FAQ’S


FAQ’S

FREQUENTLY ASKED QUESTIONS

 

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  • How can I get out of jail if I’m arrested?

    When you have been arrested and taken into custody you are entitled to a “First Appearance” hearing within 24 hours of the arrest. But such hearing may or may not actually be necessary.

    The hearing would only occur if the arrested person has not been able to post a release bond. The amount of the bond before the First Appearance hearing is established by a formula based on the type of offense charged and whether the arrested person is a local resident or not.

     

    Either the arrested person may directly post the bond, or somebody else on his or her behalf may do so. That other person could be a bondsperson, who must be licensed in Florida to perform that task. Typically, the bondsperson requires a non-refundable fee of 10% of the amount of the bond to perform the service. Assuming that after release from custody and during the pendency of the case the arrestee complies with requirements that he or she appear in court when required and any other conditions of the bond ordered by the court, the full bond amount is returned to whoever posted it when the case is concluded. If the arrested person fails to appear for court or violates a court ordered release condition the bond may be forfeited, meaning that whoever posted the bond loses the bond amount. The poster of the bond, therefore, has an incentive to ensure that its subject complies with appearance and any other requirements. Because a bondsperson is undertaking a risk, he or she will likely require the collateralization of the posted bond.

     

    There are some offenses for which no bond at all is set, meaning that there can be no release from custody before the case is reviewed by the First Appearance judge. Domestic violence and extremely serious charges are amongst those in that category.

    The First Appearance hearing is not a trial, nor is it one at which witnesses testify about what happened causing the arrest. Rather, the First Appearance judge decides two issues:

     

    The first issue is whether there is, based merely upon a review of the “Probable Cause Affidavit,” an indication that the arrested person “probably” committed the charged crime. This is a far lower standard than the one that ultimately would apply in a trial setting, that being “proof beyond a reasonable doubt.” So, the question essentially is whether the facts stated in the probable cause affidavit, if true and accurate, indicate the commission of the crime. If the written facts do not show that, the arrested person should be released without having to post any bond. If that finding is made it does not mean that the charges are dismissed at that time.

     

    In the vast majority of cases the judge will decide that probable cause exists. Regrettably, that issue is often assumed and not even explored without it being raised by the defense attorney. Whether it is raised or not, the remaining focus is on the other issue, which is whether a bond should be ordered and if so, its amount. As to that, the sub-issues are essentially two: Is the defendant a flight risk? And, if released, is the defendant a danger to the community?

     

    If the Court believes that, based upon the charge itself, the specific facts of the offense, the nature of the defendant’s criminal history or other factors, a bond might not be ordered or be ordered in an amount so high that it effectively is no bond. As will be explained below, that does not necessarily mean that the defendant must remain in custody throughout the life of the case.

    If the only issue is the amount of the bond, the Court’s task is to look at whether the defendant is a “flight risk.” The idea is that, given that the bond money would be forfeited if the defendant fails to appear in court as required, there is an amount that is sufficiently high that the defendant’s appearance in the future would be assured. Thus, the primary determining factors are whether the defendant has ever failed to appear in the past and whether the defendant has sufficient ties to the community, which make flight less likely.

     

    A person who has no or minimal ties to the community is not ineligible for a bond, but the bond is likely to be higher than that for an arrestee who does have ties.

     

    Examples of conditions showing good ties include living in the community, having lived in the community for a time, having relatives in the community, owning property in the community, being gainfully employed, being gainfully employed for a substantial period of time, and not having a “safe harbor” in another geographical location.

     

    Additionally, an effective presentation by an attorney on behalf of a defendant at a First Appearance hearing would further include a showing that “probable cause,” if determined to exist, is weak, meaning that the defendant has every incentive to appear and contest the charges.

     

    If the defendant cannot post the ordered bond he or she can then seek a reduction or modification of the order in another court. That other court is the trial court. The First Appearance judge merely sets the initial bond, and after the First Appearance hearing the case is transferred to that other court, where all other pretrial and trial activity will occur. That second judge would be able to explore release issues in much greater depth, and upon a motion and court presentation by the attorney for the defendant be able, if sufficiently persuaded, to modify the release conditions.

