest occurs when a person reasonably believes he is not free to leave due to the actions of law enforcement officers. Once an arrest has occurred and questions are asked, law enforcement officers must provide Miranda warnings (the right to remain silent, the right to an attorney, etc.). However, if no questions are asked (other than questions to determine basic biographical information such as name and address), the warnings need not be given. Be aware however, that even your address can be totally incriminating in a domestic violence case. When is a governmental employee acting ‘under color of law’? Officials act under “color of law” when they are either actually carrying out their official duties or they act in a manner which makes it seem as if they are. For instance, a police officer arresting someone while on duty is clearly acting “under color of law.” In addition, an off-duty police officer showing his or her badge is most likely acting under color of law. Some actions taken by private institutions that are doing work for the government (such as a university performing a government contract) may also be considered to be “under color of law.” If I am ever arrested, what should I do? There are certain things you should and should not do if you are arrested. DO NOT make statements to the law enforcement officer in the belief that if you cooperate the officer will let you go (it is already to late once an arrest has occurred). DO speak only with your attorney about the matter – do not discuss it with anyone else DO NOT answer questions asked by law enforcement officers or other officers of the court, unless advised to do so by your attorney. DO have your attorney present during any lineup or administration of a test (such as drawing a blood sample for further testing) DO be polite to law enforcement personnel; they can make a bad situation worse if you make them mad at you. Can the police get a warrant if someone told them I was doing something illegal? Yes. These people are called confidential informants, tipsters and/or snitches. There are many rules surrounding the ” tip” from another person. Again, rules vary from state to state and change over time but the general rule that assists most judges is how reliable or honest an informant may be. The informant’s reliability or credibility is determined by many things; the same criteria you may use in your own life to decide if someone is believable or not. For example, has this person given information before that was relied upon? Has this person given other information about the present crime that has turned out to be true? Some of the most credible informants however, are “citizen informants,” just ordinary bystanders who happened to witness a crime or actions that are highly suspicious of criminal activity, such as a neighbor noticing that stoned looking people come and go at all hours and in high volume to and from your home. How do I find if there is an outstanding warrant out against me? I called the cops and they wanted me to drop on by and produce ID. If you really want to know, hire an attorney to find out if there’s a warrant. (Cops still may not say whether a warrant is outstanding.) If you don’t want to pay for an attorney to find out about the warrant, just tell the cops “requesting” your presence that you don’t wish to drive down to the station to show them your driver’s license. Sit tight and wait. If they do have a warrant, they’ll will add it to the 15,000 other unserved warrants. If you get stopped for a traffic violation, they’ll grab you. Whether they’ll make a special trip to arrest you depends on the nature of the crime. Can the police ever search me without a warrant? Yes. There are numerous circumstances under which a search may lawfully be made without a warrant. Some general areas of exception where a search can be made without a warrant are: (a) if the safety of the police officer is involved, (b) whether the police are in “hot pursuit” of a criminal, (c) when they see illegal evidence in plain view from a place they have a right to be, (d) if they are doing temporary questioning, (e) if a person consents to being searched, (f) if they have made a lawful arrest, or (g) if they have reasonable cause to believe they must enter a home, building or vehicle without a warrant because someone inside is in danger. I have taped some very abusive and harassing telephone conversations with my husband’s ex-girlfriend, but am told that we cannot use these tapes in the court. Why? Surreptitious tape recordings by telephone are illegal in most States, under their respective Penal (or Criminal) Codes. You must have permission, in most States, from the party being recorded or, at the very least, give the other person notice that the call is being recorded. California, Connecticut, Delaware, Florida, Illinois, Maryland (where Ms. Tripp allegedly pressed her “record” button), Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania and Washington – require, under most circumstances, the consent of all parties to the conversation before taping is allowed. Can the police just stop me on the street and search me for no reason? No. The general understanding is that a police officer only has the right to stop people whom they have reasonable cause to suspect of being involved in criminal activity. This area of police conduct is often found under the heading of stop and frisk rules. Basically, the “stop” must be justified by specific facts (referred to as “articulable” facts) combined with rational inferences from those facts. What this means is having long hair may not be a good enough reason to be “stopped”, but walking back and forth in front of a bank with a large, bulky item under your coat may be a good enough reason for a police officer to stop and detain you for questioning. Second, assuming the “stop” is valid, a limited search for weapons is justified if the officer reasonably feels in danger. Basically, this means a “pat down”. Third, any search may only be confined to discover objects capable of being used as weapons. For example, if the police officer goes into your wallet looking for a weapon, this may not be the proper place for the officer to look for weapons. If the officer finds illegal drugs, then you may have a shot at winning a motion to suppress, if you are charged with possession of those drugs. What is executive clemency and what is the procedure to file for it? It is the constitutional power of the Governor to grant a commutation of sentence or a pardon following criminal conviction or juvenile adjudication. A pardon forgives an individual for the crime. A commutation is a reduction in sentence for persons currently incarcerated, and can be granted for an entire sentence or any part of it. Decision-making is entirely in the hands of the Governor, assisted by the Governor’s Board for Executive Clemency. The procedure is governed by state rules. Do the police need a warrant to arrest me? No. An