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
Thursday, June 14, 2007
If You Are Questioned by the Police: FAQ
f a police officer wants to stop and question you, whether or not you must comply depends on the circumstances and the reasons the officer has for questioning you. This section explores some of the common questions people have about their rights and responsibilities when approached by a law enforcement officer.
What's Below:
If an officer wants to stop me while I'm walking on the street and I know I've done nothing wrong, should I comply?
If I am legally stopped by a police officer on the street, can he search me?
Can a frisk turn into a full-blown search?
If I am questioned by a police officer after being stopped on the street, do I have to respond to the questions?
If an officer wants to stop me while I'm walking on the street and I know I've done nothing wrong, should I comply?
A police officer may interfere with your freedom of movement only if he has observed unusual activity suggesting that criminal activity is afoot and that you are involved. Even if the officer is mistaken, however, you do not have the right to keep walking. As long as the officer has a good faith belief in your connection to criminal activity, he is allowed to detain you. Stopping you is one thing, however. It doesn't mean that you must answer all of his questions. (See below.)
If You Run Away
It is not unusual for people who are approached by the police to run away. Some courts have recognized that people of color, in particular, have a well-founded fear of unfair treatment at the hands of the police, and that many people will avoid contact with the police not because they are guilty of a crime, but because they reasonably believe that they may be mistreated or unjustly accused. Other courts view evasive behavior as evidence of guilt, however, and allow the police to rely on it as grounds for a detention.
If I am legally stopped by a police officer on the street, can he search me?
Yes and no. A police officer is permitted to briefly frisk your outer clothing for weapons if the officer reasonably fears for his safety. If a frisk is later challenged in court as being unreasonable, a judge will usually uphold it.
A frisk is different than a search in that a search may be conducted for evidence of a crime or contraband (an illegal item), and may be much more intrusive than a frisk. An officer who frisks you may not search you unless he has good cause to believe that you committed a crime or that you're hiding an illegal item.
Can a frisk turn into a full-blown search?
When frisking a person for weapons, the police are attuned not only to the feel of possible weapons under clothing, but also to the feel of packaged drugs. Although a frisk may not turn up a weapon, it may turn up a suspicious package which the officer knows is commonly used to carry illegal drugs or some other illegal substance. This suspicion may turn into sufficient cause for a more intensive search of the person's clothing. The lesson here is that a frisk often leads to a legal search. And if a search produces an illegal substance, it may result in an arrest.
If I am questioned by a police officer after being stopped on the street, do I have to respond to the questions?
The general rule is that you don't have to answer any questions that the police ask you. This rule comes from the Fifth Amendment to the U.S. Constitution, which protects you against self-incrimination. As with all rules, however, there is an exception. Many local and state governments have anti-loitering laws that require people to account for their presence if the police have a reasonable suspicion that they are loitering. Once the police have asked all of their questions about loitering, however, you don't have to answer any others -- such as questions about a crime in the neighborhood.
http://www.ralphbehr.net/lawyer-attorney-45E23DE4-DDB7-41A2-8796DE607867C0D9.html
What's Below:
If an officer wants to stop me while I'm walking on the street and I know I've done nothing wrong, should I comply?
If I am legally stopped by a police officer on the street, can he search me?
Can a frisk turn into a full-blown search?
If I am questioned by a police officer after being stopped on the street, do I have to respond to the questions?
If an officer wants to stop me while I'm walking on the street and I know I've done nothing wrong, should I comply?
A police officer may interfere with your freedom of movement only if he has observed unusual activity suggesting that criminal activity is afoot and that you are involved. Even if the officer is mistaken, however, you do not have the right to keep walking. As long as the officer has a good faith belief in your connection to criminal activity, he is allowed to detain you. Stopping you is one thing, however. It doesn't mean that you must answer all of his questions. (See below.)
If You Run Away
It is not unusual for people who are approached by the police to run away. Some courts have recognized that people of color, in particular, have a well-founded fear of unfair treatment at the hands of the police, and that many people will avoid contact with the police not because they are guilty of a crime, but because they reasonably believe that they may be mistreated or unjustly accused. Other courts view evasive behavior as evidence of guilt, however, and allow the police to rely on it as grounds for a detention.
If I am legally stopped by a police officer on the street, can he search me?
Yes and no. A police officer is permitted to briefly frisk your outer clothing for weapons if the officer reasonably fears for his safety. If a frisk is later challenged in court as being unreasonable, a judge will usually uphold it.
A frisk is different than a search in that a search may be conducted for evidence of a crime or contraband (an illegal item), and may be much more intrusive than a frisk. An officer who frisks you may not search you unless he has good cause to believe that you committed a crime or that you're hiding an illegal item.
