Legal Articles

The Santa Clara County Office of the District Attorney is known for and proud of its reputation for being very aggressive in criminal prosecutions. After all, people do not want to live in a world full of crime. All U.S citizens who are California residents are subject to jury duty. Some people who receive a summons for jury duty ignore it. People who are poor, transient, or have big problems of their own may not ever get a jury summons due to changing their address so often. Or sometimes jury duty does not seem important compared to other problems in their lives, such as being a single parent and holding down a job. Those citizens who do respond to their summons and ultimately end up on a jury are not always “in touch” with the problems of the people who end up on trial. Most jurors look to the prosecutor as the guardian of their safety, and the defense attorney as a necessary evil at best. After all, it would be a bad member of society who thinks that people who steal, rape, and rob people are just fine and ought to go unpunished. When placed in the setting of a jury trial, the average citizen tends to look to the prosecutor as the protector of their rights. This usually translates into a pro-prosecution bias, and makes it hard for someone who is falsely accused to get a fair trial.

Jury selection for someone who has been falsely accused of a crime is very important. A good defense attorney is not looking for people who are pro-crime, but someone who will use their own experience and thoughts about the trial, who will truly do what the law requires—make the prosecution prove its case—not look to them for guidance. This is especially important in a jury trial for the sort of crime that causes great anger in the mind of the average citizen, such as crimes of violence against children or the elderly, or any sort of sex crime. Someone who is falsely accused and wishes to exercise their constitutional right to a jury trial often has a difficult time finding a truly unbiased jury both in Santa Clara County and in much of the United States. Criminal defense attorneys in San Jose have a tough battle in these types of cases, especially.

It is extremely important for a criminal defense attorney in San Jose or anywhere else, to make sure that he or she has all of the police reports, a complete witness list, access to all physical evidence, and enough funds to do their own investigation, and any necessary experts. The Santa Clara County Office of the District Attorney is the largest law firm in the county. It is extremely well-funded and has the support of all the police agencies in the county. The criminal defense attorney nevertheless has the advantage of knowing their case more intimately than their opponent will. With thorough investigation, and an experienced criminal defense lawyer, a person who has been falsely accused of a crime can obtain a fair trial, even in a pro-law enforcement county that prides itself as one of the safest large cities in the nation.

Anyone who has watched a TV re-run of a courtroom drama such as "Perry Mason" or "Matlock" has seen that crucial moment where a cunning prosecutor calls a witness to the stand and asks the fateful question, "Do you see the person who shot Mr. X here in the courtroom?" The witness then invariably points to the defendant on trial, saying. "He is sitting right at the defense table!" By the time the TV show has ended, the skillful defense attorney inevitably proves that statement wrong, usually in an equally dramatic courtroom confession by the real killer. Of course, this seldom plays out like this in court.

In fact, when an eye witness points out the defendant as the perpetrator of a serious crime, that statement is generally accepted by the jury as the most important piece of evidence in the trial. The skilled defense attorney will raise physical problems and other credibility issues to attack such an identification. Often a psychologist, an expert witness, may even be called in, to explain tricks our minds play on us in times of unusual stress, causing people to believe they are able to identify a person that they did not even see at the time of the crime. Yet the eyewitness identification of the defendant as the person who committed the crime is a very difficult piece of evidence to overcome.

Scientific research and a number of studies conducted by Innocence Projects as well as university professors have shown, however, that eyewitness identification is often very unreliable. According to many studies, mistaken eyewitness identification is a major cause of the wrongful conviction of innocent people. Scientists and psychologists have warned of the dangers of permitting a person to be convicted only upon eyewitness identification, unsupported by any other evidence. In fact, California placed initiatives on their November 2007 ballot requiring reforms in the use of eyewitness identification procedures in jury trials. This ballot proposal was defeated.

Since the use of PCR DNA procedures has become accepted in all United States courts over the last 10 years, convictions of many persons, some of them on death row, have been overturned by hard-working Innocence Project attorneys. In fact, according to psychologists including Dr. Gary Wells, PhD, mistaken eyewitness identification has proved to be THE largest single factor contributing to the conviction of innocent people.

