Police officers know that people harbor these fears. They also know that most people instinctively want to appease law enforcement, so they will waive their right to remain silent and that they will waive their right to have an attorney present and they will answer any questions freely and voluntarily. Police can nevertheless lie to their suspect in order to obtain a statement, they can minimize the severity of the alleged conduct, and they can hide the true purpose of their inquiry. The police do not have to interrupt questioning to advise a person of their legal rights until that person is placed under arrest. But even when law enforcement is completely honest about their intentions to obtain incriminating information from the person they seek to question, and even when they advise a person of their rights, most people will talk anyway.

Talking to the police without the advice of legal counsel is often a costly mistake. Criminal defense attorneys play a key role in any interrogation involving a potential criminal matter. My colleague has a largemouth bass on a plaque in his office. The caption below the fish reads, “If I had only kept my mouth shut.”

The Court noted that changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction.  Immigration reforms have expanded the class of deportable offenses and limited judges’ authority to avoid deportation’s harsh consequences. Deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. Although attorneys have long been held responsible for advice on the “direct” consequences of a conviction rather than the “collateral” consequences of a conviction, the “collateral” consequence of deportation or inadmissibility from the United States can be far more serious than the “direct” consequence of jail or prison. The Court disregarded the distinction between collateral and direct consequences in the context of immigration advice. Criminal lawyers must therefore provide accurate advice to their clients on the immigration consequences of a conviction.

Defense attorneys remain free of a Constitutional obligation to provide advice in areas “collateral” to a criminal conviction and sentence. Even though criminal convictions can result in a civil commitment, civil forfeiture, the loss of the right to vote, loss of public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, loss of business or professional licenses and may also affect the ability to gain employment, the Supreme Court does not appear even close to requiring criminal defense attorneys to provide advice in these areas.

Californians will soon have the option of legalizing the use, possession and transportation of marijuana for personal use. Supporters of a ballot initiative expect to see a vote on the issue this fall. Laws prohibiting dangerous activities while under the influence will be unaffected, such as those prohibiting driving cars or flying while impaired. There is no serious move to legalize other drugs (such as heroin or cocaine, as in Mexico), but there are several laws already on the books allowing for treatment instead of punishment for those caught possessing other drugs for personal use instead of for sale. California voters enacted Proposition 36, which mandates treatment over incarceration for non-violent offenders, even for those offenders on parole. Drug diversion remains another alternative, and there are Drug Courts established for many defendants that do not qualify for diversion or Prop 36 treatment.  Contact this lawyer for advice on what may be best for your San Diego criminal court case.

Criminal defense lawyers speculate that the D.A. thinks this tough judge wasn’t tough enough in recently denying a defense attorney’s request to bar the prosecution from retrying a murder case. Yes – the Judge denied the request – but that apparently wasn’t good enough for the prosecution. The D.A. believes that the Judge should never have entertained the motion in the first place. Why? Because the hearing on the motion forced the D.A.’s office to defend allegations that exculpatory evidence, which resulted in a nullified verdict, was deliberately withheld from the defense. The D.A. would rather have avoided the hearing entirely by saying, in effect, “trust us, we didn’t cheat.” The boycott therefore appears to be retaliation against the Judge for Dumanis having to defend the conduct of her deputies. For now, the D.A. refuses to reconsider her boycott or give reasons why the boycott exists at all.

The existence of numerous untested kits is hardly a surprise to anyone in the criminal justice system. The reality is that the existence of untested rape kits does not mean that law enforcement is failing the public in every single case.  Many of the kits remain untested because the results will make no difference in how the case is handled. Not every case of reported sexual assault is legitimate, many alleged victims falsely claim assault, and many others simply change their story. Of course, many legitimate assaults are accurately reported, but the reality is that many, many cases will not be prosecuted no matter what the lab results. Not every kit should be tested.

As a criminal defense attorney, I believe that the real problem is what should be done with kits where testing may lead to prosecution or exoneration. The results of testing these kits will make a difference to the innocent accused, as well as the culpable, and justice demands that these kits be afforded extra care. These kits should obviously not be rushed through a forensic examination without strict protocols ensuring the accuracy, completeness and reliability of DNA results. Moreover, a responsible decision must be made on how much testing should be afforded each kit. For example, rape kits contain hair, fiber, and bodily fluid evidence. Other evidence, such as clothing and bedding may be impounded in evidence with the kit. Ideally, each item including the kit should be examined for DNA and other trace evidence, and then be tested. But as crime lab budgets are tight, this clearly will not happen.

The crime labs may need to do much more than the minimal DNA work on a kit, depending on the case. As crime analysts take their cue from law enforcement on what to test, sex crime detectives will need to examine each particular case to decide how much testing to afford not only to the kit to but to the rest of the evidence in the case. The decision on what to test must be guided by consideration whether the results may corroborate the claim made by the complaining witness and whether the results may refute the claim.  At this early stage in the prosecution, the sex crimes detective is the only person with access and authority over the evidence. The detective is best situated to evaluate the strengths and weaknesses of the claim, and therefore is best situated to decide what to test. Unfortunately, many in law enforcement feel that the government is not in the business of gathering evidence exonerating to the accused. Experienced criminal defense lawyers know that innocent persons are prosecuted when police selectively test some evidence while ignoring other items of crucial evidentiary value.  Ignoring evidence that will impeach a claim does a disservice to the entire justice system. In the end, with every single kit submitted to a lab for testing, law enforcement will be making a judgment call that should aim to protect the innocent while also bringing the culpable to justice. Decisions on what to test must be made with the goal not only of prosecuting the true offender, but of protecting the innocent.

The lesson Ruckes teaches is that criminal defense lawyers will have to be alert for the application of inevitable discovery in vehicle search cases, especially as there are multiple provisions under California law allowing for the towing and impounding of cars upon the arrest of the driver. Still, criminal attorneys can try to establish that the impound search itself was a pretext to look for other evidence, as pretext law is still favorably applied in some limited situations, such as inventory searches. If it can be proved that the inventory search was conducted for a pretextual purpose, the search would be illegal so therefore could not be upheld under the inevitable discovery doctrine and the court would be obligated to rule for suppression of the evidence.

Personal use is defined as possession of less than 5 grams of marijuana, ½ gram of cocaine, 50 milligrams of heroin, 40 milligrams of methamphetamine and 0.015 milligrams of LSD.

The Mexican government enacted the law in an effort to combat organized drug crime, but as the demand for the drugs is almost entirely coming from north of their border, the law won’t dent cartel profits anytime soon.

Terrence Graham was 16 years old when he was convicted of burglary and attempted armed robbery. He received a one year sentence. Shortly after his release he earned a sentence of life without parole upon being convicted of armed residential burglary and robbery. His criminal defense lawyers argued on appeal that the life sentence, for any juvenile, constitutes cruel and unusual punishment.

In 2005, the Supreme Court issued a deeply divided opinion when deciding that juveniles cannot be executed. The composition of the Court, of course, has changed radically in the last several years.  Mr. Graham may have wished for a speedier appeal process. Oral arguments in his case, and a transcript of the arguments, will be available at http://www.oyez.com.