arrest by a police officer without a warrant is proper if the officer has reasonable grounds to believe that you have committed a crime What legal steps can I take to expunge my felony conviction? Not every case can be expunged. Every state has its own requirements that have to be met before a criminal record can be expunged. Contrary to popular belief, records are not “sealed” automatically with the passage of time, but require the filing of a petition with the court requesting the expungement and stating the reasons you are requesting it and how you meet the criteria set by law. The procedure can take between three months to almost a year depending upon the Court and the severity of the case. Can the police come and get me in my house? The police cannot come into your home, without your consent and without a warrant to arrest you unless there are “exigent” circumstances. There is no clear rule defining what an “exigent” circumstance is. But, there are certain factors that judges will take into consideration in determining whether exigent circumstances exist. Some of those are: (1) the gravity of the offense (murder vs. disorderly conduct), (2) the existence of probable cause, (3) the likelihood of an escape if the officer does not act quickly, (4) whether the officer’s entrance was peaceable, (5) consent to enter from an adult resident of the home, and (6) whether they can credibly claim that they reasonably believed that someone inside was in danger. How can we prove that the attorney we hired to defend our son on a criminal charge was ineffective and incompetent. He told us that it was trial tactics. This is a huge hurdle. To prevail on a claim of ineffective assistance of counsel, you must show on the record (1) that the defense counsel’s actions fell below an objective standard of competence, and (2) that, but for counsel’s errors, the results of the proceeding would have been different. If counsel’s decisions can be construed as legitimate trial tactics, counsel was competent and your claim fails. Examples of trial tactics include: what witnesses to call, whether and how vigorously to cross examine witnesses, whether to interview the state’s witnesses or rely on police reports, what defenses, if any, to raise, and just about everything else. Even if counsel was incompetent, the defendant has to show that competent representation would likely have resulted in a “not guilty” verdict. This is an extremely heavy burden to meet, as the appellate court will consider all the evidence, construe it in the light most favorable to the state, and then decide if a jury would likely have changed its verdict. You can’t argue that witness X would have testified to certain things, unless the attorney summarized the witness’s potential testimony on the record. You can’t argue that the verdict might have been different; you have to show it would have been. Speculation about what might have been is insufficient to support a claim of ineffective assistance. If you need to argue ineffective assistance based on evidence outside the record, you have to submit a post-review petition, with supporting affidavits and evidence, and make your arguments. In neither a direct appeal nor a post-review petition can the defendant claim that his counsel was ineffective because he was found guilty. Claims that succeed are usually along the lines of failure to challenge a search that was so obviously illegal that no attorney should have missed it and no court would have allowed it, and the state could not (as a matter of law) prove its case without the search results. Another winning argument is if you can prove collusion between counsel and the state. Can I sue the cop for false arrest? Sometimes. A false arrest consists of unlawful restraint of a person’s liberty without proper legal authority. The key words here are “without proper legal authority”. The burden is on you, the person complaining they have been falsely arrested, to persuade a court or jury that the officer acted without legal authority. This can be difficult to prove. The good news is that if you can show the officer was malicious you may be entitled to more money or what is referred to as “punitive” damages. A common example of a false arrest situation is where an officer may arrest a black kid suspected of shoplifting, with no real suspicion that the kid did anything wrong, just because he may have been the only black kid in the store. The frustration for people who want to sue for false arrest is that the lawsuit is in another court (civil), a different judge, usually a different lawyer, there are different rules for what is happening in the criminal case, and the case can take longer to resolve. Such cases are extremely hard to win. Can a prisoner fire the public defender assigned to defend him without having another attorney to represent him? A prisoner’s “relationship” with the public defender is not like a private relationship he would have with his own attorney. The difference is that there is a third party to reckon with, and that’s the judge. The public defender is “assigned”, not chosen. Therefore, while a criminal defendant can, in fact, fire his PD, and perhaps defend himself, the criminal defendant must also reconcile those matters with the judge. If the defendant does not represent himself, or has not hired his own attorney, or cannot afford one, the judge will assign the same PD again to your brother. In the absence of “moral turpitude” on the part of the public defender (e.g., he’s a felon, or a “fall down” drunkard, or he, on the record, “refuses” to defend your brother because he says in open court, “you know your Honor, I think this defendant is guilty”), then that same public defender is going to be back in the prisoner’s life, whether he likes it or not. However, that can be changed, if the defendant can demonstrate to the court that he has hired a private attorney. If the cops have a warrant to search my house, can they look anywhere? No, not necessarily. Read the warrant carefully to see where the judge (the person who signed the warrant) is permitting the police to search and what they are permitted to seek. For example, if the warrant says the police are permitted to search your home for anti-assault weapons, they cannot open your ring box in the back of your sock drawer. The phrase used to explain this is: the police cannot look for an elephant in a matchbox. This is the general rule. However, most search warrants are so broadly written, that the police can usually get away with looking just about anywhere. The best thing to do when served with a search warrant is to sit there, don’t talk to the police while they go through your things, and call a attorney when they leave. Another good thing to do is NOT look at the place you wish they would not search Can the cops break down my door to enter my home? Yes and no. This area is called the “Knock and Announce” rules. The general rule is that the police officers