If your criminal case involves an erroneous eyewitness identification, you need an attorney beginning thorough investigative procedures as soon as possible. You need a skilled attorney who will be able to bring out the real facts and fight against mistaken eyewitness identification both in and outside the courtroom.

In California, there are 2 separate areas of the law that influence whether a case is too old to prosecute. The easiest issue is when a case can no longer legally be prosecuted due to the statute of limitations. That means, from the date the offense was committed, the prosecution has a set time to get your case filed in the courthouse. For misdemeanors, like most DUIs, petty thefts, minor assaults, minor domestic violence, or disturbing the peace, and some lesser sex crimes, under the influence of drugs cases, that time is one year. For many felonies, the statute of limitations is 3 years.

There are many felonies with longer statutes of limitations. I cannot list all of them here. The statutes of limitations for criminal offenses in California starts at Section 800 of the California Penal Code. Felonies with longer statutes of limitations include crimes involving fraud, where a victim does not know they have been defrauded for some time, other crimes involving official conduct, crimes punishable by life imprisonment, most sex offenses. The crime of murder has no statute of limitations and can be prosecuted any time.

If a sex crime or sex offense is committed against a minor, the crime can be reported after the child has become an adult. This means it is possible in some cases to be prosecuted years after the victim says that the sexual offense was perpetrated. The California Penal Code Section that governs many sexual offenses involving minors is California penal Code section 803. It is very complicated and involves some very specific definitions that need to be discussed with a criminal lawyer.

Because statute of limitations questions can be so complex, never assume that a crime simply must be too old. You need a criminal attorney, and even then, the criminal lawyer will need to check the Code because of the nature of the exceptions that have been written into the statute.

For any criminal offense that is brought to the police after the statute of limitations has run, that criminal case cannot be prosecuted.

Separate from the statute of limitations issue are the right to a speedy trial and due process of law. This area is even more complicated than statutes of limitations. This is where a criminal offense has been filed against someone, but that person may not know because they were not arrested for the crime. For example, two people who were dating have an argument and break up on the spot. One party is hurt or angry and calls the police and reports a domestic violence case after the other person has walked out. If police cannot find the person who walked away, that person may never know a police report for domestic violence has been filed by the ex. If the district attorney files charges based upon what the complaining party says, then an arrest warrant for a criminal offense gets sent to the address the police have—often an old address. That person could go months or years without knowing there is a domestic violence warrant out for him/her. Depending on the length of time that has passed, and whether or not any efforts were made to contact the missing party, that person may well be able to get the case dismissed as a violation of their due process rights.

Another example is a DUI, or an assault and battery case where the suspect gets injured and ends up in the hospital but arrest papers do not get processed and the suspect is released. Again, an arrest warrant would then need to go to that person’s address or the police would need to find and arrest the suspect. If this is not successful, there may be a passage of time and a statute of limitations issue.

Generally speaking, if a criminal case is years old, and witnesses are no longer available, a speedy trial motion may get the case dismissed. This is ALWAYS worth pursuing when the case is old. You need to talk to a criminal defense attorney.

Under the Fifth Amendment to the United States Constitution, you have a right against self-incrimination. This is also known as the right to remain silent. Under the Sixth Amendment, you have the right to an attorney. These two pillars, together with the right to due process of law applicable to the States under the 14th Amendment, are meant to guard against heavy-handed governmental investigations and false confessions made just to get the police to stop the questioning.

But what about your rights today? What about when a police officer just has a couple of questions? If the police are knocking at your door or calling you on the telephone with questions about a crime, you may be considered a potential suspect, not just a witness. Police officers do NOT need to read you Miranda rights if they want to talk to you on the phone, or at your house (unless you are under arrest or handcuffed first). They do NOT even need to advise you of your rights if they ask you to come to the police station to answer a few questions unless you are under arrest! They DO NOT need to inform you they are asking you questions because you are a suspect. They ARE allowed to even tell lies about what they already know about the case in an effort to get a suspect to confess.

