With over 15 years of experience as a criminal defense attorney, James has handled thousands of cases in Nevada and especially in the Clark County community. He has over 30 felony jury trials which have resulted in 6 full acquittals, 5 lesser included verdicts, 3 deadlocked juries, and 1 overturned murder conviction on appeal in published decision.
James is proud to be a strong believer in the Constitution and in the fundamental principles that underlay our criminal justice system. As a criminal defense attorney, James has defended the constitution, individual rights and liberties over the course of his career. He has advocated for the presumption of innocence, he has continuously held the prosecution to their burden of proof, and he has strongly argued that there can be no conviction of an individual unless the prosecution can prove that the defendant is guilty beyond a reasonable doubt.
James’ representation places a priority (1) on istening to and treating clients with the respect that they deserve, (2) on understanding the issues and allegations facing the clients, (3) on answering any questions the clients may have, (4) in clearly explaining the charges a client is facing, and (5) in effectively communicating with the clients the defense strategy in defending against the charges.
During James’ representation, he explains the category of crime the client is charged with and details the differences between felony, gross misdemeanor, and misdemeanor charges. James also provides the client an understanding of the potential range of punishment that the charge against the client may carry. As the case proceeds and the defense to the case is determined, James also explains the legal issues and possible motions that may be filed to defend against the charges.
Many cases are resolved without a trial through a negotiation for a plea agreement. James does not enter a case presuming that a client will take a "deal." Instead, James begins with the presumption that his client is innocent and takes on a case believing that the case may proceed to trial.
Prior to discussing whether a plea bargain should be considered, James meticulously reviews a case to analyze the strengths and weaknesses of the prosecution's case and of the defense to the charge and thoroughly explains those strengths and weaknesses with his client. At the proper time, James will discuss the case with the prosecution in a vigorous attempt to reach the most favorable agreement possible for a potential negotiation.
However, the decision of whether a client will accept a guilty plea or proceed to trial is solely within the discretion of the client. James will do his absolute best to develop the most advantageous options for a client to choose from. If the client wants to plead not guilty, James will zealously prepare for trial. As a case proceeds to trial, James researches all necessary legal issues, investigates all needed facts and witnesses, potentially employs the services of a private investigator or experts, and forms a cogent and aggressive trial strategy aimed at presenting his client with the best possible defense that he can provide for his client at trial.
In meeting with prospective clients, James does not tell people simply what they want to hear. Every case is different, and no one should make promises they cannot keep in order to get your business. After meeting with a client and learning the particular details of their case, James would be happy to discuss a range of possibilities with prospective clients, and he can provide clients with a perspective guided by his years of experience so that they can have a clear understanding about what to expect in their case. James always wants to meet with clients personally to discuss their case, so please call (702-258-2022) or email (email@example.com) to schedule a consultation.
Prior to the consultation, it may be helpful to have a general understanding about criminal cases. This includes:
(1) a few fundamental Constitutional principles underlying criminal proceedings (see below);
(2) an explanation of the categories of crimes (see below);
(3) a summary of the stages of criminal proceedings (see below);
(4) a list of common Nevada crimes and punishments (see the "Crimes and Punishments" tab in the column at the right of the page); and
(5) a summary of some of the most important issues present in criminal cases (see the "Checklist of Criminal Issues" tab in the column at the right of the page).
One should never forget, whether a person accused, a police officer, a prosecutor, a defense attorney, a judge, or a juror, that our criminal justice system is governed by a set of fundamental principles. For the last fifteen years, James has been committed to defending the rights of his clients by tirelessly advocating on behalf of his clients and reinforceing these fundamenal criminal justice principles.
A few of the most important notions of justice include:
THE PRESUMPTION OF INNOCENCE: One of the most important and foundational principles in the law is that a defendant is presumed innocent, and if there is reasonable doubt about the guilt of an individual, that person must be acquitted: "a defendant in a criminal action is presumed to be innocent until the contrary is proved; and in case of a reasonable doubt whether the defendant's guilt is satisfactorily shown, the defendant is entitled to be acquitted."
THE BURDEN OF PROOF IS ON THE PROSECUTION: Another fundamental principle of criminal justice is that the "burden" of overcoming the presumption of innocence is on the prosecution, not on the person charged with the crime. This means that a defendant is not required to prove his or her innocence. Instead, the burden of proof for a conviction "rests upon the prosecution to establish every element of the crime with which the defendant is charged, and every element of the crime must be established beyond a reasonable doubt."