Can a frisk turn into a full-blown search?
When frisking a person for weapons, the police are attuned not only to the feel of possible weapons under clothing, but also to the feel of packaged drugs. Although a frisk may not turn up a weapon, it may turn up a suspicious package which the officer knows is commonly used to carry illegal drugs or some other illegal substance. This suspicion may turn into sufficient cause for a more intensive search of the person's clothing. The lesson here is that a frisk often leads to a legal search. And if a search produces an illegal substance, it may result in an arrest.
If I am questioned by a police officer after being stopped on the street, do I have to respond to the questions?
The general rule is that you don't have to answer any questions that the police ask you. This rule comes from the Fifth Amendment to the U.S. Constitution, which protects you against self-incrimination. As with all rules, however, there is an exception. Many local and state governments have anti-loitering laws that require people to account for their presence if the police have a reasonable suspicion that they are loitering. Once the police have asked all of their questions about loitering, however, you don't have to answer any others -- such as questions about a crime in the neighborhood.
http://www.ralphbehr.net/lawyer-attorney-45E23DE4-DDB7-41A2-8796DE607867C0D9.html
A good deadbolt on your front door won't protect you from one of the more modern and sinister crimes out there: identity theft. Here's what you need t
A good deadbolt on your front door won't protect you from one of the more modern and sinister crimes out there: identity theft. Here's what you need to know to protect yourself.
What's Below:
How can my identity be stolen?
If my identity gets stolen, what can the thief do with my personal information?
Will I be held responsible if a thief uses my identity to commit a crime?
What can I do to protect my identity from theft?
What should I do if I discover that my identity has been stolen?
Are there any laws that specifically prohibit identity theft?
Someone could steal your identity very easily by:
- stealing your wallet
- filling out a change of address form for you and collecting your mail
- snatching your unshredded pre-approved credit slips from the trash
- ordering unauthorized credit reports on you by posing as a potential employer, landlord
- looking over your shoulder at phones and ATM's to gather PIN numbers (sometimes with binoculars or listening devices)
- using phony telemarketing schemes to con you into giving your personal data
- illegally tapping a computer at a business to which you have provided information or by which you have been granted credit (this is often done by dishonest or disgruntled employees), or
- gathering sensitive information and using it as a way to extract revenge (this is usually done by a former friend, lover, roommate or co-worker -- and it's more common than most people realize).
Perhaps the most frightening (and most thorough) way for a thief to steal someone's identity is by purchasing it at one of the identity search companies that have sprouted on the Internet. For as little as $49.99, these companies will sell you someone's Social Security number (the heart of identity theft), their mother's maiden name (the second most valuable piece of information), their home and employment address, their previous addresses, their credit history and more.
If my identity gets stolen, what can the thief do with my personal information?A lot. A thief can cash a check, obtain a loan, open credit accounts and charge them to the max, rent an apartment, buy a car, purchase a cell phone and talk to someone long distance all day, and, worse, commit a serious crime -- all in your name.
Will I be held responsible if a thief uses my identity to commit a crime?
Yes and no. From a monetary standpoint, if a thief uses your credit card in a credit scam, you'll likely be responsible for only $50, or possibly nothing. However, you may spend months hassling with credit agencies, financial institutions and police departments trying to clear your name and repair the lingering damage. Almost certainly you will have to take time off from work to write letters, make calls, collect evidence and demand action.
There is also the cost of anxiety and mental suffering to consider. Victims of identity theft report that policy agencies are sometimes dismissive or even abusive, credit reporting agencies unresponsive, credit collection agencies hostile, and credit grantors disbelieving.
When victims are actually accused of committing crimes, they are sometimes repeatedly detained by police and have trouble trying to convince law enforcement officials that the person they're holding is not the person they want.
What can I do to protect my identity from theft?
Minimizing the disaster of identity theft depends primarily on your vigilance in guarding your privacy. You've got to guard your personal information diligently. Here are some tips for keeping your private information secure:
- Never carry your Social Security card in your wallet.
- Don't have your Social Security number or your driver's license number pre-printed on your checks.
- Install a locking mailbox or a mail slot that goes directly into your house. Send your mail, especially payments, directly from the post office (don't put it in the mailbox for the postal carrier to pick up).
- Order your credit report every year. Promptly respond to any inaccurate information.
- Change your passwords and PIN numbers regularly. Don't use obvious codes such as birthdays, or the name of your spouse, child, or pet. Memorize passwords and PIN numbers and shred any piece of paper on which they are written.
- Diligently review credit card statements, phone, and utility bills. Call if you don't recognize a charge or phone call.
- Always take your credit card receipts, and never throw them away in public.
