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Home > Articles & FAQs > Landlord Liability for Criminal Acts and Activities FAQ
Landlord Liability for Criminal Acts and Activities FAQ
Landlords in most states now have at least some degree of legal responsibility to protect their tenants from would-be assailants and thieves, and from the criminal acts of fellow tenants.
What's Below:
Can a law-abiding citizen end up financially responsible for the criminal acts of a total stranger?
What are the landlord's responsibilities for tenant safety and security?
How can a landlord limit responsibility for crime committed by strangers on the rental property?
What kind of legal trouble do landlords face from tenants who deal drugs on the property?
How can a property owner avoid legal problems from tenants who deal drugs or otherwise break the law?
Can a law-abiding citizen end up financially responsible for the criminal acts of a total stranger?
Yes -- especially if it's a landlord who owns rental property where an assault or other crime occurred in the past. Rental property owners are being sued with increasing frequency by tenants injured by criminals, with settlements and jury awards typically ranging from $100,000 to $1 million.
What are the landlord's responsibilities for tenant safety and security?
Landlords in most states now have at least some degree of legal responsibility to protect their tenants from would-be assailants and thieves and from the criminal acts of fellow tenants. Landlords must also protect the neighborhood from their tenants' illegal activities, such as drug dealing. These legal duties stem from building codes, ordinances, statutes and, most frequently, court decisions.
How can a landlord limit responsibility for crime committed by strangers on the rental property?
Effective preventive measures are the best response to possible liabilities from criminal acts and activities. The following steps will not only limit the likelihood of crime, but also reduce the risk that the property owner will be found responsible if a criminal assault or robbery does occur. A landlord should:
* Meet or exceed all state and local security laws that apply to the rental property, such as requirements for deadbolt locks on doors, good lighting and window locks.
* Realistically assess the crime situation in and around the rental property and neighborhood and design a security system that provides reasonable protection for the tenants -- both in individual rental units and common areas such as parking garages and elevators. Local police departments, the landlord's insurance company and private security professionals can all provide useful advice on security measures. If additional security requires a rent hike, the landlord should discuss the situation with his or her tenants. Many tenants will pay more for a safer place to live.
* Educate tenants about crime problems in the neighborhood, and describe the security measures provided and their limitations.
* Maintain the rental property and conduct regular inspections to spot and fix any security problems, such as broken locks or burned out exterior flood lights. Asking tenants for their suggestions as part of an ongoing repair and maintenance system is also a good idea.
* Handle tenant complaints about dangerous situations, suspicious activities or broken security items immediately. Failing to do this may saddle a landlord with a higher level of legal liability should a tenant be injured by a criminal act after a relevant complaint is made.
The Costs of Crime
The money a landlord spends today on effective crime-prevention measures will pale in comparison to the costs that may result from crime on the premises. The average settlement paid by landlords' insurance companies for horrific crimes such as rape and assault is $600,000, and the average jury award (when cases go to trial) is $1.2 million.
What kind of legal trouble do landlords face from tenants who deal drugs on the property?
Drug-dealing tenants can cause landlords all kinds of practical and legal problems:
* It will be difficult to find and keep good tenants and the value of the rental property will plummet.
* Anyone who is injured or annoyed by drug dealers -- be it other tenants or people in the neighborhood -- may sue the landlord on the grounds that the property is a public nuisance that seriously threatens public safety or morals.
* Local, state or federal authorities may levy stiff fines against the landlord for allowing the illegal activity to continue.
* Law enforcement authorities may seek criminal penalties against the landlord for knowingly allowing drug dealing on the rental property.
* In extreme cases, the presence of drug dealers may result in the government confiscating the rental property.
How can a property owner avoid legal problems from tenants who deal drugs or otherwise break the law?
There are several practical steps landlords can take to avoid trouble from tenants and limit their exposure to any lawsuits that are filed:
* Screen tenants carefully and choose tenants who are likely to be law-abiding and peaceful citizens. Weed out violent or dangerous individuals to the extent allowable under privacy and anti-discrimination laws that may limit questions about a tenant's past criminal activity, drug use or mental illness.
* Don't accept cash rental payments.
* Do not tolerate tenants' disruptive behavior. Include an explicit provision in the lease or rental agreement prohibiting drug dealing and other illegal activity and promptly evict tenants who violate the clause.
* Be aware of suspicious activity, such as heavy traffic in and out of the rental premises.
* Respond to tenant and neighbor complaints about drug dealing on the rental property. Get advice from police immediately upon learning of a problem.
* Consult with security experts to do everything reasonable to discover and prevent illegal activity on the rental property.
Protecting Tenants from the Manager
Rental property owners should be particularly careful hiring a property manager -- the person who interacts with all tenants and has access to master keys. Landlords should scrupulously check a manager's background to the fullest extent allowed by law, and closely supervise his or her job performance. A tenant who gets hurt or has property stolen or damaged by a manager could sue the property owner for failing to screen the manager properly. If tenants complain about illegal acts by a manager, landlords should pay attention. Finally, property owners should make sure their insurance covers illegal acts of their employees.
Copyright 2004 Nolo
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Friday, May 18, 2007
Knowing When An Arrest Is Legal
Learn when the police are permitted to make an arrest -- and how to tell if an arrest has actually taken place.
An arrest occurs when police officers take a suspect into custody. An arrest is complete the moment the suspect is no longer free to walk away from the arresting police officer. The U.S. Constitution's Fourth Amendment authorizes arrests only if the police have "probable cause" to believe that a crime was committed and that the suspect did it.
The probable cause requirement restrains the power of the police to deprive people of liberty. It prevents the random roundup of "undesirables" that sometimes occurs in other countries. Some principles of probable cause are well settled:
* To establish probable cause, police officers must be able to point to objective factual circumstances that lead them to believe that a suspect committed a crime. A police officer can't establish probable cause by saying something like, "I just had a hunch that the defendant was a burglar."
* Judges, not police officers, have the last word on whether probable cause exists. A police officer may be sincere in believing that enough factual information to constitute probable cause exists. But if a judge examines that same information and disagrees, then probable cause does not exist -- or did not exist, if the question is being decided after the arrest occurred.
* Probable cause to arrest may have existed at the time of the arrest, even if the police later turn out to be wrong. Put differently, an arrest is valid if it is based on probable cause, even if the arrested person is innocent. In this situation, probable cause protects the police against a civil suit for false arrest if the charges are later dismissed or the defendant is acquitted at trial.
These principles leave open the most important issue concerning probable cause: How much information do police officers need to convince a judge to issue an arrest warrant or to justify a warrantless arrest? In general, probable cause requires more than a "mere suspicion" that a suspect committed a crime, but not so much information that it proves a suspect guilty beyond a reasonable doubt. In the abstract, a firm definition of probable cause is impossible. The Fourth Amendment doesn't provide a definition, so it's up to judges to interpret the meaning of probable cause on a case-by-case basis, taking into account:
* what the judge thinks the Fourth Amendment's drafters meant by the term probable cause
* previous judges' interpretations in similar fact situations, and
* the judge's views about police rights v. defendants' rights.
Judges help to define the meaning of probable cause each time they issue a warrant or decide a case in which the issue arises.
http://www.ralphbehr.net/lawyer-attorney-1A7E96DF-FDC7-4958-A68FCC7D15266F45.html
An arrest occurs when police officers take a suspect into custody. An arrest is complete the moment the suspect is no longer free to walk away from the arresting police officer. The U.S. Constitution's Fourth Amendment authorizes arrests only if the police have "probable cause" to believe that a crime was committed and that the suspect did it.
The probable cause requirement restrains the power of the police to deprive people of liberty. It prevents the random roundup of "undesirables" that sometimes occurs in other countries. Some principles of probable cause are well settled:
* To establish probable cause, police officers must be able to point to objective factual circumstances that lead them to believe that a suspect committed a crime. A police officer can't establish probable cause by saying something like, "I just had a hunch that the defendant was a burglar."
* Judges, not police officers, have the last word on whether probable cause exists. A police officer may be sincere in believing that enough factual information to constitute probable cause exists. But if a judge examines that same information and disagrees, then probable cause does not exist -- or did not exist, if the question is being decided after the arrest occurred.
* Probable cause to arrest may have existed at the time of the arrest, even if the police later turn out to be wrong. Put differently, an arrest is valid if it is based on probable cause, even if the arrested person is innocent. In this situation, probable cause protects the police against a civil suit for false arrest if the charges are later dismissed or the defendant is acquitted at trial.
