QUESTIONS & ANSWERS
COMMON QUESTIONS; UNCOMMONLY CANDID ANSWERS
​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​Q:"Should I plea to something I did not do?"​​
​​A: Let's start by setting aside both the idea that a sweeping answer would apply, or that anyone but you would have to decide (attorneys can advise, but accepting a plea (whether or not you privately disclaim its (factually plead to) conduct) is your decision), this most frequently asked question also borrows from a misleading premise: One that suggests a "criminal conviction" or a "guilty plea" and the (actual) commission of a crime are one in the same, but they are not...
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Whether or not you did what you are accused of is unquestionably important… It speaks to truth.
A criminal conviction on the other hand, is something else: It's a conclusion (by verdict or plea) in the context of a "criminal proceeding" (i.e., a forum with a set of rules that requires lawfully obtained "evidence" to be used to prove to a fact finder (i.e., a dozen strangers or the court itself) that the accused committed every required element of the charged offense beyond a reasonable doubt).
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But this is wholly distinguishable from truth: truth does not rely on tangible "evidence" to validate it: it need not be "proved;" and it doesn't require others to "establish" it, or pronounce "findings of facts" about it, let alone believe it... In other words, what truthfully happened at one time does not change simply because a fact finder insists that it hasn't been "proved" to whatever standard at a later time (e.g., if you sang in the shower yesterday, you may not be able to prove it next week; but that doesn't mean it didn't happen).
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A criminal conviction ​by contrast, depends on "proving" something ​happened, either by a fact finder's determination in a verdict or established with the defendant's factual basis in the context of a plea. And this clearly requires reliance on "evidence," as much as it does the conclusions drawn by those exposed to it (i.e., those charged with "fact finding" or interpreting a set of presented circumstances, then concluding what they believe to have happened) --and it's the object of those conclusions that are called "facts."
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But there is a meaningful difference between reliance on "proof" (let alone the conclusions drawn by those exposed to it), and the object that the evidence, as used by the parties supposedly "proves." Clearly stated, there's a difference between what truthfully happened (i.e., whether you committed the charged offense), and what can be "proved" by people standing before others, using "evidence" to support the allegation that you did (this latter function is more of an attempt to "convince" others).
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With this difference in mind, and in the spirit of being truthful, when deciding whether to accept an ​offered plea (as opposed to proceeding to trial, which would be the alternative --in the absence of a dismissal or suspended proceeding), the question should not only be "did you commit the underlying offense;" but rather, it should also include an assessment that speaks to the likelihood that a criminal charge would result in its conviction (objectively, whether there's enough "evidence" to suggest to fact finders that it did). This should prompt a legally competent examination to determine whether there "appears" to be enough evidence to convince a fact finder of its commission... Ironically, but not surprisingly, it requires a truthful assessment as to whether it appears that a charge (allegations drawn from an observable account) can be "proved" beyond a reasonable doubt --in light of all the relevant circumstances and evidence presented. Then pose that conclusion against the cost of ​accepting an offered plea (i.e., the effect of you pleading legally guilty to another presumably lesser offense than the one charged (a "lesser offense" in the sense that it would be the benefit conferred to you from the prosecutor's exercised legal detriment (or forfeiture of their right to charge you with more (and /or more severe) charge(s) --which typically informs a Defendant's incentive to plea --in exchange for you forfeiting your legal right to proceed to trial, removing the risk of the prosecutor losing at trial and by effect ,informing their incentive to agree to the plea), and you arrive at a very basic legal recommendation as to whether or not you should accept an offered plea.
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Note, this is stripped to an almost skeletal consideration of posing different consequences against each other, weighed against the likelihood of conviction.... And indeed, there's much more there than this that has an effect on your case, including but not limited to your counsel's competency, ability and investment in your matter... as well as whether you committed the charged offense: although many people don't realize it, these things also come through loudly, as does the truth (to distinguish a criminal proceeding and legal conclusion from the truth, doesn't mean that it's not influenced by it...