    In some cases, whether at the First Appearance hearing or at a modification hearing, a court may order that a defendant be released from the jail but be on “House Arrest.” That would mean that the defendant would be required to remain at home during the life of the case. The Court may also allow such defendant to leave home for work, church, educational or other essential purposes only. The Court may also order electronic monitoring of such person. A violation of house arrest restrictions would likely result in a return to jail.

     

    Finally, either the First Appearance or trial judge may order that the Defendant be released without having to post a financial bond. That could be either in the context of an “O.R.” release or an “S.O.R.” release.

     

    An OR release is one in which the defendant is released on his or her “Own Recognizance,” meaning upon the defendant’s promise to appear. That release order is likely when the defendant has no prior arrests, is facing a relatively minor charge, and has excellent ties to the community.

     

    An SOR (Supervised Own Recognizance) release is one in which the defendant is released on a similar promise, but with an added condition that he or she report on a regular basis to the court, usually weekly, so as to allow the Court to maintain some control over the released defendant. Sometimes, an SOR release is ordered in conjunction with a financial bond requirement.

     

    The entitlement of an arrested person to a First Appearance hearing within 24 hours is intended to promote the possibility of the rapid release of the person, who is presumed to be innocent. Yet because the hearing occurs so quickly, many arrested people are unable to retain an attorney for the hearing, and thus have a significant disadvantage in an effort to seek release from custody.

    That is why I can be reached 24 hours a day, 7 days a week, so as to be able to help clients as soon as they have that need.

  • Should I have faith in the jury system?

    A United States Supreme Court Justice once proclaimed that “the service of a juror is as important to the protection of the American democracy as is that of the soldier on the battlefield.”

     

    The jury system is not a perfect system, but it is the best system. It is the only context other than an election where a citizen can say “no” to the government. The government can claim a violation of a law, but a citizen/juror can say “no.” And jurors frequently do.

     

    But again, it’s not a perfect system. Courts instruct jurors that they must follow the law, which includes the specific instructions that they are given before they deliberate a verdict. They are required to make decisions based only on the law and the evidence (or conflict in or lack of evidence), and leave their personal prejudices at the courtroom door.

     

    Yet, a trial begins when 6 or 12 (depending on the nature of the charge) people are selected to fill the crucial role of jurors. The pool of jurors from which those selections occur consist of people who didn’t previously know about the given case or the defendant. They are people who typically reacted negatively when receiving their jury summons. They commonly are people who first walk into the courtroom, see the defendant sitting at the defense table by the defense lawyer, and ask themselves “I wonder what he did?”

     

    They may have heard of the concepts of “presumption of innocence” and “proof beyond a reasonable doubt,” but to most those phrases don’t mean much if anything at all. If the defendant is in a criminal court, charged with a crime after having been arrested, he must have committed some crime, right?

     

    WRONG.

     

    That is why jury selection is arguably the most important stage of a trial. The prosecutor and the defense attorney each participate in the process, asking prospective jurors about their backgrounds, views of the system and their willingness to presume innocence and otherwise abide by the rules that apply to jurors. Regrettably, the time allotted to the attorneys for that purpose is very limited, an amount often insufficient to deeply explore a person’s background and views. Thus, an effective lawyer is one who has his or her own life experiences and skills of communication so as to both learn from prospective jurors and successfully educate prospective jurors so as to best position the client’s case for ultimate juror deliberation.

     

    I like to say that it’s better to refer to these individuals who ultimately render verdicts not as “the jury,” but as “jurors.” They, too, are unique and a mere part of the whole. That is why when I try a case I do my best, during jury selection and the rest of the trial, to connect and communicate with them as individuals, each capable of being reached in a personal way.

  • What does it mean that the prosecution has the burden of proof?

    Think about it…you read or hear of a news report that “John Doe” was arrested for a robbery of a convenience store. A typical reaction might be “why did he do that?” or “which convenience store did he rob?” or “has he done this before?”

     

    You could be “John Doe,” and you had nothing to do with the robbery. Yet you are viewed as guilty and are arrested and charged.

     

    Because an accuser’s claim or other purported evidence may be the product of mistake or lies, and the consequent danger of an innocent individual being wrongly and tragically convicted, the prosecution is always required to present evidence that is so clear and substantial that there is no reasonable doubt as to an accused’s guilt before a conviction can be obtained.

     

    Every jury in a Florida case, before deliberating a verdict, is told by a judge that “if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable.”

     

    A police officer merely requires “probable cause” to legally justify an arrest. That standard is far lower than that of “proof beyond a reasonable doubt.”