- Tear up any offers of pre-approved credit cards you don't intend to use and beware of offers from companies you don't recognize. It's easy to create an official-looking and completely phony credit application offering you pre-approved credit if you provide your Social Security number, mother's maiden name (for supposed security reasons), and a signature.
- Don't give personal information over the phone unless absolutely necessary, and don't ever give it unless you initiated the phone call. If someone calls who says they are calling from your bank or credit company, ask for a number to call them back -- and then make sure it's really an official number.
- Beware of anyone asking for your Social Security number. If they refuse to complete a transaction without it, consider taking your business elsewhere.
- Pick up your new checks from the bank instead of having them sent to your home.
- Don't put personal information on a computer home page or personal computer profile.
- If you find your personal information posted somewhere on the Internet, demand that it be removed.
What should I do if I discover that my identity has been stolen?
If someone steals your credit cards, driver's license, Social Security number, or any other type of identifying information about you, that person has stolen your identity. As soon as you are aware of the problem, you need to do the following:
Make an identity theft affidavit (and plenty of copies). The Federal Trade Commission has an official identity theft affidavit that you can use to alert different companies, including the major credit bureaus, your credit card companies, your banks, and so on. This helps you avoid having to fill out a different form for each company. You can download the affidavit atwww.consumer.gov/idtheft.
Contact the police. File a police report and keep a copy.
Cancel your credit cards, ATM cards, and phone cards. Notify your bank of the problem and close all existing bank accounts. Banks may require that you sign notarized affidavits stating that you have been a victim of fraud.
Call the credit bureaus. They can issue a fraud alert and attach a statement to your report. The major credit bureaus are:
- Equifax: www.equifax.com; 800-525-6285
- Experian: www.experian.com; 888-397-3742
- Trans Union: www.transunion.com; 800-680-7289
Tell the credit bureaus that you're an identity theft victim and request that they place a "fraud alert" note in your file as well as a victim's statement asking that creditors call you before opening any new accounts or changing your existing accounts.
Report stolen checks. Contact your bank and the following agencies:
- Equifax: 800-437-5120
- Telecheck: 800-710-9898
- International Check Service: 800-631-9656.
Alert the post office if you suspect the thief may have filed a change of address form in your name. That form will be an important piece of evidence for the police to follow.
Alert the utility and phone companies. They can close your existing accounts and be alert to attempted fraudulent uses. If you're having trouble getting fraudulent phone charges removed from your account, contact your state Public Utility Commission for local service providers or the Federal Communications Commission for long-distance service providers and cellular providers atwww.fcc.gov (or 888-CALL-FCC).
Consider having your Social Security number changed. Contact your local Social Security Administration for more information and check the SSA website (www.ssa.gov) to learn about this process.
Changing your Social Security number, however, should be a last resort. The Social Security Administration will change your number only if you fit their fraud victim criteria. In any case, a new number may not solve your problems and may even create new ones. For example, a new number does not ensure that you will get a new credit record because credit bureaus may combine the records from your old number with your new records.
If someone is using your driver's license number fraudulently, obtain a new number. You should be prepared to show proof of theft and damage.
Keep records. Keep short, dated notes of your conversations and interactions with everyone you notify of the theft. Make copies of all correspondence you send and receive relating to the theft.
Take control. Most important, you need to take control of the situation and not waste time waiting for someone else to step up and help you. Vigilance is essential. Do not pay bills that you are not responsible for. Be persistent with police, credit bureaus, credit card companies, and banks. Continue to call and write letters. Keep track of your efforts to stop the theft and reverse the damage.
Are there any laws that specifically prohibit identity theft?
Yes. In 1998, Congress passed the Identity Theft and Assumption Deterrence Act (18 U.S.C. § 1028). The Act makes the use of another person's identification with the intent to commit any unlawful activity a federal felony. Federal agencies -- including the U.S. Secret Service, the FBI, and the U.S. Postal Inspection Service -- investigate suspected violations of the Act. The U.S. Department of Justice handles prosecutions.
Additionally, many states have passed or are considering laws related to identity theft. Even if your state does not have a law specifically called an identity theft law, the issue is likely covered under other state laws. To see a list of state identity theft laws, go towww.consumer.gov/idtheft.
How Sentencing Works FAQ
These frequently asked questions explain how judges decide what a convicted defendant's punishment will be.
What's Below:
Who determines what punishment a convicted defendant receives?
Where can the prescribed punishment for crimes be found?
Do people convicted of the same or similar crimes receive similar sentences?
What factors do judges use in determining sentences?
Who determines what punishment a convicted defendant receives?
