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...
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).
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).
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."
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." Simply 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 also known as trying to "convince" others).
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 (of forfeiting their right to charge you with more (and /or more severe) charge(s) --which typically informs a Defendant's incentive to plea), and you arrive at a very basic legal recommendation as to whether or not you should accept an offered plea.
Note, this is stripped to an almost skeletal consideration of posing different consequences against each other. Indeed, there's much more there than this that has an effect on your case: Instinct (not impulse), feeling, whether your attorney doubts your description of events, whether you and/or your attorney doubt that you can prevail, and of course, if you committed the charged offense (although many people don't realize it, these things also come through loudly, as does the truth).
A: I would (in other words, I'm talking for myself and not others) consider the following, in addition to whatever else made itself present 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):
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 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 (m/p)aternalistic (culturally adopted or learned) ways; and thus, if the 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 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 (which would also be deferring to their insecurity...). This is where the want to be accepted, and a culturally adopted fear of the court, team up with a selfish "better them than me" approach that exploits the accused, and produces an unjust and certainly ironic result: the fact finding function being interfered with by...: the fact finders (and this too is something I wouldn't ignore).
Other things to take into account (somewhat transactional) include: the cost of prosecuting the case, 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 should not 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.
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 generic answers...
LAW OFFICE OF BARNET G. LEVINE
Q: I didn't do anything and I was still charged with Resisting... is that legal?
As strange as it may sound, honestly, it can be: Although the law proscribes or prohibits conduct that it deems an obstruction (i.e., an 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 a "resisting" charge.
Q: Should I talk to the police when questioned (and if I don't answer questions they ask, wouldn't I be violating the "comply with police instructions" requirement)?
A: No: As a 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 when asked (pursuant to a U.S. Supreme Court case that introduced this minimal requirement, which also happens to avoid litigation). In its application, you have to tell the police your name when asked, in the presence of "reasonable suspicion" (a legal term of art that we can expand upon during a brief conversation...). But outside of that scope, and as a logical matter, police questions don't self impose an obligation to answer them: a question doesn't translate into an obligation that it be answered without a separate command to that effect; and even then, you're only legally required to provide your name in certain legally pronounced settings (in the presence of reasonable suspicion) .
As to the initial part of the question (should you talk to the police...), barring your counsel giving you advice to the contrary (presumably, in light of his or her familiarity with the specific circumstances of your case), no, you should not talk to the police where you're suspected of committing the investigated criminal activity. 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 is).
Q: More often used than understood: "Miranda rights..."
Q: If I do what the police tell me to, does that hurt my future suit against the police for their misconduct?
Absolutely not (barring the theoretical absurdity that the police instruction was to not file a civil action, which wouldn't work): 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 can 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 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).
Initiating or engaging in a discussion with a police officer or another government agent after having your Miranda rights communicated to you (in a custodial interrogation context), whether or not you previously asserted them, has the legal effect of an implicitly waiving those previously asserted or uninvoked rights: this translates into you forfeiting protections that could have spared you from being held to legal account for incriminating statements, as rights that could have excluded inculpating evidence from being admitted against you in a proceeding become unused.
Also notice, there's no requirement that the waiver not be inadvertent, or knowing, which can present an ostensible incompatibility between the goal of the rule requiring communication of your Miranda rights (which is that you know them to invoke them as a guard against governmental coercion), and unknowingly waiving them, until a few relevant points are clarified:
(i) the difference between knowing the right that you’re waiving, and knowingly waiving that right, which is a corollary to the discussion about the difference between a right and its waiver;
(ii) the difference between an objective standard used to measure the validity of invokable Miranda rights, and its subjective claim; and
iii) the reason for the scope and limitations of Miranda protections, which is to say, its purpose...
As a brief 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 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 with 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, which can be another reason not to).
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 (relatively) simultaneously; 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...).
(And not to aggravate the point, but to help understand the meaning and difference of each offense (arising commonly), 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:
(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).
Probation is a conditional liberty sentence: A defendant's liberty is conditioned on his or her compliance with 'standard,' specific and outlining targeted court orders (within which the department of probation both colors in more local rules and helps enforce them (like an intelligible principle in the administrative agency context, within which an agency sets their own rules, which also fits with what the department of probation is (i.e., an agency). Typically, a court can order a defendant to do and not do certain things within the relevant context of what's before them. Ideally, the rules set forth are designed to disabuse the defendant from problems that led to the underlying conviction for which they were sentenced to probation. And because it's an alternative to jail time, albeit using jail time as a disincentive to defendants from committing other crimes, including (probation) violations, it's labeled an act of grace (which in the sense that it's used refers to it being a privilege).
The term self describes: Probation violations are violations of probationary terms (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 meet those obligations (requirements and restrictions), probation violations allegedly occur and are usually soon after, formally alleged).