     

    Understandably therefore, a police officer’s decision to arrest does not mean that the arrestee is or will be found to be guilty.

    In a trial context, jurors are sworn to uphold the law. That means that they must leave any preconceptions at the Courthouse door, and hold the prosecution to its extremely heavy burden.

     

    Obviously then, effective representation of a client requires that the criminal defense attorney be able to clearly and forcefully communicate this crucial Constitutional concept.

  • Should I hire a former prosecutor to defend me?

    Think of Clarence Darrow, F. Lee Bailey, Johnnie Cochran, Roy Black, Alan Dershowitz, and of other criminal defense attorneys regarded as being amonst the very best. What do they have in common? They are all criminal defense attorneys who were never prosecutors. There must be a reason that the criminal defense attorneys who are generally viewed as the best of the best are lifetime practitioners of criminal defense and have never prosecuted.

     

    As would be the case with any provider of services, whether legal or otherwise, the most effective provider would be one who has passion about his or her professional function. In criminal cases the prosecution typically advocates for punishment, convictions and incarceration, and against Constitutional protections. A dedicated criminal defense attorney advocates for the exact opposite.

     

    A “former prosecutor” rarely has any “special inside information” that is unavailable to a criminal defense attorney. A criminal defense attorney who practices for even a short period of time learns of the procedures employed by the prosecutors’ office. And there is no “secret or inside information” to which a criminal defense attorney is not privy when that attorney has been practicing for many years.

     

    Because an experienced criminal defense attorney knows the system from the inside out, including prosecutor motives and methods, the prospective client should not believe that he or she will have more success just because a criminal defense attorney is a “former prosecutor.” The question for an arrestee in need of a criminal defense attorney should be “who is passionate about the cause of criminal defense?”

     

    Of course, just because an attorney is a former prosecutor does not necessarily indicate a lack of competence. But, with knowledge of the system and prosecutorial policies being equal, one should consider whether he or she would prefer putting his record, liberty and future in the hands of a lawyer who previously sought negative consequences for criminal defendants, or one who has always has been dedicated to and passionate about protecting a defendant’s record, liberty and future.

  • Do you represent guilty people?

    I am frequently asked the following question: “How can you possibly represent somebody whom you know is guilty?”

     

    The reality is that most arrested individuals are guilty. Yet everybody is protected by the Constitutional provisions that require that we be presumed to be innocent.

     

    I am proud to represent any accused individual, because in so doing I am honoring and reinforcing the absolutely crucial obligation of the government to back up its allegations with sufficient proof. It is my belief that a lawyer who rejects the case of a guilty potential client cannot be effective in a system that is fundamentally based on the State and United States Constitutions.

     

    Of course, there are cases within which the prosecution does possess and can present sufficient evidence of guilt. That conclusion would follow my thorough investigation into the nature of the prosecution’s evidence and how it was obtained. I would then advise the client of his and her options, which would include testing the prosecution’s case in a trial context or attempting to orchestrate an agreed resolution (commonly known as a “plea bargain”).

     

    Should a client opt for an attempted resolution (or perhaps, depending on the judge, enter an “open” plea to the judge), all efforts should be made to demonstrate all of the good qualities of the client, as well as the potential proof problems that the prosecution may have. I can find good in any client, because it does exist, despite the need sometimes to dig deep. I can also find reasons to justify “mitigation,” that is, circumstances showing that “criminal intent” was minimal, that remorse was shown, that the client is a good person who made a mistake, or other demonstrations showing the humanity and positive nature of the client.

  • I’ve heard about legal “technicalities.” What are they, and do they really matter?

    A violation of a citizen’s Constitutional rights, by the government or by a police officer, is much more that a “technicality.”

     

    Rather, it is a serious occurrence.

     

    It is so serious that under Florida and United States Constitutional Law the government and police cannot use evidence against an arrested citizen if a criminal defense attorney successfully demonstrates to a Court that a violation of his client’s rights occurred, and that the violation resulted in the obtaining of evidence which the prosecution intends to use against the client.

     

    A criminal defense lawyer, therefore, should thoroughly investigate the means by which evidence was obtained in order to best protect the rights of his client.

