General FAQs 2

  1. Can the Jury Rely on Their Own Experience in Rendering a Verdict?
  2. What Is A Change of Venue and Why Would Anybody Want It?
  3. Child Molest Allegations
  4. How Does it Work When Co-Defendants Are Testifying Witnesses for the Prosecution?
  5. How Do Court Furlough Days Affect You?
  6. Do I need to go to Court for Every Court Appearance?
  7. What Happens When You Make A False Insurance Claim?
  8. How does a Case Get Filed?
  9. How Does Deportation Affect a Criminal Trial?
  10. How does the jury system work?

11. Can the Jury Rely on Their Own Experience in Rendering a Verdict?

The jury system is designed to give the defendant a fair trial by allowing him to be judged by his peers. These "peers" come to the jury room with their own knowledge, convictions, prejudices and experiences.

In every trial, the judge tells the jury to suspend judgment on the case until they have heard all the evidence. Is there a conflict with this instruction and relying on information you know to be true based on your own knowledge and experience?

Apparently there is, as the case of Taylor v. Sisto went all the way to the Ninth Circuit Court of Appeal to get a definitive ruling on this issue. Originally the judge told the jurors to lock away all their experiences in a "metaphorical box" and not to rely on those experiences when deciding the case. The Ninth Circuit Court of Appeals didn't agree with this saying the 6th Amendment right to a jury trial means having a jury of your peers decide the case and, more importantly, those jurors come with their own experiences which are valuable to them in making all decisions.

Therefore, although jurors are told to suspend their decision as to guilt or innocence until they have heard all the evidence, when it is time for them to deliberate, they can, and should, use all information available to them, including their own past experiences.

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12. What Is A Change of Venue and Why Would Anybody Want It?

What does it take to change the venue in a high publicity case? When there is extensive publicity through TV, radio and newspapers either because of the nature of the case or because the defendant or victim has a high profile, is there anything that can be done or should be done to guarantee a fair trial?

The threshold question in considering a change of venue (which simply means that the location of the trial will be moved to a different city or county) is has the publicity tainted the jury pool such that the defendant can't get a fair trial?

It is much easier to get a change of venue in a small county because it has a small jury pool. In big counties, it is hard to show that, out of the millions of people in the county, 12 people can't be found who have not already formed an opinion about the case.

It is very rare to get a change of venue granted. The judge who would be presiding over the trial is the person who makes that determination. Often the party requesting the change of venue will do market research, (similar to a candidate who conducts a poll) to show that most people know about the case and have already formed an opinion about the case. If the judge determines that the majority of people who would be on the jury are unable to put their passions and prejudices aside, the change of venue will be granted.

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13. Child Molest Allegations

Child molest allegations can be incredibly tricky. The DA's office has wide latitude in determining what charges are brought against the defendant in a case. Let's say the defendant is accused of molesting one person over a period of a year. The DA can charge the defendant with 1 count of child molest, covering the entire year's time OR can charge each and every incident within that year as a separate count. Each count or charge carries a maximum penalty of 8 years so the way the complaint is structured is incredibly important.

In addition, child molestation charges involving multiple victims can carry a maximum sentence of 25 years to life in prison. This can stem from one incident or multiple incidents. The DA must specify a special allegation in order to have the charge carry the 25 years to life sentence.

In plea bargaining, a savvy lawyer can often negotiate away counts. It is critical that the lawyer know not only what the charges are against the defendant but what the charges COULD be as well. Our office has handled hundreds of cases of child molest. In each case we look at not only what the charges are but how severe they could be in the worst case scenario. Only in this way is it possible to deal from a position of strength and get the best possible outcome for our clients.

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14. How Does it Work When Co-Defendants Are Testifying Witnesses for the Prosecution?

When a case involves multiple defendants (commonly called co-defendants), it is not unusual for the prosecutor to offer one or more a "deal" if a co-defendant testifies against his fellow defendants. This is usually done when the prosecutor can't otherwise prove her case.

How is this done?

In general, the prosecutor (let's call her Joan) will approach the lawyer (Mr. Loewenstein) for the co-defendant (let's call him Bob to make things easier) and asks Mr. Loewenstein if Bob would accept a deal in return for his testimony. You might wonder how Joan knows exactly what Bob will say. The answer is, Joan doesn't. Because of that Joan will want to know exactly what Bob will say before she offers him a deal. It only makes sense that if Bob doesn't give Joan enough information to help her win her case against his co-defendants, she isn't going to be willing to give him anything in return.

