Author Archives: Kim

What lawyers really do

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Word association time! When I say lawyer, what image comes to mind? Probably someone in a suit, standing in a courtroom and making passionate arguments. And sure, some lawyers do that. In reality, however, the vast bulk of attorneys’ work in criminal cases—whether the lawyers are defense attorneys or prosecutors—takes place outside the courtroom.

The United Kingdom and some other common law countries have two kinds of lawyers: barristers act as advocates in court, whereas solicitors do most of the out-of-court work. We don’t make this distinction in the US, however, and even the UK has blurred the lines in recent years.

Only about 5% of criminal cases ever get to trial. In the other cases, the charges are dropped, the defendant pleads guilty, or a plea bargain is reached. That means that in 95% of criminal cases, the lawyers will never step foot in court.

But of course that doesn’t mean they aren’t busy. They’re leading investigations into the evidence; interviewing the defendant, victim, and/or witnesses; doing research into the law; filing paperwork such as pretrial motions; and discussing the case with the opposing side. Depending on the complexity of the case, these activities will last months or even years. And if the case does end up in court, while the trial is going on the lawyers will continue to do a lot of work behind the scenes.

I know trials make for exciting drama on the screen and in our pages. It’s a bit more challenging to draw excitement out of a scene in which someone’s drafting a motion or memorandum. (“Heart racing, she paused with her finger hovering over the mouse button. Should she click Search now, or were her Boolean terms too broad?”) But if you’re going for accuracy in your depiction of a lawyer in a criminal case, you should at least acknowledge the amount of effort going on outside the courtroom.

Signed, sealed, delivered?

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While Mary’s parents cried and her lawyer droned on, Mary sat serenely in her chair. Big deal if she was facing burglary charges. The lawyer had already told her she was going to get probation. And that crap her parents kept whining about—how this was going to ruin her future? Bull. Mary was only 16 and being tried in juvie court. As soon as her 18th birthday rolled around, her records would be sealed and it would be like nothing bad ever happened. Smooth sailing.

Hang on there, Mary. You’re assuming way too much.

First off, this is yet another of those situations in which the law varies by jurisdiction. So if you’re writing about this, check your state laws.

And second, it’s never as easy as Mary assumes. In some states and in some cases, sealing of juvenile records is automatic. But those situations tend to be limited to minor offenses committed when the kid was especially young. Usually, a person must go to court and file a petition to have a juvenile record sealed. Even then, many limitations apply. In California, for example, only certain kinds of records can be sealed, the person must now be over 18, and it must have been at least 5 years since the person has had significant contact with the criminal justice system.

Furthermore, even when juvenile records are sealed, they may still be available to some parties. For instance, they may still come up during a criminal background check conducted by various agencies. They won’t simply disappear.

If juvenile records are sealed, the person doesn’t have to report the offense when applying for jobs.

If Mary is 16 and facing a burglary charge, her juvenile record probably won’t automatically be sealed. If she’s in California or a state with similar rules, she can’t even try to have it sealed until she’s 21. And even then, if she hoped to work in law enforcement or get high security clearance for a federal job, she’s probably out of luck.

Incidentally, most states also allow some adult criminal records to be sealed and expunged. This is generally a difficult hurdle to leap, but it can be done. Years ago, I had a student who was convicted on drug charges at 18 but later turned his life around. He became an outstanding college student who gave a lot to his community. He had his record expunged and ended up with a career as a probation officer, trying to help other young people fix their lives.

Changes of venue

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Among other things, the 6th Amendment guarantees defendants the right to an impartial jury. Seems simple enough. But what if a case is so high-profile or notorious that everyone in the vicinity has heard the details, and it becomes impossible to find potential jurors who haven’t already drawn conclusions about the defendant’s guilt? In that situation, a lawyer can file a motion for a change of venue.

If a change of venue motion is granted, the trial will be moved to another jurisdiction. If the defendant is being prosecuted under state law (as most are), the case will end up in another county in the same state. If the case is being prosecuted by the feds, the case will move to another state.

There’s a strong reluctance within the justice system to grant changes of venue. One reason for this is that the 6th Amendment states that the jury should be “of the state and district wherein the crime shall have been committed.” More practically, however, changing venue is expensive. The entire legal teams for both sides have to travel and temporarily relocate, as do witnesses. And the defendant will need to be transported, usually along with a lot of police.

Sometimes, though, it’s going to be nearly impossible to constitute a fair jury. This is sometimes demonstrated by the requesting party via public opinion polls or other research showing high local levels of knowledge about the case and showing that most locals have already drawn conclusions about the defendant’s guilt.