Judges, not juries, almost always determine the punishment, even following jury trials. In fact, a common jury instruction warns jurors not to consider the question of punishment when deciding a defendant's guilt or innocence. In a very few situations, juries do take part in sentencing decisions. For example, in capital punishment cases in some states, a judge cannot impose the death penalty in a jury trial unless the jury recommends death rather than life in prison.
Where can the prescribed punishment for crimes be found?
Typically, the law a defendant is charged with violating also identifies the punishment. For example, a statute identifying specific behavior as a misdemeanor might go on to state, "For a first-time offense, an offender may be fined not more than $1,000 or imprisoned for not more than six months, or both." Another statute might describe particular behavior as a misdemeanor without specifying the punishment. In this situation, the punishment can be found in a separate statute that sets forth the punishment either for that particular misdemeanor, or, in some states, for all misdemeanors.
Do people convicted of the same or similar crimes receive similar sentences?
Some state and all federal criminal statutes include "mandatory sentences," which require judges to impose specific and identical sentences on all defendants who violate those laws. Mandatory sentencing laws are a response by state legislatures or Congress to their perception of the public's desire to end judicial leniency and treat alike all people who break the same law.
More commonly, criminal statutes do not carry mandatory sentences. Rather, judges can take a number of factors into account when deciding on an appropriate punishment. For instance, judges may consider the defendant's past criminal record, age, sophistication, the circumstances under which the crime was committed and whether the defendant genuinely feels remorse. In short, mandatory sentence laws "fit the punishment to the crime"; whereas judges prefer to "fit the punishment to the offender.
What factors do judges use in determining sentences?
If the judge has discretion to determine the sentence, the defense may bring to a judge's attention an infinite number of factual circumstances that may move the judge to impose a lighter sentence. The following are examples of such circumstances (called "mitigating" factors):
- the offender has little or no history of criminal conduct
- the offender was an accessory (helped the main offender) to the crime but was not the main actor
- the offender committed the crime when under great personal stress, for example, had lost a job, rent was due and had just been in a car wreck, or
- no one was hurt, and the crime was committed in a manner that was unlikely to have hurt anyone.
Just as mitigating circumstances can sway a judge to lessen a sentence, "aggravating" circumstances can compel a judge to "throw the book at" an offender. A previous record of the same type of offense is the most common aggravating factor. Often, aggravating circumstances grow out of the way a crime was committed, as when an offender is particularly cruel to a victim. Sometimes, laws themselves specify aggravating factors, such as the use of a weapon.
http://www.ralphbehr.net/lawyer-attorney-FE3EE6EE-4A7A-4048-8534E43FC1FC9A60.html
How People Get Charged With Crimes
Learn how police officers and prosecutors initiate criminal cases.
To be "charged" with a crime means to be formally accused of that crime. Police officers usually start the charging process with an arrest or citation. They then send copies of their reports to a prosecutor's office staffed by government lawyers whose job it is to initiate and prosecute criminal cases. The prosecutor is supposed to either:
- make an independent decision as to what charges should be filed, or
- in felony cases, enlist the help of citizens serving as grand jurors in deciding what charges to file.
Prosecutors can look at all the circumstances of a case, including the suspect's past criminal record. They can file charges on all crimes for which the police arrested a suspect, can file charges that are more or less severe than the charges leveled by the police, or can decide to not file any charges at all.
For suspects who are in custody, speedy trial laws typically require prosecutors to file charges, if at all, within 72 hours of arrest. Some jurisdictions require prosecutors to charge a suspect even sooner. For example, California requires that charges be filed within 48 hours. (Cal. Penal Code Sec. 825.) However, prosecutors' initial charging decisions are subject to change. For example, a prosecutor's final decision on charges may not be determined until after a preliminary hearing, which may take place more than a month after arrest.
Typically, prosecutors base their initial charging decisions on the documents sent to them by the arresting police officers (usually called police or arrest reports). Arrest reports summarize the events leading up to arrests and provide numerous other details, such as dates, time, location, weather conditions and witnesses' names and addresses if that information is available.
Occasionally a prosecutor will decide that a basically good person made a stupid mistake that shouldn't result in a consequence as severe as a criminal charge. In such a situation, the prosecutor will refuse to prosecute, either in the interests of justice, or because it would be a waste of resources (time and money) to charge such a person with a crime, even where the initial arrest was valid.
The Role of a Grand Jury
If a felony is involved, prosecutors sometimes leave it to grand juries to make the charging decisions. Grand juries are similar to regular trial juries (technically called "petit juries") in that they are made up of randomly selected individuals who listen to evidence and decide whether charges should be brought against a particular individual. However, unlike petit juries, which only sit on one case, grand juries involve a time commitment typically lasting between 6 and 18 months, and the grand jurors may, in the course of their service, address many cases. In addition, these crucial differences exist:- Petit jurors decide whether defendants are guilty. Grand juries decide whether to "indict" suspects (charge them with crimes.)
