General FAQs 4

  1. Trial Tactics and Cross Examination
  2. What Are The Consequences of Under Age Drinking?
  3. What is a Bench Warrant and How Does it Get Recalled?
  4. What is a Plea Bargain?
  5. What is Attorney Client Privilege?
  6. What is Extortion?
  7. What is Jury Misconduct?
  8. What is the 5th Amendment Right Against Self Incrimination?
  9. When is a Burglary Not a Burglary?
  10. How Much Is That Traffic Ticket?

31. Trial Tactics and Cross Examination

In law school, students are taught never to ask a question on cross examination when they don't already know the answer. Not only can this be impractical, the lawyer can miss out on opportunities to expose the witness as a liar if he always stays in areas that are predictable. Although it is true that an unwanted answer could potentially backfire, there are times when the lawyer has to make that judgment call to proceed or not. This is where the experience and judgment of the lawyer are crucially important.

Efficient cross examination of the DA's witnesses requires extensive preparation and complete familiarity with what the witness has said previously so the lawyer can point out discrepancies. Many times, less competent lawyers will rehash the testimony that the DA just elicited, including both consistent and inconsistent statements. This can inadvertently bolster the witness's credibility by restating the areas of consistency. There are times where less is more and it is better to ask nothing or very little.

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32. What Are The Consequences of Under Age Drinking?

This is probably the most common juvenile problem I see. Here is an example: A group of teenagers is at the beach. It's afternoon, on a beautiful, sunny day and three of them are enjoying a 6 pack of beer. The lifeguards walk by, see the beer and call the police. The cops come and ask for ID. Everyone is under age and everyone gets a ticket. No one is taken to jail but everyone gets a citation, the beer gets poured out and the kids now have a court date. No big deal... or is it?

The biggest consequence is not really the fine, it's the loss of their driver's license, for a whole year. Or if they don't have a license the ability to obtain a license will be delayed by a year. Who would think a driver's license would be involved? The kids weren't driving, in fact they weren't anywhere near a street or a car.

That is just the way the juvenile system works. Any alcohol related offense by a minor generally results in a one year suspension of driving privileges, whether or not the offense had anything to do with actually operating a motor vehicle. There is an exception to this in some jurisdictions, because the drinking had nothing to do with driving, the minor can enroll in a drug and alcohol program and take classes thereby avoiding the loss of his/her license. This is only available in some courthouses. As an additional consequence of this, car insurance rates for the minor involved usually skyrocket in cost.

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33. What is a Bench Warrant and How Does it Get Recalled?

If you fail to appear for a court appearance, the court MUST issue a warrant for your arrest in order to keep jurisdiction over your case. The judge issues the warrant from the bench, hence the name "bench warrant." This warrant goes into the system and law enforcement is now empowered to find you and arrest you. In fact there is a special group of officers who are members of the sheriff's department who are supposed to now look for you and arrest you.

When the warrant is issued, the judge sets the bail amount. When you are arrested you must pay this bail amount or stay in jail.

Now, in addition to the original reason you were supposed to show up in court, you have an additional charge of failure to appear.

In order to get the warrant recalled, generally you must show up in court along with your attorney. Some judges will allow your attorney to appear without you but that is rare. If your original charge (the one you failed to appear in court about) is a felony you almost ALWAYS have to appear in court personally, along with your attorney, to ask for the warrant to be recalled.

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34. What is a Plea Bargain?

Once you are charged with a crime, if the DA and your lawyer compromise on what the ultimate charge and punishment will be, it is called a plea bargain or negotiated settlement. Both sides have an interest in agreeing on a new, reduced charge. In a trial both sides have to worry about losing and nobody wants to lose.

With a plea bargain, the DA saves the expense and time of a trial, sometimes called judicial economy, thus saving judicial resources for more important matters. In a plea bargain, the DA is sure that the defendant is found guilty of something and suffers some kind of punishment.

The defendant may not want to go through the expense (additional attorney fees, witness fees, investigation, additional court costs to name a few) and emotional upheaval of a trial and the consequences of losing in trial may be too great.

The better the evidence is for the DA, the less likely he/she will be willing to reduce the sentence or punishment by much. If the evidence is not very substantial the DA is usually willing to give the defendant a better deal.

In all plea bargains, once an agreement has been reached between the DA, the defense lawyer and the defendant, it must be presented to the judge. The judge has the ultimate ability to accept or reject the settlement. It is very rare for a judge not to approve a plea bargain or negotiated settlement.

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35. What is Attorney Client Privilege?

What exactly is meant by attorney client privilege? In its simplest form it means that anything that a client says to his attorney is protected and cannot be divulged by the attorney for any reason. A client is anyone who is seeking legal advice. It can be someone who has already retained a lawyer or someone who is considering retaining the lawyer. What if the client reveals that he committed a crime? There is no duty on the part of the lawyer to come forward with that information. Indeed, the lawyer has a duty to his client NOT to reveal information told to him in private. The basic rule is that your lawyer is there to protect you and no one else. Anything you tell your lawyer will be kept secret.

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36. What is Extortion?

What exactly is extortion? According to CA Penal Code Sections 518-527 Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right. Fear, such as will constitute extortion, may be induced by a threat, either:

  1. To do an unlawful injury to the person or property of the individual threatened or of a third person; or,
  2. To accuse the individual threatened, or any relative of his, or member of his family, of any crime; or,
  3. To expose, or to impute to him or them any deformity, disgrace or crime; or,
  4. To expose any secret affecting him or them.