These principles leave open the most important issue concerning probable cause: How much information do police officers need to convince a judge to issue an arrest warrant or to justify a warrantless arrest? In general, probable cause requires more than a "mere suspicion" that a suspect committed a crime, but not so much information that it proves a suspect guilty beyond a reasonable doubt. In the abstract, a firm definition of probable cause is impossible. The Fourth Amendment doesn't provide a definition, so it's up to judges to interpret the meaning of probable cause on a case-by-case basis, taking into account:
* what the judge thinks the Fourth Amendment's drafters meant by the term probable cause
* previous judges' interpretations in similar fact situations, and
* the judge's views about police rights v. defendants' rights.
Judges help to define the meaning of probable cause each time they issue a warrant or decide a case in which the issue arises.
http://www.ralphbehr.net/lawyer-attorney-1A7E96DF-FDC7-4958-A68FCC7D15266F45.html
Key Aspects of Modern Criminal Procedure: Defendant's Rights
A quick tour of the ways in which the U.S. Constitution attempts to ensure fair treatment for criminal defendants.
There are two fundamental aspects of the U.S. criminal justice system -- the presumption that the defendant is innocent and the burden on the prosecution to prove guilt beyond a reasonable doubt.But criminal defendants have other rights too. Here we explore some of the other hallmarks of basic criminal procedure.
The Defendant's Right to Remain Silent
The Fifth Amendment to the U.S. Constitution provides that a defendant cannot "be compelled in any criminal case to be a witness against himself." In short, the defendant has the right to "sit mute." The prosecutor cannot call the defendant as a witness, nor can a judge or defense attorney force the defendant to testify if the defendant chooses to remain silent. By contrast, a defendant may be called as a witness in a civil case.
The Defendant's Right to Confront Witnesses
The "confrontation clause" of the Sixth Amendment gives defendants the right to "be confronted by the witnesses against" them. Implicit in this right is the right to cross-examine witnesses -- that is, the right to require the witnesses to come to court, "look the defendant in the eye," and subject themselves to questioning by the defense. The Sixth Amendment prevents secret trials, and except for limited exceptions, forbids prosecutors from proving a defendant's guilt with written statements from absent witnesses.
Special Confrontation Rules for Child Sexual Assault Cases
In recent years, legislators have been concerned about defendants who escape punishment for sexually molesting young children because the children are afraid to testify in the defendant's presence. To address this problem, many states have enacted special rules that authorize judges -- in certain situations -- to allow children to testify via closed circuit television. The defendant can see the child on a television monitor, but the child cannot see the defendant. The defense attorney can be personally present where the child is testifying and can cross-examine the child.
The Defendant's Right to a Public Trial
The Sixth Amendment guarantees public trials in criminal cases. This is an important right, because the presence in courtrooms of a defendant's family and friends, ordinary citizens and the press can help ensure that the government observes other important rights associated with trials.
In a few situations, normally involving children, the court will close the court to the public. For example, judges can bar the public from attending cases when defendants are charged with sexual assaults against children. Also, the judge may exclude witnesses from the courtroom when it appears that they will coach each other.
The Defendant's Right to a Jury Trial
The Sixth Amendment to the U.S. Constitution gives a person accused of a crime the right to be tried by a jury. This right has long been interpreted to mean a 12-person jury that must arrive at a unanimous decision to convict or acquit. (In most states, a lack of unanimity is called a "hung jury," and the defendant will go free unless the prosecutor decides to retry the case. In Oregon and Louisiana, however, juries may convict or acquit on a vote of ten to two.) The potential jurors must be selected randomly from the community, and the actual jury must be selected by a process that allows the judge and lawyers to screen out biased jurors. In addition, a lawyer may eliminate several potential jurors simply because he feels that these people would not be sympathetic to his side -- but these decisions (called peremptory challenges) may not be based on the juror's personal characteristics such as race, sex, religion or national origin.
The Defendant's Right to be Represented by an Attorney
The Sixth Amendment to the U.S. Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right...to have the assistance of counsel for his defense." A judge must appoint an attorney for indigent defendants (defendants who cannot afford to hire attorneys) at government expense only if the defendants might be actually imprisoned for a period of more than six months for the crime. As a practical matter, judges routinely appoint attorneys for indigents in nearly all cases in which a jail sentence is a possibility. Otherwise, the judge would be locked into giving an unrepresented defendant a nonjail sentence or a shorter sentence than he or she might think appropriate after hearing the evidence.
A judge normally appoints the attorney for an indigent defendant at the defendant's first court appearance. For most defendants, the first court appearance is either an arraignment or a bail hearing.
Defendant's Right to a Speedy Trial
The Sixth Amendment gives defendants a right to a "speedy trial." However, it does not specify exact time limits. Thus, judges often have to decide on a case-by-case basis whether a defendant's trial has been so delayed that the case should be thrown out. In making this decision, judges look at the length of the delay, the reason for the delay and whether the delay has prejudiced (harmed) the defendant's position.
Every jurisdiction has enacted statutes that set time limits for moving cases from the filing of the initial charge to trial. While these statutes are very strict in their wording, most defendants cannot get their convictions reversed on the ground that these statutes were violated.
The Defendant's Right Not to Be Placed in Double Jeopardy
Among the several clauses of the Fifth Amendment to the U.S. Constitution is this well-known provision: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." This provision, known as the double jeopardy clause, protects defendants from harassment by preventing them from being put on trial more than once for the same offense. Double jeopardy problems are unusual, because prosecutors usually want to wrap up all their charges at one time in the same case.
One important exception to the rule against double jeopardy is that defendants can properly be charged for the same conduct by different jurisdictions. For example, a defendant may face charges in both federal and state court for the same conduct if some aspects of that conduct violated federal laws while other elements ran afoul of the laws of the state.
Furthermore, the double jeopardy clause forbids only more than one criminal prosecution growing out of the same conduct. A defendant can be brought once to criminal court (by the government) and once to civil court (by members of the public) for the same crime. For instance, after O.J. Simpson was acquitted of murdering his ex-wife and her friend, their relatives filed a civil suit against him for actual and punitive damages caused by the killings. The civil suits raised no double jeopardy issues, even though punitive damages are a type of punishment, and Simpson was held civilly liable for the deaths.
http://www.ralphbehr.net/lawyer-attorney-6410CC94-3E8F-4A37-A5F85E3348E6431F.html
There are two fundamental aspects of the U.S. criminal justice system -- the presumption that the defendant is innocent and the burden on the prosecution to prove guilt beyond a reasonable doubt.But criminal defendants have other rights too. Here we explore some of the other hallmarks of basic criminal procedure.
The Defendant's Right to Remain Silent
The Fifth Amendment to the U.S. Constitution provides that a defendant cannot "be compelled in any criminal case to be a witness against himself." In short, the defendant has the right to "sit mute." The prosecutor cannot call the defendant as a witness, nor can a judge or defense attorney force the defendant to testify if the defendant chooses to remain silent. By contrast, a defendant may be called as a witness in a civil case.
The Defendant's Right to Confront Witnesses
The "confrontation clause" of the Sixth Amendment gives defendants the right to "be confronted by the witnesses against" them. Implicit in this right is the right to cross-examine witnesses -- that is, the right to require the witnesses to come to court, "look the defendant in the eye," and subject themselves to questioning by the defense. The Sixth Amendment prevents secret trials, and except for limited exceptions, forbids prosecutors from proving a defendant's guilt with written statements from absent witnesses.
Special Confrontation Rules for Child Sexual Assault Cases
In recent years, legislators have been concerned about defendants who escape punishment for sexually molesting young children because the children are afraid to testify in the defendant's presence. To address this problem, many states have enacted special rules that authorize judges -- in certain situations -- to allow children to testify via closed circuit television. The defendant can see the child on a television monitor, but the child cannot see the defendant. The defense attorney can be personally present where the child is testifying and can cross-examine the child.
The Defendant's Right to a Public Trial
The Sixth Amendment guarantees public trials in criminal cases. This is an important right, because the presence in courtrooms of a defendant's family and friends, ordinary citizens and the press can help ensure that the government observes other important rights associated with trials.
In a few situations, normally involving children, the court will close the court to the public. For example, judges can bar the public from attending cases when defendants are charged with sexual assaults against children. Also, the judge may exclude witnesses from the courtroom when it appears that they will coach each other.
