The Victim Is Not Pressing Charges. Why Am I Still Being Charged?

I frequently get calls from prospective clients who have been charged with criminal charges who inform me that the complaining witness (also known as the “alleged victim”) is not “pressing charges”, and that the complaining witness has even gone so far as to inform the prosecuting attorney that they want to “drop the charges.” “So…” the client asks me, “Why am I still being charged?” Continue reading

Should I refuse to blow when arrested for DUI?

Armchair lawyers will tell their friends never to blow into the breathalyzer when arrested on suspicion of a DUI. But that’s not always the best advice.

Actual impairment vs. Per Se DUI

Even if you refuse to blow, the State can proceed on an ‘actual impairment’ theory.  This means that they can try to prove the DUI case by presenting other evidence of intoxication, such as a driving pattern, blood shot eyes, smell of alcohol, failed field sobriety tests, impaired memory, slurred speech, etc.  The breath alcohol test allows the State to proceed on a ‘per se DUI’ theory, where they only have to prove that you were in ‘actual physical control’ of the vehicle, and that you were over the legal limit.

365-day License Suspension

One of the major consequences of refusing to provide a valid breath sample is a mandatory 365-day license suspension. The reasoning behind allowing the State to suspend your license when you refuse to provide a breath sample is what is known as “Implied Consent”. Implied consent basically means that when you get your driver’s license, you are consenting to the rules of the road, and one of those rules is that if you are stopped by law enforcement on suspension of driving under the influence, then you must comply with tests that the officer will conduct to make sure you are safe to drive. Bear in mind the 365-day license suspension is a consequence separate from any consequence you might get for being charged with the crime of Driving Under the Influence. It is a separate offense to refuse to cooperate with a breath test. What this mean is, even if you were stone cold sober when you were arrested, you still must comply with a breath test. Being innocent of driving under the influence does not absolve you of the responsibility to comply with the rules of the road. Even if you beat the DUI charge, you will still be stuck with a 365-day license suspension. And that is an absolute suspension, meaning you cannot drive for any reason, even work. Whereas if you were convicted of a DUI charge, your license would be suspended for 180 days, and only the first 30 days would be absolute. You could apply for a work permit after the first 30 days of the suspension.

Forced Blood Draw

Another reason not to refuse the breath alcohol test is because law enforcement is probably going to get your blood anyway. The State does not need your consent to draw your blood, they simply need a warrant from a judge. Most cities have a process in place for waking up a judge at 2:00 a.m. to read probable cause to the judge and get a warrant. If that judge ends up being the judge on your case, you can imagine how upset he (or she) is going to be that you forced him to wake up at 2:00 a.m. The law on whether they can charge you for a refusal after they have drawn your blood is unsettled, but there is a chance that they may get your blood, and charge you with refusal to provide a breath sample. So they will get their cake and eat it too, while you suffer twice.

Proof of Innocense

In Idaho, one reason you may not want to refuse a breathalyzer is because if you feel like you are under the legal limit, blowing under a .08 will normally get you out of a DUI charge. Unless the officer has reason to suspect drug use, he must let you go if you blow under a .08. If you refuse to blow and would have blown under a .08 had you blown, then the State could proceed on an ‘actual impairment’ theory, instead of a ‘per se DUI’ theory. So if you only had one beer, then it may make sense to take the test in hopes that you will not get arrested that night.

Refuse for Felony

There are times where it may make sense to refuse a breathalyzer. If you were in an accident and someone was injured, a DUI charge would be charged as a felony. When you are facing a felony, it makes sense to preserve whatever defense you may have to the DUI, especially since a driver’s license suspension on a felony DUI can be up to 5 years. A 365-day license suspension begins to not look so bad when you are facing a felony. You can also get a felony DUI if you have had two prior DUIs in the last ten years, or one prior excessive DUI within 5 years. If you are facing these sorts of consequences, then it may make sense to exercise right to remain silent, including refusing to consent to a breathalyzer. They may still get your blood, but there is always the small chance that they will not.