must announce their authority and purpose in executing a search warrant. Implied in this general rule is that a suspect should be given a reasonable amount of time to come to the door before the police barge in. This purpose of this rule is to allow people an opportunity to respond so that violence can be averted and privacy protected. On the other hand, the mere failure of the police to announce their purpose does not necessarily violate the Constitution; although, it may be a factor later on as to whether the search was reasonable. Furthermore, the courts have excused the knock and announce rule in drug raids where the officers know the suspect may have large dogs, a security system or a method of disposing drugs down a toilet. These examples may be considered “exigent circumstances”, relaxing the rule to knock and announce. The Difference Between Federal and State Crimes The U.S. Constitution allows states the power to govern themselves, but where the entire nation’s welfare is concerned, Federal law trumps state law. This is under the “Supremacy Clause” of the U.S. Constitution. Some areas of criminal law are “concurrently” occupied by both state and Federal laws, but a state statute which contradicts a Federal law, will be ruled “unconstitutional” by a Federal judge and nullified. The Feds may also regulate a certain area of criminal law exclusively, so that they are said to have pre-empted the field. One example would be counterfeiting of money. You can see what chaos would follow if each state were allowed to regulate and issue their own money. Areas of law not occupied by the Feds are reserved exclusively to the states. The Federal Interstate Commerce clause often grants the Feds criminal jurisdiction. That clause gives the Feds sole power to govern interstate business issues such as telephone, television, trucking, U.S. Mail, and air travel, to name a few. It’s the reason that sex with a minor becomes a Federal crime if she is taken over a state line. Other areas of criminal law that will invoke Federal jurisdiction are national security, the military, the Post Office, Federal Taxes, and Federal benefit entitlement programs. Graffiti is a local crime, but not if it’s on a Post Office building. Similarly, tax evasion or tax fraud, evading the military draft, breaking into a National Guard armory, or Welfare Fraud can all wind you up in Federal Court. What about this? Joe gets drunk in San Francisco, drives to Las Vegas, stops to make an obscene gesture to a Federal Senator, and then he is arrested, still under the influence. Who gets Joe, the Feds or Las Vegas Police? Answer: the locals. His driving across the state line drunk has no national significance to the Feds. He did not threaten the Senator, and has a right to free speech, so his only offense is local drunk driving. Note: many criminal cases are mixed. The Feds can allow the state to prosecute a small bank robbery. A Federal Prosecutor with a racketeering case can also prosecute a violation of a state murder law involved in their case. In my neighborhood police will just stop you on the street for no reason and search you. Is there anything I can do about this? Yes. If the police approach you, try to attract attention to yourself. Shout Hello! to a stranger, calling him by a name. Police will be more likely to go by the book if they think witnesses are present. To questions such as “What do you have in that bag?”, just answer that it’s private and state loudly that they do NOT have permission to search you. They are permitted to pat the surface of your clothes for anything that might be a weapon (this is called a “Terry” search), but not to go into pockets to explore objects that could not be weapons. If you see the police approaching you long enough in advance, you might dial your home number on your cell phone and put it on speaker phone. Whatever is said can be recorded on your home voice mail for defense use later if you are charged or if you wish to make a complaint of illegal search. Only you can decide whether your life will be better off after having done so, though. It may well just make your problems worse. What is search or seizure? The Fourth Amendment to the federal Constitution gives people a right to be secure in their homes from unreasonable government searches. The question of what is unreasonable is the subject of many books and ongoing argument. However, it is clear that the police cannot search a person’s home without a warrant. A warrant is a piece of paper signed by a judge that describes the place to be searched and the people or things that can be seized. A judge makes a decision to sign a warrant after hearing from someone, usually a police officer, sufficient reasons why the warrant should be issued. The judge must be convinced that there is probable cause to believe that the warrant should be issued. There are many exceptions to this general rule. The rules surrounding searches and seizure may also apply to cars, offices, and individuals walking down a street. However, once a person is not in their home, the expectation of privacy is diminished and police are permitted to do more things; that is, the rules protecting the individual are relaxed. There are numerous exceptions to the general rule protecting people from unreasonable searches when a person is not in their home. What rights do I have when a law enforcement officer asks me questions? Law enforcement officers routinely ask questions of victims, witnesses and suspects. If you feel that you are a suspect or could later be considered a suspect, you should speak with an attorney before speaking with law enforcement officers. What you say to your attorney is protected from disclosure to others by the attorney-client privilege. What you say to law enforcement can be used against you, regardless of whether there is a physical record (either written or recorded) of the conversation. You can always inform the law enforcement officer that you wish to speak with an attorney before answering any questions. At that point (if you are in custody), the questioning must stop and you will be provided with the opportunity to speak with an attorney. After a reasonable amount of time, law enforcement officers may return and begin to ask you questions again. If you have not spoken with an attorney, you may continue to refuse to answer questions until such time as you have obtained legal assistance. Victims and witnesses are encouraged to report crimes and cooperate in the prosecution of crimes. The reporting of crimes includes answering questions presented by law enforcement officers and officers of the court (including personnel at city, district, state and federal attorneys offices as well as authorized agents of other government agencies). If the police don’t read my rights, can my case be dismissed? No, not necessarily. We have all heard the “rights” being read to many suspects on television and in the movies, and this has caused some