The Defendant's Right to a Jury Trial
The Sixth Amendment to the U.S. Constitution gives a person accused of a crime the right to be tried by a jury. This right has long been interpreted to mean a 12-person jury that must arrive at a unanimous decision to convict or acquit. (In most states, a lack of unanimity is called a "hung jury," and the defendant will go free unless the prosecutor decides to retry the case. In Oregon and Louisiana, however, juries may convict or acquit on a vote of ten to two.) The potential jurors must be selected randomly from the community, and the actual jury must be selected by a process that allows the judge and lawyers to screen out biased jurors. In addition, a lawyer may eliminate several potential jurors simply because he feels that these people would not be sympathetic to his side -- but these decisions (called peremptory challenges) may not be based on the juror's personal characteristics such as race, sex, religion or national origin.
The Defendant's Right to be Represented by an Attorney
The Sixth Amendment to the U.S. Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right...to have the assistance of counsel for his defense." A judge must appoint an attorney for indigent defendants (defendants who cannot afford to hire attorneys) at government expense only if the defendants might be actually imprisoned for a period of more than six months for the crime. As a practical matter, judges routinely appoint attorneys for indigents in nearly all cases in which a jail sentence is a possibility. Otherwise, the judge would be locked into giving an unrepresented defendant a nonjail sentence or a shorter sentence than he or she might think appropriate after hearing the evidence.
A judge normally appoints the attorney for an indigent defendant at the defendant's first court appearance. For most defendants, the first court appearance is either an arraignment or a bail hearing.
Defendant's Right to a Speedy Trial
The Sixth Amendment gives defendants a right to a "speedy trial." However, it does not specify exact time limits. Thus, judges often have to decide on a case-by-case basis whether a defendant's trial has been so delayed that the case should be thrown out. In making this decision, judges look at the length of the delay, the reason for the delay and whether the delay has prejudiced (harmed) the defendant's position.
Every jurisdiction has enacted statutes that set time limits for moving cases from the filing of the initial charge to trial. While these statutes are very strict in their wording, most defendants cannot get their convictions reversed on the ground that these statutes were violated.
The Defendant's Right Not to Be Placed in Double Jeopardy
Among the several clauses of the Fifth Amendment to the U.S. Constitution is this well-known provision: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." This provision, known as the double jeopardy clause, protects defendants from harassment by preventing them from being put on trial more than once for the same offense. Double jeopardy problems are unusual, because prosecutors usually want to wrap up all their charges at one time in the same case.
One important exception to the rule against double jeopardy is that defendants can properly be charged for the same conduct by different jurisdictions. For example, a defendant may face charges in both federal and state court for the same conduct if some aspects of that conduct violated federal laws while other elements ran afoul of the laws of the state.
Furthermore, the double jeopardy clause forbids only more than one criminal prosecution growing out of the same conduct. A defendant can be brought once to criminal court (by the government) and once to civil court (by members of the public) for the same crime. For instance, after O.J. Simpson was acquitted of murdering his ex-wife and her friend, their relatives filed a civil suit against him for actual and punitive damages caused by the killings. The civil suits raised no double jeopardy issues, even though punitive damages are a type of punishment, and Simpson was held civilly liable for the deaths.
http://www.ralphbehr.net/lawyer-attorney-6410CC94-3E8F-4A37-A5F85E3348E6431F.html
Criminal Law and Procedure: FAQ
The basics of a criminal prosecution, including presumption of innocence, trial by jury, felonies, misdemeanors, conviction and innocence.
What's Below:
Who decides how the criminal justice system works?
What's the difference between a felony and a misdemeanor?
How can I tell from reading a criminal statute whether I'm guilty of the crime it defines?
What is the "presumption of innocence?"
What does it mean to prove guilt "beyond a reasonable doubt?"
If I'm accused of a crime, am I guaranteed a trial by a jury?
Can a jury acquit me even if I broke the law?
I am confused about why a defendant would choose to not testify. If I were innocent, why wouldn't I want to take the stand and tell my story?
What is self-defense?
What happens if a defendant is judged "incompetent to stand trial?"
Can a defendant go free because he was drunk or high on drugs when he committed a crime?
Who decides how the criminal justice system works?
Though legislators have relatively unfettered power to decide whether a certain behavior should be a crime, many rules limit the ways in which the state or federal government can prosecute someone for a crime. These restrictions start with the U.S. Constitution's Bill of Rights, which provides basic protections-such as the right to refuse to testify against oneself, the right to confront one's accusers and the right to a trial by jury-for people charged with crimes. State constitutions may increase (but not take away from) the federal protections. Federal and state legislatures can pass laws governing how criminal procedures work in their jurisdictions, but these laws cannot reduce the protections offered by the federal and state constitutions.
The interplay between constitutional provisions and legislative enactments is regulated by our courts. Courts decide whether or not a particular legislative rule, court practice or police action is permissible under federal and state constitutional law. What may seem like a slight variation from one case to another can be, in the eyes of a court, the determining factor that leads to a vastly different result. For example, a police officer is frisking a suspect on the street and feels a hard object in the suspect's pocket. Suspecting that the object is a possible weapon, the officer reaches into the pocket and finds both a cardboard cigarette box and a packet of heroin. This action by the police officer -- reaching into the pocket -- would be deemed a permissible search under the rulings of most courts (to protect the officer's safety), and the heroin could be admitted into court as evidence. However, if the object felt by the officer was soft and obviously not a weapon, then reaching into the suspect's pocket might be deemed an illegal search, in which case the heroin couldn't be used as evidence.
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What's the difference between a felony and a misdemeanor?
Most states break their crimes into two major groups-felonies and misdemeanors. Whether a crime falls into one category or the other depends on the potential punishment. If a law provides for imprisonment for longer than a year, it is usually considered a felony. If the potential punishment is for a year or less, then the crime is considered a misdemeanor. In some states, certain crimes, called "wobblers," may be considered either a misdemeanor or a felony, because under some conditions the punishment may be imprisonment for less than a year, and in other situations, the criminal may go to prison for a year or more.
Behaviors punishable only by fine are usually not considered crimes at all, but infractions-for example, traffic tickets. But a legislature may on occasion punish behavior only by fine and still provide that it is a misdemeanor -- such as possession of less than an ounce of marijuana for personal use in California.
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How can I tell from reading a criminal statute whether I'm guilty of the crime it defines?
All criminal statutes define crimes in terms of required acts and a required state of mind, usually described as the actor's "intent." These requirements are known as the "elements" of the offense. A prosecutor must convince a judge or jury that the person charged with the crime (the defendant) did the acts and had the intent described in the statute. For example, commercial burglary is commonly defined as entering a structure (such as a store) belonging to another person, with the intent to commit petty or grand theft (that is, to steal) or any felony.
To convict a person of this offense, the prosecutor would have to prove three elements:
1. The defendant entered the structure.
2. The structure belonged to another person.
3. At the time the defendant entered the structure, he intended to commit petty or grand theft or any felony.
You will have to do the same when you read the law. Parse the crime into its required elements to see if each applies in your situation.
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What is the "presumption of innocence?"
All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This presumption means not only that the prosecutor must convince the jury of the defendant's guilt, but also that the defendant need not say or do anything in his own defense. If the prosecutor can't convince the jury that the defendant is guilty, the defendant goes free.
The presumption of innocence, coupled with the fact that the prosecutor must prove the defendant's guilt beyond a reasonable doubt (see below), makes it difficult for the government to put people behind bars.
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What does it mean to prove guilt "beyond a reasonable doubt?"
The prosecutor must convince the judge or jury hearing the case that the defendant is guilty "beyond a reasonable doubt." This standard is very hard to meet. (By contrast, in non-criminal cases, such as an accident or breach of contract, a plaintiff has to prove her case only by a preponderance of the evidence -- just over 50%.) As a practical matter, the high burden of proof in criminal cases means that judges and jurors are supposed to resolve all doubts about the meaning of the evidence in favor of the defendant. With such a high standard imposed on the prosecutor, a defendant's most common defense is often to argue that there is reasonable doubt-that is, that the prosecutor hasn't done a sufficient job of proving that the defendant is guilty.
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If I'm accused of a crime, am I guaranteed a trial by a jury?
Yes. The U.S. Constitution gives a person accused of a crime the right to be tried by a jury. This right has long been interpreted to mean a 12-person jury that must arrive at a unanimous decision to convict or acquit. (In most states, a lack of unanimity is called a "hung jury" and the defendant will go free unless the prosecutor decides to retry the case. In Oregon and Louisiana, however, juries may convict or acquit on a vote of ten to two.) The potential jurors must be selected randomly from the community, and the actual jury must be selected by a process which allows the judge and lawyers to screen out biased jurors. In addition, a lawyer may eliminate several potential jurors simply because he feels that these people would not be sympathetic to his side-but these decisions may not be based on the juror's personal characteristics, such as race, sex, religion or national origin.