Can the police lie to you to get you to confess?

In past blogs, I have made it very clear that you should never speak to the police when you are being accused of a crime, especially if you are innocent.  One of the reasons is, you cannot trust what the police are saying and what evidence you are being presented with during the interrogation.  Sometimes the police will lie to you, and tell you that they have evidence they do not have.  But can the police really lie to you and get away with it?  The short answer is yes they can in most cases.

There are many ways a police officer may use deception to coerce a confession from a suspect.  Sometimes the officer will display false sympathy for the suspect, or lie and say he has incriminating evidence that he does not have, or falsely claim that a co-defendant has already implicated the suspect in the crime.

Once a defendant has been placed in custody, any confession that a defendant makes must be preceded by a voluntary, knowing, intelligent waiver of the defendant’s privilege against self-incrimination and the right to counsel.  In other words, if you are arrested by the police, the police must get you to give up your right to remain silent and your right to an attorney before they get you to confess.

After you have waived your rights, the confession must still be a voluntary confession.  Whether a confession is voluntary or not is based on the “totality of the circumstances”.  The Courts have held that a police officer lying to induce a confession, in and of itself, does not result in an “involuntary confession”.  However, they have said that it is one of the many factors when looking at the “totality of the circumstances”, whether the confession was voluntary.  In other words, if there are many other things the police officer did to force a confession, including lying to the defendant, then the Court may decide that the confession was involuntary, and not allow the confession to be presented to the jury, but lying alone will not cause the court to suppress the confession.

Courts generally disfavor a police officer making false promises to the suspect to induce a confession, especially where the police promise to dismiss or reduce charges in exchange for a confession.  Police officers know this, and usually make more vague promises to the suspect, like promising to bring the suspect’s cooperation to the attention of the prosecutor, and how it will be better for them to confess.  These vague promises do not receive the same scrutiny as the express promise to dismiss a case in exchange for a confession.  Consequently, police commonly make these vague promises to extract a confession.

As I have said so many times before, it is best to exercise your right to remain silent to begin with, so as not to get caught in these traps.




What to do if you are accused of a sex offense.

Few things in this world are as scary as being accused of a sex offense.  Merely being accused is enough to end your career, and lose your family and friends.  No other accusation quite carries the stigma that the accusation of a sex offense does.  Sex offenses are taken very seriously by law enforcement, and they are willing to use some very underhanded strategies in the name of locking up anyone they suspect is guilty of a sex offense.

The fact of the matter is, many people who are accused of sex offenses are not guilty at all.  These types of accusations come up most often in the context of a messy divorce.  A bitter spouse knows the power of this accusation, and will throw it around in hopes of getting a better settlement in her (or sometimes his) divorce case.  If you have even been threatened with an accusation, make sure you watch out for the following things that are almost guaranteed to happen.

One of the most effective tools that law enforcement likes to use in sex offense cases is the ‘confrontation call’.  A confrontation call is a call that a complaining witness makes to the suspect.  It is often in the context of confronting the suspect about the allegations.  The problems with these calls is that the suspect believes the call is private, and he is being presented with some very scary accusations.  The suspect knows that if this complaining witness goes to law enforcement, it could end his life, even if he is not ultimately convicted.  Consequently the suspect will make concessions, and at a minimum apologize in hopes of changing the complaining witness’s mind.  What the suspect doesn’t know is that the witness already went to law enforcement, and law enforcement is recording the conversation, and coaching the witness on what to say.  Even a vague apology during one of these conversations will cause you a lot of problems in your case.  It could be interpreted as a confession, even if you didn’t really confess to anything.

After the confrontation call, and right before law enforcement concludes its investigation, they will make their own call to the suspect.  They will ask the suspect questions on the phone, or have him come into the police station to discuss the case.  They will pose it to the suspect that they want to get his side of the story, and that if the suspect doesn’t speak with them, that they will only have one side of the story.  They will say that if the suspect doesn’t speak to them they will have no choice but to turn the file over to the prosecutor with only one side to the story.

