Criminal Law: How Can You Defend Those People?

CRIMINAL LAW: HOW CAN YOU DEFEND THOSE PEOPLE?

DAVID RAYBIN, ESQ.

INTRODUCTION

·  Where does the State (or Federal Government) acquire authority to prosecute crimes? “Crime against the King’s Peace”

·  In a criminal case, conviction requires “proof beyond a reasonable doubt.” In a civil case liability must be proven by a preponderance of the evidence.

·  In a criminal case the state controls the proceedings and the victim acts as a witness for the prosecution.

·  In a civil case, the victim controls essential decisions shaping the case, including whether to sue, accept a settlement offer or go to trial.

JUSTIFICATIONS/REASONS FOR PUNISHMENT

1.  Deterrence

2.  Incapacitation

3.  Rehabilitation

4.  Retribution

5.  Denunciation

PROTECTING THE ACCUSED FROM MISCARRIAGES OF JUSTICE

·  The legal system of the U.S. is unique in the world in the number of procedural rights that are provided to people suspected or accused of crimes.

·  However, people continue to be victims of miscarriages of justice.

·  A study of wrongful conviction determined that 0.5% of all felony convictions were in error.

·  Consider that in 2001, approximately 13.7 million people were arrested in the U.S.

·  That could mean 34,250 people wrongfully convicted.

·  Integrity of system: Ours is a system of checks and balances.

·  Diffusion of Power : Unique in the World

STEPS IN THE CRIMINAL PROCESS

·  How a Criminal Case Gets Filed

o  “Swear out a Warrant”

o  Warrantless Arrest

·  The Arrest Warrant or Indictment

·  Charges Must Be Filed Quickly

o  Statute of Limitations

·  Whether to Prosecute??????

SOURCES OF PROSECUTION DISCRETION

·  Police

·  Civilians

·  Prosecutors ( District Attorney)

·  Non-Prosecution of Crime

·  Selective Prosecution

·  Racial or Sexual Bias

FIRST STEPS

·  Appearance in Front of Magistrate ( Bail)

·  The Preliminary Hearing

·  The Grand Jury's Role

·  How Grand Juries Work

PLEA BARGAINING

·  Many criminal cases are resolved out of court by having both sides come to an agreement. In most jurisdictions it resolves most of the criminal cases filed.

·  Plea bargaining is prevalent for practical reasons.

·  Defendants can avoid the time and cost of defending themselves at trial, the risk of harsher punishment, and the publicity a trial could involve.

·  Both sides are spared the uncertainty of going to trial.

·  The court system is saved the burden of conducting a trial on every crime charged.

TRIAL (JURY OR BENCH/JUDGE)

·  A trial is an adversary proceeding in which the Prosecutor must present evidence to prove the defendant's guilt beyond a reasonable doubt. The defendant is not required to prove his or her innocence or to present any evidence, but may challenge the accuracy of the Prosecutor's evidence.

·  Residents of the County are randomly selected and are summoned to the Court as potential jurors;

·  A blind draw selects twelve people from that group are selected and then the Judge, Prosecutor and defense attorney question the jurors about their backgrounds and beliefs (called Voir Dire);

·  Trial is similar to Civil Cases BUT the State cannot call the Defendant as a Witness.

·  A criminal case jury verdict (beyond a reasonable doubt) must be unanimous.

WHAT HAPPENS IF THERE IS A CONVICTION?

·  Sentence

o  Misdemeanors and Felonies: What is the Difference?

o  Sentencing in Tennessee varies with the crime and can be the most confusing part of the criminal process.

·  Appeals

o  Appeals are heard in the Tennessee Court of Criminal Appeals and then by the Tennessee Supreme Court.

WHAT HAPPENS IF THERE IS AN ACQUITTAL ?

·  Expungement

·  Can you Sue ???

SOURCES OF CRIMINAL LAWS

·  Congress enacts federal statutes.

·  State legislature enacts state statutes.

·  Cities, counties, and councils enact laws generally called ordinances.

