Category : criminal case process

Use of Lies to Obtain the Truth: The Police Can Lie to You

By: Colin McKibben, Attorney at Law

In his closing argument in State of California v. O.J. Simpson, Johnnie Cochran told the jury how they should view Detective Vannaters testimony: You cant trust him.  You cant believe anything he says because it goes to the core of this case.  When you are lying at the beginning, you will be lying at the end.  The book of Luke talks about thatif you are untruthful in small things, you should be disbelieved in big things. Deborah Young, Unnecessary Evil: Police Lying in Interrogations, 28 Conn. L. Rev. 425 (1996).

Police Officers Only Required to Tell Truth in Court

Nevertheless, the United States Supreme Court has ruled that the Police can lie to you in order to extract a confession, Frazier v. Cupp, 394 U.S. 731, 739 (1969).  The only place an officer cannot lie is while testifying under oath in court, and criminal defense attorneys occasionally catch an officer lying, even on the witness stand.  Police are only required to advise you of your Constitutional rights under Miranda v. Arizona, 384 U.S. 436, if you are in custody and being interrogated about the offense for which you are being confined.  This point is usually determined to be the point in which the suspect is placed under arrest, or the suspect would reasonably conclude that he or she is under arrest and not free to leave.  Detectives are very good at creating the illusion that you are free to go, when actually, you are not.  For example, the detective may tell you that you are free to go at any time, but that it would benefit you to provide your side of the story as the evidence does not look to be in your favor, therefore you can be pursuaded into continuing the interrogation.

Lies To Obtain Evidence

During interrogations, police who use this tactic may lie about the facts of a case.  For example, where you have an 18 year old male who has a 15 year old girlfriend, the officer will tell him that they have evidence that he raped her, when in fact, they do not.  The 18 year old tells the officer that they had consensual sex and that there was no rape involved; now the officer has a confession as to Statutory Rape that came straight from the mouth of the suspect.  In trying to exonerate himself from the charge of Rape, the 18 year old legally confessed to the lesser crime of Statutory Rape.  In Frazier v. Cupp, 394 U.S. 731, 739 (1969), the officer was able to extract a confession from the criminal defendant by lying about the strength of the case.  During interrogation, the officer lied to the criminal defendant and told him that his cousin, had confessed to the possession of cocaine with intent to distribute, also implicating the criminal defendant in the crime.  The criminal defendant then also confessed to the crime in reliance of the officers false statement.  The Court determined that the criminal defendants confession was voluntary and the fact that he was given his Miranda rights prior to making the confession was relevant to a finding of waiver and voluntariness.  Id.

Evidence Can Be Fabricated to Obtain Information

Police officers are also allowed to fabricate evidence to support a deception.  In re D.A.S., 391 A.2d 255, (D.C. App. 1978) the police pretended to compare the defendants fingerprints to a fingerprint on the victims checkbook and pronounced them a match when in truth, no fingerprints were recovered from the checkbook.  The defendant confessed to the robbery and the Court held that the police deception did not by itself invalidate a voluntary confession.  Id. at 258.  Confessions are not invalid or inadmissible, even if they are obtained by deception or trickery, as long as the means employed are not calculated to produce an untrue statement.  Only if the deception, combined with other factors, coerces the suspect or defendant to confess, will the court deem the confession inadmissible.  Id., at 259.

Police May Leverage Victims to Obtain Confession

In order to extract confessions, police may also attempt to persuade the suspect or defendant that her conduct was less blameworthy than anticipated.  Deborah Young, Unnecessary Evil, 28 Conn. L. Rev. 425, 433 (1996).  Police may lie about the victim to diminish the suspects fear of confessing.  In People v. Jordan, 597 N.Y.2d 807 (N.Y. App. Div. 1993), the police told the defendant that he may be able to save the victim if he told the police exactly what happened.  The police falsely told the defendant that the victim had just received eighteen stitches for her knife wound and would soon be out of the hospital, when in actuality, the victim had died. The defendant confessed to stabbing the victim believing that he would be charged with assault and not murder. The court affirmed the murder conviction, holding that, “mere deception by the police is not alone sufficient to render a confession inadmissible unless accompanied by a promise or threat that could induce a false confession.” Id. at 808.

In Massiah v. United States, 377 U.S. 201 (1964), federal agents used an informant as a secret conspirator to listen in on the criminal defendants conversations.  He made incriminating statements to the informant, not knowing that the informant was secretly working with the federal agents.  At the time the statement was made, the criminal defendant was out on bail and had already secured an attorney.  The Court held that because the criminal defendant had secured an attorney and had already been indicted, federal agents could not attempt to elicit a confession without the presence of the criminal defendants retained counsel.  Id., at 204.

Why Are Police Tactics Permissible by the Court?

The Court is reluctant to bar such police tactics and confessions because of the assumption that an innocent person of normal intelligence will not admit to a crime she did not commit.  Patrick M. McMullen, Questioning the Questions: The Impermissibility of Police Deception in Interrogations of Juveniles, 99 Nw. U.L. Rev. 971, 974 (2005). However, the Court has recognized the inherently coercive nature of police interrogations, thereby mandating the police to provide Miranda warnings to suspects and defendants to lessen such coercion.  The intimidation is even greater on juveniles.  The power of police to deceive juvenile suspects during interrogations is significant since kids may be even more impressionable and confused. Juveniles are more likely than adults to defer to the wishes of adult authority figures and are more susceptible to suggestions of guilt.  Id., at 975.  Juveniles are more likely to believe things that adults, especially powerful authority figures, tell them.  Many kids are taught to trust police officers and to have faith in them as enforcers of law.  They are not raised to believe that officers will resort to deception in order to carry out the law.  Id., at 997.  Thus juveniles are easily pressured into admitting guilt or agreeing to false information.   Unfortunately, the interrogation room is one of the few places where the Court has been unwilling to protect juveniles from their own bad or premature decisions.  In Fare v. Michael C., 442 U.S. 707 (1979) the Supreme Court decided that juvenile confessions were to be assessed under the totality of circumstances standard and thus age was only one of many factors that come into play when assessing the admissibility of juvenile confessions.

Police deception may be helpful in eliciting confessions from guilty suspects.  However, such manipulation also extracts false confessions, especially from juveniles.  Placing false hope in young suspects by promises of leniency and misrepresentation of evidence are effective in inducing such false confessions.  Patrick M. McMullen, Questioning the Questions, 99 Nw. U.L. Rev. 971, 988 (2005).  The vast majority of evidence that prosecutors obtain against defendants comes straight from their own mouths because of the Police interrogation methods discussed.