confusion. The police officer does not have to read anybody their “rights” unless that officer wants to get a statement or confession from a suspect. If the officer does not want to record what you have to say and use it against you, he does not have to read you your rights. However, if the officer wants to ask you some questions other than your name and address, he must advise you that you don’t have to answer his questions, that if you do, anything you say can be used against you and that you have a right to a lawyer before you answer any questions. It is amazing how many people will answer the officer’s questions in some vain attempt to cooperate which gives their defense attorney headaches trying to defend the case later on. If I have been stopped or detained by the police, do I have to talk to them? Other than supplying your lawful name, address and date of birth, you don’t have to say anything further to the police. There is a dilemma though. You may be required to state your name and address, but if you are being stopped away from home on a domestic violence charge, the very fact of living with the complaining person may destroy a strong defense to the charge. Weigh the risks before answering. You could state your name and say “I won’t say where I live until I talk to an attorney,” and then say nothing further. Of course, if that address is on your license, this may be a moot point. Is a minor entitled to have his or her Miranda Rights read before being questioned? A minor is entitled to have his/her Miranda rights read to them as would an adult. If you are being detained (meaning you reasonably don’t feel you are free to leave) by the police and are suspected of committing a criminal offense, the police should inform you of your Miranda rights before questioning you Can I refuse to talk to the police unless I have an attorney present? Yes. You can invoke your Miranda rights and not make any statement unless you have an attorney present. If the police question me and do not advise me of my Miranda rights, can they use my statements against me? If your statement was obtained in violation of your Miranda rights, the higher courts have ruled that in most circumstances your statements could be used to impeach you if you should take the stand in your own defense. The higher courts have ruled the police can try and elicit statements from you even after you have told them you want an attorney present. You have to be diligent and repeatedly assert your right to silence. Do the police have to inform me that I have the right to have my parents present before I am questioned? No. The higher courts have ruled that even though you have the right to have your parents present before questioning, the police do not have to inform you of that right. If I am stopped and the officer asks me if I’ve been drinking, what should I say? You are not required to answer potentially incriminating questions. There are basically three acceptable alternatives, each with its own potential consequences. One approach would be simply to ask, “Why are you stopping me, Officer?”, even if it is at a sobriety checkpoint. When the officer asks, “Have you had anything to drink this evening?”, simply say, “Officer, I do not wish to be delayed. Please do not delay me. I want to drive home”. If the officer has no other basis to ask you out of the car, you will be on your way. A polite, “I would like to speak with an attorney before I answer any questions”, is also an appropriate reply. If you start with that answer, we suggest that you keep on giving that answer until you have consulted with an attorney. A third reply – where appropriate (that means “true”) — might be saying that you had one or two beers. That would not be incriminating as they are not usually sufficient to cause intoxication — and it may explain the odor of alcohol on the breath. However, it would be sufficient cause for the officer to have you take a field sobriety test. Can I refuse to take field sobriety tests? Unlike the chemical test, where refusal to submit may have serious consequences, in most states you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; and the tests simply provide additional evidence. The suspect inevitably “fails” the FST. However, officers are likely to testify that the FSTs were administered to help determine whether you were under the influence. This is because they don’t want to have to testify that during questioning, you were not free to leave (ie, “under arrest”). If you were under arrest, they would have been required to advise you of your Miranda rights even to ask you if you were drinking, and they don’t want to do that and remind people to shut up. So if the officer testifies that he asked you to do the FSTs because he was not sure you were under the influence, and you refuse the FSTs, that can build “reasonable doubt” into your case. The blood-alcohol test is another issue, of course. Obviously if you appear drunk in a videotaped FST it will not impress the judge or jury. Thus, in most cases a polite refusal “until I speak with an attorney” may be the most appropriate choice. Since the “pass” or “fail” on the FSTs is purely subjective, with no published standards for “passing”, you have little chance of helping your situation by taking the FSTs. What evidence is needed to arrest someone suspected of “drunk driving?” Despite all the TV shows in which the police always say “you are under arrest”, for purposes of a defendant’s rights under the laws of the United States, an arrest may occur long before those words are uttered. The courts have concluded that an arrest occurs when a reasonable person would conclude that his or her freedom has been significantly limited and that the suspect reasonably believes he is not free to leave. Generally speaking, there are four kinds of evidence that a police officer will consider and gather in the investigation: (1) gross observations of behavior in general; (2) specific observations of balance tests and the like (usually called “field sobriety tests,” or FSTs); (3) Information obtained from questioning the suspect himself; and (4) chemical test results of the motorist’s blood, breath or urine. A police officer may arrest a motorist if the cumulative effect of the evidence convinces the officer that he has “probable cause” or “reasonable cause” to make an arrest. This is a far lower standard than the one the state must prove at trial. There the case must be proven “beyond a reasonable doubt.” Although this is a high standard, it is met every day in courts all over the country. What is the punishment for drunk driving? Though this varies according to the laws of the state and the customs of the local jurisdiction, penalties have become very tough in the past few years. Generally speaking, a conviction for a first offense may involve a fine, a license suspension or restriction, attendance at a DUI education course for a period of time, and probation for perhaps