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Can a jury acquit me even if I broke the law?
The jury has the ultimate power to decide whether a person is guilty of a crime. As the "conscience of the community," jurors can free a defendant even if they think the defendant actually committed the crime charged. The name for this power is "jury nullification." It has always been a part of our judicial system.
When jurors nullify a law by acquitting a defendant who has obviously broken that law, judges and prosecutors can do nothing about it. A jury's not guilty verdict is final. Jury nullification rarely occurs, but when it does, it most often involves cases that have a political component (such as the refusal to convict draft dodgers during the Vietnam War) or that have harsh punishments the jury does not want to impose on that particular defendant.
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What is self-defense?
Self-defense is a common defense asserted by someone charged with a crime of violence, such as battery (striking someone), assault with a deadly weapon or murder. The defendant admits that she did in fact commit the crime, but claims that it was justified by the other person's threatening actions. The core issues in most self-defense cases are:
* Who was the aggressor?
* Was the defendant's belief that self-defense was necessary a reasonable one?
* If so, was the force used by the defendant also reasonable?
Self-defense is rooted in the belief that people should be allowed to protect themselves from physical harm. This means that a person does not have to wait until she is actually struck to act in self-defense. If a reasonable person would think that she is about to be physically attacked, she has the right to strike first and prevent the attack. But she cannot use more force than is reasonable-if she does, she may be guilty of a crime.
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What happens if a defendant is judged "incompetent to stand trial?"
Aside from insanity as a defense to criminal charges, the question may arise as to whether a defendant is mentally capable of facing a trial. Defendants cannot be prosecuted if they suffer from a mental disorder that prevents them from understanding the proceedings and assisting in the preparation of their defense. Based on a defendant's unusual behavior, a judge, prosecutor or defense attorney may ask that trial be delayed until the defendant has been examined and her ability to understand the proceedings has been determined in a court hearing. If a judge finds that a defendant doesn't understand what's going on, the defendant will probably be placed in a mental institution until her competence is re-established. At that time, the trial will be held.
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Can a defendant go free because he was drunk or high on drugs when he committed a crime?
Defendants who commit crimes under the influence of drugs or alcohol sometimes argue that their mental functioning was so impaired that they cannot be held accountable for their actions. Generally, however, voluntary intoxication does not excuse criminal conduct. People know (or should know) that alcohol and drugs affect mental functioning, and thus they should be held legally responsible if they commit crimes as a result of their voluntary use.
Some states allow an exception to this general rule. If the defendant is accused of committing a crime that requires what's known as "specific intent" (intending the precise consequences, as well as intending to do the physical act that leads up to the consequences), the defendant can argue that he was too drunk or high to have formed that intent. This is only a partial defense, however, because it doesn't entirely excuse the defendant's actions. In this situation, the defendant will usually be convicted of another crime that doesn't require proof of a specific intent-for example, assault with a deadly weapon instead of assault with the intent to commit murder.
http://www.ralphbehr.net/lawyer-attorney-F90C5070-580C-4966-8D9185D053BD1F2E.html
What's Below:
Who decides how the criminal justice system works?
What's the difference between a felony and a misdemeanor?
How can I tell from reading a criminal statute whether I'm guilty of the crime it defines?
What is the "presumption of innocence?"
What does it mean to prove guilt "beyond a reasonable doubt?"
If I'm accused of a crime, am I guaranteed a trial by a jury?
Can a jury acquit me even if I broke the law?
I am confused about why a defendant would choose to not testify. If I were innocent, why wouldn't I want to take the stand and tell my story?
What is self-defense?
What happens if a defendant is judged "incompetent to stand trial?"
Can a defendant go free because he was drunk or high on drugs when he committed a crime?
Who decides how the criminal justice system works?
Though legislators have relatively unfettered power to decide whether a certain behavior should be a crime, many rules limit the ways in which the state or federal government can prosecute someone for a crime. These restrictions start with the U.S. Constitution's Bill of Rights, which provides basic protections-such as the right to refuse to testify against oneself, the right to confront one's accusers and the right to a trial by jury-for people charged with crimes. State constitutions may increase (but not take away from) the federal protections. Federal and state legislatures can pass laws governing how criminal procedures work in their jurisdictions, but these laws cannot reduce the protections offered by the federal and state constitutions.
The interplay between constitutional provisions and legislative enactments is regulated by our courts. Courts decide whether or not a particular legislative rule, court practice or police action is permissible under federal and state constitutional law. What may seem like a slight variation from one case to another can be, in the eyes of a court, the determining factor that leads to a vastly different result. For example, a police officer is frisking a suspect on the street and feels a hard object in the suspect's pocket. Suspecting that the object is a possible weapon, the officer reaches into the pocket and finds both a cardboard cigarette box and a packet of heroin. This action by the police officer -- reaching into the pocket -- would be deemed a permissible search under the rulings of most courts (to protect the officer's safety), and the heroin could be admitted into court as evidence. However, if the object felt by the officer was soft and obviously not a weapon, then reaching into the suspect's pocket might be deemed an illegal search, in which case the heroin couldn't be used as evidence.
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What's the difference between a felony and a misdemeanor?
Most states break their crimes into two major groups-felonies and misdemeanors. Whether a crime falls into one category or the other depends on the potential punishment. If a law provides for imprisonment for longer than a year, it is usually considered a felony. If the potential punishment is for a year or less, then the crime is considered a misdemeanor. In some states, certain crimes, called "wobblers," may be considered either a misdemeanor or a felony, because under some conditions the punishment may be imprisonment for less than a year, and in other situations, the criminal may go to prison for a year or more.
Behaviors punishable only by fine are usually not considered crimes at all, but infractions-for example, traffic tickets. But a legislature may on occasion punish behavior only by fine and still provide that it is a misdemeanor -- such as possession of less than an ounce of marijuana for personal use in California.
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How can I tell from reading a criminal statute whether I'm guilty of the crime it defines?
All criminal statutes define crimes in terms of required acts and a required state of mind, usually described as the actor's "intent." These requirements are known as the "elements" of the offense. A prosecutor must convince a judge or jury that the person charged with the crime (the defendant) did the acts and had the intent described in the statute. For example, commercial burglary is commonly defined as entering a structure (such as a store) belonging to another person, with the intent to commit petty or grand theft (that is, to steal) or any felony.
To convict a person of this offense, the prosecutor would have to prove three elements:
1. The defendant entered the structure.
2. The structure belonged to another person.
3. At the time the defendant entered the structure, he intended to commit petty or grand theft or any felony.
You will have to do the same when you read the law. Parse the crime into its required elements to see if each applies in your situation.
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What is the "presumption of innocence?"
All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This presumption means not only that the prosecutor must convince the jury of the defendant's guilt, but also that the defendant need not say or do anything in his own defense. If the prosecutor can't convince the jury that the defendant is guilty, the defendant goes free.
The presumption of innocence, coupled with the fact that the prosecutor must prove the defendant's guilt beyond a reasonable doubt (see below), makes it difficult for the government to put people behind bars.
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What does it mean to prove guilt "beyond a reasonable doubt?"
The prosecutor must convince the judge or jury hearing the case that the defendant is guilty "beyond a reasonable doubt." This standard is very hard to meet. (By contrast, in non-criminal cases, such as an accident or breach of contract, a plaintiff has to prove her case only by a preponderance of the evidence -- just over 50%.) As a practical matter, the high burden of proof in criminal cases means that judges and jurors are supposed to resolve all doubts about the meaning of the evidence in favor of the defendant. With such a high standard imposed on the prosecutor, a defendant's most common defense is often to argue that there is reasonable doubt-that is, that the prosecutor hasn't done a sufficient job of proving that the defendant is guilty.
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If I'm accused of a crime, am I guaranteed a trial by a jury?
Yes. The U.S. Constitution gives a person accused of a crime the right to be tried by a jury. This right has long been interpreted to mean a 12-person jury that must arrive at a unanimous decision to convict or acquit. (In most states, a lack of unanimity is called a "hung jury" and the defendant will go free unless the prosecutor decides to retry the case. In Oregon and Louisiana, however, juries may convict or acquit on a vote of ten to two.) The potential jurors must be selected randomly from the community, and the actual jury must be selected by a process which allows the judge and lawyers to screen out biased jurors. In addition, a lawyer may eliminate several potential jurors simply because he feels that these people would not be sympathetic to his side-but these decisions may not be based on the juror's personal characteristics, such as race, sex, religion or national origin.