How To Avoid Police Interrogation Tactics

For these reasons, it is best to obtain the services of a skilled criminal defense attorney before an opportunity for questioning arises, or any charges are filed.  After discussing with the client what is known about the scope of the investigation, the attorney should start by advising the detective that the defendant is represented by counsel, and not to talk to his client without that counsel present.  If you have no inkling that you might be investigated or charged with a crime prior to being contacted by law enforcement, it is very important that you consult an attorney before speaking to authorities.  While an officer may imply that failure to speak immediately will result in arrest, a person cannot be arrested for exercising the right to remain silent. Police can only arrest a person if probable cause exists, and the choice to remain silent cannot be part of that analysis. If the officers already have probable cause, they would not need to question you. If they do not, the statement you make could well supply it.

Plea-bargaining and Guilty Pleas: A Curse or an Answer to a Defendants Prayer?

By: Vince Imhoff, Attorney at Law & Helen O. Kim

Plea-bargaining and guilty pleas are a critical element of the criminal legal system.  Plea-bargaining is a process in which a defendant negotiates the terms of punishment in exchange for a guilty plea or a no contest plea. Many times the prosecutor will offer to dismiss some criminal counts or reduce the maximum punishment. There are different reasons why defendants decide to plead guilty or plead no contest and avoid going to trial. Some of the reasons include lower sentencing, lack of evidence to support their case, less costly, and personal desire to confess guilt.  Whatever the reasons are, the practice of plea-bargaining is very common.  Ninety-four percent of felony convictions nationwide are obtained by guilty pleas.  Even convictions for more serious crimes are also commonly obtained by guilty pleas.  The criminal court system is dependant on the practice of plea-bargaining. Under the current structure of the criminal court system it would be impossible to try every case that is filed This raises fundamental concerns to ensure procedures that are necessary to make pleas sufficiently fair and accurate to justify dispensing with the trial process.

Is a Plea Agreement in Your Best Interest?

Unfortunately, while some defendants are making a wise choice to agree to a plea bargain to limit their punishment, many defendants decide to enter plea agreements out of frustration, delays, pressure and lack of faith in the trial system. Therefore, it is the duty of a defense lawyer to make certain that a plea agreement is truly in the best interests of a client and carries out the best wishes of a client.

Guilty Pleas in State Courts

Rule 11 of the Federal Rules of Criminal Procedure defines the basic shape of the guilty plea process in federal courts.  Although most guilty pleas take place in state courts, most states have similar rules to Rule 11.  The purpose of Rule 11 is to establish a predicate for valid pleas.  A guilty plea is valid if it is 1) voluntary 2) intelligent, and 3) has a factual basis.  When a defendant pleads guilty under Rule 11, the defendant gives up certain rights such as the right to a jury trial, the right to be represented by counsel, and any mandatory minimum penalty.  Sentencing is left to the judges discretion.  Furthermore, the defendant gives up the right to appeal or to attack the sentencing.  Guilty pleas are almost never challenged on direct appeals because guilty pleas are consensual.  For the same reason, defendants and their attorneys rarely object to errors in a guilty plea proceeding.  All jurisdictions require that claims or challenges to criminal proceedings be raised in a timely fashion.  If timely objections are not made, the claims are deemed procedurally defaulted and they cannot be raised later.  However, when the defendants object to errors in guilty plea proceedings, they almost always raise their claims on habeas corpus many years later.  Habeas corpus (you may have the body) is a writ requiring the production of the prisoner so that the judge may inquire into the fundamental justice of the detention.  Habeas corpus preserves individual liberty and vindicates the rule of law.  It has certain claims you can raise; one is why the defendant did not raise a certain issue until on appeal.  In this situation, the defendant must show 1) cause as to why the defendant did not raise the issue before the appeal and 2) prejudice the defendant experienced because of failure to raise the certain issue.  If the defendant wins the habeas corpus, a new trial is granted.

Guilty Plea to Avoid Death Penalty

In Brady v. United States, 397 U.S. 742 (1970), Brady sought relief under the habeas provision claiming his guilty plea was involuntarily given.  The petitioner claimed that his guilty plea was coerced by the threat of a death penalty, his counsel exerted impermissible pressure upon him, and his plea was induced by representations with respect to reduction of sentence and clemency.  The Supreme Court held that the petitioners plea was not extracted by any sort of threat or violence, or any improper influence, thus the defendants guilty plea was voluntary and valid.  The petitioner was competently counseled, properly advised, and informed of the plea bargain, and thus the Court found that the petitioner acted voluntarily and made an intelligent choice.  The Court noted that just because there are incentives within the criminal system to induce defendants to participate in plea-bargaining and guilty pleas, such incentives do not function as coercion or threats that result in involuntary pleas.  However, the Court is merely concerned with physical coercion and states that there was no physical harm or mental coercion overbearing the will of the petitioner.  Yet, in reality, it is very possible that an individuals will is overborne by the threat of a death penalty, making the plea involuntary.  An innocent defendant, in fear of the threat of a death penalty, may plea guilty to escape such a risk.

In North Carolina v. Alford, 400 U.S. 25 (1970), the defendant alleged that he pled guilty to second degree murder in order to avoid a possible death penalty although he was innocent of the charges.  The Supreme Court found that the defendant clearly expressed his desire to enter into a guilty plea despite his professed innocence.  The Supreme Court stated that the defendant voluntary pled guilty and the lower court did not coerce or force the defendant to plead guilty.  Rather, the Supreme Court stated that the defendant was not deprived of his free choice to evaluate the situation and determine for himself, whether to go to trial and risk the possibility of a death penalty or waive the trial and plead guilty.

However, in Henderson v. Morgan, 426 U.S. 637 (1976), the defendant pled guilty to a second-degree murder where the trial judge failed to describe the intent term of that crime.  The Supreme Court held that this error denied the defendant his due process rights, regardless of whether the state was able to prove that the killing was intentional, because the defendant did not waive his rights voluntarily.  The failure to inform the defendant of the terms of the crime rendered the defendants plea invalid because he was not informed of all the necessary facts.  Similarly, in United States v. Bushert, 997 F.2d 1434 (11th Cir. 1993), the Court of Appeals found that because the district court failed to specifically question the defendant concerning the waiver of sentence appeal provision, the defendant was not deemed to have knowingly and voluntarily made the waiver, and withdrew the provision from the defendants guilty plea.