After the suspect agrees to sit down with the police, then comes the interrogation.  They will not be friendly to the suspect like they were to the complaining witness.  The complaining witness was treated with velvet gloves, and any inconsistencies in her statement were glossed over, or even worse the police attempted to help the witness rectify the inconsistency.  When the police interrogate the suspect it will be completely opposite.  The police will not only gloss over inconsistencies, they will try to twist the suspect’s words, and even where there was not an inconsistency, they will make it sound like it was.  And even if the suspect is smart, and avoids making any statement’s that can be used against him, they will find a way to use his words against him in other ways.  There is simply no benefit to anyone speaking to the police when accused of a sex offense.  If they had a weak case, then you will avoid making it a stronger case by speaking to them.  If it was a strong case, then speaking to them wouldn’t have helped you avoid being charged.

One of the final tools the police will use is an offer to perform a polygraph, also known as a lie detector test.  The polygraph is not intended to benefit the suspect.  It is simply an opportunity for the police to brow beat the suspect, and to tear him down psychologically when he fails the polygraph.  The fact of the matter is, polygraphs are based on junk science.  Even the American Psychological Association says so.  That is why courts will not even allow the polygraph results to be presented in court.  However, the courts will allow the statements made by the suspect during the polygraph to be used against the defendant in trial.  The only time a polygraph can be useful, is when your attorney negotiates a deal with the State to agree to take the polygraph in exchange for a dismissal or other concession in the event you pass the polygraph.  But make no mistake, this is only an agreement that can be reached with the prosecutor, not with the police.  Do not let them trick you into taking the polygraph by promising some better result for you.  They cannot promise you that.

If you are accused of a sex offense, you need to immediately call an attorney.  That attorney is going to advise you to remain silent.  When the witness, or anyone else calls you to talk to you about the case, get off the call.  Do not discuss anything with them.  If the police call you, tell them that you are exercising your right to remain silent, and will not speak with them.  And do not, under any circumstanes, agree to take a polygraph, unless your attorney tells you to.

Unprocessed rape kits are not a problem in Idaho, despite what the media says.

Recently KTVB reported that “the Nampa Police Department has collected more than 100 rape kits since 2010, but only 12 have been sent to a lab.”

The news report goes on to explain that ‘Those who support sexual assault victims…” (as opposed to those who do not give a hoot about sexual assault victims)  “…argue that every kit should be tested.”

As a criminal defense attorney, who has handled numerous sex offense cases, I am puzzled as to how this ever became news to begin with.

It is not surprising in the least that many so called ‘rape kits’ are never tested.  I have never worked for a law enforcement agency, and so I cannot speak with experience as to every possible reason that a rape kit may go untested, but I certainly can come up with a myriad of reasons from my experience as a criminal defense attorney.

1. Not every sexual assault results in penetration.

A rape kit includes more than just the sampling of body fluids, it also includes various other exams by a doctor.  But the part of the rape kit that gets sent to the lab examines the bodily fluids to identify DNA.  The only way the DNA will be relevant is if the suspect penetrated the victim.  If the victim is not alleging penetration, then analyzing the sample will be a waste of time and money.

2.  Sexual contact is not in dispute.

Often in a rape case the Defendant’s defense will be that he had sex with the victim, but that the sex was consensual, thus not rape.  In these cases it is not necessary to prove that the Defendant had sex with the victim because the Defendant has already confessed that they had sex, he is simply arguing that the sex was consensual.  Clearly proof that the Defendant had sexual intercourse with the victim would be of no value in a case where the Defendant concedes that.

3.  The Defendant pleads guilty.

Many rape cases resolve quickly as a guilty plea.  When the Defendant enters a plea agreement with the State, an analysis of the Defendant’ DNA is irrelevant since the Defendant has entered a guilty plea admitting that he had raped the victim.  Again, in those types of cases an analysis of the bodily fluids has no value.  I do not know the percentage of cases that plead guilty in State Court, but in Federal Court 95% of the cases end in a guilty plea.  So it’s not hard to imagine that many if not most of the rape cases in State Court also end in a guilty plea.