REASONABLE DOUBT: "A reasonable doubt is one based on reason. It is not mere possible doubt, but is such a doubt as would govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the entire comparison and consideration of all the evidence, are in such a condition that they can say they feel an abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable must be actual, not mere possibility or speculation." In addition, "when an offense has been proved against the person, and there exists a reasonable doubt as to which of the two or more degrees the person is guilty, the person shall be convicted of the lowest."
DUE PROCESS RIGHTS: "Due process" essentially means that the law must be applied fairly and equally to all people, especially those accused of a crime. At its most fundamental level, due process also includes the right to have notice (for instance, notice of what crime an accused is suspected of committing) and an opportunity to be heard (including the right to "fair trial"). The government cannot deprive anyone of "life, liberty, or property, without due process of law..." The 5th Amendment to the United States Constitution protects people from actions of the federal government, and the 14th protects them from actions by state and local governments.
The first 10 amendments to the U.S. Constitution, the Bill of Rights, compose what are commonly referred to as our "fundamental freedoms." The individual states are Constitutionally required to abide by these rights due to the 14th Amendment. Anyone arrested for a crime has a right to the fundamental freedoms and Constitutional protections provided by the Bill of Rights. Part of these rights ensures proper criminal justice proceedings throughout the stages of all prosecutions. The stages of these proceedings include the arrest, a preliminary hearing or grand jury indictment, arraignment, trial, and if necessary, appeal.
The fundamental criminal justice protections afforded by the Bill of Rights include:
The Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor 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; nor shall private property be taken for public use, without just compensation.
The Fifth Amendment:
The Fifth Amendment provides extremely important rights to people accused of crimes. It guarantees all people due process of the law and that no one will be subject to double jeopardy: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." This means that a person who is charged with a crime, pleads "not guilty," goes on trial, and is acquitted of the crime cannot be prosecuted a second time.
The Fifth Amendment also provides individuals with the ability to "plead the Fifth," by protecting people from being forced to give testimony against himself or herself, "nor shall [any person] be compelled in any criminal case to be a witness against himself." The police cannot force a suspect to talk about a crime if that testimony, statement, or confession might expose that person to criminal prosecution.
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 persons or things to be seized.
The Fourth Amendment:
The Fourth Amendment deals with arrest and search and seizure (or the authority of the police to stop someone suspected of a crime and to search that person or his or her property).
The Sixth Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
The Sixth Amendment guarantees an accused person the right:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The Eighth Amendment requires judges to:
The Eighth Amendment addresses excessive bail and prohibits inflicting cruel and unusual punishment. As a result of these protections, a person cannot be sentenced too harshly. Additionally, if a person is in custody, in a jail or in prison, he or she cannot be beaten or deprived of medical attention.
James has spent the last 15 years researching and applying the fundamental principles of criminal justice through his practice of the law. He honors his role of defending these Constitutional principles through the representation of his clients. His client's rights, needs, and concerns are a paramount priority to him. He will do all he can to ensure that his clients (1) receive excellent representation, (2) have full confidence that their rights will be protected, and (3) go through all criminal justice proceedings guided by James' expereince, talent, and reliability.
Nevada Categories and Punishments for Crimes
The law in Nevada, the Nevada Revised Statutes ("NRS"), defines a "crime" as "an act or omission forbidden by law and punishable upon conviction by death, imprisonment, fine or other penal discipline." NRS 193.120(1).
For people inexperienced in the law, it can be a little confusing to try and decipher the actual meaning and range of punishment for a particular "crime." In reviewing the classifications and categories for the punishments for crimes provided below, it may sound like each crime requires prison or jail time. However, the meaning of these "general" statutes is really aimed at specifying the different range of possible punishments for each category or classification of crime. Even when someone is charged and convicted of a crime, most criminal offenses allow a sentencing judge to impose a "suspended sentence," which can be probation or other form of supervised or unsupervised release.
It is true that certain "felony" crimes require that a mandatory prison sentence be imposed (Robbery with Use of a Deadly Weapon, for instance), and certain misdemeanor convictions require a certain minimum of time in jail (Battery Domestic Violence), for instance. However, most crimes are "probationable," meaning that the sentencing judge decides on whether to impose a prison sentence or probation. (See specific statutes below regarding mandatory prison time versus the possibility for probation.)
In Nevada, there are three types or classifications of crimes: (1) felonies; (2) gross misdemeanors; and (3) misdemeanors. NRS 193.120.