Bob is then asked to make a "proffer." That is an interview where he can tell the prosecutor, the police officers and his lawyer his story without worrying that his statements will be used against him in case there is no deal. Sometimes it is said that the co-defendant becomes "queen for a day" because he can say anything without worrying that his statements will be used against him later. Joan will give Bob something called a "proffer agreement." This tells Bob that he is required to tell the truth.

Once the proffer agreement is signed, the interview begins. Joan will listen to Bob's story. If she decides it helps her case against his co-defendants enough, and adds sufficient value to her case, she will offer him a deal. The stated objective of the proffer is that Bob tells the truth and only the truth. If it turns out later that Bob lied then he can be prosecuted for perjury or have his deal taken away from him. Once Joan and Mr. Loewenstein agree on a deal, it is presented to Bob for his approval. The deal will be a lessening of his sentence in return for his cooperation, contingent upon Bob's testifying at the trial of his co-defendant.

Bob will be told that if he testifies truthfully he will get his deal. What isn't said but is understood by all parties is that the truth is consistent with the proffer.

Knowledge of the way proffers work is crucial, both when the client wants to make a deal with the DA AND in the event our client isn't the one making the deal but instead is contending with a codefendant testifying against him. Mr. Loewenstein's extensive experience in all aspects of this is allows him to assist his clients to the fullest.

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15. How Do Court Furlough Days Affect You?

In an effort to save money and save jobs, the courts in Orange County are now closed one Wednesday a month. In addition, courts are closed at 3pm on Fridays. What does that mean to you?

Obviously, it is impossible to provide the same level of service with fewer hours. Fewer DA hours mean that court filings are delayed. You need some kind of action on a case? Well, you are just going to have to take a number and get in line. There are only so many hours in a day and the time for each Deputy DA to spend on your case just got smaller. Using the Public Defender? Their clients complained before that they didn't' get enough time and attention from their assigned lawyer. You can only imagine how those complaints will escalate now. Fewer court days mean longer waits for a courtroom to have your case heard.

As a defendant, you may not be in any hurry to get a determination in your case. But you certainly don't want any less time and attention spent to get a good result on your case. And most importantly, you don't want to find out that the old adage, justice delayed is justice denied, is actually true.

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16. Do I need to go to Court for Every Court Appearance?

Many people want to know if they need to go to every court appearance or if their lawyer can appear for them. The answer, like so many things in the law, is yes and no.

If you are charged with a misdemeanor, Penal Code Section 977 says that a lawyer can make appearances for you, his client, without your having to appear. Even if you are out on bail and have signed a written promise to appear, that promise can be fulfilled by the lawyer going to court on your behalf. Of course, if the judge specifically orders you to appear in court, that is a different matter and you would have to show up, but that rarely happens.

However, if you are charged with a felony, you MUST appear at your arraignment at the very least. (An arraignment is the initial court appearance where the defendant pleads either guilty or not guilty.) After the arraignment, the judge can allow the lawyer to appear on your behalf as long as you have signed a written authorization IN COURT waving your personal appearance. However, just like it is not likely that the judge would order a misdemeanor defendant to appear in court, it is equally unlikely that the judge would approve a felony defendant NOT showing up.

In other words, absent extenuating circumstances, if you are charged with a misdemeanor, your lawyer can go to court without you and if you are charged with a felony you must go to court with your lawyer.

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17. What Happens When You Make A False Insurance Claim?

Making false claims to your insurance company can result in a charge of insurance fraud, a felony. This is how it frequently works:

Person A calls his insurance company and reports that a piece of jewelry has been stolen. A gives them information about the stolen piece and may even provide an invoice for the original purchase. In reality the jewelry is sitting where it always sits but, of course, the insurance company doesn't know this. The insurance company pays A the value claimed for the stolen piece, up to the insurance limits. Or, perhaps person B calls her insurance company and tells them that jewelry that was actually stolen was worth much more than it really cost. B's misfortune of having her jewelry stolen has now resulted in a windfall for her.

All this may seem relatively minor in the great scheme of criminal wrongdoings but insurance fraud is a felony, which means it is the class of serious crimes. Even if A and B are caught and arrested and offer to pay back all the money the insurance company gave them, it will be too late. Insurance companies pay so much out for these kinds of frauds most of them now have whole fraud units to investigate claims and go after the people they suspect. In addition, the DA also has special units to prosecute fraud.

