Tag Archives: courts

Warranted: arrest warrants

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Last week we discussed the general requirements for obtaining a warrant. This week we’re getting more specific—we’re talking about arrest warrants.

Just to review, an arrest is a type of seizure, and therefore the requirements of the 4th Amendment apply. But even though that amendment implies you need a warrant, a long series of cases says not so much. In fact, police never need a warrant to make an arrest if the person is suspected of a felony. They also don’t need a warrant to arrest someone who’s committed a misdemeanor in their presence. So the only time they must have a warrant is for misdemeanors that the police didn’t witness. This constitutes a pretty small proportion of arrests, so in practice, arrest warrants are rarely required.

However, even if police don’t have to get a warrant prior to making an arrest, they might choose to do so. Why? Well, a warrant offers some potential benefits:

  1. It gets the suspect’s name into the system. This way, if the suspect is later stopped for something else—perhaps something small—police can easily tell whether he’s wanted for another crime. One of my students once failed to pay a speeding ticket or appear in court, so a warrant for failure to appear was issued in his name. Later he and a buddy decided to go swimming in an apartment pool after hours. Someone complained, cops came, and when they checked Steve’s name, there he was. He ended up spending the 4th of July weekend in the local jail.
  2. With an arrest warrant, the police can enter any property where the suspect is, without getting a search warrant. Absent an arrest warrant or search warrant, police can’t enter private property unless they are in hot pursuit of a fleeing felon (that is, the crime has just occurred) or some other emergency exists.
  3. Before getting an arrest warrant, a cop has to convince a magistrate or judge that there’s probable cause that the suspect committed a crime. This provides somewhat of a guarantee that the arrest won’t later be thrown out (by a judge) for insufficient evidence.

Even when a warrantless arrest is made, police must still have probable cause. An arrest made with less than probable cause is illegal and will be invalidated, ending the case.

Incidentally, want a plot bunny? Alma invites her friend Brad over to her house, unaware that Brad has an active arrest warrant out in his name. The cops see Brad enter her house and barge right on in after him. Too bad for Brad. But also too bad for Alma, who’s been packaging heroin in her living room. When the cops see the drugs, they arrest her too.

 

Warranted: general requirements

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For the next few weeks we’ll be tackling a big subject: warrants. This week we’ll talk about general warrant requirements, next week is arrest warrants, and the following week the focus will be on search warrants. Finally, we’ll discuss what happens if police violate the warrant requirements.

The part of the US Constitution that applies here is the 4th Amendment:

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.

Okay, fine. So the amendment says that we have the right to be free from unreasonable searches and seizures. Great. And if the police want to get a warrant, they need probable cause.

So first off, what’s a search or seizure? Well, a search is government intrusion into a place or thing in which the owner has a reasonable expectation of privacy. If a cop overhears my phone conversation while I’m sitting at the adjacent table in Starbucks, that’s not a search because I can’t reasonably expect privacy. But if she grabs my phone and starts scrolling through my texts, that is probably a search.

A seizure is a meaningful interference with property or with a person’s freedom. If a cop tows my car away, that’s a seizure. If she slaps cuffs on me and hauls me off to jail? Also a seizure.

Great. But, um, what’s probable cause? The courts have been reluctant to define it too precisely, but basically it means there’s enough information that a reasonable person could deduce that evidence or contraband is likely in a particular location or that a specific person has committed a crime. It’s more than a hunch, more even than a good guess, but it’s far less than beyond a reasonable doubt, which is the standard of proof required for criminal convictions.

In simplest terms, the 4th Amendment says that in order to search or seize property or arrest someone, a police officer must have probable cause. And she must present her evidence in a sworn statement to a neutral party—a magistrate or judge—who will determine if probable cause does indeed exist. Furthermore, the warrant has to be specific about the place that’s being searched and what’s being searched for, or the identity of the person who can be arrested.

Now as it turns out, the use of warrants is more complicated than that. We’ll get to some particulars in the next two weeks.

Another thing to note now, however, is the procedure for obtaining warrants. The cop can show up in court. But almost all jurisdictions allow phone warrants as well, in which the transaction occurs via phone instead of in person. This is helpful if time is of the essence, e.g., the evidence is likely to disappear.

Mistrials

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The case was going badly for the prosecutor. One of her star witnesses had disappeared days before the trial began, another fell apart under cross-examination and retracted most of his original statements, and the primary investigating police officer alienated the jury by appearing arrogant. But just as the prosecutor was ready to give up, screams reverberated from outside the courtroom. A moment later, a bailiff came rushing inside. “Your Honor! Your Honor!” the bailiff shouted. “A spaceship has landed three blocks away and aliens are everywhere!”