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, and the bar for a fact finder to establish that a violation occurred requires only that the fact finder (the interpreter of offered circumstances and information) conclude that it's more likely than not (i.e. over 50% likely) that a violation occurred.
Also take note, this "by a preponderance of the evidence" standard is distinctly less burdensome than the standard of proof in an ordinary criminal trial, which requires the fact finder to find "beyond a reasonable doubt," that every required element of the charged offense was committed. So, although you do have a right to a hearing, don't assume that the type of hearing mirrors an ordinary criminal trial. 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 other words, a criminal act that in of itself did not yield a criminal conviction can be sustained for purposes of establishing a probation violation.
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: Probation is revoked from the defendant leaving him or her with the previous suspended incarceration or impairment possibly imposed in its entirety. This typically also results in the inapplicability or removal of a previously granted deferral program (in addition to the imposition of the balance of your suspended jail or prison sentence i.e., the amount of incarceration you avoided as a consequence of your initial grant of probation), whatever conviction sparing legislative scheme. Inherently, revocations are more severe than violations (in the sense that it removes you from probation, instead of alleging a violation of at least of its terms):
(i) violations represent a formal, judicial acknowledgment that at least one term of probation wasn't complied with by the defendant (which isn't to diminish the effect of a violation: one term can be enough to revoke your probation): violations can be loosely viewed as a corrective tool: the court can extend your term of probation and/or add court ordered requirements in addition to unsuspending and imposing some jail time, while future grants of probation, including the type and terms of probation granted can be influenced by a prior track record of probation non-compliance (i.e., being unsuccessfully discharged from a prior probation sentence can influence whether a court would grant probation again).
(ii) Revocations on the other hand, represent a full removal of probation, leaving you legally exposed to the brunt of the initial suspended jail or prison sentence (which typically exceeds probation violation sentences by far). For example, if you were sentenced to 2 years in prison, but that sentence was suspended pending your successful completion of probation for the same period, and during probation you made some mistakes (i.e., you failed to comply with a reporting requirement), those mistakes may be viewed as "violations," for which you may be sentenced to jail (e.g., a couple of days, 1 week; 1 month, etc.), to the extent that you're sentenced to jail at all (and you'd presumably keep whatever applicable deferral program was granted). However, using the same set of circumstances, should your probation be revoked (e.g., should your mistakes exhaust the court's patience (by type, amount or degree of violations), or be viewed as frustrating the judicial objectives that support your probation grant (and these reasons aren't to suggest they're the burden by which revocations are measured; rather they're just some examples), then your probation would be removed completely (presumably along with whatever deferral program you enjoyed). And the additional effect of that is to have you possibly serve the initial 2 year prison sentence. To be clear, this is only one example, but it's not unrepresentative of the legal and practical consequences that can follow from a probation revocation).
Deferral, diversionary programs and conviction sparing statutory schemes are used interchangeably (technically, mistakenly since the three terms mean different things) to loosely refer to legislative schemes (in the legal, rather than the pejorative sense) and/or court backed programs designed to grant leniency towards eligible criminal offenders, including youthful offenders and/or defendants who either don't have any or certain types of prior convictions, etc. The diversion is by offering them alternatives to proceeding that result in criminal convictions.
As an example of a conviction-sparring criminal statute, take "7411" treatment (statutory shorthand for a specific deferral treatment, which if granted by a court, and all its requirements are satisfied by the defendant, allows certain 1st time drug offenders/defendants to not have a resulting criminal conviction. In the absence of such a program, a guilty plea or finding would remain on a convicted defendant's record until it was either successfully challenged (appealed) or expunged. But by applying the 7411 treatment, the defendant would not need to rely on some extrinsic legal vehicle to obtain relief at a later time. Rather, the relief would come at 7411's grant. Accordingly, it's advisable to at least scan the availability of deferral and like programs and examine a defendant's (not to be too formal, but more accurately: prospective applicant's) eligibility to let them benefit from the shielding effect of available statutes that afford relief (and there are a number of statutory and judicial mechanisms (e.g., H.Y.T.A., MIP, DV, Drug Possession, specialty courts (e.g., DUI, mental health, veterans court, etc.); delayed sentences and other fashionable legal relief) applying to --and requiring-- different things (e.g., 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, 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 petitioning requirements citing statutory requirements that some courts demand more than others). Indeed, it's important to be thorough and complete...
For more information, and on whether you're eligible for any available program, and the likelihood that they would be approved in your case, give me a call: (702) 449 - 1289. We'll discuss your case, and scan the landscape of available programs for which you're eligible...
"My non lawyer friend, person I met in jail, my accountant, my hairdresser, etc., gave me legal advice… he/she/they said…"
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.
Thanks for your time; and I look forward. . . to helping you move forward.
Attorney Barnet G. LeVine