4.  The accusation was a false accusation.

Regardless of what many people think, false rape accusations do happen, and sometimes they are caught early.  I can think of two false accusations of rape on the Greenbelt that were reported in the Idaho Statesman within the last two years.  If a victim has gotten as far as a rape kit before coming clean about her false accusations there will be a rape kit, but no reason to analyze the kit.

Despite these obvious examples of where an analysis of the bodily fluids from a rape kit are irrelevant, there are many concerns that people still have regarding law enforcements failure to process these kits.  I would like to address those concerns here.

1. If we are not sending in rape kits, how are we keeping track of perpetrators DNA?

One way that we keep track of DNA is through a law that requires that every defendant convicted of a felony (any felony) in the State of Idaho to submit a sample of their DNA to national database.  So any defendant that pleads guilty of any felony will be required to submit his DNA to the database, and that is how they track him.

Another way they keep track of DNA is through the kits that are submitted.  For example, if the rape perpetrator is unknown, those kits will surely be submitted for cross referencing as part of law enforcement’s investigation.   Now I concede, if there are instances that this has not happened, then there is a serious problem.  But the media has not reported that this specific problem has occurred.  They have only made a general complaint that there are kits that have not been processed.

2.  If we are not analyzing rape kits, then either guilty defendant’s are being set free, or innocent defendant’s are being found guilty.

This is most certainly not what’s happening.  Guilty defendant’s are not being set free because of unprocessed rape kits, and innocent defendant’s are not being convicted because of unprocessed rape kits.  If the Defendant’s defense is that he did not have sexual intercourse with the girl, then his attorney has the power to request that the kit be processed, and the State will be required to process the kit.  If the State’s case rests on the issue of whether sexual intercourse occurred or not, they most certainly have the ability to process the rape kit.  In my experience I have never seen or heard of an unprocessed rape kit becoming an issue at trial.

3.  The victim has to go through all that humiliation of getting the rape kit done, and then nothing is done with it.  This adds insult to injury.

Getting a rape kit done is important in order to maintain the integrity and efficiency of the system. A rape kit is done on day one. On day one no one knows how the case is going to proceed.  No one knows if there will be a guilty plea, or if intercourse will be disputed, or if the accusation is legit.  They know absolutely nothing, and a rape kit is time sensitive.  So it is essential to collect and preserve this evidence.  It will not always be used, and most of the time it will not be needed.  But in those rare instances where it is needed, it is good to know that it’s available. It is important to understand that although collecting the sample is time sensitive, the processing of the sample is not time sensitive.  It can be processed at any time since the samples are not disposed of, but retained.

Without the rape kit being done, a perverse incentive would remain for guilty defendant’s to dispute sexual contact.  With the rape kits this incentive is diminished.

Most victim’s will be happy knowing that the defendant has been caught, convicted, and appropriately punished for his crime, whether the rape kit needed to be processed or not.

Media selling emotionally charged stories.

The problem with the media is that they take emotionally charged issues, and present them in a way that gives a false impression of a serious problem.  The media presents statistics without context, and do not present any specific instance where this has become a real concrete problem.  Only general complaints are presented that appeal to strong emotions.

As a criminal defense attorney, it is easy for me to come up with complaints about how law enforcement does its job.  However, this is not one of those instances.  I have no reason to believe that law enforcement is being negligent or careless in the way they handle and process rape kits in Idaho.  Rather, it is the media that is being careless in the way they present stories with no context or background to explain why a large number of rape kits may go unprocessed.

In Idaho can a police officer make a traffic stop for any reason he wants?

Technically? No.  Practically?  Pretty much.