three years. A short jail sentence of only 2-4 days may or may not be required; for a second offense, it almost certainly will. Additional punishment may involve community service, ignition interlock devices and/or impounding of the vehicle. What is the criminal statute of limitations on a DUI/DWI? Statutes of limitations in criminal matters are designed to prevent “stale” prosecutions. Each state sets its own limits, and they vary by type of offense. Statutes of limitation on DWI / DUI prosecutions vary from state to state. They usually permit prosecutions for at least one year after the date of the offense, and sometimes longer. If a death was involved, the DUI / DWI may also involve homicide charges, and those offenses may have very long statutes of limitations. Also, in some circumstances statutes of limitations may be “tolled” or extended. What is “drunk driving?” Drunk driving, sometimes called driving while intoxicated (DWI) or driving under the influence (DUI), has two meanings: Driving with a blood alcohol level over the state’s maximum permissible blood alcohol limit. The limit for adults is 0.08% in all 50 states as of May, 2007. This is due to the fact that in October, 2000, Congress passed a law requiring all states to adopt a limits of 0.08% by 2004 or lose some of their Federal highway funds. Apart from the 0.08% limit, some states have “zero tolerance” limits for young drivers. Most European countries have limits that are far below 0.08%. You may be considered “legally drunk” even though you do not “feel” or look as though you are “under the influence” from the alcohol . You may also be guilty of DUI / DWI for driving when your physical abilities are impaired by drugs or a combination of drugs and alcohol. In the eyes of the law, it makes no difference whether the drug is legal or illegal, prescription or over-the-counter. If taking that drug impacts your senses of seeing, hearing, talking, walking, judging distances, or any other physical or mental ability used in driving, you may be found guilty of a drunk driving offense. What do police officers look for when searching for drunk drivers? The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration: (1) Turning with a wide radius; (2) Straddling center of lane marker; (3) “Appearing to be drunk”; (4) Almost striking object or vehicle; (5) Weaving; (6) Driving on other than designated highway; (7) Swerving; (8) Speed more than 10 mph below limit; (9) Stopping without cause in traffic lane; (10) Following too closely; (11) Drifting; (12) Tires on center or lane marker; (13) Braking erratically; (14) Driving into opposing or crossing traffic; (15) Signaling inconsistent with driving actions; (16) Slow response to traffic signals; (17) Stopping inappropriately (other than in lane); (18) Turning abruptly or illegally; (19) Accelerating or decelerating rapidly; (20) Headlights off. Speeding, incidentally, is not a symptom of DUI; in some circumstances it may suggest quicker reflexes and sobriety. I recently was nailed by the EPA for violation of the clean air law. What action will the EPA most likely take? It is impossible to predict how the EPA will deal with any particular violation of the environment laws. In general, however, what type of response is most appropriate will depend on the circumstances of your case, your willingness to cooperate, the severity of the situation, and any unusual or mitigating factors. What options are available to the EPA also varies under the laws EPA administers. The options available include: Civil actions: most environmental laws authorize the EPA through the Department of Justice to file a lawsuit in federal court to obtain civil penalties and/or appropriate injunctive relief against violators. Your permit can be suspended or revoked, you will be required to take steps to correct the violation, and you will be subject to hefty penalties. The penalties are not a modest “slap-in-the hand”: they are at least equal to the costs a company saved by not complying with applicable requirements or imposed as a per-day charge (up to a hefty $50,000 under some acts) or per violation. Criminal action: criminal prosecution is usually reserved for the more flagrant violations and disregard of environment laws (such as “midnight dumping” of hazardous wastes) and deliberate falsification of documents or records. Criminal violations may be either misdemeanors or felonies, punishable by substantial fines (i.e. up to a maximum of $250,000 for an individual or $500,000 for a corporation) on a per-day or per-violation basis, or both) and, in addition, jail terms for corporate executives. Administrative enforcement action: this involves only the administrative agency, not the courts, and can range from informal advisory notices or warning letter, advising the manager of a facility what violation was found, what should be done to correct it, and by what date to a more formal legal order compelling the recipient to take some corrective action within a certain time. For example, in cases of minor violations, a state inspector might issue a simple warning notice or on-site complaint. If a person does not correct the violation, EPA may go to court. Optimally, the goal is to work together to remedy any problems identified. While the above is, certainly, in the repertoire of the EPA and state officials, alternatively there are other enforcement tools, ranging from a show-cause meeting to a settlement conference with the enforcement personnel to negotiate an resolution. In addition to EPA fines and penalties, state and local environmental statutes, regulations, and ordinances, whether enforced by public agencies or through private citizens’ suits, can also give rise to the assessment of civil penalties. States and local agencies can file separate actions in courts to force state compliance. I was arrested for passing a phony $100 bill at my bank. I did not know the bill was counterfeit. What will happen? It depends. If the forgery was so sloppy and obvious that an average person would likely detect it, you may be facing some legal trouble, putting a chill on your day. On the other hand, if the bogus bill looked genuine, was virtually undetectable, you probably will not be charged with the crime. (You can also expect not to receive any money in return.) Practically speaking, unless the police can show that you obtained the counterfeit bill in some way other than in common circulation, you are unlikely to be in any danger of being convicted of anything, or unless you admit you knew it was forged, but didn’t want to be the one who got “stuck” with it. What is forgery? Forgery is defined as the “making or altering of a false writing with intent to defraud.” This is related to the crime of uttering a forged instrument, defined to be “offering as genuine an instrument that may be the subject of forgery and is false with intent to defraud.” Forgery can be committed simply by changing the amount of a check. Must