Both the prosecution and defense are encouraged to participate in plea-bargaining and avoid going to trial for the interest of the overall justice system. A guilty plea may result in a lighter sentence and avoid costly litigation.  However, at the same time, a defendant waives many important rights when she chooses to plea guilty.  It is strongly encouraged that a defendant contemplating a guilty plea consults an attorney immediately

No Contest Plea

A no contest plea is a plea where the defendant does not admit that he/she committed the crime, but does concede that the government has evidence against her that could result in a guilty verdict. The court treats a no contest plea identically to a guilty plea in terms of finding the defendant guilty of the crime. In some jurisdictions a no contest plea may limit civil exposure to the defendant based on solely on the plea.

State Court Misdemeanors and Felonies

By: Victor Comstock, Attorney at Law and Jay Mykytiuk

The vast majority of defendants are prosecuted in State courts. All states (excluding the District of Columbia) have their own criminal code, and defendants who violate this code are tried in the state in which the violation occurs.

Both misdemeanor and felony offenses may be tried in State court. If you have been arrested or are under investigation by a local police department, you will most likely be prosecuted in a State court. State court crimes are violations of State and local statutes or ordinances. They are prosecuted in either Municipal or Superior Courts in the county in which the charges are filed, by either City Attorneys or District Attorneys.

Misdemeanors

Misdemeanors are generally considered lesser criminal acts. They are usually punishable by a maximum fine of $1000 and a county jail term of one year or less. Misdemeanor convictions may also result in loss of privileges, such as professional licenses, public offices, or public employment. Examples of misdemeanor violations include:

• Petty theft
• Prostitution
• Vandalism
• Drunk driving
• Simple assault
• Trespass

Felonies

Felony crimes are more serious, and are generally punishable by a state prison term or, in certain instances and States, death. Typically, felony convictions also result in a forfeiture of certain civil rights, including the right to vote. Examples of felony crimes include:

• Murder
• Burglary
• Possession of dangerous drugs for sale
• Robbery
• Rape
• Assault and Battery

The process of bringing a defendant to trial in State court varies from state to state, but the general steps in each state include:

• Investigation and Arrest
• Booking
• Preliminary hearing
• Indictment or Information
• Arraignment
• Adjudication
• Sentencing
• Appeal

For a more detailed explanation of the criminal process, see the page on Criminal Case Process.

Criminal laws, penalties, and procedure vary from state to state, and it is important to obtain an attorney who is knowledgeable of the law in the state where you will be tried.

If you are arrested for violation of a State law, a criminal defense attorney may:

• Advise you of your rights and of what lies ahead in the criminal process
• Contact the police and/or prosecution to negotiate dropping charges or filing a lesser charge
• Arrange bail
• Make a motion for your release
• Make a motion to suppress illegally obtained evidence
• Examine prosecution witnesses at your preliminary hearing
• If necessary, represent you at trial

Imhoff & Associates, P.C. Criminal Defense Attorneys represents clients nationwide in State Courts. You can assist in your defense by:

• Gathering documentation of your good character (reference letters, employment history, community service, etc.)
• Exercising your right to remain silent
• Retaining qualified counsel as soon as possible
• Keeping a diary of all significant events and potential witnesses (this information will help your attorney prepare the best possible defense)

Federal Crimes: Criminal Court Jurisdiction

By Brian Barrido, Attorney at Law and Jay Mykytiuk

Most criminal offenses are charged under state laws, investigated by local and state law enforcement agencies, and tried in state courts. However, a crime is a federal offense if it is made illegal by statute or if it occurs on U.S. federal property. These crimes are investigated by the federal agencies such as the FBI, and prosecuted in federal courts.

More Crimes Considered Federal Offenses

Historically, almost all crimes were handled by the states. Only a small number of crimes involving offenses against the country, such as treason or bribery of federal officials, were prosecuted under federal law. But in recent years Congress has passed numerous statutes that mandate long federal prison terms for crimes ranging from drug dealing to kidnapping. There are now over 100 categories of offenses that are considered to be federal crimes. This includes over 4000 individual offenses. Examples include:

• Counterfeiting
• Drug Manufacturing
• Drug Possession/Sales
• Drug Trafficking
• Gun Law Violations
• Health Care Fraud
• Immigration Law Violations
• Kidnapping
• Mail Fraud
• Money Laundering
• RICO Crimes
• Securities Fraud
• Social Security Fraud
• Tax Crimes
• Terrorism
• Weapons Charges
• Wire fraud

Crimes Committed on Federal Property

In addition to the long list of specific federal crimes, any crime that is committed on federal property is subject to federal prosecution and comes under the jurisdiction of the federal court system. This includes crimes committed in government buildings, airports, national wildlife refuges, national forests, military installations, and Veteran Affairs medical centers. For example, an assault committed in a post office will be prosecuted under federal law, even though there is no federal assault law.

Federal Sentencing Guidelines Harsher than State

Whether a crime is prosecuted under state or federal law is important, mostly due to differences in sentencing guidelines. Federal sentencing is controlled by the United States Code and the Federal Sentencing Guidelines. Under the Guidelines, a federal judge is required to sentence according to a formula, which consists of a combination of the offense and the defendant’s criminal history. Judges must impose pre-determined minimum mandatory sentences and they have virtually no authority to deviate from sentencing guidelines even if they feel that the sentence is excessive.

Partly due to the federal sentencing guidelines, federal sentences are often considerably harsher than the equivalent state sentence. For instance, a United States Sentencing Commission study found that drug offenders prosecuted in federal court served approximately 84 months in prison, while those prosecuted in state courts usually serve an average of 20 months.

Because navigating federal law can be challenging, it is important that you are represented by an attorney who is familiar with federal court procedures. An attorney who can navigate the complicated federal sentencing guidelines may be able to obtain a reduced sentence or even dismissal.

The Obstacle in Empanelling an Impartial Jury in a High-Profile Case

By Tony Partipilo, Attorney at Law and Helen O. Kim

Sixth Amendment: Defendant Rights Jury Trial

In Duncan v. Louisiana, 391 U.S. 145 (1968), the Supreme Court recognized that the Sixth Amendment right to a jury trial in criminal cases is fundamental to the American scheme of justice. The purpose of a jury trial is to (1) prevent oppression by the government, (2) provide a safeguard against a corrupt or overzealous prosecutor and/or a biased or compliant judge, (3) give defendants the opportunity to be tried by his or her peers, and (4) reflect reluctance to entrust the liberty and life of an individual to one judge. See id. Unfortunately, there are also drawbacks to being tried by a jury. The role of a jury is to remain impartial and apply the facts of a given case to the law. However, a jury is often composed of individuals with various backgrounds and experiences who have pre-formed judgments and opinions about an issue even before entering the courtroom. It is difficult for individuals to abandon their life-long belief systems in the courtroom simply because they are instructed by a judge to remain neutral. Thus, jury selection is an important screening process to ensure that a cross-section of the community is represented in a jury to provide the defendant with a fair trial by his peers.