- Grand juries meet in secret proceedings. Petit juries serve during public trials.
- Grand juries have 15-23 people, 16-23 in federal courts. (See Federal Rule of Criminal Procedure 6(a).) By contrast, a petit jury usually consists of between 6 and 12 people.
- Petit juries generally have to be unanimous to convict a defendant. Grand juries need not be unanimous to indict. In the federal system, for example, an indictment may be returned if 12 or more jurors agree to indict.
How a Grand Jury Works
When a prosecutor brings a case to the Grand Jury, he presents the jurors with a "bill" (the charges) and introduces evidence -- usually the minimum necessary, in the prosecutor's opinion -- to secure an indictment. The proceedings are secret; it is standard practice to call witnesses to testify against the suspect without the suspect or her witnesses being present. Indicted suspects can sometimes later obtain transcripts of grand jury proceedings, however -- and this is a big reason why prosecutors like to keep the evidence to the minimum.Although the prosecutor can also call the suspect as a witness, this is not typically done. And even if a suspect is called, she will probably invoke her privilege against self-incrimination under the Fifth Amendment to the U.S. Constitution.
If the grand jury decides to indict, it returns what is called a "true bill." If not, the grand jury returns a "no-bill." But even if the grand jury returns a no-bill, the prosecutor may eventually file charges against a suspect. Prosecutors can return to the same grand jury with more evidence, present the same evidence to a second grand jury, or (in jurisdictions that give prosecutors a choice) bypass the grand jury altogether and file a criminal complaint.
If the prosecutor decides to file a complaint rather than present the case to a grand jury, and the case is a felony, the defendant is entitled to a preliminary hearing at which the prosecutor must show that the state has enough evidence of the crime to convict the defendant. However, if the case proceeds by grand jury indictment, no preliminary hearing need be held. This means that most prosecutors choose the grand jury indictment process so that they don't have to produce as much evidence before the trial.
http://www.ralphbehr.net/lawyer-attorney-3ABEFF4F-C9DE-4855-9E3F8149076B2624.html
How a Defendant's Mental State Affects His or Her Responsibility for a Crime
What a defendant intended to do often affects how severely he or she will be punished -- but not always.
What makes a crime a crime? In most cases, an act is a crime because the person committing it intended to do something that most people would consider wrong. This mental state is generally referred to as "Mens rea," Latin for "guilty mind."
The "mens rea" concept expresses a belief that people should be punished (fined or imprisoned) only when they have acted in a way that makes them morally blameworthy. "Mens rea" is never identified as a distinct element of a crime. Instead, moral blame is almost always the underlying justification for the enactment of a criminal law. In the legal system's eyes, people who intentionally engage in the behavior prohibited by a law have "mens rea;" they are morally blameworthy. For example, a murder law may prohibit "the intentional and unlawful killing of one human being by another human being." Under this law, one who intentionally and unlawfully kills another person has "mens rea."
Crimes that Don't Require "Mens Rea"
Laws that don't require "mens rea" -- that is, laws that punish people who may be morally innocent -- are called "strict liability laws." The usual justification for a strict liability law is that the social benefits of stringent enforcement outweigh the harm of punishing a person who may be morally blameless. Examples of strict liability laws include:- "Statutory rape" laws which in some states make it illegal to have sexual intercourse with a minor, even if the defendant honestly and reasonably believed that the sexual partner was old enough to consent legally to sexual intercourse.
- "Sale of alcohol to minors" laws that in many states punish store clerks who sell alcohol to minors even if the clerks reasonably believe that the minors are old enough to buy liquor.
Strict liability laws like these punish defendants who make honest mistakes and therefore may be morally innocent. Because the legal consequences of innocent mistakes can be so great in certain circumstances, people who find themselves in situations governed by strict liability rules need to take special precautions before acting.
When a Mistake Will Get a Defendant Off the Hook
People who unintentionally engage in illegal conduct may be morally innocent; this is known as making a "mistake of fact." Someone who breaks the law because he or she honestly misperceives reality lacks "mens rea" and should not be charged with or convicted of a crime. For example, if Paul Smith hits Jonas Sack because he reasonably but mistakenly thought Sack was about to hit him, Smith would have labored under a mistake of fact -- and would not have mens rea. It is this same principle that underlies the traditional insanity defense -- the defendant so misperceived reality that her actions were caused by a mental disease or defect rather than mens rea.While a "mistake of fact" can negate mens rea, a "mistake of law" usually cannot. People who intentionally commit illegal acts are almost always guilty, even if they honestly don't realize that what they are doing is illegal. For example, if Jo sells cocaine in the honest but mistaken belief that it is sugar, Jo has made a mistake of fact and may lack mens rea. However, if Jo sells cocaine in the honest but mistaken belief that it is legal to do so, Jo is considered morally blameworthy. Perhaps the best explanation for the difference is that if a "mistake of law" allowed people to escape punishment, the legal system would be encouraging people to remain ignorant of legal rules.