Smiling triumphantly and without missing a beat, the prosecutor leapt to her feet. “Your Honor? I move for a mistrial!”

What is a mistrial? Most simply, it’s the cancelation of a trial in progress. Either side can move for a mistrial, and the judge can declare one at any point up until the jury renders a verdict.

Mistrials are rare. They result in huge additional expenditures, plus they represent wasted time for everyone involved. If the defendant has been kept in jail pending her trial, a mistrial means she’s going to spend even more time locked up. For these reasons, the system strongly discourages mistrials. But they do occur.

What could cause a mistrial? Well, rarely is it an alien invasion. But that could be a reason. Anything that makes it impossible for a fair trial to proceed could be cause for a mistrial. Potential causes include:

  • Natural disasters or other serious, long-term emergencies
  • Death of someone critical to the case, such as one of the lawyers or a juror
  • Juror misconduct
  • Serious errors in matters such as choosing the jury or admitting evidence
  • Errors that are fundamentally prejudicial to the defendant, such as the prosecutor making statements she shouldn’t
  • Jurors’ inability to reach a verdict

When I googled for recent mistrials, I found some interesting cases.

  • At a murder trial in Iowa, the prosecutor improperly informed a potential juror that Iowa does not have the death penalty.
  • At a trial in Texas for improperly carrying a weapon, a juror was assaulted (by someone unrelated to the case) outside the courthouse and was too distraught to continue.
  • In a robbery case in Virginia, technical errors meant people in the hallway—including witnesses—could hear testimony going on in the courtroom. Also, one juror kept falling asleep.
  • In a corruption case against the former LA County Sheriff, the jury was deadlocked after four days of deliberations.
  • In a California homicide case, a juror disregarded instructions and looked up the legal definitions of specific crimes.
  • In a Colorado homicide case, the prosecutor withheld evidence of a police officer’s misconduct.
  • In Kansas, a local news station aired footage of potential jurors in a murder case. Interestingly, after the mistrial was declared, a change of venue was also granted.

When a mistrial is granted, the system basically pretends as if the trial never happened. Double jeopardy doesn’t prohibit the defendant from being retried. The prosecutor can choose to drop the case entirely, but most often, a new trial will start from scratch.

Jurisdiction

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Jurisdiction is… interesting. If you watch cop shows or legal dramas, it’s a term you’ve heard thrown around, yet few people have a firm handle on what it means. Today I’m going to fix that.

At its most basic level, jurisdiction simply refers to the legal authority to handle a particular case. Law enforcement agencies have particular jurisdictions, as do courts. Technically, jurisdiction refers to a particular subject matter—that is, whether an agency has power to deal with a particular type of case. A small claims court does not have jurisdiction to hear a murder case. Your local police department does not have jurisdiction to make arrests for federal immigration offenses.

In practice, however, we often use jurisdiction in a geographic sense as well. The LA County Sheriff’s Department has jurisdiction in LA County—and not, say, in Kern County.

Jurisdiction is a complicated issue in the US because our legal system is fragmented. While most countries have a single (federal) court system and a single (federal) law enforcement agency, we don’t. We have state and federal courts, some of them with quite specific areas of authority (such as military cases or bankruptcy cases). And we have many thousands of police agencies at local, state, and federal levels.

Jurisdictions can overlap. Imagine I kidnap someone in Wyoming and drag him to my hometown, only to be caught on the nearby university campus. In that case, dozens of law enforcement agencies might be involved, including the FBI (a federal agency) and many state and local police departments. Just from my own area, my city police, the Highway Patrol, and the campus police might be there (the latter two are both state agencies). It can be confusing! And while agencies very frequently cooperate with one another, sometimes friction or rivalry may exist.

The takeaway for you as an author? If a police department or court is dealing with a case in your book, make sure they have proper jurisdiction. That may require research to determine who handles what, but you definitely don’t want to get it wrong.

 

 

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.

You have the right to remain silent

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In 1963, a young laborer with a substantial criminal history was arrested for kidnapping and raping a 17-year-old girl. After two hours of interrogation, he confessed. But when his case went to trial, his lawyer argued that because the police didn’t tell the perpetrator that he had the right to refuse to talk and the right to a lawyer, his confession should be thrown out. It was, the lawyer argued, not truly voluntary. Eventually the US Supreme Court agreed, holding that custodial interrogation is inherently coercive. In order to counteract some of that coercion, before suspects can be interrogated while in custody, they must be informed of their rights. That young laborer’s name? Ernesto Miranda.