     

    If such investigation leads to an issue regarding the potential unconstitutionality of police action, the criminal defense attorney should file what is called a “Motion to Suppress.” The filing of such motion, which claims that a client’s Constitutional rights were violated, creates a prosecutorial burden to prove that there was no violation of the client’s rights. A judge would, after hearing testimony and legal arguments by the prosecutor and the criminal defense attorney, decide whether the police overstepped their bounds. If the decision is that they did, the prosecution would not be allowed to use evidence wrongly obtained against the defendant. That evidence would not be admissible because if is “fruit of the poisonous tree,” as described by the United States Supreme Court.

     

    Often that decision would leave the prosecution without any evidence and with no choice but to drop the charge.

  • My case is probably like many others, so I’m wondering whether various “formulas” are used to deal with cases.

    Some law firms are like factories. The treatment of clients is mechanical in nature….”Another case, a standard way of dealing with it…just another “one of those cases.”

     

    That’s a perspective that may make the lawyer’s job easier, but it ignores the reality that every case truly is different. Rather, the defense of an accused person should be customized to fit the particular and unique aspects of the client’s case. Formulas may work on an assembly line, but not in the practice of a committed defense attorney.

     

    Unfortunately, the criminal justice system is a crowded one. Every day judges, prosecutors and defense attorneys are exposed to numerous cases. Not so unnaturally, these observers and participants resort to formulas. Prosecutors sometimes take just a few moments to review paper documentation as to a given incident and a defendant’s record before advocating for a significant term of incarceration or other harsh life altering sentence.

     

    That is why one of my primary causes is to throw a wrench into that assembly line. My clients are people, not files. They love, are loved, and are the product of years of living and being shaped by life’s relationships, circumstances, family backgrounds, geographical beginnings, cultural influences, educational opportunities, financial circumstances, intelligence levels, religious influences, and so many other factors. If the system is overcrowded that’s the system’s problem, and my client didn’t ask to be nor do he or she agree to be treated as a mere number of file.

     

    My clients are human beings who each deserve the proper attention in my office and in the courtroom. That is their right. That recognition is central to my practice.

  • Will information I provide to my attorney remain confidential?

    Absolutely. In order for a client to feel comfortable while sharing sensitive or private information he or she should know that it all conversations with the attorney are confidential. Oftentimes cases turn on facts exclusively within the knowledge of a client. Even though the revelation of background information or facts by the client to his or her lawyer might be otherwise private or even embarrassing, a client who is aware of the strict requirement of confidentiality will, through open discussions, be better positioned in his or her case.

  • What does “circumstantial” evidence mean, and how is it different that “direct” evidence?

    “Direct” evidence is evidence that requires little or no interpretation. Eyewitness testimony as to a criminal act is direct evidence. A confession would usually be another example of direct evidence.

     

    “Circumstantial” evidence is something else. In an arson case, for example, the defendant is seen walking rapidly away from the burning house with a lighter in his hand. The officer who approaches him recognizes him as the person who has a grudge against the owner of the burning property. The person says, “the guy deserves to have his house burned down.” The person is arrested and charged.

     

    In that case there is no direct evidence that the person committed arson. Rather, there are circumstances clearly arousing suspicion and making guilt seem likely. Yet we all have found ourselves surrounded by circumstances that make something appear to be something it’s not. And in the criminal justice system, circumstantial evidence must exclude “all reasonable hypotheses of innocence.”

     

    So, here, as it turns out, it was actually somebody other than the defendant who committed the arson. Yes, the defendant had a grudge. Yes, he was in the vicinity of the burning house and was walking rapidly away. Yes, he carried a lighter. But in reality, he just happened to be walking fast because he was late for something. He happened to have just lit a cigarette. He didn’t like the owner of the house. And he had nothing to do with the crime.

     

    Prosecutors frequently bring charges based only on circumstantial evidence. The fate of a defendant in that case is fortunate to be represented by an attorney who can effectively demonstrate the danger of misinterpreted circumstances.

     

    The authors of the United States and Florida Constitutions certainly foresaw this danger as they enacted the clear and central theme of the criminal justice system: The Presumption of Innocence.

  • What are conflicts of interest, and why do they matter?

    In every given case a criminal defense attorney should be loyal to one person and one person only. That person, of course, is the client.