According to the fourth amendment and its accompanying constitutional interpretation by the United States Supreme Court, as well as well settled case law in Idaho, in order for a police officer to stop your vehicle he or she must have reasonable articulable suspicion that criminal activity is afoot.  Absent such reasonable articulable suspicion, the officer must not stop your vehicle, and if he or she does it is an unlawful stop and any evidence of a crime that he or she may find thereafter will be suppressed as ‘fruit of the poisonous tree’.

So that sounds pretty fair and just, the officer must have a lawful reason to stop you, or he will not be able to use any evidence he collects when he stops you illegally.  But in practice, the legislature and courts have written and interpreted the laws regarding motor vehicles so broadly that only the most incompetent of police officers could not find a lawful reason for stopping your motor vehicle.

And bear in mind, the reason that the police are stopping you may obviously not be the real reason they are stopping you.  This is known as a ‘pre-textual stop’.  So for example, you are driving your car at 2 AM in the morning, and the officer wants to stop you to see if you have been drinking.  He can find an unrelated reason to pull you over (e.g. tail light out) just so can stop you and see if you’ve been drinking.  It is well settled law that pre-textual stops are perfectly legal. The officer doesn’t even have to charge you with the pre-textual reason he stopped you, and very often they do not.

Here are some examples of laws that are frequently used by police officers in Idaho to justify stopping your vehicle.

Idaho Code 49-808 (Turning Movements and Required Signals):

This statute deals with turn signals.  The statute mandates that “On controlled-access highways and before turning from a parked position, the signal shall be given continuously for not less than five (5) seconds and, in all other instances, for not less than the last one hundred (100) feet traveled by the vehicle before turning.” Courts have interpreted this to mean that on highways that have exits and onramps, you must leave your turn signal on for at least five seconds before making a turning movement.  This also applies if you a turning from a parked position, for example if you are turning out from being parallel parked on the side of the street.  That means that if you only signaled for 4 seconds before making the movement, then you have violated the law, and the officer can stop your vehicle.  Now take out your stop watch and watch five seconds pass by.  Now imagine waiting that long before changing lanes on the freeway. You will quickly see that if an officer wanted to stop you, all he would have to do is follow you long enough to see you make this mistake that so many driver’s make.  And sometimes it’s not even a mistake, its a necessary maneuver when traffic is changing so quickly.

Next, the statute requires that on all other roadways that you signal for 100 feet before turning.  Now the fact of the matter is, in many instances, especially in the city, this is next to impossible.  If you are traveling in slow moving traffic in down town Boise, it is impossible to wait until you have traveled 100 feet with your turn signal on before changing lanes, or turning.  Again, an officer that wants to stop you only needs to follow you for a few minutes before you will be forced to make this maneuver, and then he will have his lawful basis to stop you.

Idaho Code 49-644 (Required Position and Method of Turning):

This statute deals with how you should behave when you turn your motor vehicle.  This is a favorite of police officers, because it’s a common way to drive, and most people do not realize it is illegal.  Again, it is also sometimes necessary if you have an immediate second turn you need to make.

Most driver’s know that when you are turning left that you need to turn into the closest lane of travel, otherwise you may run into a vehicle coming the opposite direction who is lawfully turning right.  However, what driver’s don’t realize is, you have to do the same when turning right.  The code requires that ‘Both the approach for a right turn and the right turn shall be made as close as practicable to the right hand curb or edge of the roadway’.  Courts have interpreted this to mean you must remain in the closest lane to the curb.  If you take a right turn, and swing into the lane further from the curb, you are in violation of this statute.  This gives a police officer a lawful reason to pull you over.

Idaho Code 49-637 (Driving on Highways Laned for Traffic)

This is a very frequently used statute for stopping vehicles, especially if you are out past 2AM. The statute requires you to ‘drive as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety’.  Follow any car, on any road, day or night, and count how many times it touches one of the lines marking the lanes of travel.  Each time a car touches one of those lines marking the lanes of travel, they have violated 49-637.  Again, it doesn’t take very many minutes of an officer following your vehicle for you to make this mistake.  It’s even more likely to happen when a police officer is tailing you because you are nervously watching the officer in your rearview mirror, and are bound to let your vehicle drift just enough to touch or cross these lines.  The officer then has the reasonable articulable suspicion he needs to stop your vehicle.