When Carelessness Amounts to Criminal Behavior
"Ordinary" carelessness is not a crime. For example, negligent drivers are not usually criminally prosecuted, though they may have to pay civil damages to those harmed by their negligence. However, more-than-ordinary carelessness can demonstrate "mens rea." Common terms for morally blameworthy carelessness are "recklessness" and "criminal negligence." Unfortunately, no clear line separates non-criminal negligence from recklessness and criminal negligence. In general, carelessness can amount to a crime when a person "recklessly disregards a substantial and unjustifiable risk." Indefinite language like that cannot always rationally draw a line between ordinary and criminal carelessness. Police officers and prosecutors have to make the initial decisions about whether to charge a careless person with a crime. At that point, it's up to judges and juries to evaluate a person's conduct according to community standards and decide whether the carelessness is serious enough to demonstrate "mens rea."What "Knowing" or "Knowingly" Means
Many laws punish only violators who "knowingly" engage in illegal conduct. The "knowingly" requirement indicates that a crime involves "mens rea," and prevents people who make innocent mistakes from being convicted of crimes. Since most crimes require mens rea anyway, the word knowingly is often redundant. What a person has to "know" to be guilty of a crime depends on the behavior that a law makes illegal. For example:- A drug law makes it illegal for a person to "knowingly" import an illegal drug (often referred to as a "controlled substance") into the United States. To convict a defendant of this crime, the prosecution would have to prove that a defendant knew that what he brought into the United States was an illegal drug.
- Another drug law makes it illegal to furnish drug paraphernalia with "knowledge" that it will be used to cultivate or ingest an illegal drug. To convict a defendant of this crime, the prosecution would have to prove that a defendant who sold or supplied drug paraphernalia knew about the improper purposes to which the paraphernalia would be put.
- A perjury law makes it illegal for a person to testify to any material matter which she or he "knows" to be false. To prove perjury, the prosecution would have to prove that the defendant knew at the time she testified that her testimony was false.
- A school safety law makes it illegal for a person to "knowingly possess a firearm in a school zone." To prove a violation of this law, the prosecution would have to prove both that the defendant knew that he was carrying a gun and that he was in a school zone.
"Specific Intent" Crimes
"Specific intent" laws require the government to do more than show that a defendant acted "knowingly." Specific intent laws require the government to prove that a defendant had a particular purpose in mind when engaging in illegal conduct. Each specific intent law identifies the particular purpose that the government has to prove. For example, many theft laws require the government to prove that a defendant took property "with the intent to permanently deprive a person of the property." To convict a defendant of theft, the government has to prove that a thief's plan was to forever part a victim from his or her property. For example, a culprit who drives off in another's car without permission and returns it a few hours later might be convicted only of "joyriding." However, the same culprit who drives off in another's car without permission and takes it across the country probably demonstrates a specific intent to permanently deprive the owner of the car and would be guilty of the more serious crime of car theft.Crimes Requiring "Malicious" Behavior
In everyday usage people often use the term "malicious" to mean "spiteful" or "wicked." In most criminal statutes, however, "maliciously" is simply synonymous with "intentionally" and "knowingly." As a result, the term "maliciously" usually adds nothing to the general "mens rea" requirement. As used in murder statutes, however, the term "malice" is often interpreted as meaning the defendant had a "man-endangering" state of mind" when the act was committed, which is enough to justify at least a second degree murder charge.Crimes Requiring "Willful" Behavior
As with "maliciously," the term "willfully" usually adds nothing to the general "mens rea" requirement. In most statutes, to commit an illegal act "willfully" is simply to commit it intentionally. For example, consider these statutes:- "It is unlawful to willfully disturb another person by loud and unreasonable noise."
- "Anyone who willfully encourages another to commit suicide is guilty of a felony."
Each of these statutes merely requires the government to show that a person intentionally committed the act made illegal by the statute.