     

    I’m frequently asked whether I would be willing to represent a co-defendant of a client, meaning somebody other than my client who is charged within or related to the same case. I always explain to such individual and my client that they each have different interests and, despite a claimed belief of unity, that they each deserve representation by a lawyer who can never be influenced by anything other than the best interest of one client. Unfortunately, some lawyers may look the other way when asked to represent multiple defendants because multiple client representation means multiple fees. But, even when the 2 or more potential clients appear to be identically situated, they never entirely are. Each deserves absolute loyalty and the receipt of advice and action specifically tailored to his or her, and only his or her, cause.

     

    Similarly, the client is entitled to absolute confidentiality in his or her communications with the attorney. When the client knows of that protection he or she and the lawyer are able to discuss anything, without the client fearing that someone else may become privy to what is said.

     

    The client should always know that his or her lawyer is seeking the best possible result for him or her, and that the lawyer is never compromising his efforts so as to satisfy anybody other than the client.

  • I’ve been arrested. Do I need to prove my innocence?

    We have all been involved in circumstances that make something appear to be true, when in fact it is not.

    So, sometimes there might be “circumstantial” evidence that a client committed a crime.

     

    And unfortunately and sometimes tragically, such “circumstances” may make an innocent person appear to be guilty.

     

    Adding to the possibility that an injustice occur, “witnesses,” whether civilian or police, make mistakes or do not tell the truth.

     

    The United States Constitution and the Florida Constitution recognize these possibilities. It is fundamentally acknowledged that the worst possible consequence within a criminal case would be the conviction of an innocent person.

     

    That is why an accused individual is presumed to be innocent. In fact, under the Florida Rules, jurors are told by judges that they must actually believe that an accused individual is innocent, and maintain that presumption/belief forever, unless and until the prosecution eliminates all reasonable doubt as to the individual’s guilt.

  • Are there special rules and consequences in domestic violence cases?

    Domestic violence is different. Charges of domestic violence are treated specially by the courts and the prosecution.

     

    That special focus is premised upon the perception that there is an inherent potential volatility in domestic relationships. It also recognizes the likelihood of continuing contact between the defendant and the alleged victim during and after the life of the case.

     

    That is why a person arrested for a claim of domestic violence cannot be released on any bond before he or she appears before a judge at a First Appearance hearing. It is also why all domestic violence cases, unless felony in nature, are assigned to a single domestic violence division that only deals with those cases.

     

    Nonetheless, a defendant charged with domestic violence remains protected by the presumption of innocence and all defenses that may apply.

     

    Those protections are of course essential in any case, domestic or otherwise. But during my career I have seen more false claims that a crime was committed in the context of domestic relationships than in any other. Domestic partners far too often use the 911 call in reaction to emotions only or because of a claimant’s plan to gain an advantage for some reason when in fact there was no violence or when any violence was the product of self-defense or an effort to diffuse a volatile situation.

     

    And many law enforcement agencies and police officers individually have a pro-arrest policy or tendency. That is, if there is a 911 call complaining of domestic violence, there is a likelihood that regardless of the quantity or quality of evidence of claimed criminal behavior, the investigating officer should lean towards making an arrest so as to separate the involved individuals through a custodial arrest. Many of those “investigations,” therefore, are not that at all, but rather are “rushes to judgment” intended to eliminate the possibility of post-investigation violence.

  • If I am placed on probation does that mean my case is over?

    No, it is not. The case is not over until you are no longer in a probationary status.

     

    Probation is a status within which a defendant is given a chance to avoid what could be much more severe sentencing consequences. When a defendant is placed on probation he or she is still potentially facing what could be the maximum sentence that could have originally faced. A defendant (who during the period of probation is referred to as a “probationer”), will avoid that harsher consequence if he or she complies with all conditions of probation. Conditions of probation are typically requirements that the probationer perform community service, pay court costs and fines, attend therapy or educational sessions, pay restitution, and, of course, remain at liberty without committing any further criminal offenses. Should the probationer comply with all conditions in a timely manner, the case would then be closed, without any further sanctions. If, however, there is a “willful” and “substantial” violation, the probationer would face a “violation of probation” charge, which could potentially result in the imposition of what could have been the original sentence, or other sanctions more severe than those within the originally ordered probation.

     

    I assist and advise my clients who are or may be placed on probation regarding the performance of the conditions. Because a client is “on thin ice” while in a probationary status, I always counsel and urge him or her to complete the conditions at the earliest opportunity. Such compliant performance not only avoids more sanctions but can also be the basis of my motion to the court to order the early termination of probation.