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Can a jury acquit me even if I broke the law?
The jury has the ultimate power to decide whether a person is guilty of a crime. As the "conscience of the community," jurors can free a defendant even if they think the defendant actually committed the crime charged. The name for this power is "jury nullification." It has always been a part of our judicial system.
When jurors nullify a law by acquitting a defendant who has obviously broken that law, judges and prosecutors can do nothing about it. A jury's not guilty verdict is final. Jury nullification rarely occurs, but when it does, it most often involves cases that have a political component (such as the refusal to convict draft dodgers during the Vietnam War) or that have harsh punishments the jury does not want to impose on that particular defendant.
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What is self-defense?
Self-defense is a common defense asserted by someone charged with a crime of violence, such as battery (striking someone), assault with a deadly weapon or murder. The defendant admits that she did in fact commit the crime, but claims that it was justified by the other person's threatening actions. The core issues in most self-defense cases are:
* Who was the aggressor?
* Was the defendant's belief that self-defense was necessary a reasonable one?
* If so, was the force used by the defendant also reasonable?
Self-defense is rooted in the belief that people should be allowed to protect themselves from physical harm. This means that a person does not have to wait until she is actually struck to act in self-defense. If a reasonable person would think that she is about to be physically attacked, she has the right to strike first and prevent the attack. But she cannot use more force than is reasonable-if she does, she may be guilty of a crime.
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What happens if a defendant is judged "incompetent to stand trial?"
Aside from insanity as a defense to criminal charges, the question may arise as to whether a defendant is mentally capable of facing a trial. Defendants cannot be prosecuted if they suffer from a mental disorder that prevents them from understanding the proceedings and assisting in the preparation of their defense. Based on a defendant's unusual behavior, a judge, prosecutor or defense attorney may ask that trial be delayed until the defendant has been examined and her ability to understand the proceedings has been determined in a court hearing. If a judge finds that a defendant doesn't understand what's going on, the defendant will probably be placed in a mental institution until her competence is re-established. At that time, the trial will be held.
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Can a defendant go free because he was drunk or high on drugs when he committed a crime?
Defendants who commit crimes under the influence of drugs or alcohol sometimes argue that their mental functioning was so impaired that they cannot be held accountable for their actions. Generally, however, voluntary intoxication does not excuse criminal conduct. People know (or should know) that alcohol and drugs affect mental functioning, and thus they should be held legally responsible if they commit crimes as a result of their voluntary use.
Some states allow an exception to this general rule. If the defendant is accused of committing a crime that requires what's known as "specific intent" (intending the precise consequences, as well as intending to do the physical act that leads up to the consequences), the defendant can argue that he was too drunk or high to have formed that intent. This is only a partial defense, however, because it doesn't entirely excuse the defendant's actions. In this situation, the defendant will usually be convicted of another crime that doesn't require proof of a specific intent-for example, assault with a deadly weapon instead of assault with the intent to commit murder.
http://www.ralphbehr.net/lawyer-attorney-F90C5070-580C-4966-8D9185D053BD1F2E.html
Common Defenses to Criminal Charges
Here are a handful of ways in which a defendant might get off the hook.
To convict a criminal defendant, the prosecutor must prove the defendant guilty beyond a reasonable doubt. As part of this process, the defendant is given an opportunity to present a defense. A defendant may mount a defense by remaining silent, not presenting any witnesses and arguing that the prosecutor failed to prove his or her case. Frequently, this is the best and strongest way to proceed. But there are many other types of defenses, from "I didn't do it" to "I did it, but I was too drunk to know what I was doing."
The Presumption of Innocence
All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This presumption means not only that the prosecutor must convince the jury of the defendant's guilt, but also that the defendant need not say or do anything in his own defense. If the prosecutor can't convince the jury that the defendant is guilty, the defendant goes free.
The presumption of innocence, coupled with the fact that the prosecutor must prove the defendant's guilt beyond a reasonable doubt, makes it difficult for the government to put people behind bars.
Proving Guilt "Beyond a Reasonable Doubt"
The prosecutor must convince the judge or jury hearing the case that the defendant is guilty "beyond a reasonable doubt." This standard is very hard to meet. (By contrast, in non-criminal cases, such as an accident or breach of contract, a plaintiff has to prove her case only by a preponderance of the evidence -- anything over 50%.) As a practical matter, the high burden of proof in criminal cases means that judges and jurors are supposed to resolve all doubts about the meaning of the evidence in favor of the defendant. With such a high standard imposed on the prosecutor, a defendant's most common defense is often to argue that there is reasonable doubt -- that is, that the prosecutor hasn't done a sufficient job of proving that the defendant is guilty.
Sometimes, however, a defendant can avoid punishment even if the prosecutor shows that that the defendant did, without a doubt, commit the act in question.
Self-Defense
Self-defense is a defense commonly asserted by someone charged with a crime of violence, such as battery (striking someone), assault with a deadly weapon or murder. The defendant admits that she did in fact commit the crime, but claims that it was justified by the other person's threatening actions. The core issues in most self-defense cases are:
* Who was the aggressor?
* Was the defendant's belief that self-defense was necessary a reasonable one?
* If so, was the force used by the defendant also reasonable?
Self-defense is rooted in the belief that people should be allowed to protect themselves from physical harm. This means that a person does not have to wait until she is actually struck to act in self-defense. If a reasonable person in the same circumstances would think that she is about to be physically attacked, she has the right to strike first and prevent the attack. But she cannot use more force than is reasonable -- if she does, she may be guilty of a crime.
The Insanity Defense
The insanity defense is based on the principle that punishment is justified only if the defendant is capable of controlling his or her behavior and understanding that what he or she has done is wrong. Because some people suffering from a mental disorder are not capable of knowing or choosing right from wrong, the insanity defense prevents them from being criminally punished.
Despite its ancient origins (England, 1505), the insanity defense remains controversial. Victim-oriented critics point out that a person killed by an insane person is just as dead as a person killed by someone who is sane, and argue that people should be punished for the harm they cause, regardless of their mental state. Critics also question the ability of psychiatrists, judges and jurors to determine whether a person genuinely suffers from a mental disorder, and to link mental disorders to the commission of crimes.
The insanity defense is an extremely complex topic; many scholarly works are devoted entirely to explaining its nuances. Here are some major points of interest:
* Despite popular perceptions to the contrary, defendants rarely enter pleas of "not guilty by reason of insanity." And when they do, judges and jurors rarely uphold it.
* Various definitions of insanity are in use because neither the legal system nor psychiatrists can agree on a single meaning of insanity in the criminal law context. The most popular definition is the "McNaghten rule," which defines insanity as "the inability to distinguish right from wrong." Another common test is known as "irresistible impulse": a person may know that an act is wrong, but because of mental illness he cannot control his actions (he's described as acting out of an "irresistible impulse").
* Defendants found not guilty by reason of insanity are not automatically set free. They are usually confined to a mental institution until their sanity is established. These defendants can spend more time in a mental institution than they would have spent in prison had they been convicted.
* An insanity defense normally rests on the testimony of a psychiatrist, who testifies for the defendant after examining him and his past history, and the facts of the case. Courts appoint psychiatrists at government expense to assist poor defendants who cannot afford to hire their own psychiatrists.
* Once a defendant raises his or her sanity as a defense, he or she must submit to psychological tests conducted at the behest of the prosecution//. This can be a very painful and humiliating experience, one that many defendants choose to forego rather than rely on the insanity defense.
The Influence of Drugs or Alcohol
Defendants who commit crimes under the influence of drugs or alcohol sometimes argue that their mental functioning was so impaired that they cannot be held accountable for their actions. Generally, however, voluntary intoxication does not excuse criminal conduct. Defendants know (or should know) that alcohol and drugs affect mental functioning, and thus they should be held legally responsible if they commit crimes as a result of their voluntary use.
Some states allow an exception to this general rule. If the defendant is accused of committing a crime that requires "specific intent" (intending the precise consequences, as well as intending to do the physical act that leads up to the consequences), the defendant can argue that he was too drunk or high to have formed that intent. This is only a partial defense, however, because it doesn't entirely excuse the defendant's actions. In this situation, the defendant will usually be convicted of another crime that doesn't require proof of a specific intent. For example, a defendant may be prosecuted for the crime of assault with specific intent to kill but only convicted of assault with a deadly weapon, which doesn't require specific intent.