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A: I would (in other words, I'm speaking on behalf of myself and not others) consider the following, in addition to whatever else made itself present during the hearings or at whatever good time it did (i.e., often unplanned things come to mind and heart, and I don't suppress that or subject it to some predetermined checklist or template). With that in mind, the following is meant to be helpful, but not suggestive that it's exhaustive, or that it should be necessarily or sweepingly applied:
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Considerations: The competency of the investigation that led to the charge; the constitutionality of the proceedings; the prejudicial effect of the charge itself; the defendant's admissible criminal background; witness "credibility;" preconceived notions, characterizations, narratives, stereotypes, etc., that the fact finder carries and tries to impose (for instance, a person testifying on the stand while wearing a ​police uniform could induce some jury members to be "impressed" by their own romanticized view of the police, and by effect, ​presuppose the veracity (and validity) of that person's testimony (which would presumably come at the expense of a Defendant --since that's the typical adversarial pairing).
Other things include the exchange between the court and the attorneys, litigants, parties, etc., which could also have an effect: juries at times, view courts in culturally adopted or learned ways, including in (m/p)aternalistic ways (meaning that the jury may fundamentally misunderstand a court's role or authority and for instance, view a male court judge in a paternalistic way, or view a female court judge in a maternalistic sense; and therefore, if a court has a tense or disfavored exchange with an attorney or one of the parties, some jurors can be tempted to view that as "offensive" to the relationship they "constructed" with the court. Or perhaps in an attempt to preserve the appearance of their solidarity with the court (in hopes that displaying as much would help avoid the court's disapproval of them), those same jurors may be tempted to "share" in what they (mis)interpret as the court's disapproval of that party or attorney (this is where the want to be accepted, and a culturally adopted fear of the court, team up with a selfish "better them than I" approach that exploits the accused, and produces an unjust and certainly ironic result: the fact finding function being interfered with by the fact finders themselves...: And this too is something I wouldn't ignore (I would account for what I'd observe...).
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Other things to take into account include: the cost of prosecuting the case (somewhat transactional), and alleged victims' input, which isn't ignored by the prosecution when determining whether to, and what type of plea to offer/accept. Further, I'd also consider the jurisdiction of your case (and the local habits of admissibility, sentencing, etc.). There are no guarantees in this context; indeed, the assessment as to the strength of a case, and even the factors used to determine as much can vary from one attorney to another. Notwithstanding that, it shouldn't be beyond the dignity of any attorney to give every case, the same thorough examination that they would appreciate, if it was them or their loved ones facing criminal prosecution.​​​​​​
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For more --or specific-- information as to what can be done in your case, give me a call: (702) 449 - 1289. I'll evaluate your individual matter thoroughly, and confidentially. ​​​ ​ ​​​​​
Q: What's taken into consideration when examining the likelihood that a criminal charge would result in its conviction?​​​​
DON'T SETTLE for GENERAL answers...
LAW OFFICE OF BARNET G. LEVINE
candid answers
Q: I didn't do anything and I was still charged with "Resisting and Obstructing..." Is that legal?
As strange as it may sound, it can be: Although the law proscribes or prohibits conduct that it deems an obstruction (i.e., an intentional interference with a police function), failure to comply with police instructions satisfies that standard. Accordingly, although the law doesn't state it explicitly, it amounts to an affirmative obligation on your part to comply with given instructions: it's not just a bar against the commission of some action; it also includes inaction --to the extent that it conflicts with a given instruction (for example, if the police tell you to "get out of a car," and you don't get out of the car, and you're otherwise "not doing anything illegal," you'd be in violation of the "get out of the car" instruction for failing to comply with it; and that plainly constitutes "obstruction" with the given instruction --which would satisfy a "Resisting/Obstructing" charge). So, "not doing anything" can constitute "Resisting/Obstructing" --to the extent that it conflicted with a police given instruction; and therefore, the same can 'warrant' (pun intended) a "resisting" charge.
Q1: Should I talk to the police when questioned about my alleged involvement in an incident (they say I would be helping my case by talking to them...). And Q2 (as a corollary): if I don't answer their questions or talk to them about what happened, wouldn't I be violating the "comply with police instructions" requirement)?