Felonies are crimes "which may be punished by death or by imprisonment in the state prison," and, depending on which category of felony the crime is, different ranges of punishment are provided for by the law. Pursuant to NRS 193.130, there are five (5) different categories of felonies in Nevada:
Category A felonies are felony charges in which a sentence of death or imprisonment in the state prison for life with or without the possibility of parole may be imposed, as provided for by a specific statute. (See statutes in the Crimes and Punishment tab below and at the side.)
Category B felonies are felony charges in which the minimum term of imprisonment in the state prison may not be less than one (1) year and the maximum term of imprisonment may not be more than twenty (20) years, as provided by specific statute. (See specific statutes in the Crimes and Punishment tab below and at the side.)
Category C felonies are felony charges for which a court shall sentence a convicted person to imprisonment in the state prison for a minimum term of not less than one (1) year and a maximum term of not more than five (5) years. In addition to any other penalty, the court may impose a fine of not more than $10,000, unless a greater fine is authorized or required
by specific statute. (See specific statutes in the Crimes and Puinshment tab below and at the side.)
Category D felonies are felony charges for which a court shall sentence a convicted person to imprisonment in the state prison for a minimum term of not less than one (1) year and a maximum term of not more than four (4) years. In addition to any other penalty, the court may impose a fine of not more than $5,000, unless greater fine is authorized or required by specific statute. (See specific statutes in the Crimes and Puinshment tab below and at the side.)
Category E felonies are felony charges for which a court shall sentence a convicted person to imprisonment in the state prison for a minimum term of not less than one (1) year and a maximum term of not more than four (4) years. Except as otherwise provided, upon sentencing a person who is found guilty of a category E felony, the court shall suspend the execution of the sentence and grant probation to the person upon such conditions as the court deems appropriate. Such conditions of probation may include, but are not limited to, requiring the person to serve a term of confinement of not more than one (1) year in the county jail. (See specific statutes in the Crimes and Puinshment tab below and at the side.)
Gross misdemeanors are punished by imprisonment in the county jail for not more than 364 days, or by a fine of not more than $2,000, or by both fine and imprisonment, unless the statute in force at the time of the commission of such gross misdemeanor prescribed a different penalty. NRS 193.140.
Finally, in Nevada, every person convicted of a misdemeanor shall be punished by imprisonment in the county jail for not more than 6 months, or by a fine of not more than $1,000, or by both fine and imprisonment, unless the statute in force at the time of commission of such misdemeanor prescribed a different penalty. NRS 193.150.
These general categories and punishments may be confusing for non-attorneys.
It is always advantageous to have an experienced attorney explain the classification and category of the charge and potential outcomes to a client, and James is always available to set up a conference or consultation to discuss the specifics of each individual's case in detail.
STAGES OF CRIMINAL PROCEEDINGS
If you are unfamiliar with criminal proceedings, it can be very helpful to have a general understanding what "stage" your case is in and where your case may go from there. Although the process and possibilities involved in litigation is vast and can be complex, James welcomes the opportunity to discuss these aspects with potential clients through consultations.
A helpful, general depiction of the "stages" criminal cases proceed through involves the following:
1. PRE-CHARGE / POLICE INVESTIGATION STAGE
A criminal case typically begins when someone makes an allegation to the police that a "crime" has been committed. The police then initiate an investigation. Some cases happen so rapidly that police make an arrest within moments of the allegation of the crime. Other situations involve a long period of investigation prior to any arrest or charges being made.
If you have not been arrested yet, your case is likely in the pre-charge / investigation stage. This is an extremely important stage because the police may be interested in contacting you and asking you about the allegations.
If you are under investigation and the police wish to speak with you about the case, it is very important to consider having an attorney explain your rights to you and inform you of many things about criminal investigations that you may not know.
James has been involved in counseling clients and representing them in the pre-charge stage of an investigation numerous times over the years. Because any information you may provide to the authorities or any statements you may give to the police may be used against you, it is very important that you consider contacting an attorney before you make your final decision, and James would welcome your call or email to set up a consultation to discuss the specifics of your situation and to provide you with the wisdom of his years of experience in handling cases at this stage of the proceedings.
2. DETENTION & ARREST STAGE
Police may detain any person under circumstances indicating that the person has committed or is about to commit a crime. The detained person must provide identification, but that individual cannot be compelled to answer any questions. The detention should not take longer than necessary and should take no longer than one hour. It must remain in the immediate vicinity where the detention occurred unless the person is arrested.