Jury Selection

Jury selection is comprised of several stages. First, a large master list of prospective jurors is compiled. This list is usually derived from a combination of public and governmental sources, such as telephone books, DMV records, and voter registration lists. The master list is narrowed down to a smaller list, or venire, through random selection. These prospective jurors are asked to supply basic information about themselves, and may be disqualified or exempted based on the information. Prospective jurors may be disqualified based on lack of citizenship, underage status, and felony convictions while prospective jurors may be excused due to personal hardships, such as financial and physical infirmities. After the venire has been finalized, the next stage of jury selection consists of voir dire.

Voir Dire: Voir dire provides judges, prosecutors, and defense attorneys with information that allows for the exclusion of prospective jurors based upon bias. During voir dire, the trial judge, prosecutor, and defense attorney ask prospective jurors questions in person. Depending on the jurisdiction, voir dire may be conducted by only the prosecutor and the defense attorney, only the trial judge, or all three. During voir dire, each party may introduce prospective jurors with the issues that pertain to a particular case in order to determine their personal opinions. The prosecutor and the defense attorney may challenge for cause against prospective jurors they believe to be biased. The trial judge then grants or denies the challenges based upon the information obtained from the prospective juror. The prosecution and the defense are also granted a certain number of peremptory challenges, which they can use to dismiss potential jurors without any explanation. Once both parties have exhausted their challenges, a jury is sworn in.

High-Profile Cases

In high-profile cases, it is difficult to find a potential juror who has not been exposed to the case at hand and has not already formed an opinion about the case or the parties involved. In such cases, extensive voir dire is conducted to choose an impartial jury. In ABC, Inc. v. Stewart, 360 F.3d 90 (2nd Cir. 2004), there was a two-part voir dire process because of the difficulty in impaneling an unbiased jury due to the high level of media attention and publicity. In Stewart, the district court issued an Order excluding the media from attending the voir dire process and prohibiting the media from publishing or otherwise disclosing the identity of prospective jurors. Instead, the Order granted public access to the transcripts of each days voir dire, with the names of prospective jurors and their personal information omitted. The rationale for the media exclusion during the voir dire process was to encourage juror candor since there was a possibility that prospective jurors would not be entirely upfront in the presence of the press and media. Id.

In Stewart, ABC, Inc. and other news organizations argued that voir dire transcripts were insufficient substitutes for personal attendance since visual and audible emotions and gestures were lost in transcripts. Thus they argued that the Order was an infringement on their First Amendment right to access criminal proceedings since criminal trials are open to the press and the general public. Open criminal trials ensure safeguards for the defendant by providing public scrutiny of the criminal process. The Supreme Court has recognized that the guarantee of open public proceedings in criminal trials extends to the voir dire process. However, a proceeding will be closed if there is finding of (1) substantial probability that public will prejudice the defendants right to a fair trial, and (2) there are no reasonable alternatives to protect the defendants right to a fair trial. Id., at 98.

The court in Stewart concluded that an open voir dire proceeding would not prejudice the defendant because (1) members of the media had not conducted themselves improperly in covering the case; (2) prospective jurors were likely to have preconceptions about the defendants in any high-profile criminal case with or without the presence of the media; (3) the defendants were to be present in the voir dire process and if prospective jurors did not have problems being candid in the presence of the actual defendants, then they would not have problems revealing their biases in the presence of reporters as well; and (4) there werent any controversial issue to be probed in voir dire that might impair the candor of prospective jurors. Id., at 101.

On the other hand, in United States v. King, 140 F.3d 76 (2d Cir. 1998), the court decided differently in the issue of an open voir dire process. The Court issued an Order providing the press with limited access to the voir dire proceeding (the press was denied access to transcripts of individual voir dire questioning of prospective jurors until the jury was impaneled as well as the transcripts of voir dire from the first trial, which resulted in a mistrial). Id., at 78. In King, the Court reasoned that juror candor regarding the attitude toward the defendant was of particular importance because of the delicate issue area of possible racial bias. Id., at 83. While a prospective juror in Stewart would have no reason to shy away from showing bias and distaste against insider trading, a prospective juror in King would have reason to hide personal racial biases in the presence of media during voir dire, making the entire process ineffective and depriving the defendant of a fair trial by an impartial jury.

Safeguards

There are few remedies against prejudicial pretrial publicity. See Studebaker & Penrod, Pretrial Publicity: the Media the Law, and Common Sense, 3 Psychol. Pub. Poly. & L. 428 (1997.) First, a court may grant a continuance of a case in the hope of dissipating publicity over time. However, with a continuance, there is a risk of losing evidence, especially evidence pertaining to the memory of an eyewitness. Another option is to conduct an extensive voir dire process to weed out prospective jurors who show great influence from publicity. However, having an open voir dire proceeding may influence potential jurors to be indirect and insincere in their answers. Other possibilities include a change of venue (move the trial to another location) or a change of venire (bring in jurors from another jurisdiction), but a majority of the American public is exposed to high-profile cases such as the Stewart and King cases, regardless of where the alleged crime actually took place.

Conclusion: Sixth Amendment Right Threatened

In todays world always around-the clock news coverage and advancements in the media, the American public is within arms reach to any type of news, anywhere. Such developments in the media can pose a threat to a defendants Sixth Amendment right to a fair trial by influencing the jury pool with premature information.

Bail Issues: Can You Bail Me Out of Jail?

By Colin McKibbin, Attorney at Law and Helen O. Kim

Timeline of an Arrest

• An individual is arrested and charged with an offense.
• The defendant makes an initial appearance where either the defendant is released on her own recognizance or bail is set.
• Defendant either pays bail with a bond and is released pending trial or remains detained until trial.
• If the Defendant appears for trial. Then the bond money is returned to the defendant or his surety.
• If the Defendant fails to appear for trial. Then court keeps the bond money.

The Initial Appearance in Front of a Judicial Officer

After an individual is arrested and charged with a criminal offense, the defendant must make an initial appearance in front of a judicial officer. At this time, the judicial officer informs the defendant of the charges against her and of her rights, and either releases her on her own recognizance, sets bail, or other conditions of release pending trial. Bail, also known as pretrial release, prevents imprisonment of a defendant pending trial. A judicial officers decision to release the defendant before trial is based on the risk of the defendants nonappearance and the likelihood that the defendant will flee once she is released.