The Alibi Defense
An alibi defense consists of evidence that a defendant was somewhere other than the scene of the crime at the time it was committed. For example, assume that Freddie is accused of committing a burglary on Elm Street at midnight on Friday, September 13. Freddie's alibi defense might consist of testimony that at the time of the burglary, Freddie was watching Casablanca at the Maple Street Cinema.
Alibi is a perfectly respectable legal defense. Yet to some people the term connotes a phony defense. Defense attorneys usually are careful to remind jurors that alibi is simply a legal term referring to evidence that a defendant was elsewhere at the time a crime was committed, and that it in no way suggests falsity.
Entrapment
Entrapment occurs when the government induces a person to commit a crime and then tries to punish the person for committing it. However, if a judge or jury believes that a suspect was predisposed to commit the crime anyway, the suspect may be found guilty even if a government agent suggested the crime and helped the defendant to commit it. Entrapment defenses are therefore especially difficult for defendants with prior convictions for the same type of crime.
http://www.ralphbehr.net/lawyer-attorney-F7D2015C-DDD4-494B-B7B9D6D6D9FAC218.html
To convict a criminal defendant, the prosecutor must prove the defendant guilty beyond a reasonable doubt. As part of this process, the defendant is given an opportunity to present a defense. A defendant may mount a defense by remaining silent, not presenting any witnesses and arguing that the prosecutor failed to prove his or her case. Frequently, this is the best and strongest way to proceed. But there are many other types of defenses, from "I didn't do it" to "I did it, but I was too drunk to know what I was doing."
The Presumption of Innocence
All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This presumption means not only that the prosecutor must convince the jury of the defendant's guilt, but also that the defendant need not say or do anything in his own defense. If the prosecutor can't convince the jury that the defendant is guilty, the defendant goes free.
The presumption of innocence, coupled with the fact that the prosecutor must prove the defendant's guilt beyond a reasonable doubt, makes it difficult for the government to put people behind bars.
Proving Guilt "Beyond a Reasonable Doubt"
The prosecutor must convince the judge or jury hearing the case that the defendant is guilty "beyond a reasonable doubt." This standard is very hard to meet. (By contrast, in non-criminal cases, such as an accident or breach of contract, a plaintiff has to prove her case only by a preponderance of the evidence -- anything over 50%.) As a practical matter, the high burden of proof in criminal cases means that judges and jurors are supposed to resolve all doubts about the meaning of the evidence in favor of the defendant. With such a high standard imposed on the prosecutor, a defendant's most common defense is often to argue that there is reasonable doubt -- that is, that the prosecutor hasn't done a sufficient job of proving that the defendant is guilty.
Sometimes, however, a defendant can avoid punishment even if the prosecutor shows that that the defendant did, without a doubt, commit the act in question.
Self-Defense
Self-defense is a defense commonly asserted by someone charged with a crime of violence, such as battery (striking someone), assault with a deadly weapon or murder. The defendant admits that she did in fact commit the crime, but claims that it was justified by the other person's threatening actions. The core issues in most self-defense cases are:
* Who was the aggressor?
* Was the defendant's belief that self-defense was necessary a reasonable one?
* If so, was the force used by the defendant also reasonable?
Self-defense is rooted in the belief that people should be allowed to protect themselves from physical harm. This means that a person does not have to wait until she is actually struck to act in self-defense. If a reasonable person in the same circumstances would think that she is about to be physically attacked, she has the right to strike first and prevent the attack. But she cannot use more force than is reasonable -- if she does, she may be guilty of a crime.
The Insanity Defense
The insanity defense is based on the principle that punishment is justified only if the defendant is capable of controlling his or her behavior and understanding that what he or she has done is wrong. Because some people suffering from a mental disorder are not capable of knowing or choosing right from wrong, the insanity defense prevents them from being criminally punished.
Despite its ancient origins (England, 1505), the insanity defense remains controversial. Victim-oriented critics point out that a person killed by an insane person is just as dead as a person killed by someone who is sane, and argue that people should be punished for the harm they cause, regardless of their mental state. Critics also question the ability of psychiatrists, judges and jurors to determine whether a person genuinely suffers from a mental disorder, and to link mental disorders to the commission of crimes.
The insanity defense is an extremely complex topic; many scholarly works are devoted entirely to explaining its nuances. Here are some major points of interest:
* Despite popular perceptions to the contrary, defendants rarely enter pleas of "not guilty by reason of insanity." And when they do, judges and jurors rarely uphold it.
* Various definitions of insanity are in use because neither the legal system nor psychiatrists can agree on a single meaning of insanity in the criminal law context. The most popular definition is the "McNaghten rule," which defines insanity as "the inability to distinguish right from wrong." Another common test is known as "irresistible impulse": a person may know that an act is wrong, but because of mental illness he cannot control his actions (he's described as acting out of an "irresistible impulse").
* Defendants found not guilty by reason of insanity are not automatically set free. They are usually confined to a mental institution until their sanity is established. These defendants can spend more time in a mental institution than they would have spent in prison had they been convicted.
* An insanity defense normally rests on the testimony of a psychiatrist, who testifies for the defendant after examining him and his past history, and the facts of the case. Courts appoint psychiatrists at government expense to assist poor defendants who cannot afford to hire their own psychiatrists.
* Once a defendant raises his or her sanity as a defense, he or she must submit to psychological tests conducted at the behest of the prosecution//. This can be a very painful and humiliating experience, one that many defendants choose to forego rather than rely on the insanity defense.
The Influence of Drugs or Alcohol
Defendants who commit crimes under the influence of drugs or alcohol sometimes argue that their mental functioning was so impaired that they cannot be held accountable for their actions. Generally, however, voluntary intoxication does not excuse criminal conduct. Defendants know (or should know) that alcohol and drugs affect mental functioning, and thus they should be held legally responsible if they commit crimes as a result of their voluntary use.
Some states allow an exception to this general rule. If the defendant is accused of committing a crime that requires "specific intent" (intending the precise consequences, as well as intending to do the physical act that leads up to the consequences), the defendant can argue that he was too drunk or high to have formed that intent. This is only a partial defense, however, because it doesn't entirely excuse the defendant's actions. In this situation, the defendant will usually be convicted of another crime that doesn't require proof of a specific intent. For example, a defendant may be prosecuted for the crime of assault with specific intent to kill but only convicted of assault with a deadly weapon, which doesn't require specific intent.
The Alibi Defense
An alibi defense consists of evidence that a defendant was somewhere other than the scene of the crime at the time it was committed. For example, assume that Freddie is accused of committing a burglary on Elm Street at midnight on Friday, September 13. Freddie's alibi defense might consist of testimony that at the time of the burglary, Freddie was watching Casablanca at the Maple Street Cinema.
Alibi is a perfectly respectable legal defense. Yet to some people the term connotes a phony defense. Defense attorneys usually are careful to remind jurors that alibi is simply a legal term referring to evidence that a defendant was elsewhere at the time a crime was committed, and that it in no way suggests falsity.
Entrapment
Entrapment occurs when the government induces a person to commit a crime and then tries to punish the person for committing it. However, if a judge or jury believes that a suspect was predisposed to commit the crime anyway, the suspect may be found guilty even if a government agent suggested the crime and helped the defendant to commit it. Entrapment defenses are therefore especially difficult for defendants with prior convictions for the same type of crime.
http://www.ralphbehr.net/lawyer-attorney-F7D2015C-DDD4-494B-B7B9D6D6D9FAC218.html
Bail: Getting Out of Jail After an Arrest
What you need to know about bail -- what it is, how it's set and how to pay it.
Many people, especially those arrested for minor misdemeanors, are given citations at the scene of an arrest telling them when to appear in court, and are immediately released. Others, however, are put in jail. Often, a person's first thought upon landing in jail is how to get out -- and fast. The usual way to do this to "post bail." Bail is cash or a cash equivalent that an arrested person gives to a court to ensure that he will appear in court when ordered to do so. If the defendant appears in court at the proper time, the court refunds the bail. But if the defendant doesn't show up, the court keeps the bail and issues a warrant for the defendant's arrest.
Bail can take any of the following forms:
* cash or check for the full amount of the bail
* property worth the full amount of the bail
* a bond (that is, a guaranteed payment of the full bail amount), or
* a waiver of payment on the condition that the defendant appear in court at the required time (commonly called "release on one's own recognizance").
How Bail Is Set
Judges are responsible for setting bail. Because many people want to get out of jail immediately (depending on when you are arrested, it can take up to five days to see a judge) most jails have standard bail schedules which specify bail amounts for common crimes. An arrested person can get out of jail quickly by paying the amount set forth in the bail schedule.