We all know what the Miranda rights are. You can probably recite them. Here’s the language that sets them out in the decision itself:

The person in custody must, prior to interrogation, be clearly informed that he/she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he/she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he/she is indigent, an attorney will be provided at no cost to represent him/her.

Despite our familiarity with this ruling, many people hold misconceptions about it. So here are some important things to know:

  • The rights don’t need to be recited exactly in the words the Court used. There is no specific required wording as long as the main points are clearly and adequately covered.
  • Research has questioned the extent to which children, English learners, and some of the disabled understand the meaning of the warnings.
  • Even if a suspect has been warned, a confession may be inadmissible if extra coercion was applied.
  • A suspect can waive his Miranda rights and choose to speak to police without an attorney present. An astonishing percentage of suspects—over 80%—do so.
  • Police only need to give the warning prior to custodial interrogation. This means no warning is necessary if the suspect isn’t in custody—if, for example, police have briefly detained her on the street or at home to ask a few questions. And it doesn’t apply if police have no intention of interrogating the suspect. I know someone who was detained overnight in the Alameda County drunk tank for being obnoxiously drunk at a baseball game. When they let him out the next morning, he loudly complained that they had never Mirandized him. I pointed out that the last thing they wanted to do was interrogate him—they wanted him to shut up, in fact—so they didn’t have to read him his rights.
  • SCOTUS has carved out a number of exceptions to the Miranda requirement, the most important being the public safety doctrine.

As for Miranda himself, he was retried and reconvicted even without his confession. Four years after he was paroled, he was killed in a bar fight. I assume that upon arrest, the assailant was read his Miranda rights.

Wouldn’t it be grand?

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Like much else that’s weird and complicated about American criminal justice, we can blame the English for our jury system. Thanks, guys. Among many other things, we inherited two kinds of juries: petit (pronounced petty) and grand. And no, that doesn’t indicate that one kind is only interested in stupid things while the other wears diamonds and lives in a mansion. The names are French—small and large—because back when they were invented, members of the English nobility were speaking French. Which tells us how old the practice is; it dates all the way back to the Norman Conquest. And the names simply refer to the fact that grand juries are bigger than petit (traditionally, 23 members instead of 12).

Here’s what happened back in 1166. As part of his attempt to unify England, King Henry II created royal courts that rode around, hearing cases in various jurisdictions (shires). These were called circuit courts, a name that carries over into our own federal judiciary today. Circuit courts helped solidify Hank’s rule as well as bringing more uniformity to English law (creating, in fact, a common law). But the process created problems. One of those was that a period of time passed between court sessions in a particular place, and the judge who eventually showed up had no clue what had gone down in his absence.

But Hank had a solution for that too. When the judge appeared, a group of the most prominent local men would appear in front of the sheriff and report—under oath—all the crimes that had occurred in the interim. Jury comes from the French word meaning to swear. So from the beginning, the grand jury’s job was to consider evidence and initiate criminal proceedings.

Jury roles evolved over the centuries, but grand juries made their way into the Magna Carta in 1215 and the English Bill of Rights in 1689, and then hopped the pond and settled into the 5th Amendment to the US Constitution. Settled pretty firmly, in fact, because while the UK has pretty much abolished them and the rest of the world either dumped them or never adopted them to begin with, the US still uses grand juries. (So does Liberia. That’s it.)

How they’re used varies by jurisdiction, as does the size of the grand jury and the manner in which it’s chosen. One thing is universal, however: unlike petit juries, grand juries do not decide guilt.

So what do they do? Thanks to the 5th Amendment, the prosecutor must present evidence before a grand jury in all federal cases. The grand jury then decides whether there’s sufficient evidence to constitute probable cause. If so, it issues an indictment  (yes, more French there) containing the formal charges, and the case proceeds. If not, the initial charges are dropped. The prosecutor can either give up or try again (with the same or different charges; double jeopardy protections don’t apply).

Now, for various complicated reasons, the grand jury clause of the 5th Amendment doesn’t apply in state proceedings. A few states, like New York, require them anyway. Most others keep it as an option. The prosecutor can choose to go before a grand jury or can instead go in front of the judge, a proceeding called a preliminary hearing (or prelim). The latter course of action is much more common, but for strategic or political reasons DAs do occasionally choose the grand jury route.

Grand juries are usually big—23 is a common size. They have the power to order (subpoena) people to appear before them for hearings and, to some extent, the power to conduct investigations.

A few jurisdictions such as California also use civil grand juries. These generally investigate potential government misconduct.

For hundreds of years, people have referred to criminal grand juries as the Sword and the Shield. Shield because they can protect citizens from malicious prosecutions; sword because they have the power to bring justice against wrongdoers. It’s debatable how well they serve either of these functions, especially today. But they’re still interesting creatures and—this is where you come in—serve as wonderful potential plot points.