A defendant may be released on personal recognizance (the defendants pledge or promise to appear at all future court dates) or upon execution of a bond. 18 U.S.C.S. 3142(b). A bond is a written and sealed obligation of payment by the defendant or his surety to insure the defendants appearance in court. A bail bond is the most common form of pretrial release where the defendant avoids imprisonment by promising to pay a prescribed amount if he or she fails to appear in court.

The Bail Reform Act provides that a person may be released pending trial upon execution of a bail bond in an amount deemed reasonably necessary to assure the individuals appearance. In most cases, the bond amount depends on the nature of the defendants charge. The rationale for this practice is that the more serious the charge, the more reluctant the defendant will be to appear in court since the consequences are greater. In very serious crimes or cases where the defendant cannot be trusted to appear in court, the judicial officer intentionally sets the bond amount high so that the defendant will not be able to meet it and the defendant will be detained in jail until her trial date.

Reduction of Bail

In United States v. Lemos, 876 F. Supp. 58 (D.N.J. 1995), the defendant was charged with conspiracy to distribute cocaine. The magistrate set the defendants bail at $25,000 and the defendant moved for a reduction of the bail to $2,500 because he was not able to raise $25,000. The defendant stated that the Bail Reform Act of 1984 entitled him to bail at an amount he could afford. He argued that pursuant to 18 U.S.C.S. 3142(c)(2), [t]he judicial officer may not impose a financial condition that results in the pretrial detention of the person. However, the court stated that under Section 3142(c) a judge may set the bail high if the judge believes that a high bail is the only means of assuring the defendants appearance. If the defendant is unable to post bail to insure his appearance, then the only assurance for the defendants appearance is detainment.

On the other hand, in United States v. Leisure, 710 F.2d 422 (8th Cir. 1983), the court granted the defendants motion for reduction of bail because a high bail was not the only means of assuring the defendants appearance in court. The defendants were charged with participating in racketeering activities that carried a maximum penalty of twenty years of imprisonment and a $25,000 fine. Their bail was set at $1 million and $2 million. The court reduced the defendants bail after considering the nature and extent of the circumstance. The court determined that the defendants would appear for trial after their release because they had resided in the city for a long time, their immediate families also resided in the city, they owned real property in the city, they were employed in the city, and they had a good track record of appearing in court for other criminal proceedings. Id.

Surety: Defendant’s Appearance in Court

In many instances, a defendant is released pending trial on a bond secured by property belonging to the defendants family members. The family member(s) act as a surety and are responsible for the defendants appearance in court. Pursuant to Federal Rules of Criminal Procedure 46(e)(1), once a defendant appears for trial, [t]he court must exonerate the surety and release any bail. The court must exonerate a surety who deposits cash in the amount of the bond or timely surrenders the defendant into custody. However, if the defendant flees upon release, the surety assumes the bond amount. In United States v. Nguyen, 279 F.3d 1112 (9th Cir. 2002), the defendant was convicted of loan fraud and sentenced to a thirty-month prison term. The district court increased his bond from $50,000 to $100,000 and released him pending appeal. The defendants sister and brother-in-law acted as the defendants sureties and secured the bail bond with their equity in residential properties. The defendant failed to appear in court due to various medical problems but the court stated that the defendants medical problems were not exigent circumstances and did not prevent him from appearing in court. The defendant was arrested and the district court entered judgment against the sureties for the entire bond amount of $100,000. The Court of Appeals affirmed the district courts decision and stated that as sureties, the defendants relatives had an obligation to assure the defendants appearance and to learn whether he was in violation of the bond requirement. The sureties were aware of the consequences when they entered the bond agreement and they needed to accept the cost. Id., at 1118.

In Bridges v. United States, 588 F.2d 911 (4th Cir. 1978), defendants were charged and convicted of violating narcotics law. Many of the defendants had secured money for the cash bond from their relatives and friends. The defendants satisfied the terms of the bond by appearing at trial and the defendants sureties sought a return of the bond money. Id., at 912. The controversy arose when the government moved to secure the bond money in a trust and use it to pay the defendants fines associated with their crime instead of returning it to the defendants relatives and friends. The court stated that such practice was allowed if the bond money belonged to the actual defendants and not their sureties. The court stated that there is a presumption that the money deposited by each defendant [as bail] was his own where the names of third party claimants to the money did not appear of record. Id. Thus the sureties needed to prove that they were entitled to a refund of the bond money because it belonged to them and not the defendants although their names were not on record.

Conclusion: Complications in Bail Setting

As the above cases indicate, bail setting may create complications to an already distraught defendant who is charged with an offense. A defendant should contact a defense attorney to represent the defendant in the initial appearance proceeding and bail setting hearing to avoid imprisonment before trial. Individuals who act as sureties to a defendant should also contact an attorney to discuss their responsibilities and possible consequences that may arise from their agreement.

What the Public Needs to Know About Criminal Cases

Swazi Taylor, Esq. and Jay Mykytiuk

Criminal Law: An Overview

Criminal law involves the prosecution by the government of any person accused of an act that constitutes a crime. A crime is the commission of an act or the omission of an act in violation of a public law. Most crimes are made so by statute; such as a penal or criminal code. It is the filing of criminal charges that starts the lawsuit. The charges are generally contained in a written complaint filed by the governments attorney, the prosecutor (or district attorney). Some jurisdictions use the Grand Jury–a public body of citizens, who hear evidence and then decide whether or not charges should be filed. Often the charging document is referred to as an indictment. In either case, once the action is commenced, the prosecutor must prove beyond a reasonable doubt that the accused (defendant) committed the crime charged. Those convicted of a crime maybe subject to imprisonment, fines or both.

Historically crimes fit within two categories: Felonies and Misdemeanors. Felonies are generally crimes punishable by more than one year of incarceration in prison, along with fines. In addition, there are other implications of a felony conviction (for example, the right to vote is lost and the right to own a firearm is lost as well). Misdemeanors are less serious crimes that, upon conviction, result in a local jail sentence of generally less than one year.

State vs. Federal Court

Most criminal prosecutions are heard in State Courts. All states (excluding the District of Columbia) have their own criminal or penal code, and defendants who violate this code are tried in the state in which the violation occurs.

The Federal courts have jurisdiction over both misdemeanor and felony offenses. If you have been arrested or are under investigation by a local police department, you will most likely be prosecuted in a state court. State crimes are violations of state and local statutes or ordinances. They are prosecuted in either Municipal or Superior Courts in the county in which the charges are filed, by either City Attorneys or District Attorneys.