SOURCES OF THE LAW

Rights of the Accused

·  State Statutes

·  State constitution

·  U.S. Constitution

o  Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments

·  Supreme Court decisions

FOURTH AMENDMENT

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

THE EXCLUSIONARY RULE

The exclusionary rule was created by the Supreme Court in 1914, and extended to state courts in 1961 (Mapp v. Ohio). The exclusionary rule originally had three purposes:

·  To protect individual rights from police misconduct

·  To prevent police misconduct

·  To maintain judicial integrity

PROTECTION AGAINST COMPELLED SELF-INCRIMINATION

The most important procedural safeguard in the Fifth Amendment is the protection against compelled self-incrimination.

·  The protection is based on the belief that confessions made involuntarily may not be truthful.

RIGHT TO IMPARTIAL JURY WHERE THE CRIME SHALL HAVE BEEN COMMITTED

·  Right to a Jury Trial

·  Right to be Tried Where the Crime Happened (Venue)

RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION

·  The right to notice and a hearing is the very core of what is meant by due process.

·  This right prevents the practice, common in some countries, of holding suspects indefinitely without telling them why they are being held.

RIGHT TO CONFRONT OPPOSING WITNESSES

Defendants have the right to:

·  be present during their trials, and

·  cross-examine witnesses against them.

Defendants can forfeit this right by disrupting the trial.

RIGHT TO COMPULSORY PROCESS FOR OBTAINING FAVORABLE WITNESSES

Defendants have the right to use the subpoena power of the court to compel the testimony of any witnesses who may have information useful to the defense.

RIGHT TO COUNSEL

In federal courts, defendants who could not afford an attorney went without until 1938 when the Supreme Court first required the government to provide an attorney for a defendant facing felony charges. The right to an attorney paid for by the government was extended to state courts in 1963 (Gideon v. Wainwright).

THE EIGHTH AMENDMENT PROTECTION AGAINST CRUEL AND UNUSUAL PUNISHMENTS

·  The Eight Amendment bars punishments that are excessive.

·  What is excessive is not fixed in time but changes with evolving social conditions.

ATTORNEY-CLIENT RELATIONS

·  Representation is more than just “ go’n to court.”

·  Client won’t do what you think he/she should at the critical end of the case because YOU have not built a relationship at the beginning of representation.

o  Recognize client is under a huge amount of stress.

STRATEGY AND TACTICS

  Have client write you a letter about the “story of my life.”

Dear Mr. Raybin

Running over and killing those two boys was the second

most scary thing in my life.. . .

·  Never tell client to meet you in court at 9 o’clock.

·  ALWAYS tell them to be there at 8 o’clock.

·  WRITE them about the court date.

·  Give them DIRECTIONS to court.

·  YOU need to show up on time as well !

·  If client has to bring something to court have them leave it by the front door so they will bring it in the morning.

·  Tell client what to wear to court and have them lay it out the night before.

·  Tell them want not to bring: Cell phones, pistols, pagers, children, or Bibles !!

·  Do not have too much of a relationship with your client.

·  Tell your client about court-ordered drug testing at first visit!

·  Get the client off Facebook!

·  Have Client Change their email password!

ALWAYS REMEMBER

·  You are also under stress, so deal with it appropriately

·  Document your file. A short pencil is better than a better long memory!!!!!

·  Don’t procrastinate.

·  Practice Projective Law.

·  Have a plan for each case.

THE TELEPHONE

·  The telephone is still our primary method of communication

·  Instruct your receptionist always to inform the caller as to your whereabouts before transferring the call to your office phone.

·  Return your phone calls!

·  Buy a timer to help monitor the length of your calls for billing purposes.

·  Be Accessible

·  Insist that the client turn the cell phone off when they come into your office.

·  Be sensitive to clients with physical disabilities.

CONCLUSION

David L. Raybin

Raybin & Weissman, P.C.

Suite 2120

424 Church Street

Nashville, Tennessee 37219

Telephone: 615-256-6666 ext 220

Fax: 615-254-4254

E-Mail:

To learn more about our practice, please visit our web site: www.NashvilleTnLaw.com

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