An arrest occurs if police believe that there is probable cause that a crime has been committed. If there is no probable cause at the completion of a detention, the police must release the person.
After an arrest, the defendant must be brought before a magistrate without unnecessary delay, normally within 72 hours, excluding nonjudicial days. The magistrate must inform the defendant of the complaint and of the right to retain counsel.
In general, a person who is arrested in Nevada for an offense other than first-degree murder must be allowed to post bail, known as being “admitted to bail,” by posting a bond for the person’s appearance. A person may be admitted to bail at various stages of criminal procedure, including after arrest, after trial and before sentencing, and after conviction and pending appeal.
The Legislature has placed limits and conditions on admission to bail for a person arrested for:
1. A felony and who has been released on parole or probation for a different offense;
2. A felony and whose sentence was suspended or who was sentenced to a term of residential confinement for a different offense;
3. Driving under the influence (DUI) or a related offense;
4. Battery that constitutes domestic violence; or
5. Violating a protective order against domestic violence.
Before releasing a person on bail, a court may require the surrender of the person’s passport or impose other conditions to protect the public health, safety, and welfare to ensure the person will appear in court as ordered. Upon a showing of good cause, a court may also release without bail a person who is entitled to bail, and a sheriff or chief of police may release without bail a person charged with a misdemeanor, pursuant to court standards.
3. OWN RECOGNIZANCE ("OR") RELEASE & BAIL
A court will usually set bail in an amount prescribed by a statute which lists a number of factors. In some circumstances, a court will release a defendant on their own recognizance, commonly referred to as an "OR." Often times, the court decision to set the amount of bail or refusal to grant an OR is due to the limited information the court has about a particular defendant.
James has handled too many motions for OR release or for bail reduction to count. In order to have the best chance at a low bail or an OR release, it is advantageous to have an attorney that knows about the defendant and knows about the laws and factors that pertain to bail and own recognizance release.
Laws and Principles for Release or Bail Setting
Courts often consider the following principles when deciding the amount of bail and whether to grant an own recognizance release:
"A person arrested for an offense other than murder of the first degree must be admitted to bail.” NRS 178.484.
The Eight Amendment to the United States Constitution specifically provides that: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The Nevada Constitution specifically holds that: “Excessive bail shall not be required.” Nev. Const. Art. 1, § 6. Moreover, section 7 of the Nevada Constitution holds that: “All persons shall be bailable by sufficient sureties, unless for Capital Offenses or murders punishable by life imprisonment without possibility of parole when the proof is evident or the presumption great.” Nev. Const. Art. 1, § 7. The words used in this provision favor bail and are consistant with the presumption of innocence; the central thought is that punishment should follow conviction, not precede it. Accordingly, all offenses are bailable, including capital offenses, as a matter of right; that right is absolute in a noncapital case, but limited if a capital offense is involved. In re Wheeler, 81 Nev. 495, 406 P.2d 713 (1965).
Section 8 of NRS 178.484 provides:
Before releasing a person arrested for any crime, the court may impose such reasonable conditions on the person as it deems necessary to protect the health, safety and welfare of the community and to ensure that the person will appear at all times and places ordered by the court, including, without limitation:
(a) Requiring the person to remain in this state or a certain county within this state;
(b) Prohibiting the person from contacting or attempting to contact a specific person or from causing or attempting to cause another person to contact that person on his behalf;
(c) Prohibiting the person from entering a certain geographic area; or
(d) Prohibiting the person from engaging in specific conduct that may be harmful to his own health, safety or welfare, or the health, safety or welfare of another person.
NRS 178.4851 provides:
(1) Upon a showing of good cause, a court may release without bail any person entitled to bail if it appears to the court that it can impose conditions on the person that will adequately protect the health, safety and welfare of the community and ensure that he will appear at all times and places ordered by the court. (2) In releasing a person without bail the court may impose such conditions as it deems necessary to protect the health, safety and welfare of the community and to ensure that he will appear at all times and places ordered by the court, including, without limitation, any condition set forth in subsection 8 of NRS 178.484.