Less commonly, the term "willfully" in a statute has been interpreted to require the government to prove not only that a person acted intentionally, but also that the person intended to break the law. (This is an unusual instance in which "ignorance of the law" actually is an excuse!) For example, in one case a federal law made it illegal to willfully bring in to the country more than $10,000 in cash without declaring it to customs officials. The U.S. Supreme Court decided that to convict a person of violating this law, the government had to prove that the person knew the law's requirements. (Ratzlaf v. U.S., 510 U.S. 135 (1994).) This more exacting interpretation of "willfully" preserves the "mens rea" foundation of criminal law where, as in the "declaring cash" law, many people might be morally innocent yet break the law.
Crimes Requiring "Felonious" Behavior
The term "felonious" is sometimes included in a law when prohibited conduct can in some circumstances be interpreted as a misdemeanor or as a felony. For example, "felonious assault" in a statute would refer to those types of assault -- such as "assault with a deadly weapon" or "assault with intent to commit great bodily injury" -- that are typically treated as felonies.The Role of "Motive" in Criminal Law
"Motive" generally refers to the reason behind an illegal act. For example, a person's need to raise money quickly to pay off a bookie may be the motive for a robbery; revenge for a personal affront may be the motive for a physical attack. Prosecutors often offer motive evidence as circumstantial evidence that a defendant acted intentionally or knowingly. The reason is that like most people, judges and jurors believe in "cause and effect." They are more likely to believe that a defendant had "mens rea" if they know that the defendant had a motive to commit an illegal act. While prosecutors frequently do offer "motive" evidence, they are not required to do so. By the same token, defendants may offer evidence showing that they had no motive to commit a crime, and then argue that the lack of a motive demonstrates reasonable doubt of guilt.http://www.ralphbehr.net/lawyer-attorney-9371DEAF-4C01-4A10-9546ED9CE0148A16.html
Domestic Violence: Taking Action FAQ
Suggestions to help you stop domestic violence.
What's Below:
If I leave, how can I make sure the abuser won't come near me again?
In my community, judges don't issue TROs after 5 p.m. How can I get protection?
How can I help my domestic violence case?
If I leave, how can I make sure the abuser won't come near me again?
The most powerful legal tool for stopping domestic violence is the temporary restraining order (TRO). A TRO is a decree issued by a court that requires the perpetrator to stop abusing you. The order may require, for example, that the perpetrator stay away from the family home, where you work or go to school, your children's school and other places you frequent (such as a particular church). The order will also prohibit further acts of violence.
Many states make it relatively easy for you to obtain a TRO. In New York, California and some other states, for example, the court clerk will hand you a packet of forms and will even help you fill them out. When you've completed your forms, you'll go before a judge to show evidence of the abuse, such as hospital or police records. Judges are often available to issue TROs after normal business hours because violence certainly occurs outside the hours of 9 a.m. to 5 p.m.
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In my community, judges don't issue TROs after 5 p.m. How can I get protection?
Contact your local police department. In many communities, the police can issue something called an emergency protective order when court is out of session. An emergency protective order usually lasts only for a brief period of time, such as a weekend or a holiday, but otherwise it is the same as a temporary restraining order. On the next business day, you will need to go to court to obtain a TRO.
How can I help my domestic violence case?
Some people go to court the very first time they are abused, while others wait until they can't live with it any longer -- sometimes for many years. What some fail to understand is that, despite the social awareness and sympathy surrounding domestic violence, the decision to grant a restraining order is based on law and legal process. Because of this, there are steps you can take to increase your chances of succeeding in court.
Police Reports. You should call the police if you feel threatened or have been a victim of violence. This is important for your physical safety, but it will also help your case in court. The police must file a report documenting the incident whether you seek a restraining order or not. If you go to court for that particular episode or a future one, you get a copy of the report from the police station and take it to court.
Photographs. Whether or not the police take pictures of any injuries, you should have a friend or family member do the same. (Police photos don't always make their way from the police file to the judge's courtroom in time for a restraining order hearing.) Ask your friend to take approximately ten pictures -- and be sure that she or he photographs your injuries from different angles, using both outdoor and indoor light. It's also important to photograph any property damage. Take pictures, for example, of any broken furniture, unhinged doors or holes in walls that resulted from the violence.
What should I do once I have a TRO?
Register it with the police located in the communities in which the abuser has been ordered to stay away from you -- where you live, work, attend school or church and where you children go to school. Call the appropriate police stations for information about how to register your order.
What if the abuse continues even if I have a TRO?
Obviously, a piece of paper cannot stop an enraged spouse or lover from acting violent, although many times it is all the deterrent the person needs.
If the violence continues, contact the police. They can take immediate action and are far more willing to intervene when you have a TRO than when you don't. Of course, if you don't have a TRO or it has expired, you should also call the police -- in all states, domestic violence is a crime and you don't have to have a TRO for the police to investigate.