Nevertheless, many people choose to talk to the police and then wonder about their rights later, sometimes after damaging statements have been made. Most people assume that they are in control, not the police. After all, the person is often sitting at his/her desk or kitchen table when officers contact him/her. But you are not in control. Police are very well-trained. Making a few statements to police and then saying—well, I think I would be better off with a lawyer—or some other vague statement---is NOT insisting on your 5th or 6th Amendment Rights, and will NOT stop the questioning! You have the right to tell the police that you want to talk to an attorney and insist you will not speak to them without an attorney.

Many people wonder if insisting on an attorney wont just make you look guilty. You need to remember, the police would not be contacting you if they did not suspect you already. Whatever you say to them often confirms their suspicions. After you have spoken to an attorney, the attorney can talk to the police and let them know you will not be talking to them, or agree to sit in on a meeting between the police and yourself.

What if the police say they will just arrest you if you don’t want to talk to them? If that is truly the case, then the police already had probable cause to arrest you, and you will be arrested either way! Rarely can an arrest be avoided just by making a statement! It is almost always better to be arrested without having made a statement. Most of the time, when parties are questioned by police, they are nervous, sometimes have something to hide unrelated to the crime, so the truth may get “bent” a little. That truly is much more damaging than no statement at all because you cannot “unsay” something you have already said to police.

You would never consider playing a game of football, baseball, whatever sport with a professional athlete and assume you are evenly matched. Do NOT make this mistake with the police. Contact an attorney regarding the case and your rights before you make a statement.

The First Court Date: The Arraignment

People are often confused by what happens in court. Why do I have to go back more than once? Is my lawyer even doing anything? What about my speedy trial? Sometimes, criminal defendants do not even know they have pled guilty until after they have already done so, and then come to see a lawyer! A criminal case is never over on the first court date unless the defendant pleads guilty, or if the DA does not file charges at all.

When you are arrested, or sometimes given a citation with a court date. You have to take a day off from work, and sometimes ask a good friend or family member to come along for moral support. Then you arrive to court and find out that there is no trial, no accuser or police officer present, sometimes not even a prosecutor, just a judge and a courtroom full of people who were also given the same court date. When your name is called, the judge doesn’t want to hear what happened, but only wants to know if you aregetting an attorneyor if you are pleading guilty.

Slow or Speedy Trial: Bail Hearings, Preliminary Hearings and Pre-Trial Motions

Bail Hearings

The biggest exception to the apparent slow movement of a case through the courts is when the defendant is in custody. Then bail motions must be made right away to get the bail reduced.

Another exception is in cases where it makes sense to force the prosecutor to present his case right away due to tactical decisions apparent to the attorney immediately on learning about the case. In these cases, your attorney needs to quickly get ready for contested bail hearings and the preliminary hearing. Also, your attorney will demand your right to a speedy trial. Then, the matter will take only a few weeks to reach the preliminary hearing stage.

Preliminary Hearings

The preliminary hearing is a mini-trial where the prosecution puts on just a few witnesses and the defense has the chance to cross-examine. After the hearing, the judge decides if there is any evidence to take the case to trial. If the judge so decides, a new arraignment date is set. At that time, the defense attorney may set legal motions to suppress evidence or to call defects in evidence or pleading to the next court’s attention.

Motions

These motions may take months or weeks to prepare, depending on the volume of material and legal issue involved. There may be a felony pretrial conference if it appears you would benefit from a discussion or attempt to settle. After that the matter is on the trial calendar. Again, there are many more trials set than courtrooms available, so the case may be on the calendar for several weeks.

At Last: The Jury Trial

The jury trail has several components to it that we, you and your defense attorney, must prepare for and go through before a final verdict and sentencing is reached. Each part needs careful planning and follow-through to achieve the best outcome. Your attorney will be at your side and work with you through:

• Jury Selection
• Trial

Criminal defense trials can take a week to over a year to conclude depending on the complexity and seriousness of the situation. Misdemeanor cases are generally quick, usually under a week. Felony cases can expect the trial process to take much longer. Learn more about Misdemeanor Cases and Felony Cases on these pages.

Your Best Advice

Because of the confusing nature or court to the average citizen, and serious consequences of being misinformed, you should always at least discuss your matter with an attorney if you are charged with a criminal matter. San Jose Criminal Law Office offers brief, confidential consultations for the purpose of quickly determining what lies ahead for you in your case and the seriousness of the matter. Contact a criminal defense attorney today.