Frequently asked criminal law questions
For a searchable version of these questions go the the Jensen Defense Wiki
CRIMINAL LAW
I have three witnesses who say I was acting in self-defense during the battery. Why won't the judge just dismiss the case?
Persons charged with crimes frequently have a difficult time understanding why they must stand trial, and pay their lawyer, even when they have a strong defense- such as self defense. The reason is that the prosecutor's discretion in the charging decision is the main "gatekeeper" to the criminal justice system. If a prosecutor decides to pursue a charge they need only allege enough facts to constitute probable cause to believe that the crime was committed. By definition, a probable cause determination cannot, and does not, take into account defenses available to the defendant. Once probable cause is established the defendant must stand trial. The jury will then decide whether the State has proved the charge beyond a reasonable doubt. If probable cause has been established there is no legal means by which to short-circuit the procedure.
The police want to talk to me. What should I do?
Whenever you are the subject of the investigation you have a Fifth Amendment right to remain silent and the Sixth Amendment right to counsel. These are the most important rights that citizens have and the most difficult to exercise. The officer may tell you such things as, "If you just tell us about it we won't bring you in but if you give us a hard time we have no choice." Without a doubt it is still better to remain silent. If the officer has probable cause to arrest you he will no matter what you say. Most likely he does not have probable cause but by you "telling him about it" you may establish probable cause for him to arrest you. Remain silent and tell them you want to call your lawyer.
Can they do that?
Whenever you are confronted by the police this question should not go through your mind. Although you have no obligation to consent to a search or cooperate with questioning you should never physically resist a police officer or argue whether the officer has the "right" to do what he is doing. Our laws are written to discourage any unnecessary physical conflicts between citizens and police. If it later turns out that the officer did not have the "right" to search where he searched or order you to do what he did the courts will provide a remedy. The remedies range from suppression of evidence to money awards for violation of civil rights. Do not resist a police officer.
I am under arrest for operating under the influence of alcohol. They want me to submit to a breath or blood test. Do I have to submit? Don't I have the right to talk to a lawyer?
When you have been arrested for operating under the influence you have "impliedly consented" to a chemical test for alcohol. If you refuse the test you will be charged with illegally refusing and this may result in a significant additional revocation of your driver's license. Moreover, the appellate courts have approved of drawing blood against a suspect's will under certain circumstances. That is, if you refuse you may be strapped down and the blood drawn anyway. You do not have the right to consult an attorney prior to deciding whether you will voluntarily submit to a chemical test.
When I was arrested they never read me my rights. Can I get the case dismissed?
Probably not. Police officers are required to read you the "Miranda Warning" (You have the right to remain silent . . .) only if you are in custody and they plan to question you. If you are in custody and they fail to read you the Miranda Warning the remedy is suppression of any statement you make in response to police questioning. If you make a statement not in response to a police question, even if you are in custody, the statement may be used against you. The best strategy is to tell the police that you will not answer questions without your lawyer. This is called "invoking your right to counsel." Once you invoke your right to counsel the police must stop questioning you until you have the assistance of a lawyer. If you merely say that you do not want to answer questions right now they are permitted to try to persuade you to answer questions.
I am only charged with a misdemeanor. Do I need a lawyer?
There is no law which requires a person charged with a crime to be represented by an attorney- in fact, the Supreme Court has held that persons have a constitutional right to represent themselves. Simply because this is a right, though, does not mean that it is a wise thing to do. You may have noticed that even when lawyers find themselves charged with crimes they will almost never represent themselves. This is because a lawyer serves more purposes than simply a legal advisor. First of all, a lawyer is your advocate with the district attorney and in court. It is very difficult for a person to talk about themselves in the same way a lawyer talks about his client. Secondly, when you are the person charged with the crime it is a very emotional topic and it is difficult to make sound decisions. One of the most import functions a lawyer serves is to counsel clients about important decisions in the case. Your lawyer is not, and should not be, wrapped up emotionally in your case. Sometimes people look for lawyers who "believe in the client's cause." This is usually not a good thing.
My lawyer is not fighting for me. Why has he been talking to the district attorney about guilty pleas?
All attorneys have an ethical obligation to reasonably communicate with their clients- this includes the obligation to convey all offers to settle to the client for their personal consideration. Moreover, the most important function a lawyer serves is to offer opinions and advice based upon his experience and education. Taken together, this means that when the district attorney makes an offer to settle a case (that is, to plead guilty in exchange for a favorable recommendation) your lawyer is ethically bound to convey that offer to you. He also has the obligation to advise you as to whether you ought to accept the offer or not. Of course, the client is under no obligation to accept an attorney's advice and your decision should have no bearing on your lawyer's performance in court. Trial lawyers are professional advocates and experts in the rules of evidence and trial procedure. It is not necessary that a lawyer "believe in" or even agree with a client's decision to take a case to trial. As a professional, your lawyer is ethically bound to zealously advocate your position in court whether he personally agrees with it or not. The only limitation on this is that your lawyer cannot help you lie nor can he present other evidence which he knows to be false.
I just received notice from the Department of Transportation that I have been classified as an Habitual Traffic Offender and that my license is revoked for five years. Is there anything that can be done?
A person is classified as an Habitual Traffic Offender if they accumulate twelve traffic offenses within five years or four major offenses within five years (OWI, fleeing, reckless driving). Sometimes it is possible to reopen one or more of the past convictions and have those cases dismissed. However, the convictions need to be less than six months old and, preferably, be for operating after revocation. This is because prosecutors are willing to reopen and dismiss OAR cases if a person gets their license but they are normally not willing to reopen and totally dismiss a moving violation such as speeding.
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