The Eighth Amendment to the U. S. Constitution requires that bail not be excessive. This means that bail should not be used to raise money for the government or to punish a person for being suspected of committing a crime. Remember: The purpose of bail is to give an arrested person her freedom until she is convicted of a crime, and the amount of bail must be no more than is reasonably necessary to keep her from fleeing before a case is over.
Some judges set a high bail in particular types of cases (such as those involving drug sales or rape) to keep a suspect in jail until the trial is over. Although bail set for this purpose -- called preventative detention -- is thought by some to violate the Constitution, this practice has continued in many courts (the issue has never been decided by the U.S. Supreme Court, the ultimate arbiter of what is and is not constitutional).
If a person can't afford the amount of bail on the bail schedule, he or she can ask a judge to lower it. Depending on the state, this request must be made either in a special bail setting hearing or when the person appears in court for the first time (usually called the arraignment).
Paying Bail
There are two ways to pay bail:
* pay the full amount of the bail or
* buy a bail bond.
A bail bond is like a check held in reserve: it represents the person's promise that he or she will appear in court when required to. The bail bond is purchased by payment of a non-refundable premium (usually about 10% of the face amount of the bond).
A bail bond may sound like a good deal, but buying a bond may cost more in the long run. If the full amount of the bail is paid, it will be refunded (less a small administrative fee) when the case is over and all required appearances have been made. On the other hand, the 10% premium is nonrefundable. In addition, the bond seller may require "collateral." This means that the person who pays for the bail bond must also give the bond seller a financial interest in some of the person's valuable property. The bond seller can cash in on this interest if the suspect fails to appear in court.
Getting Out of Jail Free
Sometimes people are released "on their own recognizance," or "O.R." A defendant released O.R. must simply sign a promise to show up in court. He doesn't have to post bail. A defendant commonly requests release on his own recognizance at his first court appearance. If the judge denies the request, he then asks for low bail.
In general, defendants who are released O.R. have strong ties to a community, making them unlikely to flee. Factors that may convince a judge to grant an O.R. release include the following:
* The defendant has other family members (most likely parents, a spouse or children) living in the community.
* The defendant has resided in the community for many years.
* The defendant has a job.
* The defendant has little or no past criminal record, or any previous criminal problems were minor and occurred many years earlier.
* The defendant has been charged with previous crimes and has always appeared as required.
http://www.ralphbehr.net/lawyer-attorney-EA05D2A8-0746-452F-99D3DEE0765E86E6.html
Many people, especially those arrested for minor misdemeanors, are given citations at the scene of an arrest telling them when to appear in court, and are immediately released. Others, however, are put in jail. Often, a person's first thought upon landing in jail is how to get out -- and fast. The usual way to do this to "post bail." Bail is cash or a cash equivalent that an arrested person gives to a court to ensure that he will appear in court when ordered to do so. If the defendant appears in court at the proper time, the court refunds the bail. But if the defendant doesn't show up, the court keeps the bail and issues a warrant for the defendant's arrest.
Bail can take any of the following forms:
* cash or check for the full amount of the bail
* property worth the full amount of the bail
* a bond (that is, a guaranteed payment of the full bail amount), or
* a waiver of payment on the condition that the defendant appear in court at the required time (commonly called "release on one's own recognizance").
How Bail Is Set
Judges are responsible for setting bail. Because many people want to get out of jail immediately (depending on when you are arrested, it can take up to five days to see a judge) most jails have standard bail schedules which specify bail amounts for common crimes. An arrested person can get out of jail quickly by paying the amount set forth in the bail schedule.
The Eighth Amendment to the U. S. Constitution requires that bail not be excessive. This means that bail should not be used to raise money for the government or to punish a person for being suspected of committing a crime. Remember: The purpose of bail is to give an arrested person her freedom until she is convicted of a crime, and the amount of bail must be no more than is reasonably necessary to keep her from fleeing before a case is over.
Some judges set a high bail in particular types of cases (such as those involving drug sales or rape) to keep a suspect in jail until the trial is over. Although bail set for this purpose -- called preventative detention -- is thought by some to violate the Constitution, this practice has continued in many courts (the issue has never been decided by the U.S. Supreme Court, the ultimate arbiter of what is and is not constitutional).
If a person can't afford the amount of bail on the bail schedule, he or she can ask a judge to lower it. Depending on the state, this request must be made either in a special bail setting hearing or when the person appears in court for the first time (usually called the arraignment).
Paying Bail
There are two ways to pay bail:
* pay the full amount of the bail or
* buy a bail bond.
A bail bond is like a check held in reserve: it represents the person's promise that he or she will appear in court when required to. The bail bond is purchased by payment of a non-refundable premium (usually about 10% of the face amount of the bond).
A bail bond may sound like a good deal, but buying a bond may cost more in the long run. If the full amount of the bail is paid, it will be refunded (less a small administrative fee) when the case is over and all required appearances have been made. On the other hand, the 10% premium is nonrefundable. In addition, the bond seller may require "collateral." This means that the person who pays for the bail bond must also give the bond seller a financial interest in some of the person's valuable property. The bond seller can cash in on this interest if the suspect fails to appear in court.
Getting Out of Jail Free
Sometimes people are released "on their own recognizance," or "O.R." A defendant released O.R. must simply sign a promise to show up in court. He doesn't have to post bail. A defendant commonly requests release on his own recognizance at his first court appearance. If the judge denies the request, he then asks for low bail.
In general, defendants who are released O.R. have strong ties to a community, making them unlikely to flee. Factors that may convince a judge to grant an O.R. release include the following:
* The defendant has other family members (most likely parents, a spouse or children) living in the community.
* The defendant has resided in the community for many years.
* The defendant has a job.
* The defendant has little or no past criminal record, or any previous criminal problems were minor and occurred many years earlier.
* The defendant has been charged with previous crimes and has always appeared as required.
http://www.ralphbehr.net/lawyer-attorney-EA05D2A8-0746-452F-99D3DEE0765E86E6.html
Arrests and Interrogations FAQ
An arrest occurs when a police officer armed with an arrest warrant utters the words "you're under arrest," or when a police officer significantly restrains your freedom of motion. The restraint must be more than a mere detention on the street. Although in most situations the police will take you to the police station for booking (photographs and fingerprinting), it is also possible for an officer to arrest and book you at the crime scene, and then release you when you give a written promise to appear in court at a later time. After the police arrest you, they will often question you in order to find out more about the crime, your role in it and whether there may be other suspects. There are several Constitutional protections that you may invoke during police interrogations.
What's Below:
Can a person who is charged with a crime be forced to give bodily samples?
When do the police need a warrant to make an arrest?
How do the police obtain an arrest warrant?
If the police make an illegal arrest, is the arrested person set free?
If I'm arrested, do the police have to "read me my rights?"
Will a judge dismiss my case if I was questioned without a Miranda warning?
What's the best way to assert my right to remain silent if I am being questioned by the police?
How heavy handed can the police get when asking questions?
Can a person who is charged with a crime be forced to give bodily samples?
Yes. You might think that being forced to give bodily samples-such as blood, hair or fingernail clippings-is a violation of the U.S. Constitution's protection against self- incrimination, found in the Fifth Amendment. But the U.S. Supreme Court thinks otherwise. It has ruled that the Fifth Amendment protects communications only, and that bodily samples are physical evidence and therefore not covered by the Constitution.
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When do the police need a warrant to make an arrest?
As long as the police have good reason (called "probable cause") to believe that a crime has been committed and that the person they want to arrest committed the crime, they can, with just one exception, make an arrest without asking a judge for a warrant.
The exception? There are few places where the adage "a man's home is his castle" still applies, and an arrest at home is one of them. The police must have a warrant to arrest a person at home if the arrest is for a nonserious offense-such as a simple assault-and there is no fear that the person they want to arrest will destroy evidence or cause harm to the public.
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How do the police obtain an arrest warrant?
An officer must present sworn evidence to a judge that a crime has occurred and that the police have probable cause to believe that the crime was committed by the person they want to arrest. If the judge agrees, she will issue a warrant. The police are then entitled to seize the person wherever they can find him.
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If the police make an illegal arrest, is the arrested person set free?
No. But if a search of the person or her immediate surroundings is conducted during the arrest and turns up incriminating evidence, the evidence may be kept out of the person's trial on the grounds that it is "fruit of the poisonous tree"-that is, the evidence was found as the result of an improper arrest. Also, if the illegally arrested person makes any statements to the police after being arrested, the statements may not be used as evidence. This is true whether or not the arrested person was "read their rights."