Either side can request a change of venue. It’s far more often the defense who files this motion, but the prosecution can as well. Very recently, for example, the prosecutor moved for a change of venue for a white University of Cincinnati policeman charged with murdering a black man.

You may be familiar with some famous cases in which changes of venue were granted, such as Timothy McVeigh (the Oklahoma City bomber) or the LAPD officers in the Rodney King case. Nevertheless, granting these motions is a rare thing.

Even in high profile cases, judges will deny change of venue motions if they believe it’s possible to obtain a fair jury, or if they believe the case is so notorious that moving it won’t do much good. When Boston Marathon bomber Dzhokhar Tsarnaev was tried in 2015, for instance, the judge refused to move the case.

 

Consent

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Johnny was trying really hard to follow the rules of the road, but when he glanced in his rearview mirror, his stomach clenched. Flashing red and blue lights. Shit.

He pulled to the side of the highway, rolled down his window, and cut the engine. And when the cop walked to his window, Johnny even managed a shaky smile. “Good evening, officer.”

The cop didn’t smile back. “License, registration, insurance.”

Johnny handed over the documents and watched as the cop inspected them. Then the officer grunted softly and handed them back. “Everything looks in order. But you were following that other car pretty closely. It’s important to maintain a safe stopping distance. I could cite you for that.”

“Uh…. Sorry?”

“All right. I’ll let it go this time. But be more careful.”

Johnny’s lungs loosened enough for him to breathe. “Thanks, officer. I appreciate it. I’ll definitely be more careful.”

“Good.” The cop started to step away, then stopped and turned back to the window. “You don’t mind if I take a look in your trunk, do you?”

Trying not to choke, Johnny clearly pictured the ten pounds of methamphetamine currently sitting in the trunk. “Uh….”

So what can Johnny do?

Let’s begin by establishing one important thing: unless there are additional circumstances I haven’t mentioned in that scenario, the cop doesn’t have legal authority to search the trunk without consent. The Supreme Court has held that search warrants are virtually never needed for automobile searches, but law enforcement still generally needs probable cause to believe that the vehicle contains evidence or contraband. The fact that Johnny was following another car too closely doesn’t tell us anything about what may be in his vehicle; it certainly doesn’t give the cop probable cause.

So if the cop can’t force a search, is he out of luck? Nope. He can still ask Johnny for permission to look. That’s called a consent search, and police can ask for them any time they want to. But because it is a consent search, Johnny can refuse. His refusal alone won’t be enough to establish probable cause for the search. So if Johnny says no, the cop needs to let him continue on his journey. Lucky Johnny!

But here’s the rub—the cop doesn’t need to tell Johnny he has the right to refuse. This differentiates searches from interrogations, where the Miranda decision holds that suspects do have to be informed of their rights. Most people don’t know these details, and police often strongly hint that the subject needs to comply.

This tactic works well. Police find drugs via consent searches all the time, as in this recent example. Or this one. Why on Earth would someone with $3 million worth of meth in the trunk allow police to search his car? Because he thinks he has no choice.

One other twist on this situation. After the initial traffic stop, something might raise the officer’s suspicions that something is going on. Maybe the driver appears unduly nervous. If the cop has reasonable suspicion (which is less than probable cause) that the car contains something it shouldn’t, he can briefly extend the detention. This can last long enough to bring in a drug-sniffing dog and allow the dog to smell the car’s the exterior. If the dog alerts, that gives enough evidence to constitute probable cause, and now police can conduct a full search.

As for Johnny? I’d advise him to just say no.

 

Telling the truth about verdicts

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George fidgeted in his chair while he waited for the jury to return to the courtroom. His lawyer claimed to be optimistic, but still George worried. If he was convicted, he was looking at a hard stint in prison. He crossed his fingers and prayed silently: Please, God, let them find me innocent.

Ah, poor George. He may or may not escape prison, but his prayer is not going to be answered.

A jury decision is called a verdict. The word comes from Latin by way of French, from roots meaning “true speech.” In the United States, criminal verdicts are most often determined by  jury, although occasionally both sides waive the jury, in which case the judge determines the verdict instead (this is called a bench trial).

In our system, only two verdicts are possible.

  • Guilty: This means the jury finds that the prosecutor proved every element of the crime beyond a reasonable doubt.
  • Not guilty: This means the jury finds that the prosecutor failed to prove every element of the crime beyond a reasonable doubt.

That’s it. You’ll note that “innocent” is not an available verdict—ever.