If the Federal Bureau of Investigation (FBI), the Drug Enforcement Agency (DEA) or Homeland Security Agency is involved, you probably will be prosecuted in the federal court system. Misdemeanor or felony offenses that are prosecuted in federal courts generally involve issues of federal law or involve crimes that have occurred on federal property or crimes in which unlawful activity crosses state lines. As a general rule, federal crimes involve much more serious penalties. Federal crimes are prosecuted by Assistant United States Attorneys.

Misdemeanors

Misdemeanors are generally considered less serious criminal acts. They are usually punishable by a maximum fine of $1000 and a county jail term of one year or less. Misdemeanor convictions may also result in loss of privileges, such as ownership of a firearm, professional licenses, public offices, or public employment. Examples of misdemeanor violations include:

• Petty theft
• Prostitution
• Vandalism
• Driving under the influence
• Simple drug possession
• Simple assault
• Trespass

Felonies

Felony crimes are more serious, and are generally punishable by a state or federal prison term or, in certain highly serious felony cases, death. Typically, felony convictions also result in loss of privileges and a forfeiture of certain civil rights, including the right to vote. Examples of felony crimes include:

• Murder
• Commercial Burglary
• Residential Burglary
• Possession of controlled substances
• Possession of marijuana, controlled substances, dangerous drugs for sale or transport
• Robbery
• Rape
• Assault, generally involving force or injury
• Battery
• Criminal Threats
• Child Molestation

The process of bringing a defendant to trial in state court varies across the states. The general steps may include:

• Investigation and Arrest (may or may not include the use of warrants)
• Booking
• Preliminary Hearing or Grand Jury Proceedings
• Misdemeanor or Felony Complaint/Information or Indictment
• Arraignment
• Settlement Conferences
• Hearings on Legal Motions
• Trial Proceedings
• Sentencing Hearing
• Appeal

If you are arrested for violation of the law, a good criminal defense attorney should:

• Advise you of your rights
• Keep you apprised of impending court date(s)
• Advise you of what lies ahead in the criminal process
• Have a strategy for the defense of your case
• Contact the police and/or prosecutor to negotiate dropping charges or filing a lesser charge
• Arrange bail or release on your own recognizance
• Make a motion for your release or for reduction of bail
• Investigate the matter thoroughly
• Make a motion to suppress illegally obtained evidence
• Make all appropriate legal motions
• Negotiate and advocate aggressively on your behalf
• Examine and/or cross-examine witnesses at all hearings
• Prepare the case for trial proceedings
• Conduct the trial, where necessary
• Prepare argument and witnesses for sentencing
• Inform you of any plea deal offered by the prosecution

Imhoff & Associates, P.C. Criminal Defense Attorneys has a nationwide network of attorneys. All of our criminal attorneys are focused on one goal: Employing a strategy to acheive the best possible outcome based on the facts of each case.

You can assist in your defense by:

• Exercising your constitutional right to remain silent
• Retaining qualified counsel as soon as possible
• Gathering documentation of your good character (reference letters, employment history, community service, educational history with transcripts, medical history and doctors reports, etc.)
• Keeping a diary of all significant events and potential witnesses, which will help your attorney prepare the best possible defense

As you can see, the investigation and prosecution of persons accused of committing crimes involves complex procedures and rules. It is best to seek out a highly qualified and experienced criminal attorney, who is licensed to practice law before the State court or Federal court where the criminal charges have been filed.

For a more detailed explanation of the criminal process, see our Criminal Case Process Page

The Self-Defense Justification

By Vince Imhoff, Esq., and Dan Rhoads

In December 1984, Bernhard Goetz, a slight 37-year-old white man, boarded a subway train in the Bronx, which four young black men were already riding. The youths were on their way to Manhattan to rob videogame machines with sharpened screwdrivers they were carrying. One of them demanded $5 from Goetz and threatened him with a screwdriver when Goetz refused.

Goetz, who had been mugged and injured three years earlier and who feared being maimed, pulled out an unlicensed .38 caliber pistol and fired four shots, one at each of the youths, the first three of which struck their targets. Once Goetz noticed that his fourth target had not been hit, he said, You seem to be all right; heres another, and fired a shot that severed the mans spinal cord. People v. Goetz, 497 N.E.2d 41, 44 (NY Ct. App. 1986).

Bernhard Goetz became known as the Subway Vigilante, and his case divided both New York and the nation. Those who were frustrated by the New York polices failure to fight crime backed Goetz. Others, who viewed the episode as a racial issue, vilified him.

A grand jury indicted Goetz on attempted murder, assault, and illegal gun possession. When the case eventually went to trial, Goetz claimed self-defense. The jury found in his favor and convicted him only for the gun charge, for which he served 8 months in jail.

The Law of Self-Defense

The New York self-defense law is typical of American justification statutes. It says that a person may use force when and to the extent he reasonably believes such to be necessary to defend himself . . . from what he reasonably believes to be the use or imminent use of unlawful physical force by another person. N.Y. Penal Law 35.15(1). The defense usually does not apply when the person using force was the aggressor. As in the Goetz case, deadly physical force is prohibited unless the person reasonably believes that the other is using or is about to use deadly force, or that the other is committing or about to commit a burglary, kidnapping, forcible sexual intercourse, or robbery. 35.15(2).

The phrase reasonably believes was a source of controversy in Goetz. The appellate court determined that a determination of reasonableness must be based on the circumstances facing a defendant or his situation. Goetz, 497 N.E.2d at 52. These circumstances may include knowledge the defendant had about the other, the physical attributes of all people involved, and any prior experiences. Because the defense successfully depicted the situation as a group of young men threatening one smaller individual who had previously been injured in a mugging, the jury acquitted.

Limitations on Self-Defense

Noting that self-defense is a law of necessity, the D.C. Circuit Court of Appeals has said, the right of self-defense arises only when the necessity begins, and equally ends with the necessity. U.S. v. Peterson, 483 F.2d 1222, 1229 (D.C. Cir. 1973). An incident inside a prison illustrates the imminence requirement.

Nelson Flores-Pedroso continually threatened a fellow inmate, Charles Haynes, sometimes in front of guards who did nothing. One day, Pedroso told Haynes that, after food service, Pedroso would finish what he started. U.S. v. Haynes, 143 F.3d 1089, 1090 (7th Cir. 1998). So, during food service, Haynes snuck up on Pedroso and poured scalding oil onto Pedrosos head. Noting that later and imminent are opposites, Id., the court rejected Haynes self-defense justification.

The classic example of an imminent threat is the aiming of a gun. In the early 1990s, rapper Snoop Dogg was charged as an accomplice in the murder of Philip Woldermarian. Represented by Johnnie Cochran, Snoop and his confederates were acquitted of murder when they convinced the jury that the deceased had pointed a gun at them.