In other words, if Bob threatens to reveal a secret that Sam has unless Sam pays him a specified sum of money, that is extortion. If Bob threatens to harm Sam or someone else unless Sam pays him a specified sum of money, that is extortion too. And if Bob threatens to in anyway expose something embarrassing (like a crime or deformity) about Sam unless Sam pays Bob a specified some of money then that is extortion too.

But if Sam goes to Bob and asks him not to reveal a secret about him and offers to pay him money in order to induce him to keep the secret, that is not extortion. It is not extortion because the person with the secret is the one doing the asking. As long as there are no threats as to what would happen if Bob doesn't take the money or decides to reveal Sam's secret then no crime has been committed.

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37. What is Jury Misconduct?

When jurors are sworn in, they promise to abide by certain rules. They promise to listen to all the evidence before making up their minds. They promise not to talk about the case to anyone, including the other jurors, until instructed to do so. They promise to remain free of outside influence which means they may not to do any independent research, like looking things up on the internet or conducting any experiments to verify or disprove evidence presented in court. And they promise to put aside passion and prejudice and judge the case solely on the evidence presented and the law as it is explained by the judge.

Jurors must not only be scrupulous about their conduct, they must avoid even the appearance of impropriety. In one of my recent cases, several jurors were having an extended conversation with a uniformed officer who was going to testify in the case. The conversation was about baseball and the officer's long hours. The judge was made aware of this conversation and even though the jurors involved said they could be fair and hadn't formed any opinions about the case, the jurors were dismissed because of the appearance of impropriety. They had been instructed not to talk to any of the people involved in the case. That means they cannot speak to the judge, court reporter, bailiff, DA, defense attorney or any witness in the case. The jurors involved broke this rule by talking to one of the witnesses. Whether this conversation would have caused them to change the verdict they otherwise would have reached was not the deciding point. It was the fact that they violated their oath not to speak to anyone involved in the case that caused them to be dismissed. It should be pointed out that the officer knew or should have known better than to engage in a conversation with jurors in a case in which he testified and he was severely reprimanded for the conversation. During trial, I always keep an eye on where my jurors are and who they are talking to, in order to guard against this very situation.

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38. What is the 5th Amendment Right Against Self Incrimination?

The 5th Amendment to the United States Constitution states, in part, that no person "shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law". The 5th Amendment protects witnesses from being forced to incriminate themselves. In other words, no one can make a witness or a defendant say something that can be used against him in a criminal proceeding. To "plead the fifth" is to refuse to answer a question because the response could provide self-incriminating evidence of illegal conduct which could be punishable by fines, penalties or forfeiture. This right applies whether the proceeding is in federal or state court and whether the proceeding itself is criminal or civil.

In addition, the government cannot punish a criminal defendant for exercising his right to silence. The DA cannot ask the jury to draw an inference of guilt from the defendant's refusal to testify in his own defense at trial.

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39. When is a Burglary Not a Burglary?

The Los Angeles Times ran an article recently about someone in New Jersey who broke into a restaurant, cooked chicken and rice, and left. There was $200 in the cash register that wasn't touched. Indeed, nothing else in the restaurant was touched. Is this a burglar with integrity, who didn't take anything other than the food he could consume then and there? Is breaking in to steal food so you can eat a burglary or just sad?

Sad though it may be it is definitely still a burglary. Someone broke into a structure that wasn't their own, with the intent to commit a crime. That is the definition of burglary under Penal Code Section 459. In this case, the defendant stole a chicken and some rice. He ate it and didn't pay for it which is theft, a crime. (We won't even talk about the dirty dishes he left behind which has to be a crime of good manners at the very least.)

So, what to do about this? Is the sadness factor worth anything? From the little we know it appears that someone was so desperate for food that he risked committing a crime just to have something to eat. It is a little like Jean Valjean in Les Miserables, who stole a loaf of bread for his family and paid for it with a huge prison sentence.

Do the circumstances surrounding the burglary count for anything? They didn't in Jean Valjean's case, but if this defendant was a client of ours, we would certainly rely heavily on the defendant's state of mind. We would probably aim for a deferred entry of judgment. This is when the defendant pleads guilty to a crime and is given probation with certain conditions attached. If the defendant stays out of trouble and completes everything he is supposed to do, he can come back, withdraw his plea and the case is dismissed, as though it never happened. This defendant would be a perfect candidate to do that. He could do some community service like helping in a soup kitchen, where he could not only get some food legally for himself, but could help others. In the end, as far as the courts go, this might be the burglary that wasn't.

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40. How Much Is That Traffic Ticket?

Getting a traffic ticket used to be a minor annoyance. Now it is big business. The state legislature decided additional fees, surcharges and assessments would be a great way to fund state and county programs and court costs. The latest of these fees came last year when a $35 "conviction assessment" was added to raise $5 billion to construct and renovate court houses, none of which are in Orange County.

So, just how much does that $20 fine for holding a cell phone while driving become? After adding a whopping $122 in fines, penalty assessments, surcharges, security fees and, yup, night court fee (even if you didn't go to night court) you are now paying $142. A $70 speeding ticket? You guessed it, it's not even close to $70. Try $332. And don't even think about running a red light. That $100 fee turns into a whopping $446.

Considering the dismal state of the economy in California, don't expect these fees to go down anytime soon. California is the leader (aren't we lucky?) in tacking on extra charges to traffic tickets to raise revenue. These fees have gone up since the first penalty assessment fee in 1953 of $1 for every $20 of base fine. As you can imagine, the legislature has become more and more enamored of their scheme to make more money. Red light cameras and speeding sensors are going to become more prevalent, not for safety reasons, but as a way to raise revenue. So, strap on those seat belts, put down those cell phones and cross your fingers. Of course, driving safely never hurts either. And when all that doesn't work, fighting that traffic ticket just might be your best bet.

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