NRS 178.4853 provides the relevant factors to consider before releasing without bail:
In deciding whether there is good cause to release a person without bail, the court as a minimum shall consider the following factors concerning the person:
1. The length of his residence in the community.;
2. The status and history of his employment;
3. His relationships with his spouse and children, parents or other members of his family and with his close friends;
4. His reputation, character and mental condition;
5. His prior criminal record, including, without limitation, any record of his appearing or failing to appear after release on bail or without bail;
6. The identity of responsible members of the community who would vouch for the reliability of the person;
7. The nature of the offense with which he is charged, the apparent probability of conviction and the likely sentence, insofar as these factors relate to the risk of not appearing;
8. The nature and seriousness of the danger to the alleged victim, or to any other person in the community that would be posed by the person’s release;
9. The likelihood of more criminal activity by him after he is released; and
10. Any other factors concerning his ties to the community or bearing on the risk that he may willfully fail to appear.
Getting released from custody after being arrested is easily one of the most important needs that a client has. In order to make a persuasive argument, it is essential to have an attorney that has experience in these proceedings, has a history of achievements in making similar arguments, and has reliably spent the time with the client or his or her friends and family to understand the personal history and attributes that the court will need to know about the client when making its decision about bail and release.
5. REVIEW AND CONSIDERATION FOR PROSECUTION
The police investigate allegations of crimes and gather evidence in criminal cases. Once the police or law enforcement agency decides that they have the evidence that they need to submit the case for prosecution, the police request that a criminal complaint be considered by the prosecutor's office. In Clark County, there are a number of different jurisdictional offices that prosecute crimes: the Clark County District Attorney; the Nevada Attorney General; the Las Vegas City Attorney; the Henderson City Attorney; and the North Las Vegas City Attorney, for instance.
A case then proceeds to a "screening" department within the prosecutor's office where a government attorney reviews the case file, including the police reports, witness statements and other pieces of evidence, to determine whether to approve the filing of a complaint or an indictment. Sometimes the government determines that there is not enough evidence to file charges, in which case the prosecutor's office will issue a letter noting the denial of a complaint. More often, the government approves the charge(s) and files a complaint. The case would then proceed to the court of the proper jurisdiction (Las Vegas; North Las Vegas; or Henderson, for instance). In felony and gross misdemeanor cases, the prosecution is permitted to file a complaint in the justice court or to "present" the case to the grand jury.
6. MISDEMEANOR OFFENSES
If a person is charged with a misdemeanor, the process for litigation is a more simplified procedure than it is for felony or gross misdemeanor charges.
When a person is arrested for and charged with a misdemeanor offense, the person must be taken before a magistrate without unnecessary delay. If a person is not arrested, the police officer may issue a misdemeanor citation that must include (1) a notice to appear in court at a specific time and place, (2) the offense charged, (3) additional information specifying the circumstances of the citation, and (4) it must be signed by the police officer.
If the form of the citation is proper, and the prosecuting attorney’s office deems the complaint justified for the purpose of prosecution, the case will be filed against the defendant in either a justice court or in a municipal court, which each have jurisdiction over misdemeanor offenses, depending on which jurisdiction the alleged crime occurred within.
When a person alleged to have committed a misdemeanor offense initially appears in court, the person enters a plea, and a trial date is schedule. The case may negotiate for a plea agreement at any stage prior to a conviction, but if there is no negotiation and the defendant is convicted after the trial, the court will sentence the defendant within the range of the misdemeanor offense.
7. JUSTICE COURT OR THE GRAND JURY STAGE
When someone is facing felony or gross misdemeanor charges, the prosecution has the choice of whether to file the case in the justice court or to take the case to the grand jury.
Most cases go through the justice court. The "justice court stage" or "preliminary hearing stage" of a case is not the trial level. A justice of the peace presides over the case, and a defendant is entitled to have a preliminary hearing to determine whether the prosecutor can present enough evidence to the court at the conclusion of the hearing to have the case "bound over" to the district court for trial. In the justice court, defendants make an initial appearance, and the court often sets a bail amount. An attorney can seek to have a client released or to have bail set or lowered through a motion prior to the preliminary hearing.
Some felony cases are negotiated or even dismissed prior to the preliminary hearing, and the particular type of negotiation could be several different resolutions, including the opporutnity to have the case dismissed, the agreement to have charges reduced, an stipulation to probation, or many other types of arrangements that are made between the defense attorney and the prosecution. If a case is not resolved, the case proceeds and the preliminary hearing is held.