A: Starting with the latter question first: No: As a purely legal matter, the "following police instructions" requirement doesn't extend to answering their questions beyond the "reasonable suspicion" context, during which you have to tell the police your name and provide any issued identification when asked (pursuant to a U.S. Supreme Court case that introduced this minimal requirement with significant effects, particularly for those that don't comply with it (please understand, your disagreement with a police command (or with the lawfulness thereof) and your refusal to comply with it are not the same thing (often belligerent police attitude is cited as a basis for noncompliance resulting in a valid charge of R/O (resisting and or obstructing...). People understandably object to their unwarranted mistreatment, but they assume that their moral and personal objection has legal weight, and it often doesn't. So please keep in mind: separate your dislike of an officer's approach from your legal obligation to comply with instructions they gave (it's not a prideful exchange; you're not submitting to anyone's expressed immaturity, belligerence, etc., as much as you're not letting that get in the way of you discharging a lawful obligation).
A couple of additional things to keep in mind: outside of the self-identifying in a reasonable suspicion context (a legal term of art that we can expand on during a brief conversation...): (i) As a practical matter, an instruction to do something and a request for information aren't the same thing; and (ii) as a logical matter, police questions (outside the scope of asking you to self identify...) don't self-impose an obligation to answer them (i.e., a question doesn't translate into an obligation that it be answered without a separate command to that effect).
But back to the base of the question, should you talk to the police... No.
And the reason for the rule is no less familiar to the public than the rule itself: talking to the police can come at your legal expense i.e., "anything you say can and will be used against you in a court of law..." see Miranda (Obvious-sounding answers aren't always right, but this one often is).
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As to the police's promise to help your case, whether it's to mitigate your culpability or spare you from liability, barring your counsel giving you advice to the contrary (presumably, in light of his or her familiarity with the specific circumstances of your case or an agreement involving information you provide, etc.), you should know that the police are legally allowed to lie to you (in the civil context, they're immune from liability if you sued them for lying to you; and in the criminal context, the police lying to you is in of Itself insufficient to suppress information or evidence obtained as a direct result of it..). This isn't to vilify the police; and perhaps you'll need them one day..., but rather, it's to prevent you from self-incriminating.
Q: More often used than understood: "Miranda rights..."
Q: If I do what the police tell me to, while they violate my rights, does that hurt my future suit against the police for their violation/misconduct?
​​Absolutely not (barring the theoretical absurdity that the police instruction was to not file a civil action, which wouldn't work anyway...): The effect of complying with a police instruction does not forfeit a subsequent legal challenge to its validity. It also doesn't give rise to the inference that you are somehow --as a legal matter-- waiving your right to challenge the validity of the the instruction, interaction, or stop, or any aspect of the exchange during which the alleged police misconduct (i.e., the excessive or unwarranted police force or intrusion) occurred. In other words, you don't give up your legal right to challenge the misconduct by simply complying with instructions that are given during the course of --or constitute part of-- it (the alleged police misconduct). If anything, complying with a police instruction can help preserve your claim, by doing away with the counterargument that the police force used wasn't excessive, but rather, "proportionate and reasonably necessary" in light of your noncompliance with the police instruction (which could be considered a threat to the preservation of evidence, or more importantly, public and officer safety; and therefore, the same could be used to excuse the police force that would have otherwise been considered "excessive" (in the absence of your noncompliance: i.e., the circumstances that would have warranted that type (or a more serious kind) of police reaction). So, not only does complying with a police instruction not hurt your civil action against the police for their alleged misconduct, your compliance with police instructions can actually help preserve your claim by barring deflecting (and perhaps exploiting) reconstructions and defenses that can have an undermining effect on your civil suit against the police for their (alleged) misconduct.
The popular doctrine commonly referred to as "Miranda" was developed in 1966 in a case called Miranda v. Arizona. Its purpose was to guard against the use of coercion by government officials against those suspected of, or having information about criminal activity.
