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  • Miranda Rights and Law Enforcement: What is Permissible to Use in Court?

    Posted Sep 5th, 2014 By in Criminal Law, Miranda Rights With | Comments Off on Miranda Rights and Law Enforcement: What is Permissible to Use in Court?

    In today’s world of crime dramas and cop shows, it may be easy to mix up the legal jargon and hard to decipher what happens in real life in these scenarios. One of the common themes in media is the reading of the miranda rights in arrest situations. Although the scene is often portrayed on TV, it can be uncertain or untrue in real life. Common questions some may have in regards to miranda rights is, does law enforcement have to read you your miranda rights? What is admissible in court?

    These are some important questions to know the answer to. First, it is important to know the difference between custody and interrogation.

    • Custody is when law enforcement has you and is keeping you, possibly with the intent to interrogate.
    • Interrogation is when officers asked suspects or persons of interests pointed questions in regards to a case.

    Now that you know the difference between custody and interrogation, here is how miranda rights matter in interrogation and in cases.

    There’s sometimes a question about whether the police have interrogated someone who provided incriminating information. If the suspect freely volunteered the statements and there was no interrogation, then the government is typically free to use those statements at trial. (See Does Miranda apply to spontaneous statements?) But if the officers interrogated the suspect—even without asking pointed questions—and there’s been no warning, then the prosecution can’t use the statements. It all comes down to the meaning of “interrogation.”

    To determine whether something other than express questioning constitutes interrogation, a court must evaluate the officers’ words and actions, other than those that are part of the normal arrest or custody process. The judge considers whether the police should have known that anything they did or said was reasonably likely to draw out an incriminating response. (Some courts say express questioning doesn’t constitute incrimination unless it has the tendency to evoke a damaging statement, but others say all express questioning equals interrogation.)

    Ultimately, officers can speak to un-Mirandized  suspects whom they have in custody as long as what they say isn’t likely to elicit an incriminating response.

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  • What To Expect if Your Misdemeanor Case Goes to Trial

    Posted Aug 29th, 2014 By in Criminal Law, Orange County Criminal News With | Comments Off on What To Expect if Your Misdemeanor Case Goes to Trial

    At the arraignment for a misdemeanor case, if the defendant enters a plea of not guilty, the attorney will choose a date to act as pre-trial. As discussed in previous blog posts, when the attorney returns to court on the prearranged pre-trial date, this is his or her opportunity to begin the process of negotiation with the prosecutor in terms of a plea bargain. A plea bargain is a compromise or agreement that results in the settlement of a client’s case outside of trial. While nearly 95% of all criminal misdemeanor cases are resolved during the plea bargain process, not all cases are. In the event that a case is not resolved during the plea bargain process, the client has the absolute right to have his or her case brought to trial.

    There are two types of trials that one can have. The first is a jury trial. A jury trial is when a 12 person “jury of peers” is carefully selected to hear the evidence and make a final decision of whether the defendant is guilty or not guilty. The second is a court trial. A court trial is when the decision is left up to the judge. Both trials have advantages and disadvantages and a defendant and attorney can discuss which trial best suits the clients needs in private before the decision is made.

    In the event that a jury trial is chosen, the process is as follows. In the weeks leading up to trial, both lawyers work together to carefully handpick a jury. This process is known as “voir dire,” and consists of each attorney asking questions to potential jurors to determine whether the jurors will be fair and impartial.

    At the trial, both sides have the right to begin with an opening statement about the case. Following the opening statement, both cases will now be vigorously tested through a series of confrontations and cross-examinations of witnesses and their testimonies. In addition to witnesses, the client may choose to testify on his or her own behalf. When all evidence has been presented and both cases fairly represented, each attorney may give a closing statement.

    In order for the jury to make a final decision of guilty or not guilty, each of the 12 jurors must unanimously agree that the defendant did commit each and every element of the crime or crimes he or she is being accused of. If the jury cannot come to a unanimous decision, the judge will declare a mistrial. If a mistrial is declared, the prosecutor, as long as the judge allows it, is allowed to once again bring charges against the client and re-try the case.

    If the client is found not guilty by the jury, he or she will be released of the charges and deemed to be exonerated. If the jury finds the client guilty, he or she will be given a punishment decided by and deemed appropriate by the judge.

  • What Happens After The Arraignment: CA Misdemeanor Cases

    Posted Aug 21st, 2014 By in Criminal Law, New Criminal Case Law With | Comments Off on What Happens After The Arraignment: CA Misdemeanor Cases Photo by Paige

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    To review, an arraignment is the first time after the arrest and charges have been filed by the prosecutor that a defendant will appear in court. At the arraignment for a misdemeanor case, the attorney will receive “the discovery,” which are the police reports containing the accusations against the defendant. The judge will tell the defendant what the charges are, his or her constitutional rights, as well as his or her rights to a lawyer free of charge. The clerk will then put the files on the Judge’s desk, the judge will call the case and the attorney will do one of two things: continue the arraignment to another date or enter a plea of ‘not guilty.’ When a plea of not guilty is entered, the attorney will choose a date and this will act as the pre-trial date.