In any jurisdiction, a defendant claiming self-defense must have lacked a legal alternative to violating the law. U.S. v. Bailey, 444 U.S. 394, 410 (1980). In other words, if walking away is an option, self-defense is not a justification.

In the summer of 2005, a 13-year-old Pony League baseball player killed a 15-year-old spectator with a baseball bat after the older boy harassed him. The 15-year-old, named Jeremy Rourke, was 510, 190 pounds, and white. The 13-year-old defendant, whose name is withheld because of his age, was 51, 90 pounds, and black.

After the younger boys team lost a game, Rourke harassed the defendant by using a racial slur and telling him, You suck (13-Year-Old). Rourke shoved the minor, who said that he was not in the mood to be messed with. Rourke said, What are you going to do about it?, (Id.), and shoved the boy again.

The young defendant testified that he feared assault: in his words, I thought he was going to beat me up (Defendant). So, he pulled out an aluminum bat and hit Rourke once in the leg. Rourke bent over and balled his hand into a fist, at which time the younger boy swung again and hit Rourke in the head. Rourke died from his injuries.

Although people familiar with the league agreed that Jeremy Rourke was a bully and a troublemaker, although he stood a head taller and was 100 pounds heavier than his assailant, and although he initiated the conflict by harassing the defendant and using a racial slur, the self-defense claim failed. Los Angeles County Superior Court Judge Richard Naranjo said, when the opportunity was there to avoid further confrontation, [the defendant] did not take that opportunity (Ballplayer). The boy was convicted for second-degree murder.

Battered Women

The self-defense claims of women who kill the men that consistently assault them begin with the principle that a determination of reasonableness must be based on the circumstances facing a defendant or [her] situation. Goetz, supra. The question presented is whether or not the circumstances facing battered women justify a relaxation of the imminence requirement.

Only during the last two decades of the twentieth century did the courts begin to allow testimony of Battered Womans Syndrome (BWS) in such cases. See, e.g., State v. Kelly, 478 A.2d 364 (NJ 1984). Although courts in most jurisdictions are increasingly open to BWS evidence, critics insist that, Such relativization of ethical standards is . . . impossible for the law to adopt if it is to maintain its moral basis (Morse).

Summary

Self-defense can be a justification for an assault when a person has a reasonable expectation that he is about to be injured. The type of defense must be appropriate in light of the perceived threat. Thus, the use of deadly force in self-defense is permissible only where the person perceives imminent death or serious bodily injury.

Because the reasonability of the perception of the threat depends upon the persons circumstances and situation, the law of self-defense has some flexibility. In cases of battered women or children, courts have allowed evidence of the abuse to help explain the defendants disposition. However, the attempt to expand self-defense by limiting the imminence requirement has met with resistance.

Self-defense is actually a difficult justification to prove. Because of the value of human life, juries tend to err in favor of the deceased, unless countervailing societal factors, such as frustration with law enforcement, prevail. In any case, it takes a skilled attorney and advocate to argue to a jury that an assault or a killing was justified.

Caitlin Liu, Defendant, 13 Says He Feared Assault, Los Angeles Times, 8 July 2005, B1.

Caitlin Liu, 13-Year-Olds Lawyer Argues Self-defense, Los Angeles Times, 7 July 2005, B3.

Caitlin Liu and Hector Becerra, Ballplayer, 13, Convicted of Fatal Beating with Bat, Los Angeles Times, 9 July 2005, A1.

Stephen Morse, The New Syndrome Excuse Syndrome, Criminal Justice Ethics, Winter/Spring 1995, p. 13.

Illegal Search? Probable Cause and Drivers Rights

By Vince Imhoff, Esq. & Dan Rhoads

Anyone who has been pulled over while driving can relate to the sinking feeling that strikes once the multicolor police lights ricochet off the rear-view mirrors and into the drivers sight. Once the cars are parked on the side of the road, the officer confidently strides toward the car and requests paperwork. Then, nonchalantly, he springs the question: Can I search your car?

In most cases, the request seems harmless. But in some instances, an individual might be embarrassed to let an officer search his car. The potential shame can come from any number of materials, including intimate items, medical treatments, and LA Clippers memorabilia.

Many citizens are unsure about whether or not they must consent to a search of their vehicles.

Probable Cause

The Fourth Amendment of the Constitution guarantees the right of the people to be secure in their persons . . . and effects against unreasonable searches and seizures. In order for a search to be reasonable in the absence of consent, the officer must have probable cause to believe that a crime has been, is being, or will be committed.

Drivers should be familiar with two important probable-cause rules. The first is the plain-sight rule, which says that anything in the cars cabin that the officer can plainly see from outside is fair game. The second is the furtive-gesture rule, which means that an officers observance of actions inside the car that can be reasonably perceived as attempts to destroy or remove evidence gives the officer permission to search.

Another common source of probable cause is odor. If an officer smells alcohol or marijuana smoke, he will probably question the driver about it. This line of questioning often results in field sobriety tests.

Federal and state Supreme Court opinions from 2005 explore the boundaries of probable cause and police searches.

Without Probable Cause

In Illinois v. Caballes, 125 S. Ct. 834 (2005), a state trooper stopped the defendant for speeding. While the first officer wrote a warning ticket to the driver, who was sitting in the police car, another agent walked his canine around the defendants car. The canine alerted at the trunk of the car, and the officers searched it. Finding marijuana, the troopers arrested the defendant. Id.

The seized evidence was allowed at trial; and the defendant was convicted, sentenced, and fined. The Illinois Supreme Court reversed; but in a 6-2 opinion, the United States Supreme Court reinstated the conviction. Id.

The holding in Caballes was: A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment. Caballes, __ U.S. at __. What this holding means is that an officer does not need probable cause to use a canine to detect contraband inside a vehicle as long as the detection occurs while the driver is being detained for a lawful purpose. However, the Court warned, A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. Id.

Limits on Caballes

An Arkansas Supreme Court opinion in the wake of Caballes highlights the limitations that the Supreme Court upheld with respect to illegal searches.

In Lilley v. Arkansas, 2005 WL 1244872 (Ark. 2005), a police officer stopped the defendant after observing his car as it swerved off and back onto the highway three times. Although the officer noticed a strong scent of air freshener in the car, he decided only to write the driver a warning because it was raining. Id. While Lilley sat in the patrol car, the officer filled out the paperwork and ran the usual checks on the vehicle and its driver. The checks raised no warnings about Lilley, but his answers to the officers questions did.