  • Can anything be done to eliminate my criminal record?

    Imagine that you are an employer considering applicants for a particular job. Or you are a college looking at applicants. Or you are somebody else considering involving someone in some endeavor.

     

    Your applicants are many. The process of elimination begins with an exclusion of the person with a criminal record.

     

    Or consider that you were formerly a defendant. Further assume that the prosecution was unable to prove the charges and consequently dropped them. Or your involvement was minimal, or it was an isolated event, and although the charges were not dropped adjudication was withheld (meaning that you were not “convicted.)” And now, with your criminal case being of public record, you can’t get the job you want. Or you won’t be granted admission to college or into some other organization of interest.

    That is a huge life problem. Happily, there is a remedy.

     

    Under Florida law the Court has the discretion to order that a criminal history record be sealed or expunged. That order would entirely shield the record from public view. It further would allow you, the subject of the record, to thereafter lawfully deny having been arrested or charged.

     

    There are some exceptions to this relief. Again, the court has the discretion to deny the request, believing that the public has the right to know. That, though, is rare when the request is made properly and effectively.

    The shielding of the record would not be possible if you have previously received a sealing or expunction of a criminal record. That means that you can only receive this benefit once in your life. That is why I will sometimes not advise a client to seek record shielding when the charge is minor and for whatever reason he or she is not confident that a future charge will never happen.

     

    Also, there are some charges for which sealing or expunction is never possible. Those are charges such as many sex or other serious crimes. Of course, I can elaborate on which ones when asked.

     

    If you have been arrested and booked into a jail, you have another problem. You probably already know about this problem because you or somebody else realized that booking information and your mugshot have been posted on the internet. That information is not a part of the Court record, and is not subject to expunction or sealing. So, you’re sunk anyway, right? In many cases, wrong!

     

    Profiteers, often lacking basic scruples, have relied upon their First Amendment protections in posting on the internet a true public record that you have been booked into a jail due to an arrest for whatever the charge was. Will a current or potential employer or college admission board presume innocence and ignore that easily accessible information? Rarely.

     

    But most of these profiteers (the nice word) will relent and take down the posting when you prevail in your case. Many will charge a fee to do so, though, and many will do so when paid off even if you don’t prevail. These extortionists (ok, the not nice word) are undertaking a fairly recent endeavor, and their continuing practice of damaging people’s lives will, I hope, end soon. Because I have limited my practice to the specialty of criminal defense, I do not practice civil law. I am in the process, though, of conferring with some civil lawyers about the filing of appropriate lawsuits to stop their abhorrent activity.

  • How can I be arrested for possessing a drug when I didn’t actually possess it?

    Whether possession be of of drugs, firearms or weapons, stolen property or other “contraband,” the criminal justice system acknowledges that just because one is in possession of such item, one is only criminally guilty if he or she is knowingly in possession.

     

    For example, the person who borrows a friend’s car, and doesn’t know that the friend has left drugs or contraband in a non-visible location in the car, does not legally possess the item. So, assuming that person has been lawfully stopped by the police, and further that there is a lawful basis justifying the officer’s search and ultimate discovery of the item, he or she may be charged with possession of the item.

     

    Further and unfortunately, the officer may misinterpret or misstate circumstances in an effort to make an arrest.

     

    That begs the question: “Should I therefore thoroughly inspect my surroundings at all times wherever I am so as to avoid such misinterpretation or misstatement?” Under most circumstances the answer, happily, is no. It’s a question of reasonableness. Borrowing that car and entering it and smelling an odor obviously depicting the presence of a controlled substance would be a circumstance suggestive of knowledge. “Willful blindness” is not an effective defense position.

     

    Another important point is that possession may be either “actual” or “constructive.”

     

    Actual possession is not a mystery: the item is actually in the person’s possession. It is in his or her hand, pocket, purse, wallet, car or other location. There rarely is an issue i as to knowledge of the presence of the item n an actual possession case .

     

    Constructive possession is different. Whereas actual possession is fairly self-descriptive, constructive possession is not. Yet one who is in “constructive” possession is equally in possession of the item as the actual possessor, for purposes of the criminal law.