a document have legal signficance in order to be forged? Yes. In order to be deemed a forgery, the writing must have some legal significance, and it must pretend to be something it is not. For example, it is considered forgery to write yourself a letter of reference for a job and purport it to be from a former employer. The legal liability the former employer could be held to for recommending someone makes it legally significant. It is not considered forgery to write yourself a letter of introduction to a country club and purport it to be from a former member, because a letter of introduction has no legal, only social, significance. Painting a picture yourself and signing Picasso’s name is legally not forgery, as the painting has no legal significance, unless and until it is offered for sale or security as a genuine Picasso. What is considered a ‘crime against nature’? A “crime against nature” is an archaic term used to describe certain sexual activities, including those listed below. These activities are still illegal under some state laws, but they are rarely prosecuted. A US Supreme Court ruling in the case of Lawrence v. Texas raised questions about whether a state can regulate the consensual activity of adults. Bestiality – the act of sexual intercourse between a human being and an animal. Sodomy – anal intercourse between a man and either a man or a woman or oral intercourse between 2 members of either sex. Anal intercourse is sometimes called buggery. Pederasty – anal intercourse between a man and a young boy. Fellatio – the oral stimulation of the male sex organ. Cunnilingus – the oral stimulation of the female sex organ. Is domestic violence a crime punishable under criminal law? Whether domestic violence is a crime depends upon the particular circumstances, as well as the laws of the state in which the act or acts occur. Often domestic violence is both a crime subject to criminal punishment and a civil wrong subject to restraint upon personal conduct and an award of a money damages. It is a frequent pattern in domestic violence cases for the victim to be abused, call the police, press charges, then reconcile with her abuser, and seek to have the charges dropped, only to have the entire pattern repeated. Because of this, in some local communities and states, domestic violence is now prosecuted as a crime by city and district attorneys, even without charges being brought by the abused person, and even without his or her assistance. In these localities, a criminal case may be brought against the person causing the harm without a complaint being made by the victim. Domestic violence is considered a crime against the community and the “state” should prosecute all harms against the community. Such localities try to “get the word out” that local authorities will not tolerate domestic violence; offenses will be prosecuted with or without the assistance of the victim. What is rape? Rape is non-consensual, forcible sexual relations or other sexual activity. It can include vaginal or anal intercourse, oral sex, or penetration with an object. Any degree of penetration is sufficient to constitute rape; ejaculation is not required. Though most prosecutions are against men for rapes of women, technically the crime can now be committed by either gender against either gender in most states. It can also be committed by one spouse against another. Moreover, in many jurisdictions, each penetration is a new rape, and could result in consecutive sentences, such as where a finger is used repeatedly to penetrate an orifice. Having sexual relations with someone who is unconscious or asleep is also rape. Similarly, it is rape when it is against a minor, who is legally incapable of consenting, or against a mentally handicapped person, who is likewise incapable of consenting. What is kidnapping? Kidnapping is an aggravated form of false imprisonment. It usually involves the transportation or concealment of the person. The line between false imprisonment and kidnapping is not always clear. OJ Simpson was recently convicted for kidnapping in Las Vegas for holding 2 men at gunpoint for 6 minutes in a hotel room. Aggravated kidnapping varies by state, but can include the kidnapping of a child, kidnapping for ransom, kidnapping for the purpose of committing another crime (such as forcing the kidnapped person to commit robbery), kidnapping for the purpose of committing a sexual crime, or kidnapping with the intent of harming the person. What is false imprisonment? In most states, false imprisonment is defined as the confinement of a person without legal authority or the person’s consent.  Generally, false imprisonment is accomplished by force or threat of force, and any consent obtained by coercion or threat is not considered valid. False imprisonment is often a misdemeanor and may also be the basis for a civil suit for damages. If someone wrongfully prevents someone else from leaving a room, a vehicle, or a building when that person wants to leave, this is false imprisonment. This can apply to family members if the person desiring to leave is an adult. Years ago when “deprogramming” was in style, several parents and family members were prosecuted for false imprisonment for confining adult children. Spouses have no legal right to confine each other either. Juveniles Law: What Happens When a Minor Violates the Law? A “juvenile” is a minor, which in most states is a person under the age of 18. When a juvenile violates a criminal statute, the consequences are usually very different from those if an adult broke the same law. Sometimes the Juvenile Court process is more lenient than the adult court, but sometimes it can be more onerous. A juvenile offender can find himself in Juvenile Court if he violates a criminal statute; that is, a state or federal law that allows for violators to be punished by a sentence to jail or prison. Generally, there are three varieties of offenses: felonies, misdemeanors and infractions, though the terms for these three categories may differ from state to state. A felony is a crime that could result in an adult being sentenced to state prison, usually a sentence of over a year. Felonies include burglary, robbery, weapons assaults, violent sex crimes, murder, grand theft, and sale of any illegal drugs, to name a few. Misdemeanors are less serious crimes, but can still result in a sentence of up to a year in the County Jail, if committed by an adult. Petty theft, possession of small amounts of marijuana, disorderly conduct, indecent exposure, less serious assaults, and drunk driving are generally misdemeanor offenses. The jail and prison sentences for these crimes do not usually apply to a minor, because he or she cannot be found guilty of a “crime.” However, a juvenile appearing in the Juvenile Justice system will be presented with “charges” of violating those criminal statutes, as grounds for invoking the Juvenile Court’s authority over the minor. Once invoked, the