Idaho Code 49-119(19)(Definition of Roadway) and 49-630 (Drive on Right Side of Roadway):

These two codes combine to form a reason similar to the last code discussed.  This combination of codes is used to stop someone for crossing over the ‘fog line’.  Courts have ruled that anything on the other side of the fog line is not the ‘roadway’ as defined in 49-119, and so is a violation of the requirement of 49-630 to always drive on the ‘roadway’.  And so if you touch or cross over the fog line, you have given a police officer reason to stop your vehicle.

Equipment Violations

Equipment Violations are one of most frequently used reasons a police officer stops a vehicle.  They like these because they are easy to spot, and they are objective.  Credibility really isn’t an issue because the equipment violation can be easily documented.

The following remaining examples are these types of equipment violations.

Idaho Code 49-949 (Requirement as to Fender or Covers Over All Wheels on Motor Vehicles)

This code deals with fenders and mud flaps.  It’s a complicated statute, but it essentially says that a truck has to have mud flaps if the finder is 10” above the roadway when the truck is unloaded.  The Courts have interpreted the word ‘trucks’ to include ‘pickup trucks’.  Consequently even if you have a stock pickup truck, with no lift, if the fender is more than 10” off the road, you need to have a mud flap that makes up the difference.  Saying you purchased the pickup truck that way from the manufacturer is not a defense.

Also this code requires fender flares if you put on after market tires and wheels that extend out past the fender.  If the tires extend out past the fender, then they can stop you for violating 49-949.

If an officer wants to stop you, and he sees a violation of this statute, he will have a lawful basis to stop you.

Idaho Code 49-944 (Standards for Windshields and Windows of Motor Vehicles)

This law covers tinting of car windows and windshields.  It is a complicated statute, with many different technical requirements.  You may want to read it if you have tinting on your window to make sure you are within regulations.  The police will use that is an excuse to stop you.

Idaho Code 49-937 (Mufflers, Prevention of Noise)

Another low hanging fruit for the police to grab at is a noisy muffler.  The reason that this is a violation that the police will often use is because it is hard to quantify how loud your muffler is.  So accusing you of having a loud muffler is a perfect infraction to accuse you of to pull you over, because you will have difficulty proving that it isn’t.

Idaho Code 49-902 (Vehicle Equipment)

This code has made ii unlawful to operate a motor vehicle that has equipment that is in an ‘unsafe condition’.  The Idaho Court of Appeals held that a cracked windshield is a condition that makes the vehicle unsafe to drive. (See State v. Kinser, 112 P.3d 845, 141 Idaho 557 (Idaho App. 2005))  Even when the crack is on the passenger side of the vehicle.  So if a police officer sees a cracked windshield, he can stop your vehicle, and it will be a lawful stop.

This statute could be used in other scenarios as well, such as busted tail lights, and headlights that are burned out.

So next time you hear it said that the fourth amendment protects American citizens from unreasonable seizures, just remember that the Idaho legislature, and Idaho Appellate Courts have ensured that almost any stop the officers make will be deemed reasonable.

How can the State charge me if there is no proof?

So someone has accused you of wrong doing, but has not presented any evidence, what now?  How can the State charge you with a crime when it is just one person’s word against yours?  Don’t they need evidence?  Isn’t what they say about me ‘hearsay’?

I get these questions a lot from clients and prospective clients.  These questions demonstrate a misunderstanding of what ‘evidence’ is.

First I want to clear up the confusion about ‘hearsay’.  Is a person’s accusation against you hearsay?  It is only hearsay if 1) they are saying what someone else said and witnessed, or 2) the state tries to use the person’s out of court statement against you without calling that person into court.  If the person says they witnessed the crime, and they come into court and testify that they witnessed the crime, then it is no longer a hearsay statement.