A not-guilty verdict might indicate a number of things. For example, it might mean that the jury is fairly sure that the defendant did it, but they still possess some reasonable doubts. It might mean that the prosecutor proved almost everything but left out something key. Or it might mean that the jury truly believes the defendant is innocent. From a legal perspective, it doesn’t matter; in any of those cases, the result is the same. George is acquitted and goes home.

While the law doesn’t care about the difference between not guilty and innocent, George might. Records of his arrest and trial might still affect his life in various ways, even if he was ultimately acquitted. In some jurisdictions, he can file a factual innocence motion asking the court to enter a finding that he really is innocent. A hearing will be held, during which George (or his lawyer) can present evidence. If the judge finds in George’s favor, his arrest records will be sealed and eventually destroyed. Few defendants go this route, however.

Incidentally, once a not-guilty verdict has been entered, the defendant can never, ever be retried for that particular crime in that jurisdiction, no matter how much wonderful evidence shows up later on. That’s because of the double jeopardy clause, which I blogged about earlier.

 

Pleas, please

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Let’s begin with a bit of etymology ’cause that’s the way we roll. “Plea” and “please” come from the same Latin root, placere, meaning “to please.” Plea made its way into English via French, and by medieval times, plea meant “lawsuit.” The English had a complicated judicial system that included the Court of Common Pleas as well as the Exchequer of Pleas, and US states such as Pennsylvania and Ohio still have common pleas courts.

But eventually plea took on another meaning as well: a formal answer to criminal charges. That’s the kind of plea we’re discussing today.

The typical procedure in the US is for a defendant to enter a plea at some point during the legal proceedings. The precise point is going to depend on the jurisdiction and the severity of the charges. Whenever it occurs, the defendant has two (or possibly three) options:

  • Guilty: This plea means the defendant admits to the charges. No trial is necessary. In practice, a guilty plea often occurs as a result of plea bargaining, during which the prosecutor agrees to reduce the initial charges and the defendant agrees to plead guilty to those reduced charges.
  • Not guilty: This means the defendant denies part or all of the charges. Unless he changes his mind, a plea agreement is reached, or the prosecutor drops the charges, the case will go to trial.
  • Nolo contendere: Also called no contest. This means the defendant does not admit to the charges–but she doesn’t deny them either. Why would this happen? Usually it’s the result of a plea bargain. The defendant’s still going to be punished the same as if she had pled guilty. The advantage from her standpoint is that a nolo contendere plea can’t usually be used as evidence against the defendant in any related civil lawsuits (but a guilty plea or a conviction can). Not all jurisdictions allow this plea.
Peine forte et dure.

Peine forte et dure.

At common law (i.e., in Merrie Olde England), a trial could not proceed until the defendant entered a plea. As you might imagine, this could cause problems when stubborn defendants kept their mouths shut. In those cases, English law allowed something called peine forte et dure (forceful and hard punishment) or, in English, pressing. The defendant would be tied down, a board would be put on him, and then weights or stones would be piled on the board until he either entered a plea—guilty or not guilty—or died. If he entered a plea, the weights would be removed and he’d go to trial. Some defendants chose to die instead. Why? Because if they went to trial, the consequences could be terrible for their family, including torture or forfeiture of property. But if the defendant was pressed to death, his family remained unscathed and got to keep his estate.

The English abolished pressing in the 18th century, as did Colonial America. Today, if someone stands mute (refuses to enter a plea), the court will automatically enter a plea of not guilty for them.

If a defendant enters a not-guilty plea, he can change it later on. This happens all the time during plea bargaining, and it’s strongly encouraged because it reduces costs and court backlogs. On the other hand, it’s much harder for a defendant to withdraw a guilty plea. It has to be allowed by the judge, who will do so only under certain circumstances, such as a strong proof that the defendant is actually innocent or evidence that the defendant didn’t understand what was happening.

The good news is that, no matter what, today’s defendants won’t be squished under weights.

Incidentally, just as defendants are limited in what pleas they can enter, juries are limited in what verdicts they can decide. Juries have only two options: guilty or not guilty. I’ll discuss that in a later post.

 

 

The sequestration question

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Betsy settled comfortably into her juror chair and listened to the prosecutor drone on. Some of the other jurors looked unhappy when they learned that this case would last at least two weeks, but not Betsy. She was looking forward to being sequestered. Free nights at a hotel, free meals, an excuse to spend a couple of weeks away from her obnoxious roommates—that sounded like a paid vacation to her. This was going to be fun.

Poor Betsy is in for some bitter disappointment.

To sequester a jury means to isolate jurors during the course of  trial. The purpose of sequestration is to insulate jurors from exposure to outside information about the case. It can happen when a case is receiving a lot of media attention, and when the judge (and attorneys) want to make sure jurors don’t hear anything except what’s presented in court and don’t discuss it with anyone else.