    Once a pretrial date is set, it is the attorney’s job to now take the discovery back to his office and review it for any legal or factual defenses. During this period, it is common for the attorney to send the defendant a copy of the discovery, or set up a meeting with the defendant so they can review the discovery together.

    When the attorney returns to court on the prearranged pre-trial date, this is his or her opportunity to begin the process of negotiation with the prosecutor in terms of a plea bargain. A plea bargain is a compromise or agreement that results in the settlement of a client’s case outside of trial. While nearly 95% of all criminal misdemeanor charges are resolved during the plea bargain process, the plea bargain process can take from 90-120 days and will often include numerous pre-trial conferences. The defendant is not required to attend his or her pre-trials, however, the defendant is more than welcome to do so and may in some instances find it advantageous.

    Once a settlement is agreed upon, the defendant will be required to fill out a plea form. The plea form outlines the details of the plea bargain. In some instances the court will require the plea form to be notarized. Once complete and ready the attorney will then submit the plea form to the court. Upon submission, the defendant will be given a letter containing detailed instructions on what the defendants obligations to the court now are.

    In the event that a defendant’s case cannot be settled during pre-trial, the defendant has the right to bring his or her case to trial. At trial, a jury of 12 people will be appointed from the community and a decision of guilty or innocent will be made. If found innocent, the defendant is released from government charges and deemed to be exonerated. If found guilty, an appropriate punishment will be decided upon by the judge.

     

  • What Happens After the Arraignment: CA Felony Cases

    Posted Aug 15th, 2014 By in Criminal Law With | Comments Off on What Happens After the Arraignment: CA Felony Cases

    Photo by  smlp.co.uk

    In a previous blog post we discussed the arraignment. To quickly review, an arraignment is the first time, after the arrest and charges have been filed by the prosecutor, that a defendant will appear in court. At the arraignment the judge will tell the defendant what the charges are, his or her constitutional rights, as well as his or her rights to a lawyer free of charge. In response, the defendant is expected to make a plea of either guilty, not guilty, or no contest. When the arraignment is done, however, the question may arise of what comes next?

    In the event of a felony, after the arraignment, if the case has not been settled or dismissed, the judge will call for a preliminary hearing setting date. A preliminary hearing setting date is an opportunity for your attorney to plea bargain and resolve the case without needing to enter the cases second and third phase. In the event that the case is not settled during the preliminary hearing setting date, a judge will call for a preliminary hearing.

    The preliminary hearing is the opportunity for the district attorney to present evidence that will give the judge a strong suspicion that the defendant did in fact commit the crime. This evidence is referred to as probable cause. During the preliminary hearing, the district attorney may call witnesses to the stand to tell their story and the defendant’s attorney may cross examine the witnesses to achieve his or her goal. In the event of a preliminary hearing, the defendants attorney has four goals.

    1. Get the charges dismissed.
    2. Test the strength of the prosecution’s case.
    3. Weaken the prosecution’s case.
    4. Set up the defendant’s case.

    If the judge decides that there is enough evidence to suspect the defendant of having committed the crime, the case will move on to the second phase. In the second phase, the prosecutor will file a document called the “Information”. The Information is the charging document that is meant to inform the defendant of what he or she is being accused of. Based on the Information, the defendant will be arraigned a second time and be required to enter another one of the aforementioned pleas. The reason for this second arraignment is because the first judge has passed the case onto another jurisdiction, during which some of the charges may be dropped.

    After the arraignment, pre-trial dates are set. Similarly to the preliminary hearing setting date and the preliminary hearing, the pre-trial dates are another opportunity to plea bargain, compromise or reach a settlement. During the pre-trial dates motions can be made to ensure that all evidence has been revealed. And in the event that a settlement is still not reached, the case will be passed onto the third phase, which is the trial.

     

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Jake Brower Criminal Defense Attorney, DUI Lawyer, Felony Arrests, 3-Strike Cases, Criminal Law, Drunk Driving Lawyer, Los Angeles, Orange, Anaheim, Corona del Mar, Costa Mesa, Irvine, Huntington Beach, Long Beach, Mission Viejo, Aliso Viejo, Lake Forest, Rancho Santa Margarita,Santa Ana, Newport Beach, Newport Coast, Laguna Beach, Laguna Niguel, Riverside, San Diego, Ventura, Beverly Hills, Hollywood,Oceanside, San Clemente, Carlsbad, Dana Point, Seal Beach, Long Beach, 1043 Civic Center Drive West, #200, Santa Ana CA 92703