And like many other rules, this arose out of the type of misconduct it's designed to prevent: Following a litany of reported abuses by the police during interrogations, the judiciary seized on the opportunity in Miranda to craft the following bright line rule:
In the custodial interrogation context, police (or other government agent(s)) are required to communicate the following invocable rights:
​(i) the right to remain silent --which ironically, can be invoked by not remaining silent (i.e., you can trigger this right to remain silent by saying you "invoke the right..."); and
(ii) your right to talk to an attorney before --or rather than-- answering police questions, which is likewise signaled by a communication to that effect. As to the duration of the latter, there's case law that establishes a 14 day period during which the police or another government agent cannot (re)initiate communication with you after the right has been invoked.​​
Failure to observe these rights by the police can result in the inadmissibility of evidence obtained as a result of it (and there are a number of tests that must be satisfied in order to establish a "custodial interrogation" context (i.e., the lawful setting demanding of Miranda rights), and there are multiple tests with several requirements used to determine the presence, validity, and duration of an invoked Miranda right (hence, the use of "can" as opposed to "must" when referring to the potential inadmissibility of evidence related to an alleged Miranda violation).​
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Yes: ​Initiating a discussion with a police officer or another government agent instead of, or even after having previously invoked your Miranda rights, has the legal effect of implicitly waiving those previously asserted or unused rights: this translates into you forfeiting protections (by not applying them, misapplying them, or applying them but then waiving them) that could have spared you from the admissibility of incriminating statements...
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As a brief, but clarifying backdrop to help explain this, the Miranda doctrine wasn’t concerned with insulating suspects from liability, or ensuring their legal interests. In other words, the aim wasn't to prevent you from getting in legal trouble. Rather, Miranda was crafted to prevent governmental coercion of those suspected of committing --or having information about-- criminal activity (in the "custodial interrogation" context --where, among other things, one would be considered a "suspect"). And the protection it affords (which can vary with the circumstance), reflects this purpose: you'll notice that Miranda reads: "you have the right to remain silent..." not "you should exercise it..." --even when failing to do as much results in its waiver. Accordingly, the wisdom, or its lack, of a waiver is decidedly unprotected (also note: just like you can waive previously asserted Miranda rights, you can also reinvoke Miranda rights after having previously waived them; not that you should weave in and out of its protections: you wouldn't take your seatbelt on and off while driving, or only apply it when exposed to the known risk of accidents... The risk of collisions isn't limited to what you think or expect; the risk comes from driving, just like the risk of incriminating yourself isn't limited to you only saying certain things that you think are incriminating: the risk of incriminating yourself is drawn from you talking to the police or other government agents...).
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The "possession of a firearm by a felon" (also known as "felony possession") charge, which can be (in a reader-friendly oversimplification) described as "possessing a firearm while having a felony conviction (which prohibits you from possessing one)" or while having the status of "felon" can be, and often is treated as the predicate offense (the underlying felony) supplying a different felony: "Felony Firearm" charge.
A "felony firearm" charge (by contrast to a charge of "felony possession") refers to the commission of a felony while possessing a firearm (which is clearly distinguishable from a felon possessing a firearm): the unlawfulness in "felony firearm" is drawn from the possession of a firearm during the commission of any felony; and that felony can also be "possessing a firearm" while having the status of a "felon."
In other words, sustaining a felony firearm conviction requires the commission of a separate felony; and the "felon possessing a firearm" charge can constitute that separate felony; and therefore, the same can be used to supply the required felony in order to sustain a conviction for "felony firearm."
In light of the relative ease and lending effect that one charge has on the other, it's hardly surprising to see prosecutors charge someone with both (separate) charges; but in the same breath, a constitutional (procedural, merit based, fact finder or forum based, etc.) challenge to the validity of the prosecution of the "felon in possession" charge or any other charge supplying the necessary felony in felony firearm can invalidate both charges (often (but not only) to the extent that the predicate supplying charge is itself invalidated...). ​
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(And not to aggravate the point, but to help understand the meaning and difference of each offense, assume as a premise that we're talking about the uncontested, unlawful possession of a firearm by a felon, but "unlawful" for two different reasons --each giving rise to two different crimes:
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(i) "Felony Possession:" possessing a firearm while having a felony conviction (i.e., felons cannot lawfully posess firearms); and
(ii) "Felony firearm:" possessing a firearm while committing a felony (i.e., possessing a firearm during the act or commission of any felony).