Sequestered jurors spend their days in the courtroom and their nights in a hotel. They’re permitted to speak only with each other and selected court personnel. They’re denied access to TV, the Internet, and other media. They may be allowed a phone call home—or visitors, if the case is long—but court personnel will supervise and monitor. They might also be allowed some entertainment, such as outings or carefully screened movies, but the jurors will be watched every minute.

As you might guess, sequestration can quickly become unpleasant. How long is Betsy going to be happy without her smartphone? No Netflix. No hanging out with friends. No private time with family. No sex! While this might be fine for a night or two, cases can drag on. The jurors in O.J. Simpson’s case were sequestered for 265 days!

The truth is that juries are very rarely sequestered. This is partly due to the extreme inconvenience to the jurors. Those who face isolation for long periods may drop out of the case, which would require the use of alternate jurors and could endanger the case. It’s also expensive. The government ends up paying for all the costs—room, board, and entertainment for jurors, as well as salaries for the court personnel (usually cops) who supervise them.

Forcing a group of people into such close and exclusive association is also problematic. Jurors may become such close friends that it’s difficult for them to deliberate independently regarding the defendant’s guilt. Jurors may even fall in love, which makes for a lovely plot bunny but endangers the integrity of the trial.

In the vast majority of cases that last more than one day, jurors are simply sent home with the warning not to talk about the case with anyone and not to read or watch anything about the trial. There’s no way of knowing how well they listen.

As for Betsy, she’s going to be disappointed either way. Most likely, she’s going home to her roommates tonight. In the event she is sequestered, she’s probably not going to enjoy it much.

You can read more about sequestration here.

 

 

 

When rights aren’t rights

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Shaun was just about to clock out after a long day at work when Marge, his asshole manager, pounced on him. “Inspection time!” she sang as she shoved a small plastic cup into his hand.

He frowned at it. “What’s this?”

“Collection container, of course. Go pee in it. And while you’re doing that, I’ll be going through the contents of your locker. Hope you don’t have any drugs in you or on you!”

Shaun never used drugs. But his locker contained his backpack, and his backpack contained a set of rather, well, private photos his girlfriend had given him that morning. He’d been looking forward to examining the photos closely after he got home from work.

Marge grinned as if today was the most wonderful day of her life.

“You can’t do this to me!” Shaun said. “It’s unconstitutional!”

Is Shaun right? Or is he going to have to pee in a cup and let Marge paw through his personal property if he wants to keep his job?

Let’s begin by clarifying which part of the US Constitution is in question—the 4th Amendment, which says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It looks as if Shaun’s got a good point, right? Marge’s behavior appears to be an unreasonable search, and she certainly didn’t have a warrant based upon probable cause.

But there’s a problem: the 4th Amendment (and the rest of the Bill of Rights) limits only the actions of the government. It does not apply at all to individuals or organizations that aren’t a part of or agents of the government.

When it was originally written in the 18th century, the Bill of Rights applied only to the federal government and not to the states. But that changed by the 20th century, when the US Supreme Court held that the “due process” language of the 14th Amendment—which does specifically include states—should be interpreted to mean that much of the Bill of Rights now applies to states as well. This is called the Incorporation Doctrine. It’s an interesting legal trick, made even more intriguing by the fact that SCOTUS (the Supreme Court of the US) has refused to incorporate the Bill of Rights in its entirety. Bits and pieces of the Bill of Rights have never been incorporated and do not apply to states. The most notable of these excluded bits, perhaps, is the right to a grand jury.

But the entire 4th Amendment has been incorporated, which means state (and local) governments as well as the federal government must abide by its rules.

What this means for Shaun is that if he and Marge are federal employees, he’s probably correct in his assertion of a constitutional violation. Ditto if he and Marge work for any state or local governmental agency, including public schools. But if they work for a private company, Shaun is out of luck—the 4th Amendment has no bearing at all in that case.

I’ve focused here on the 4th Amendment, but it’s important to note that the general principles apply to the rest of the Constitution as well. Unless an action is taken by a government agent acting within the scope of her employment (i.e., as part of her job), the Constitutional rights are irrelevant.

Are you a cop?

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Lola batted her eyelashes and smiled at the man. “How about a date?”

He shrugged. “Maybe. How much?”

After a brief hesitation, she countered with a question of her own. “You a cop?”

“Are you kidding? No way. I hate pigs.”

“Okay. You give me a hundred bucks and I’ll rock your world.”

The man reached into his pocket and pulled out a pair of handcuffs. “Guess my world’s gonna stay steady tonight. Hands behind your back.”