The police should respond to your call by sending out officers. In the past, police officers were reluctant to arrest abusers, but this has changed in many communities where victims' support groups have worked with police departments to increase the number of arrests. You can press criminal charges at the police department, and ask for criminal prosecution. Documentation is crucial if you want to go this route. Be sure to insist that the officer responding to your call makes an official report. Also, get the report's prospective number before the officer leaves the premises.
If you do press charges, keep in mind that only the district attorney decides whether or not to prosecute. If you don't press charges, however, the chance is extremely low that the district attorney will pursue the matter.
http://www.ralphbehr.net/lawyer-attorney-7574C275-8115-489A-A93524950D433C9B.html
Domestic Violence: Civil Liability FAQ
Can I sue the abuser for my injuries?
Possibly. When one person injures another in some way, that act is called a "tort." The person injured by the tort may sue the wrongdoer for damages. Legally, torts are known as civil (as opposed to criminal) wrongs. But some acts of domestic violence, such as battery, may be both torts and crimes; the wrongdoer may face both civil and criminal penalties. One now famous example of a civil case is Goldman v. Simpson, in which Ron Goldman's parents sued O.J. Simpson for their son's death. Because Mr. Simpson was acquitted in the criminal trial, the Goldmans sued for money damages in civil court and won.
Under traditional law, family members were prohibited from suing each other for torts. The justification was that allowing family members to sue each other would lead to a breakdown of the family. Today, however, many states recognize that if family members have committed torts against each other, the relationships are already suffering from breakdown. Thus, they no longer bar family members from suing each other. In these states, spouses may sue each other either during the marriage or after they have separated.
A few states still prohibit one family member from suing another. A court may make an exception, however, when the tort is intentional -- that is, a deliberate act which causes harm to another person. The behaviors that constitute domestic violence -- assault, battery, psychological abuse -- are almost always considered intentional torts.
http://www.ralphbehr.net/lawyer-attorney-5B3A70E2-9B86-4CAD-B394369E53920810.html
Derivative Liability: When People Who Help Other People Comhttp://www.blogger.com/post-create.g?blogID=2657336004098161337mit a Crime Can Be Charged
Most of us have heard the terms "accomplice," "accessory," and "aider and abettor" -- if only on TV. This article explains what these terms mean, and how anyone who intentionally participates in a crime may be held responsible for it.
Often people participate in crimes in different ways and to different degrees. For instance, in a bank robbery, one person may enter the bank and conduct the holdup, while another person is waiting in the getaway car and a third person is positioned at a different location as a spotter.
Principals and Accomplices
As a general rule, the law refers to the main actor in a crime as the principal and to assisting persons as accomplices. Technically, an accomplice is one who intentionally helps another to commit a crime.Even if an accomplice does not carry out the crime, in the eyes of the law the accomplice's pre-crime assistance makes him or her just as guilty as the person who does the deed itself. For example, assume that Lars Senny breaks into a warehouse and steals property belonging to the warehouse owner. Hal Perr would be Lars' accomplice and just as guilty as Lars if Hal takes any of the following steps to assist Lars to commit the theft:
- Hal works in the warehouse, and drugs the warehouse nightwatchman before leaving work on the day of the theft.
- Hal cuts the wires to the burglar alarm (or cuts a hole in the fence) so that Lars can enter the warehouse without being detected.
- Hal is a designer of warehouses, and meets with Lars a week before the theft to review warehouse layouts and exit routes.
- Hal rents a U-Haul and parks it outside the warehouse on the night of the robbery.
- Knowing what Lars has in mind, Hal agrees to babysit for Lars' infant child while Lars goes to the warehouse.
To prove that a defendant is an accomplice, the government must prove that the he or she intentionally aided in the commission of a crime. This means that the defendant must realize that the principal is going to commit a crime and that the accomplice intends to help the crime succeed.
Accessory After the Fact
An accessory after the fact is someone who, knowing that a felon has finished committing a crime (usually the crime has to be a felony), helps the felon avoid arrest or trial. In most states, accessories after the fact face far less punishment than accomplices or principals.Conspirators
Conspirators are two or more people who agree to commit a crime. (The distinction between accomplices and conspirators is that the former are "helpers," while each conspirator is a principal.) Conspiracy is a controversial crime, in part because conspirators can be guilty even if the crime that they agree to commit never occurs. As a result, conspirators can be punished for their illegal plans rather than for what they actually do. As some protection against convicting people purely for their private thoughts, in most states conspirators are not guilty of the crime of conspiracy unless at least one of them commits an "overt act." An "overt act" is an activity that in some way moves a conspiracy into motion.http://www.ralphbehr.net/lawyer-attorney-D2737952-D79C-4BD1-8350F869A7CADF21.html
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