Without question, these charges are clearly distinct: the unlawfulness in (i) "Felony Possession" is drawn from possessing a firearm while having a felony conviction; while "Felony firearm" is satisfied by committing any felony while possessing the firearm (i.e., not necessarily dependent on whether the party charged is a convicted felon). However, for purposes of satisfying the act or commission of a felony in (ii) "Felony firearm," the possesion charge in (i) "felony possession" can be used to supply the required felony (in (ii)). In other words, once you've established the "unlawful possession of a firearm by a felon," you've assumed the commission of a felony; and that felony can be used to supply the underlying felony requirement in (ii) "Felony firearm:" the felony that was being committed while possessing a firearm was the unlawful "possession of a firearm by a felon" itself).
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Probation is a court ordered conditional liberty' sentence (court ordered during the sentencing phase of an eligible Defendant's criminal proceeding). Specifically, a Defendant's sentence to probation or 'conditional liberty requires that Defendant to comply with a set of court ordered rules and conditions requiring him or her to both do and not do certain things. The object of those rules and conditions must be associated to the circumstances that informed the Defendant's underlying conviction (for which they were ordered to probation... e.g., a Defendant convicted of OWI (Operating a vehicle while impaired) as a result of alcohol consumption resulting in a BAC over the legal limit) with a history, diagnosis or inference of alcoholism may be court ordered to complete counseling and other conditions designed to disabuse the Defendant from the relevant struggles that informed his or her alcoholism and its role in the underlying conviction.
Initially granted probation is referred to as an act of grace, but it's application (to keep it) is treated more like a legal 'privilege:' Because it's an alternative to jail time, the initial granting of probation is considered an act of grace (by conferring a legal privilege...: that avoids jail or prison time). To keep it however, to continue to enjoy its jail or prison-sparing benefit, Defendants must comply with their probation requirements, or face the threat of its removal (which could result in imposed jail or prison time). This results in a disincentive to Defendants from committing probation violations, which includes the commission of other criminal offenses. In other words, they (Defendants) have to honor that initial act of grace (the granting of probation), rather than be excused for condition-noncompliance because of it; and therefore, although it's labeled an act of grace (which in the sense that it's used refers to it being initially granted instead of 'up front' jail or prison time), its continued application allowing Defendants to preserve that initial grant (and enjoy ongoing avoidance or jail or prison), by requiring Defendants to do and not do certain things, it's more of a legal privilege used as a disciplinary tool to incentivize avoidance of the consequence for it's violation (i.e., the removal of the privilege resulting in the imposition of a jail or prison sentence....). ​​
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Probation department's role and complaints about their 'authority:' At a Defendant's sentencing, the court orders a set of specific, targeted and outlining court ordered rules (i.e., probation conditions; 'outlining' in the sense that within which the department of probation both colors in more logistical (localized, facilitating) rules and helps enforce them by monitoring client compliance and reporting the same back to the court (like an intelligible principle in the administrative agency context, within which an agency sets their own rules, the department of probation, which is also an agency, facilitates and monitors rules' compliance, sets specific rules within the boundaries of the court orders, and interprets and reports alleged violations of the terms and conditions of a Defendant's probation back to the court for fact-finding adjudication of alleged violations, which necessarily includes review of probation agent's/department's decisions and determinations (parallel theme of agencies having the ability to do things both within the sphere of --and decision making subject to - judicial review or court approval... So common complaints of probation agents having 'too much or unchecked authority' is largely misunderstood).
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​The term self describes: Probation violations are violations of probationary terms and conditions (i.e., defendants granted probation are required to do and not do certain things (affirmative obligations to reject the temptation to not do things they're ordered to, and restrictions against doing things they're ordered not to); and to the extent that they don't comply, probation violations are formally alleged.