Book ’em

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I used to watch Hawaii Five-O when I was a little kid. It wasn’t my favorite show of its type—that spot was reserved for Emergency! (ah, Randolph Mantooth!)—but I do remember two things well about the Five-O. One, of course, is that catchy theme song. If that’s not the top TV show theme of all time, it’s certainly in the top five. The other thing I remember was Jack Lord’s oft-repeated phrase, Book ’em, Danno.

But what does that mean?

As the name suggests, booking is the process of adding a suspect to the books—that is, formally entering him or her into the criminal justice system. It generally happens after a person has been taken into custody—arrested—but may sometimes occur after a citation, when the person will not remain in custody. Once upon a time, the suspect’s information was recorded in an actual ledger book. Nowadays it’s all electronic.

A number of things happen during booking. The suspect’s name and other personal information are recorded, as are a few details about the criminal charges. Their mug shots are taken—a practice police have been following since roughly the 1840s. The suspect gives up all personal property, which is recorded and stored until his release, and usually gives up his own clothes for lovely jail attire. He’s fingerprinted. Eventually those prints will be entered into a national database. He’s screened for any physical or psychological ailments, and jail staff will conduct a body cavity search to check for contraband. Jail staff will check the system to see if he has any outstanding warrants. And then they’ll ask him a bunch of questions—not necessarily pertinent to the crime—to determine how big a risk he is and where to classify him in the jail. A DNA sample may be taken. In some jurisdictions, bail and a court date will be set. He’ll be given the chance to call a lawyer, family member, or bail bondsman.

If the suspect is low risk, he may be released on his own recognizance at this point. That means he goes free after promising to appear in court. Or he might make bail. But if he’s a big flight risk, he won’t be granted bail—and even if bailing out is an opportunity, he might not have the money for a bail bondsman. In that case he’s going to be locked up. He’ll be given some kind of orientation to the jail rules, either by an officer or via video. Then he’s going to spend some time behind bars.

Booking is not a fast process. Depending on the jurisdiction and whether it’s been a busy night, the whole thing could take four hours or more.

Incidentally, once someone is booked, that arrest record is permanent. Even if the charges are later dropped or he’s found not guilty, the arrest record is there forever. And his fingerprints (and maybe DNA) are in the system, ready to be discovered years later by an author seeking a clever plot point.

 

 

 

Jury Duty

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The live action version of How the Grinch Stole Christmas is, in my opinion, far inferior to the original cartoon. But there’s a great scene in which the Grinch is messing things up in the post office. Among other things, he flings mail into the cubbyholes, all the while chanting, “Jury duty, jury duty, jury duty, blackmail, pink slip, eviction notice….” Is jury duty really that awful? And how does it work?

The idea behind jury duty is that people are entitled to a jury representing a cross-section of the community. We don’t have to have that sort of jury. When juries were used in 12th century England, they were composed of men who already knew something about the offense, by either being witnesses or having investigated the case. More recently, some people have proposed that we ought to have professional juries, especially in cases involving technical or scientific evidence that laypeople would have trouble grasping. But what we do instead is attempt to randomly choose members of the community to serve.

Jury selection processes vary by jurisdiction in the United States (big shock there, right?). Generally the jury commissioner (usually a county job) uses voting and drivers license registration records to compile a list of eligible people. This means certain groups will be underrepresented, especially the poor who may not have licenses, may not be registered voters, or may not have a permanent address. The commissioner estimates how many jurors will be needed in a particular time period, randomly chooses from the list, and sends those lucky people a jury summons.

The length of jury service varies. Where I live now, the rule is one day or one case–you get called in, and if you end up on a case that day, there you go. But if you don’t, your jury service is (usually) complete at the end of the day. There are exceptions to that rule, however. The last time I was called, jury selection in one particular case took two days, so we all sat there for that long. The first time I had jury duty, in Oregon, I had to serve for two weeks. During that span, some people served on more than one jury, while some of us didn’t end up on any. But we all sat there for two weeks.

As the Grinch knew, most people aren’t happy about getting that summons. If you ignore it, though, you can be found in contempt of court. Also, employers are required to give employees time off for jury service–but they’re not required to pay them. Serving can mean a real hardship for some people. Many jurisdictions allow those who’ve been summoned to ask for a reschedule. Another option is to go to court and try to convince the judge to let you off the hook. Judges vary in how lenient they are about this.

The group of people who have jury duty at any one particular time are called the jury pool or venire. I’ll post another time about how we get from that large group to the twelve (or so) specific people needed in a particular case.