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
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.
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 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.
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.
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.
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.
…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.
Recently in the news, it was reported that a republican law maker in Idaho, Mark Patterson, plead guilty to “assault with the intent to commit rape” in 1974. Apparently he was charged with the crime of rape after a woman accused him of forcing her into his home, and threatening to release his dog on her should she refuse to have sex with him. It was reported that he claimed that she had consensual sex with him, and that she asked for money afterwards and he refused, so she fabricated the story of him raping her in retaliation.
I am not in a position to judge the merits of the case, but the story brings up interesting issues that I am prepared to talk about. Mr. Patterson claims that he plead guilty of a lesser charge to avoid the risk of being convicted of rape and receiving jail time. He also received a ‘withheld judgment‘ as part of the plea deal.
So do innocent people plead guilty? As I’ve read comments from the public, one theme is repeated over and over, “innocent people do not plead guilty”. But is that true? Is it really true that every innocent person takes his case all the way through trial if the case is not dismissed by the prosecuting attorney? Why would an attorney allow his client to plead guilty if his client was not guilty.
In a perfect world every wrongfully charged defendant would have his case dismissed, and every attorney would have a crystal ball to see whether his client is really guilty or innocent, but unfortunately we don’t live in a perfect world.
We live in a world where people do make false accusations, where weak cases based on weak evidence are pressed by the State despite the weakness of the case, where juries sometimes make the wrong verdict, where Defendant’s claim innocence when they are in fact guilty, and where Defendant’s plead guilty when they are in fact innocent.
Attorneys have to evaluate a case based on the evidence before them, and many cases are based on the testimony of witnesses. Those witnesses almost always disagree with each other. As an attorney I will have a client tell me that he didn’t do the thing he is accused of, but there are witness statements claiming that he did. I interview the witnesses, and try to evaluate the likelihood that a jury would believe them over my client. I look for witnesses who will support my clients case. In the end, almost every jury trial is risky. A jury will have to decide which witnesses to believe, and there is always a risk that the jury will believe the State’s witnesses. With risks like this, and so much to lose, Defendant’s will sometimes cut their losses, and avoid the risk of going to trial. In cases of “he said/she said”, attorneys are not in a position to decide definitively the innocence or guilt of their client. If they knew for a fact that their client was innocent, then of course they should not advise their client to plead guilty. But more often than not, an attorney can only judge risk based on what the attorney knows, and since the attorney was not present during the allegations, he cannot know for certain.
An innocent man cannot know for certain whether he will be convicted or not. When a jury has to make a decision based purely on witnesses testimonies, there is always a risk that the jury will believe the State’s witnesses over the Defendant’s witnesses. This risk is one of the driving forces behind Defendant’s pleading guilty, whether they are innocent or guilty of the charges. It is conceivable in Mr. Patterson’s case for example that he was given an offer too good to pass up, a reduced charge of assault with intent to rape, a withheld judgment, and no additional jail. Mr. Patterson probably knew that if he were to refuse the offer and go to trial on the Rape charge, and if he lost, he would probably go to prison, and would not receive a withheld judgment. If he took the offer his case would be dismissed after a period of probation. The offer may have been too good to pass up. The risk of going to trial was too great. And Mr. Patterson’s attorney could not have known for sure that his client was indeed innocent, and therefore probably advised his client that the deal was a good deal, and that he should probably take it. Not to mention, he knew the case would ultimately be dismissed in the end.
One thing you can know for sure, at least in 2013 in Idaho, the State would never offer a withheld judgment, no jail and a reduced charge of assault with intent to commit rape, on a strong rape case. If the State had solid evidence, they would push forward on the Rape Charge, a judgment of conviction, and would likely seek a prison sentence. The fact that Mr. Patterson received such a soft sentence is actually an indication that the State’s evidence against him was not overwhelming.
Another reason a Defendant may plead guilty even when he is innocent is because he is incarcerated, and the State has offered to release him after he enters a guilty plea. It’s hard for those who have never been to jail to understand the stress and agony that someone in custody feels. Many inmates are somewhat out of their minds while in jail. It is, for most Defendants, the worst experience of their life and their desperation will often lead them to plead guilty even when they are innocent. This is one of the unfortunate results of the requirement that the accused be held in custody during the pendency of their case if they cannot afford to post the bond. It has the effect of putting the Defendant under duress to plead guilty, whether that is the intended effect or not.
Like I said, I am not in a position to judge the merit’s of Mr. Patterson’s case. It appears that these allegations may have not been the only allegations Mr. Patterson faced, which may lead some to say lightening rarely strikes in the same place twice. I am only offering a response to those who say “innocent men never plead guilty”.
The other day I got a phone call and the prospective client told me they had a traffic ticket they needed me to handle. My first thought was, oh they must have gotten a speeding ticket, which is an infraction in the State of Idaho. I don’t normally handle infractions, since they usually involve paying a $50-$100 fine, and nothing more. Clients don’t normally hire me to handle such marginal cases. But the client proceeded to tell me that they had been arrested on suspicion of driving while under the influence. I knew then that they had not simply gotten a “traffic ticket” or “infraction”, they had been charged with a misdemeanor criminal charge.
This wasn’t the first time I had someone call me and indicate that they had been charged with an infraction or traffic ticket, when in fact they and been charged with a criminal charge. This is a common and frequent mistake. Most commonly made when someone gets a reckless driving, inattentive driving, or driving without privileges charge. They go to the court to pay the ticket, and are told that they must see a judge first, that is when they usually realize they have a serious problem.
So what is the difference between a misdemeanor and an infraction?
According to Idaho Code 18-111 an infraction is a “civil public offense, not constituting a crime, which is punishable only by a penalty not exceeding one hundred dollars ($100) and for which no period of incarceration may be imposed.” So in other words, an infraction carries no possibility of jail.
So any case that requires any possibility of a jail sentence is a misdemeanor (or of course possibly a felony). You may think, well I don’t drink, I don’t get into fights, and I never steal anything, so I will never have to worry about jail. Guess again. I have represented not just a few clients for charges like dog at large, dog nuisance, fish and game violations, trespassing, and many other types of cases that most people would think would be charged as infractions when they are charged as misdemeanors and carry potential jail time. Most of these clients have no criminal history, and never been inside a court room. So do not think it cannot happen to you.
If you’ve received a “ticket” from a police officer lately, and you think it’s an infraction, an unless it’s a speeding ticket or something similar, you should call an attorney to make doubly sure that it’s not a misdemeanor criminal charge. You can call our office at 208-571-0627 and we can help you figure it out.
For those who follow my blog, you may get the sense that I am less than enthusiastic about the status of our rights in the United States today. Many of the laws and principles that secured our rights in the past have been eroded away by exceptions to laws that are designed to protect those rights. Automobile exceptions to the warrant requirement are an excellent example of the erosion of our right to be free from warrantless and unreasonable searches and seizures in our automobiles. We can thank the war on drugs for that. Continue reading