Second I want to talk about ‘evidence’ and ‘live testimony’.  Evidence is anything the state presents that makes it more or less likely that a fact is true.  Live testimony is evidence.  It is possible to be convicted by live testimony alone.  The state can bring in a witness, have that witness testify in open court under oath, and present that witness’s testimony, and nothing more.  That may be a weak case for the state, but in most cases, arguing to the judge for a dismissal of the case because the state did not present ‘evidence’ is going to be a loser argument.

Most people do not understand how the criminal justice system works.  When you are charged with a crime you are charged by the prosecuting attorney.  The judge does not charge you, and the judge does not decide what the ‘facts’ are in a criminal case.  The jury decides the ‘facts’ and decides whether to acquit (i.e. find him not guilty) a defendant, or find him guilty.  A judge decides evidentiary issues, and would most certainly decide that a person’s live testimony of a crime that the person witnessed, is relevant testimony for a jury to hear.

You will have to argue your case to the jury, you will have to argue that the State did not present enough evidence to prove their case beyond a reasonable doubt.  You cannot argue this to the judge (unless of course you choose a bench trial where the judge is the trier of fact, in that case the judge will still be able to hear the live testimony as evidence and decide whether he or she believes the witness).

I say all of this to help you understand that the State can charge you with a crime based on what one person says.  Do not think that you will be able to just walk into the courtroom and tell the judge that this is just one person’s word against yours, and that the State can’t charge you.  In most cases they can, and they will.

You need to start preparing your defense.  The fact that the State has only presented one person’s testimony against you, and no other evidence, is a proper argument to make to the jury.  It goes to the weight of the evidence.  It certainly isn’t a slam dunk case for the State when the only evidence the State presents is one person’s word.  You certainly have a good chance of arguing a winning case to the jury, especially if you can call the witness’s credibility into question.  Just make sure you understand that that’s what you are going to have to do.  You cannot just walk into court and ‘tell the judge’.  If you think that’s what you can do, then you will go into court unprepared to defend your case.


Ferguson, Grand Jury, and Indicting a Ham Sandwich

It is an old joke that a Grand Jury would indict a ham sandwich if you wanted them to.

The joke comes from the reality that Grand Jury proceedings are kind of a sham.

First, the burden of proof at a Grand Jury proceeding is probable cause.  The prosecutor must prove that there is probable cause to bring criminal charges against the Defendant.  Probable cause is the lowest burdens of proof.  The only burden of proof lower is ‘reasonable suspicion’.   The burden an officer must have to stop a vehicle for example.

Second, neither a defense attorney, nor the defendant himself can be present at the Grand Jury proceeding.  The proceedings are closed proceedings.  You can imagine what the consequences are when you have one hand clapping.  The prosecutor’s bias view rules the day.  There are rules of conduct that require the prosecutor to present evidence in mitigation, but you can only imagine the half hearted presentation that this evidence is given.

Consequently, anytime a prosecutor wants to indict a Defendant on a felony charge, he can do so.  It is a very rare occurrence for a Grand Jury to refuse to indict a Defendant.

That is what is so interesting about the Ferguson case.  Why didn’t the Grand Jury indict the officer that shot Michael Brown?  At a minimum it appears that there were conflicting statements from witnesses, some witnesses that say that Michael Brown was surrendering and still being shot.  Whether these witnesses are credible or not, why didn’t the grand jury at least find probable cause?  Did the prosecutor sabotage his own case in order to shift blame from himself to the Grand Jury?  Now the prosecutor can say, well I tried to charge the officer, but the Grand Jury refused to find probable cause.

What bothers me the most is not that the Grand Jury failed to indict the officer.  What bothers me is that under no circumstances would a Grand Jury have failed to indict anyone else that wasn’t wearing a badge.  There is a double standard in our country when it comes to self defense.  When an officer of the law defends himself, he is nearly always given the benefit of the doubt, and nearly always cleared of any wrong doing.  Anytime any other citizen defends themselves they face the very real possibility that they will be charged and convicted of murder.