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Yes; however, the equally important question is "what type of hearing does someone have a right to" -- and answering that includes asking what's the relevant standard for proving legal culpability in those hearings. The standard for proving that the accused violated their probation terms or conditions is "by preponderance of the evidence" (or as a late law school professor and friend, Prof. "Filli"used to say, "anything above 50%... It doesn't require 51%; for instance, 50.000001% would suffice"). In other words, the degree to which an allegation would have to be established ,(i.e., the bar for a fact finder to establish that a violation occurred) requires only that the fact finder (the interpreter of offered set of circumstances and information) conclude that it's more likely than not (i.e. over 50% likely, meaning it's probable instead of possible) that a violation occurred.
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Also take note, the object of an alleged probation violation can also constitute a separate criminal offense --in addition to the probation violation alleged.
And because this "by a preponderance of the evidence" standard is distinctly less burdensome than the standard of proof in an ordinary criminal trial (which is a separate proceeding, and which requires the fact finder to find "beyond a reasonable doubt," that every required element of the charged offense was committed...), a Defendant can technically be criminally charged for the same offense for which they were accused of violating their probation; and be found 'not guilty' of the same offense in an independent criminal proceeding while being found 'guilty' of it in a (separate) probation violation proceeding (Indeed you can be found to have violated your probation for the alleged commission of the same offense for which in its own independent criminal proceeding you were acquitted (not found to have committed it --in light of the difference in legal burdens and separation between the two...).
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Yes: Picking up on the answer to the previous question of "what is probation," and what constitutes its "violation," probation revocation represents the termination of probation as a result of violation(s): By effect, when probation (that afforded legal privilege instead of jail or prison time which is suspended pending probation completion...) is revoked from the defendant, all or part of the prior suspended incarceration can be imposed. This typically also results in the removal of a previously granted deferral or conviction-sparing program (in addition to the imposition of --all or part of-- the balance of your suspended jail or prison sentence i.e., the amount of incarceration you avoided because it was initially suspended as a consequence of your initial grant of probation...).
Deferral, diversionary programs and conviction-sparing statutory schemes are used interchangeably (technically, mistakenly since the three terms mean different things) to loosely refer to schemes (in the legal, rather than the pejorative sense) and/or court backed programs designed to grant leniency towards eligible criminal defendants --including but not limited to young adults and/or defendants who either don't have any or certain kinds of prior convictions, etc. - to be spared from the resulting disposition of their case having any or certain types of convictions: In other words:, the diversion offers them alternatives to proceedings that result in criminal convictions.
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With this in mind, it's advisable to at least scan for an applicant's) eligibility of available vehicles to let them benefit from the shielding effect of statutes, and other instruments that were designed to afford them conviction-avoiding relief (and there are a number of statutory and judicial mechanisms (e.g., H.Y.T.A., MIP relief, 7694a, 7411, specialty courts (e.g., OWI/DUI, mental health, veterans court, etc.), delayed sentences and other fashionable legal relief tools) applying to --and requiring-- different things (i.e., some programs require offenders to be of a certain age and/or not have any or certain prior convictions; and some have varying provisions within the same statute (e.g., HYTA doesn't require prosecutorial consent as long as the applicant is between 17 and 21 years of age, yet it does require prosecutorial consent for applicants between 21 and 24 years of age, etc.). In addition to those differences, certain courts also differ as to formal petitioning requirements, etc.). Indeed, it's important to be thorough and complete...
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For more information, and/or to see if you're eligible for any available programs, or the likelihood that they would be approved in your case, call: (702) 449 - 1289. We'll discuss your case confidentially...
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"My non lawyer friend, person I met in jail, my accountant, my hairdresser, etc., gave me legal advice… he/she/they said…"
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​In the 1980's the Miami Hurricanes had an unprecedented run of dominance in the college football context. Those teams redefined college football on and off the field... This piece of information is as helpful to your case as your non-lawyer friend's legal advice. If you're sick, seek the aid of a doctor; if you want legal advice, seek the advice of a lawyer; and if you want good legal advice and representation, call: Barnet G. LeVine, Attorney at Law, at 702-449-1289.
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Thanks for your time; and I look forward, to helping you move forward...
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Attorney Barnet G. LeVine
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