The officer became suspicious when he asked about Lilleys travels. Other than the drivers growing nervousness, the most quizzical fact was that the car was a one-way rental from California to Virginia and was rented in another persons name. Even though the driver refused consent to a search, the police officer decided to walk his canine around the car. The canine alerted to the trunk, in which the officer found three duffel bags carrying marijuana.

Lilley was convicted at trial, but the Arkansas Supreme Court eventually reversed the conviction.

The Arkansas court held that the combination of the one-way rental in a third-partys name, the drivers nervousness, and the scent of a masking odor did not give Officer Bowman reasonable suspicion to detain Lilley further for a canine sniff of his car after the traffic stop was concluded. Id. The court reasoned that it is impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation. Id. (quoting U.S. v. Beck, 140 F.3d 1129, 1137 (8th Cir. 1998)).

The Lilley court was quick to distinguish its case from Caballes. It noted that sniffing by a drug dog is permissible where the sniff was conducted during the lawful traffic stop which was not extended beyond the time necessary to complete the criminal history check and issue the warning ticket. Lilley, 2005 WL 1244872, n.2. Because the officers stop was rendered complete when he handed Lilley back his paperwork and the dog run was conducted after the legitimate purpose of the traffic stop had been completed, Id., the seized evidence was the product of an illegal search.

Dealing with the Police

The best way to deal with police is to know your rights while remaining polite and respectful. Refusing consent to a search of your vehicle is your right. The police must have probable cause to believe that you are involved in a crime before they search without your consent. The police may detain you only for the period of time that it takes them to complete whatever paperwork or background checks they are lawfully doing. Once the administrative work is finished, you are free to leave unless the police officer places you under arrest for committing a specific crime.

Remember to be courteous and cooperative. Misbehavior will only make the police more aggressive; and if you act egregiously enough, your actions can constitute probable cause. The other thing you should almost never do is to admit to breaking the law.

An experienced defense attorney can investigate a traffic stop to make sure that every aspect of it was permissible. A lawyer can advise you of remedies in the unfortunate event that the police have violated your rights. If the police have performed an illegal search, an attorney must work to ensure that the evidence they collected be excluded if the case goes to trial.

Vince Imhoff is the Managing Partner of Imhoff & Associates, P.C., Criminal Defense Attorneys. Originally from Chicago, he is admitted to practice law in Illinois, California and Pennsylvania. He obtained his Bachelors degree in Political Science from Lewis University, and earned his law degree from Illinois Institute of Technology/Chicago-Kent College of Law in 1989. From 2000 through 2002, Mr. Vince Imhoff was the Assistant Coach for the trial team at Loyola University School of Law.

With articles published in the LA Daily Journal, Mr. Vince Imhoff is currently a member of the State Bar of California, the California Attorneys for Criminal Justice (CACJ), State Bar of Illinois, and the National Association of Criminal Defense Lawyers (NACDL).

Understanding the Miranda Rights

By Ed Martinovic, Esq., and Dan Rhoads

You Have the Right to Remain Silent

Those words have been popularized in television and movies, and many people recognize them as the opening of the Miranda rights. But what those rights are, and what results when police officers fail to read them to criminal suspects, are topics that are frequently misunderstood.

Before Miranda, the right against self-incrimination was never self-executing and always had to be invoked by the suspect. This invocation is what is commonly referred to as pleading the Fifth. In Miranda, the Supreme Court shifted this burden to the police, and required them to specifically advise suspects of their right to remain silent and their right to have an attorney present during questioning. The Court ruled that all statements or confessions made in the absence of the warnings are inherently involuntary and coerced, and hence inadmissible in court.

The most common misconception regarding the warnings is that police must read them to everyone that they arrest, and that an arrest without them is somehow invalid. This is pure myth: as long as police have probable cause to believe a suspect has committed a crime, the arrest is valid.

The decision in Miranda v. Arizona essentially is that The prosecution may not use statements . . . stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda, 384 U.S. 436, 444 (1966). This means that any time a person is in custody and subject to interrogation, the police must apprise the person of his rights, or the statements are inadmissible in court.

Custody is defined as any deprivation of liberty where the person does not feel the freedom to simply walk away. It should be noted that courts generally rule that people are not in custody during routine traffic stops and other routine police encounters.

Interrogation means questioning initiated by law enforcement officers after a person has been taken into custody or, any other police action that produces an incriminating response.

Once these two elements exist, the police are required to read a suspect the warnings. The reason for this requirement is that the danger of coercion resulting from the interaction of custody and official interrogation, whereby the suspect may feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess. Illinois v. Perkins, 496 U.S. 292 (1990).

Exceptions

Some important exceptions to Miranda have been highlighted in Supreme Court opinions.

First, once the Miranda warnings are given, any statements that the suspect makes after that point are admissible, even if they are the same statements that were made prior to the warnings. This is true because a confession made by a suspect with knowledge of his Miranda rights is not considered the product of coercive police conduct, due to the fact that the suspect is now fully aware of his rights.

Also, [a]n undercover law enforcement officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response. Perkins, 496 U.S. 292. This exception exists because when a prisoner does not know that he is talking to an undercover agent, the essential ingredients of a police dominated atmosphere and compulsion are lacking. Id.

Know Your Rights

It is absolutely vital that suspects understand that the rights covered by the Miranda warnings can be waived, or given up, provided the waiver is made voluntarily, knowingly, and intelligently. Miranda, 384 U.S. at 444. People can waive their rights in any number of ways, verbally, in writing, or impliedly by making statements after the warnings are issued. Increasingly, police write a persons confessions on forms containing pre-printed Miranda waivers at the bottom, and people often fail to notice the language on signing the confessions. Thus, it is essential that when taken into custody, people not talk to police or sign anything without an attorney present.

The upshot of Miranda is that a jury cannot know about any statements given prior to the defendants advisement of his Miranda rights if the suspect gives the statements in a police-dominated atmosphere. Nor can it hear any part of an interrogation that occurred after the defendant invoked the right to an attorney. See, e.g., Minnick v. Mississippi, 498 U.S. 146, 156 (1990). The fact that all police questioning must cease upon a persons requesting an attorney is a powerful tool in resisting police interrogation. However, given the inherently coercive nature of police encounters, people are sometimes hesitant to invoke their rights for a number of reasons.

When the Supreme Court revisited Miranda, it held that an accused . . ., having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 484 (1981).

However, a suspect should never waive the right to counsel and should waive the right against self-incrimination only after conferring with an attorney. (See True Lies or False Truths, available at http://www.criminalattorney.com/news/false-confessions/.) When a citizen is facing prosecution by the resources of the government, his most powerful aegis is the Constitution. Once a person waives his constitutional rights, the chances of a favorable outcome quickly diminish.