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If I'm arrested, do the police have to "read me my rights?"
No. However, if they don't read you your rights, they can't use anything you say as evidence against you at trial. What are these rights? Popularly known as the Miranda warning (ordered by the U.S. Supreme Court in Miranda v. Arizona), your rights consist of the familiar litany invoked by T.V. police immediately upon arresting a suspect:
* You have the right to remain silent.
* If you do say anything, what you say can be used against you in a court of law.
* You have the right to consult with a lawyer and have that lawyer present during any questioning.
* If you cannot afford a lawyer, one will be appointed for you if you so desire.
* If you choose to talk to the police officer, you have the right to stop the interview at any time. (This part of the warning is usually omitted from the screenplay.)
It doesn't matter whether an interrogation occurs in a jail or at the scene of a crime, on a busy downtown street or in the middle of an open field: If you are in custody (deprived of your freedom of action in any significant way), the police must give a Miranda warning if they want to question you and use your answers as evidence at trial. If you are not in police custody, however, no Miranda warning is required. This exception most often comes up when the police stop someone on the street to question them about a recent crime and the person blurts out a confession before the police have an opportunity to deliver the warning.
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Will a judge dismiss my case if I was questioned without a Miranda warning?
No. Many people mistakenly believe that a case will be thrown out of court if the police fail to give Miranda warnings to the arrested person. What Miranda actually says is that a warning is necessary if the police interrogate a suspect and want to use any of her responses as evidence. If the police fail to give you a Miranda warning, nothing you say in response to the questioning can be used as evidence to convict you. In addition, under the "fruit of the poisonous tree" rule, if the police find evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial. For example, if you tell the police where a weapon is hidden and it turns out that you gave this information in response to improper questioning, the police will not be able to use the weapon as evidence unless the police can prove that they would have found the weapon without your statements.
Back to top
What's the best way to assert my right to remain silent if I am being questioned by the police?
If you're taken into custody by the police, you don't have to use any magic words to let police officers know that you want to remain silent. You can simply say nothing in response to police questions. Or, after an officer gives you a Miranda warning, you can stop the questioning by saying something like:
* I want to talk to an attorney.
* I won't say anything until I talk to an attorney.
* I don't have anything to say.
* I don't want to talk to you anymore.
* I claim my Miranda rights.
If the police continue to question you after you have asserted your right to remain silent, they have violated Miranda. As a result, anything you say after that point -- and any evidence gleaned from that conversation-will not be admissible at your trial.
Back to top
How heavy handed can the police get when asking questions?
Information that you voluntarily disclose to a police officer (after you have been properly warned) is generally admissible at trial. The key word is "voluntary." Police officers are not allowed to use physical force or psychological coercion to get you to talk to them. The days of the rubber hose, protracted grilling under bright lights and severe sleep deprivation are pretty much over. If police officers obtain information through any of these illegal means, the information cannot be used by the prosecutor at trial. In addition, under the rule known as "the fruit of the poisonous tree," any evidence that the police obtain as the result of a coerced statement is equally inadmissible.
http://www.ralphbehr.net/lawyer-attorney-5406C99B-C869-42F9-B58B67416343ED64.html
What's Below:
Can a person who is charged with a crime be forced to give bodily samples?
When do the police need a warrant to make an arrest?
How do the police obtain an arrest warrant?
If the police make an illegal arrest, is the arrested person set free?
If I'm arrested, do the police have to "read me my rights?"
Will a judge dismiss my case if I was questioned without a Miranda warning?
What's the best way to assert my right to remain silent if I am being questioned by the police?
How heavy handed can the police get when asking questions?
Can a person who is charged with a crime be forced to give bodily samples?
Yes. You might think that being forced to give bodily samples-such as blood, hair or fingernail clippings-is a violation of the U.S. Constitution's protection against self- incrimination, found in the Fifth Amendment. But the U.S. Supreme Court thinks otherwise. It has ruled that the Fifth Amendment protects communications only, and that bodily samples are physical evidence and therefore not covered by the Constitution.
Back to top
When do the police need a warrant to make an arrest?
As long as the police have good reason (called "probable cause") to believe that a crime has been committed and that the person they want to arrest committed the crime, they can, with just one exception, make an arrest without asking a judge for a warrant.
The exception? There are few places where the adage "a man's home is his castle" still applies, and an arrest at home is one of them. The police must have a warrant to arrest a person at home if the arrest is for a nonserious offense-such as a simple assault-and there is no fear that the person they want to arrest will destroy evidence or cause harm to the public.
Back to top
How do the police obtain an arrest warrant?
An officer must present sworn evidence to a judge that a crime has occurred and that the police have probable cause to believe that the crime was committed by the person they want to arrest. If the judge agrees, she will issue a warrant. The police are then entitled to seize the person wherever they can find him.
Back to top
If the police make an illegal arrest, is the arrested person set free?
No. But if a search of the person or her immediate surroundings is conducted during the arrest and turns up incriminating evidence, the evidence may be kept out of the person's trial on the grounds that it is "fruit of the poisonous tree"-that is, the evidence was found as the result of an improper arrest. Also, if the illegally arrested person makes any statements to the police after being arrested, the statements may not be used as evidence. This is true whether or not the arrested person was "read their rights."
Back to top
If I'm arrested, do the police have to "read me my rights?"
No. However, if they don't read you your rights, they can't use anything you say as evidence against you at trial. What are these rights? Popularly known as the Miranda warning (ordered by the U.S. Supreme Court in Miranda v. Arizona), your rights consist of the familiar litany invoked by T.V. police immediately upon arresting a suspect:
* You have the right to remain silent.
* If you do say anything, what you say can be used against you in a court of law.
* You have the right to consult with a lawyer and have that lawyer present during any questioning.
* If you cannot afford a lawyer, one will be appointed for you if you so desire.
* If you choose to talk to the police officer, you have the right to stop the interview at any time. (This part of the warning is usually omitted from the screenplay.)
It doesn't matter whether an interrogation occurs in a jail or at the scene of a crime, on a busy downtown street or in the middle of an open field: If you are in custody (deprived of your freedom of action in any significant way), the police must give a Miranda warning if they want to question you and use your answers as evidence at trial. If you are not in police custody, however, no Miranda warning is required. This exception most often comes up when the police stop someone on the street to question them about a recent crime and the person blurts out a confession before the police have an opportunity to deliver the warning.
Back to top
Will a judge dismiss my case if I was questioned without a Miranda warning?
No. Many people mistakenly believe that a case will be thrown out of court if the police fail to give Miranda warnings to the arrested person. What Miranda actually says is that a warning is necessary if the police interrogate a suspect and want to use any of her responses as evidence. If the police fail to give you a Miranda warning, nothing you say in response to the questioning can be used as evidence to convict you. In addition, under the "fruit of the poisonous tree" rule, if the police find evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial. For example, if you tell the police where a weapon is hidden and it turns out that you gave this information in response to improper questioning, the police will not be able to use the weapon as evidence unless the police can prove that they would have found the weapon without your statements.
Back to top
What's the best way to assert my right to remain silent if I am being questioned by the police?
If you're taken into custody by the police, you don't have to use any magic words to let police officers know that you want to remain silent. You can simply say nothing in response to police questions. Or, after an officer gives you a Miranda warning, you can stop the questioning by saying something like:
* I want to talk to an attorney.
* I won't say anything until I talk to an attorney.
* I don't have anything to say.
* I don't want to talk to you anymore.
* I claim my Miranda rights.
If the police continue to question you after you have asserted your right to remain silent, they have violated Miranda. As a result, anything you say after that point -- and any evidence gleaned from that conversation-will not be admissible at your trial.
Back to top
How heavy handed can the police get when asking questions?
Information that you voluntarily disclose to a police officer (after you have been properly warned) is generally admissible at trial. The key word is "voluntary." Police officers are not allowed to use physical force or psychological coercion to get you to talk to them. The days of the rubber hose, protracted grilling under bright lights and severe sleep deprivation are pretty much over. If police officers obtain information through any of these illegal means, the information cannot be used by the prosecutor at trial. In addition, under the rule known as "the fruit of the poisonous tree," any evidence that the police obtain as the result of a coerced statement is equally inadmissible.
http://www.ralphbehr.net/lawyer-attorney-5406C99B-C869-42F9-B58B67416343ED64.html
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