     

    For one to be in constructive possession, the item needn’t be visible. Or, if it is visible to a person in its proximity, that person must have the ability to control what can be done with the item. For example, the person is a passenger in a car, and the driver pulls out a marijuana joint, and the driver is stopped for speeding. The officer approaches, smells marijuana, and upon investigation finds the joint in the driver’s pocket, and upon searching further finds a bag of marijuana in the closed center console. The officer charges both the driver and the passenger with possession of the items.

     

    In that example the driver is guilty of both actual and constructive possession. He is in obvious actual possession of the joint, and has knowledge of and control over what is in the closed center console. The passenger has no knowledge of what is in the console, and certainly has no authority to control what is done with it. He is therefore not in constructive possession of that item. Further, he is not in constructive possession of the joint, because although he was aware of its presence he did not have control over it.

     

    Of course, for a police officer to be in a position to investigate or arrest he or she must be exceeding his or her limited legal authority over the person who is the subject of the investigation. If the officer exceeds his or her authority and arrests for possession of the item, then, upon that issue being spotted and successfully argued to a court, the court would “suppress” the item. That means that the prosecution would not be able to benefit from the violation of the law by the police, and the item would be “suppressed,” or excluded from the prosecution’s case. That typically means that the prosecution would be left with no evidence, and thus no choice but to drop the charge.

  • What is an alibi?

    Many folks toss the word “alibi” around as if it means simply a “defense.” Actually, it is a defense, but it is a specific type of defense.

     

    An alibi defense is an “affirmative defense.” That means that the defendant is doing something that is unusual and on its face contrary to the idea that the prosecution must prove guilt and that the defendant needn’t ever prove innocence.

     

    Specifically, when presenting an alibi, the defendant is offering evidence that at the time of the alleged crime he was at a location other than the scene of the crime, and therefore he couldn’t have committed it.

    In order for a defendant to present that defense, he must provide written notice to the prosecution well in advance of trial of where he was at the time of the event, together with the names and addresses of the witnesses to his presence at that other location.

     

    Great care must be taken in the presentation of an alibi defense. It’s already problematic to educate jurors as to the fact of and need for the burden of proof being on the prosecution. And although the presentation of an alibi defense does not shift that burden to the defense, many jurors might tend to unwittingly do so. That is why I always ensure that an alibi defense has an unshakeable foundation before it is presented, and if it is, that I clearly educate jurors as to their obligation.

  • It’s clear that the prosecution has all the proof they need that I committed the crime. Is the situation hopeless?

    “Officer, I know my driver license is suspended, but as you can see, my child in the back seat is very ill, I don’t have the time to call a cab or an ambulance, and if I can’t get her to the hospital immediately her condition will rapidly deteriorate!”

     

    or

     

    “Officer, yes this is marijuana in my possession. But I have epilepsy, and no other medication controls my condition as effectively as marijuana. Also, here are some reasons why I cannot move from Florida to a medical marijuana state, and I do not want to suffer epileptic episodes.”

     

    The above are two examples of the possible application of a “necessity” defense. The basic idea is that if the commission of what would ordinarily be a “crime” is done because there was no other way to achieve a necessary goal, and the potential consequence of not acting would cause a more negative impact than the commission of the “crime.”

     

    This is but one example of utilizing the law in a creative and ethical way, going beyond the obvious “letter of the law.”

     

    Other defenses, such as “duress” and “insanity” may not be readily apparent, but do exist as lawful defenses which can be asserted by a knowledgeable defense attorney.

  • What should I say to a police officer who wants to question me?

    It may turn out that the officer is not targeting you for any reason, and having a conversation with him or her would be harmless, but you shouldn’t assume that’s the case.

     

    Police are actually allowed under the law to lie to you about facts within an investigation in order to induce you to make a statement. For example, you could be told that there are witnesses against you when there aren’t. Or, you could be told that there is a video or other evidence that implicates you, and that it would therefore be in your best interest to answer questions.

     

    Police are not allowed to lie, though, about the law or legal consequences of speaking or remaining silent.

    Further, what you do say to the officer can be used against you. And not only that, but some officers will lie about or embellish upon what you say.

     

    If you are not in custody the officer does not have to provide Miranda warnings, which state that you have a right to remain silent and to an attorney.

     

    Whether you are “in custody” or not depends upon the circumstances. The test is “would a reasonable person feel, based upon all of the attendant circumstances, that he or she is free to leave the encounter?” Police will often claim that you are free to leave and that therefore there is no need to “Mirandize.”