For this reason, if you are suspected of insurance fraud it is more important than ever to retain the services of an experienced, aggressive lawyer. Although negotiations are more difficult than in the past, they are not impossible and excellent legal counsel may be all the stands between A and B and serious prison time.

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18. How does a Case Get Filed?

How does a case get filed, resulting in someone having to go to court to defend the charges? Without knowing how the court system works this can all seem very mysterious and even understanding it doesn't erase the frightening nature of the situation. In order to explain it, we will use the example of Joe, who is thought to be shoplifting at Nordstrom's, but the same procedure would be followed regardless of the type of crime involved. Let's assume Nordstrom's security thinks Joe is shoplifting. They follow him around the store either in person or by camera and wait until he leaves the store. They catch up with him and escort Joe into their office. There, they call the police. Joe can either be formally arrested and taken to jail or he can be given a citation. At the bottom of the citation the date, time and location of his first court appearance will be noted. If he is taken to jail, he will also be given a court date including the date, time and location. In any case, Joe is now very worried about what will happen to him.

The police report is then sent on to the District Attorney's Office. A deputy district attorney (DDA) will review the report and decide whether or not he/she thinks there is enough evidence to proceed. If the answer is yes, the DDA will write something called a complaint, specifying the charges and facts as they are known at the time and file that complaint with the clerk of the court. The complaint will specify the court date, time and location of the first appearance, called an arraignment.

It is possible and even somewhat likely that when Joe shows up at the original date on the citation nothing will be filed and the court will be unaware of his case. This is because the DA's office is frequently backed up with cases and decisions about them simply aren't made in a timely manner. It does not mean that Joe is off the hook because the case can still be filed after the date he was originally given. If this happens and the case is filed after the original date Joe will be sent an arraignment letter in the mail saying that he is hereby required to show up in court at a specified date, time and location for his first court appearance, the arraignment.

If the DDA decides there isn't enough in the police report for him/her to want to prosecute, the case will be rejected. The police may notify Joe of that, but most likely he will simply never hear about it again. Joe can contact the DA's office and ask whether the case has been filed, but most likely no one will contact him.

If Joe is doing this himself, the above is exactly what will happen. If he retains an attorney, at least in our office, we will check frequently with the court to see exactly what is happening with his case. Has it been filed? If so, when is the court date and what are the charges? Is it being sent back for further investigation? Has it been rejected? In some instances, intervention by our office can actually result in the case not being filed at all, which is the best possible outcome. Then Joe can heave a sigh of relief and go home. If not, he has an expert by his side who can shepherd him through the proceedings and make sure that his side of the story is heard loudly and clearly and that his interests are fully protected.

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19. How Does Deportation Affect a Criminal Trial?

The defendant in a criminal trial has a right to confront and cross examine the witnesses against him. This is guaranteed by the Sixth Amendment. So what happens if one of those witnesses is deported before the trial?

This happened in a California case where the sheriff released a witness who had been subpoenaed to ICE. The sheriff knew it was likely the witness would be deported prior to the trial, which is exactly what happened. In order for the defense to show that they were denied the right to confront and cross examine the witness, they had to show prosecutorial misconduct.

The question the California Supreme Court asked in order to decide this concerned whether the sheriff was part of the prosecutorial team. They determined that the sheriff did not act for the prosecution and was not part of the prosecution. Therefore his actions could not amount to prosecutorial misconduct. The Supreme Court also decided that the interest of the Federal government was of the highest importance so the deportation took precedence over the witness's need to testify in the trial.

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20. How does the jury system work?

The US Constitution guarantees every person the right to a jury trial if punishment for the crime involves jail time and the person is an adult. Juveniles do not have a right to a jury trial. Each person has a right to 12 randomly selected members of the community in which he lives. No one can discriminate against these randomly selected people for any reason (like age, gender, race, disability). The court will make every attempt to accommodate anyone called to jury duty.

In order to convict a criminal defendant, the prosecutor must overcome the defendant's presumption of innocence. The defendant does not need to prove he is innocent. He is presumed to be not guilty. The prosecutor must prove the defendant is guilty and he must prove this using the standard of proof, beyond a reasonable doubt. It is up to the jury to decide if the DA has met this burden of proof. The verdict must be unanimous. The jury must vote 12 to 0 in favor of a guilty verdict or 12 to 0 in favor of a not guilty verdict.

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