Famous last words: I am innocent, I do not need an attorney.


Too many times I have had criminal defendants come to me after their case is finished asking if there is something I can do to help them now that they have been wrongly convicted of a crime. Naturally I ask them why they didn’t come to me before the case was finished. The most frequent answer I get is that they were innocent of the charges, and they believed that everything would work out okay, because innocent people cannot be convicted of a crime.

The belief that innocent people cannot be convicted comes from, one the belief that Government is good and should be trusted, and two a misunderstanding of how the judicial system works.

The same clients that believed that everything would work out ok because they were innocent also believed that if the only evidence the State had was the testimony of one witness, there was no way they could be convicted. They had heard somewhere that this evidence is ‘hearsay’ evidence, and could not possibly be the basis for a criminal conviction.

Well first, testimony is only hearsay if that witness does not come to court. Once the witness comes to court and tells the jury the same words, it is no longer hearsay. And second, the belief that one persons words, without more evidence, cannot convict you, is a major misunderstanding of how our judicial system works. In fact, the greater portion of cases that go through the criminal courts are exactly that, cases based on one witnesses statements.

Since these defendants believe that they will not likely be convicted of the charges, they sit back and do nothing to improve their situation. They file no legal motions, they do no discovery or investigation, and they just show up to the court in hopes that they can just tell the judge to dismiss this obviously frivolous case. Those same defendants end up being sorely disappointed when they get convicted of a criminal charge, and even sent to jail.

So if you are one of these people who believe that the Government is good and would never wrongly convict someone, or believe that one persons allegations against you could never end in a conviction, then please call me today and set up a consultation so that we can talk about what you can do to save yourself from a very embarrassing, and even painful future in court.

Arrested and Not Read My Rights!

rights…The person in custody must, prior to interrogation, be clearly informed that he/she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he/she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he/she is indigent, an attorney will be provided at no cost to represent him/her.
United States Supreme Court,  Miranda v. Arizona

Hollywood has done both a service and disservice in raising awareness of what have come to be known as the Miranda Warnings.  Miranda warnings are the rights you are commonly read when arrested by the police.  In the movies and television shows, the police always read off a memorized statement of rights to the suspect they are hand cuffing before they throw him into the back of their car.  These movies have been a service to the public at large in that they make people aware that they indeed have these rights, and these rights must be read to them.  It has done a disservice to the public in that the movies and television shows do not explain when your rights must be read to you, and what the consequences are when they do not read them to you.  The movies and television shows make it look like your rights must be read to you whenever you are taken into custody, but that is not the case.

The reason that law enforcement is required to read the ‘Miranda Warnings’ is because historically the public has been unaware of exactly what their rights are.  If you do not know what your rights are, then obviously it is going to make it a little difficult to exercise those rights.

The truth about Miranda Warnings is, they do not have to be read to a suspect that is simply being arrested.  The warning has to be read to a suspect before he is questioned while in custody.  The reason police will sometimes read a suspect his rights when he is arrested is so that anything he says after he is arrested will be clearly admissible in court.  For example, after a suspect is arrested and placed in the police car, the officer may casually ask the suspect questions on the way to the jail.  The suspect may answer those questions.  If those questions have any relevance to a crime, the suspect may have a basis to suppress those statements at trial as a violation of his constitutional rights.  So some police agencies just read the rights to every individual suspect they arrest.  Many agencies do not.

There really are no ‘Miranda Rights’, there are only constitutional rights.  What we call ‘Miranda Rights’ are actually just a group of constitutional rights related to criminal law.  The Fifth and Sixth Amendments to the United States Constitution grant a defendant a right against self incrimination, and a right to an attorney during every stage of a criminal prosecution.

If a suspect is questioned by the police, while in custody, and hasn’t been read his rights, the statements the suspect makes to the police can be suppressed by a court for a violation of the Defendant’s constitutional rights.  But if the police simply never read the suspect his rights, and never question him while in custody, then there is no violation of his rights, and consequently no remedy.