     

    There is no more compelling evidence against you than your confession. The police want that badly, because it often ends their investigation with that powerful and conclusive evidence.

     

    It is best, therefore, for you to say something as follows. “An attorney has advised me to not make any statements without his presence, and I chose to follow his advice and remain silent.”

     

    It should be comforting to you in knowing that you have that Constitutional protection, and importantly, that your assertion of your right to silence and to an attorney can never be used against you in court.

  • I know a lawyer who practices in many areas of law. Would I be better off if I hired a criminal law specialist?

    Perhaps a “jack of all trades” would be fine for home repairs. But when your liberty and future are on the line, you should know that criminal law has so many intricacies that retaining a specialist in that field is the only wise choice to make. You wouldn’t see a general medicine doctor to have brain or heart surgery. A criminal case and its potential outcome are too important in your life to trust putting them in the hands of anybody other than a criminal law specialist.

     

    I have handled criminal cases only for my entire career of 33 years.

  • I have been charged with a crime, and when I was released from custody I was given a court date for an “arraignment.” What is an arraignment?

    The arraignment hearing is one during which you are formally informed of the charges against you, and at which you enter an initial plea. If you appear for that hearing without an attorney, the judge will inquire as to what your intentions are regarding hiring one.

     

    As a routine matter, an experienced criminal defense attorney will file a “Waiver of Arraignment,” which states four things. For my clients, those are:

     

    1. I am the attorney of record.
    2. We are aware of the charge(s), and waive the formal reading of them.
    3. We enter a plea of Not Guilty.
    4. We demand a trial by jury.

     

    The case may or may not actually culminate with a jury trial, but that filing preserves the right to a jury trial.

     

    The Clerk of Court, upon receiving the Waiver of Arraignment, will strike the arraignment setting from the Court’s docket, and reset the case for a status hearing on a date beyond when the arraignment would have occurred.

  • I’ve been charged with a crime that I didn’t commit. Will a lie detector test cause the prosecutor to drop the charges?

    First, you should know that polygraph results, commonly referred to as “lie detector tests,” are not generally admissible in court proceedings. That is because the scientific reliability of polygraph examinations has not been conclusively established.

     

    Sometimes, though, a polygraph test result may be admissible, meaning it is allowed to be presented as evidence in court. That could occur if both the prosecution and the defense stipulate or agree to admissibility, typically be-fore the examination occurs, and with a further agreement as to the con-ductor of the examination. This would be a risky move by a defendant, who may “fail” a polygraph despite being truthful. The defendant could thereaf-ter present evidence or testimony disputing the result, but the “failure” on the examination would create a prejudice that would be difficult to over-come. That is why, in the rare circumstance where my client wants to un-dergo a polygraph examination, we arrange for a confidential and private examination by a very tough examiner. Only if the client “passes” that ex-amination would we be inclined to submit to a second examination within the context of a joint agreement between the parties.

     

    Finally, a prosecutor would not be required to drop a charge if a defendant passes a polygraph examination in which he or she expresses innocence. That is why a specific agreement that the charge would be dropped upon passing would be an absolute condition to a submission to the exam.

  • Is there a type of probation within which I would not be required to report to a probation office every month? It’s very difficult to keep my job and take care of my family because I have that obligation.

    Yes, there is. It is called “administrative probation.” If one is on adminis-trative probation the only requirement is that the probationer not commit any crimes.

     

    Standard probation, with reporting requirements, is the norm. When one is on standard probation, the supervising officer can drug test the proba-tioner, conduct standard inquiries regarding any change or job or residence and general compliance with standard and special conditions of probation. In most circumstances the close monitoring of a probationer is what the court wants and requires.

     

    However, there are some cases within which such reporting is not neces-sary. Those would be ones where there are no special conditions of proba-tion, such as performance of community service, attendance at a treatment program, payment of restitution, and others. A court would further have to be satisfied that the probationer is not a danger to the community, has spe-cial needs regarding traveling or other activities making regular reporting impractical, and is not being supervised because of a serious underlying of-fense.

     

    Further, a probationer may ask the court, who may be unwilling to termi-nate probation before the full term is served, to acknowledge that all condi-tions of probation have been fulfilled and that administrative probation would suffice in lieu of standard reporting probation to insure ongoing re-habilitation of the probationer and the safety of the community.