Court has broad control over the juvenile’s life. Infractions are even less serious offenses than misdemeanors, and include any offense that cannot result in any jail time, but only a fine or administrative consequence. Examples are speeding, parking violations, or failing to comply with administrative regulations pertaining to your home, car or business. When a juvenile commits a crime, he is charged by a probation officer or a prosecutor in a “civil” (ie, not criminal) petition, alleging that he is subject to the Court’s Jurisdiction for having violated the statute. If the charges are proved in Juvenile Court, a judicial finding is made that the minor is subject to the Court’s broad control and jurisdiction. The Court’s powers include returning the minor home, imposing formal or informal probation; placement with foster care; enrollment in a special school for juvenile offenders, or even commitment to the State’s Juvenile detention center, sometimes called “Juvenile Hall” or the “Juvenile Jail.” This can continue until the minor comes of age, or even until the age of 21 or 25, depending on each state’s laws. Some states have laws allowing that minors 14 or older committing very serious offenses may even be transferred to adult court and prosecuted and punished like an adult. It is therefore a mistake to take the Juvenile Court process lightly. Juvenile Arrest and Detention A police officer may arrest/detain a juvenile for either a felony or misdemeanor offense. Unlike the case with adults, the police do not have to personally witness a misdemeanor to take the juvenile into custody. He needs only probable cause to believe it was committed. He can even arrest upon reasonable cause to believe the minor a truant. The officer then has several options. He can release him with a mere warning or release him and refer him to appear before a community agency for counseling. He can release him and issue a citation to appear before a Probation Officer for further action, or he can directly have him kept in custody by Juvenile Detention Authorities. The minor cannot be put in with adult offenders. The Officer is required to immediately notify the minor’s parent or guardian of the arrest. The minor is allowed two completed phone calls, to a parent and also to an attorney. If the officer decides on detention, he must take the minor before a Probation Officer within 24 hours of his arrest. The Probation Officer has the power to release the minor, order informal counseling, informal probation, or order a petition filed against him, upon release or while kept in custody. The Probation Officer must also advise the juvenile of his rights against self incrimination, as any statements the minor makes may be used at trial to help the prosecutor’s case. The Prosecutor has a limited time to file the petition or the minor must be discharged and released (21 days in California), but any minor taken into custody and held, must be granted a Detention Hearing before a judge within two court days of his arrest. The Judge will then decide whether to release him pending disposition of the case in court. Thus, the minor passes through three points where he can be released: the police officer, the Probation Officer, and the Judge. If the minor or the parents demand a lawyer, one will be appointed if they cannot afford their own juvenile law attorney, and the attorney’s first job will be to try and put together a convincing presentation to the Court as to why the juvenile should be released while the case is sorted out. At all stages in Juvenile Court, the minor has the right to have both his attorney and his parents present. Unlike adult court, no other defendants and no other attorneys may be present in court when the minor’s case is called and discussed. However, in many respects, the juvenile has fewer rights than an adult offender. It is a very controversial system. Many decry the ultra leniency of the juvenile system, while others protest the lack of procedural protections given the minor. From the minor’s standpoint, it may be cold comfort that the Court has “his best interests” at heart when he is ordered held in custody (juvenile jail), without bail, without a preliminary hearing, without an officer even having seen the alleged misdemeanor committed, and without the promise of a jury trial. Juvenile Probation A juvenile Probation Officer has many more roles and powers than an adult probation officer. He may become involved before charges are brought, to counsel the youth, or take other actions. However, once a criminal violation petition is brought and sustained by the Juvenile Court, then the Probation Officer plays a more traditional role. Probation is widely used in Juvenile Court, as you might expect in a court where the primary reason for its existence is the rehabilitation of the youthful offender. The point usually is not just to dump the offender into juvenile detention, but work with him or her and the parents to resolve the issues that got him in trouble. When a juvenile is found by the court (no right to jury trial here) to be “guilty” of the charged criminal offense, the Judge sustains the petition and gains jurisdiction over the juvenile’s life, in very extensive ways. Juvenile Probation will have many terms and conditions in common with adult probation, such as requirements that the offender obey all laws, work to pay restitution to the victim, report to the officer, get the Officer’s permission for any change of address or job, and attend counseling or remedial classes for anger management, alcohol abuse, or drug abuse. However, the Juvenile Probation Officer’s repertoire of tools is much broader than that. He can require the juvenile to attend a special school for problem youths so he or she gets specialized attention. He may be released to his parents with strict controls set not by the parents, but by the Probation Officer. These may include a curfew, strict bans against any association with specified individuals (and certainly with gangs), maintaining a job, reaching certain academic goals, and almost any other rules and limits that good parenting might impose in the first place. It is in a real sense that a juvenile becomes a “ward of the court,” as he virtually gets a new parent. Suppose a juvenile gets into trouble, but his involvement was not overly serious, his parents seem capable and level headed, and the police do not feel that a full petition for wardship is necessary. In that case, they can bring the juvenile before a Juvenile Probation Officer for initial intake and counseling. The Officer may just talk to him or her with the parents present, or assist them in maintaining better control over their child. This is not actually being “on probation,” but it is useful and sufficient in many cases and avoids bringing the juvenile into the legal process. Juvenile Records: How Confidential Are They? The whole point of Juvenile Courts is the assumption that young people are “salvageable” and should not be given criminal records, so they can be rehabilitated and not bear the weight of a “criminal” reputation throughout life. Consequently, a juvenile’s “criminal” offenses are considered civil matters, but unlike most civil cases, the court files are not open to public inspection. The “confidentiality” of those records is situational, not blanket. “Confidentiality” does not mean that the police officer, who pulls a 17-year old driver over, will not have immediate computer access to his criminal history as a juvenile. It would be unreasonable to expect police to stay ignorant of a juvenile’s history of carrying a concealed pistol, for example. Court personnel, probation officers, and other government employees have access to them, but how long do they continue to exist? The answer to that question will depend on each state’s laws, because juvenile court procedures and statutes are state controlled. It can be generally stated though, that the police records and court records will remain in existence for some period after the juvenile becomes an adult. Why? The same concern with officer safety is one reason. Differing punishments and processes on a new adult case will depend on the prior juvenile record as well. “Three Strikes” type laws are a good example. Three Strikes laws, which have been enacted in many states, increase sentencing penalties if the accused has prior violent convictions. Obviously, this requires maintaining records of those offenses. In some jurisdictions, a juvenile conviction for robbery will count the same as an adult prior conviction. The fact that the police and courts have this information does not make it “public”. There is no public index, as in adult criminal courts, but that doesn’t mean that the juvenile’s identity is never revealed. There are exceptions. If a 17-year old drives while under the influence and causes an accident, the victim’s attorney will get the information from the court for civil liability purposes, but he or she will have to petition the Juvenile Court to get it. Another exception is made for an adult criminal defendant. His right to a fair trial may require revealing a juvenile witness’s (or accused’s) identity. Some states however, have statutes allowing the juvenile to petition the court upon his reaching the age of majority, to seal his records for a period of years. If the petitioner continues to live a law abiding life, the records may be destroyed, but only upon court order, and only for certain offenses, generally not the most serious ones. How long those records have to exist before being destroyed, if ever, will vary from state to state. Hiring a Juvenile Law Attorney It may be tempting for parents already stressed by the child’s arrest, to try to avoid the expense of hiring an attorney. They might conclude that the offense is not very serious, and so they can “handle it themselves.” This would be a mistake. Here is why. A relatively minor offense that would result in no jail time in adult court can result in the Juvenile Judge’s ruling that the minor comes under the jurisdiction of the Court. What might only be a fine for an adult can result in a 15-year-old’s removal from his home or commitment to the custody of the Juvenile Jail Authorities until his 21st birthday. That would be six years! The Court’s power over the juvenile is quite broad and comprehensive. It is not considered harsh “punishment” because theoretically, everything that is done is for the welfare of the minor, not for punishment. If the judge sees the home environment as damaging, he can remove the minor. If he considers the minor very dangerous, he can have him locked up for years. It is wise not to underestimate the far-reaching effects and consequences of the Juvenile Court’s power. It is particularly unwise to use one’s experience with adult court as a basis for deciding how seriously to take the Juvenile Petition. Similarly, the juvenile’s parents should find a lawyer who specializes in Juvenile Law, though many criminal defense attorneys also do a great deal of juvenile defense work. Attorneys’ fees can vary widely. Juvenile law attorneys with the most experience or greatest reputation command the largest fees. These may range from $1,500 to $10,000, or more if the matter must actually be tried before the Judge. There are no jury trials in Juvenile Court. Obviously, all things being equal, hire as experienced an Juvenile Law attorney as you can afford, and one you feel comfortable with. The juvenile law lawyer’s should be found and hired as soon as the parents learn of the arrest or charges. There is no right to bail in Juvenile Court, so the attorney’s early assistance can be crucial in convincing the judge to let the minor go home while the case is pending. The family of the accused juvenile should gather up the following things to take to the juvenile law attorney on the first meeting to avoid delays: The minor’s birth certificate, documentation of school work (grade reports, special projects or awards), documentation of employment (wage stubs) or of church or temple activities, copies of prior Juvenile Court records or police reports, and the checkbook. The juvenile law lawyer will have to deal with any prior “criminal” history, so it is best for him or her to know of it at the earliest time. If the child has a health condition that might make it hazardous to be kept in custody, take along proof: a letter from the doctor, prescriptions or even prescription bottles. If you know of witnesses who can help your child’s case, bring along the names, addresses and phone numbers. Can a school official search a student’s locker? While the U.S. Constitution upholds the right to be safe from unreasonable searches and seizures, the standard for school searches is less rigid. The search is lawful if the school has a “reasonable suspicion” that a school rule has been violated. This means the search must be justified when made and reasonably related to the circumstances being investigated. For example, a student is believed to have been smoking on campus, but denies it. A reasonable search can be made of the purse or backpack he or she was carrying at the time of the incident. His or her locker and pockets can also be legally searched. Courts will weigh a student’s right to privacy against a school’s need to obtain evidence of school rule violations and violations of the law. This “reasonable suspicion” standard has been upheld in challenges to locker, desk, and car searches. Can school officials, teachers, or counselors search my belongings or me? Search and seizure laws applicable to the police are generally not applicable to school officials, teachers, and counselors. Lockers, personal items, pockets, cars, and so forth could be subject to search. Just as with the police, do not consent to the search. You cannot physically resist but you can say, “I do not consent.”

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