“Hey! You lied! You can’t do that!”

“Already did. Now, you want me to recite your rights or you wanna do it for me?”

Is Lola right? Did Officer Smith entrap her when he lied about his identity?

Nope.

The police are allowed to lie. They do it all the time when working undercover or performing sting operations. I don’t know when or how the rumor started that they have to tell the truth when they’re asked whether they’re cops, but it’s entirely false. Police can lie about other things too. It would frequently be hard for them to do their jobs if they had to be honest all the time.

Lying does not constitute entrapment. In order for someone to successfully use the entrapment defense, she must prove that police enticed her to perform an illegal act she wasn’t otherwise inclined to do. If that undercover cop offered people a million bucks to sleep with him, a lot of people might be tempted even though they’d never previously considered prostitution. In Lola’s case, however, it’s only a hundred dollars. Plus she initiated the exchange, which is pretty good evidence that she was predisposed.

There are some limits to what police can lie about. If a suspect invokes her Miranda rights and asks to speak to a lawyer, the cops can’t grab a random colleague in a suit, put him in the interrogation room, and have him tell the suspect he’s an attorney.

One frequent lie used to good effect by police happens when there are two or more suspects. Each is questioned separately, and each is (falsely) told that his colleague had confessed and ratted him out. Suspects under those circumstances often confess in a vain attempt to save themselves.

An urban legend says that police have pretended that a Xerox machine is a lie detector, as shown in this scene from The Wire. I don’t know if that’s ever really happened, but police often do get creative.

 

Defending Yourself

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“Hey, Larry, nice haircut! Is your barber blind?” Frank laughed at his own joke and then smirked when Larry came closer. A couple of drinks must have skewed Larry’s judgment, Frank figured. The little runt forgot Frank was a pretty good boxer. Well, time to remind him. As soon as Larry got close enough, Frank laughed again. “I’m gonna smear the pavement with you, twerp.” To prove his point, he socked Larry solidly in the nose.

Larry crumpled. But then he got up, nose bleeding, and pulled out a pocketknife. He opened the largest blade and held it aloft. “Get out of here before I perforate you, Frank.”

Frank scoffed, danced to the right, and landed another blow, this one on the side of Larry’s head. When Larry fell this time, he knocked his skull against the edge of the bar. He twitched a few times on the ground before going still.

Frank looked up to see the bartender pointing a gun at him. “Sit tight,” said the bartender. “Police are on the way.”

“Yeah, whatever. It was self-defense anyway.”

Frank’s sounding awfully cavalier there. He’s going to wise up after he talks to a lawyer, because chances are he won’t be able to claim self-defense.

Self-defense is an old defense, one of the many that Americans adopted from England. It’s based on the premise that a person shouldn’t be held criminally liable for protecting himself, and it’s fairly commonly used. But there are rules as to when it applies.

One of those rules is that a defendant can’t use the defense if, like Frank, he initiated the violence. So Frank is out of luck already. But there are other limitations too.

  1. The person must reasonably believe he had to use force to protect himself. It’s okay if he was mistaken in the belief (“I thought I saw him reaching for a gun”) as long as the mistake was reasonable.
  2. The amount of force used must be proportionate to the threat. You can’t shoot someone who’s threatening to slap your face.
  3. The threat must be imminent. You can’t use this defense if the other person says, “Someday I’m going to kill you!”

So one corollary to the defense is that the threatened person must retreat if he can safely do so. It sounds as if Frank could have walked away from Larry, so he’s again out of luck. But there are two exceptions to this. One is called the castle exception, which holds that a person need never retreat in his own home. The other exception is recognized in some jurisdictions but not others, and is most popularly called the stand your ground doctrine. It holds that a person need not retreat even if he can safely do so, and it received a lot of attention during George Zimmerman’s trial for his fatal shooting of Trayvon Martin.

Self-defense extends to the right to protect other people. If Alice sees Bob being beaten by Carl and punches Carl in order to save Bob, she may be able to use the defense. But only if Bob himself could have used it! So if instead the bartender saw Larry pull the knife on Frank and, unaware that Frank started it, shot Larry, the bartender would be out of luck. So be careful before rescuing someone!

Self-defense does not include the right to protect property. You can’t use deadly force to keep someone from stealing your stuff.

This defense allows a lot of plot possibilities. Was your character reasonable when he mistakenly believed the other guy was reaching for a gun? Was the threat truly imminent? Did your character use an appropriate degree of force under the circumstances? Who intervened in the fight and did she have a right to?

As for Frank, he better hope that Larry pulls through. Otherwise he’s looking at a long stint in prison.