The preliminary hearing is an extremely valuable protection for defendants. It provides the defense with an opportunity to question the prosecutor's witnesses, challenge the prosecutor's case, and attempt to have the case dismissed without going to the district court for trial. It is a valuable protection because cases are not sent directly to a jury to consider guilt or innocence. Instead, a defendant is protected by having a right that requires the prosecutor to prove to the justice of the peace that there is enough evidence to merit the case being sent to the district court for a trial. The hearing is also an excellent opportunity for the defense to challenge the prosecutor's case, attack the credibility of witnesses, see if there are grounds to prevent the case from going to trial by moving to have the case dismissed, and it is a valuable tool for the attorney to continue to build the defense that will be used through the rest of the case's litigation and possibly at trial.
The "standard of proof" that a prosecutor must show to have a case "bound over" to district court for trial is one of the easiest standards in the law. In Nevada that standard is commonly referred to a "slight or marginal" evidence. Therefore, most cases that are presented to the justice of the peace through a preliminary hearing are sent to the district court for trial.
A prosecutor may choose to present the case to the grand jury instead of going through the justice court. If a case is submitted to the grand jury, defense lawyers are not permitted to attend, and unless the defendant intends to testify on his own behalf, a defendant is also not permitted to attend grand jury proceedings. If a defendant wants to testify, he/she is not allowed to have their attorney present with them during the testimony. The "standard of proof" required for a grand jury to approve an Indictment is the same low standard required for a preliminary hearing, so most cases that are presented to the grand jury also go on to the district court for the "trial level."
The prosecution determines whether your case proceeds through the justice court or through the grand jury. However, several important decisions need to be made during this stage of the proceedings, and defendants need to have experienced, achieved and reliable counsel to defend them during this part of the case.
8. THE DISTRICT COURT OR TRIAL STAGE
A. Arraignment: the arraignment usually happens during a defendant's first appearance in district court, and it involves the defendant's formal entry of a "plea" to the charges. A person usually pleads either guilty (in which case a negotiation to enter a "guilty plea agreement" had already been reached between the defense and the prosecution) or not guilty. If a person has negotiated their case and entered a guilty plea agreement, the court schedules a "sentencing" hearing. At that hearing, a judge imposes the punishment (usually probation or prison) upon the defendant. If a person enters a not guilty plea, a trial date is set, and the case proceeds through stages of litigation: "discovery," potential motions, pretrial hearing, calendar call, trial, and, if necessary due to a conviction, sentencing.
B. Discovery: discovery issues usually turn on the duty of the prosecution to provide evidence and information, particularly potentially exculpatory evidence, to the defense. Discovery requests from the defense come in the form of a Brady Motion, which seeks to have the court order the prosecution to provide the defense with certain pieces of evidence.
C. Investigation and Experts
In order to prepare a rock-solid defense, the employment of a private investigator and experts may be necessary. Private investigators assist the attorney by following up with witness interviews, examination of crime scenes, gathering of new evidence, and in potentially serving as a witness for the defense. The use of investigators can be an essential and invaluable part of the defense's case.
Additionally, the use of experts may also be necessary in order to challenge the prosecutor's case. Experts can examine the prosecutor's expert's opinions and provide the defense with a contradictory conclusion in certain circumstances. Also, experts can be utilized to explain important concepts, such as eyewitness identifications, medical conclusions, DNA or fingerprint anaylsis, and many other areas requiring specialized knowledge and expertise.
D. Pretrial Motions
Motion to suppress: this type of motion made by the defense challenges evidence against a defendant on constitutional grounds. There my be a certain piece of evidence that a defense lawyer believes should not legally be able to be used against a defendant at trial. In order to have that evidence "suppressed," meaning that the court orders that a jury will not be able to consider that evidence, the lawyer must make a motion supported by law and argue at a hearing to have the motion granted.
Motion challenging arrest: this motion challenges the circumstances surrounding the defendant's arrest, the conduct of the police, and the constitutionality of the arrest, including whether "probable cause" existed to justify the arrest.
Motion challenging searches and seizures: this motion depends on the legality of police conduct in making searches and/or seizures of places and things. These challenges usually take form in a motion to suppress, and the issues of the particular search and/or seizure can involve a varirty of circumstances, including:
* search warrants: an analysis of these situations typically turns on testing the "probable cause" or "reasonable suspicion" (in certain situations) under the "totality of circumstances" supporting the warrant. Other situations question whether the warrant itself was "overbroad" and included in specific descriptions of the items to be seized or the places to be searched;
* warrantless searches: often involve challenges when evidence was obtained by the police when a person "consented" to a warrantless search; it may also challenge evidence obtained that existed in "plain view," and therefore no warrant was required. Further, there are situations where police make a search "incident to arrest" of a defendant and find evidence. These searches typically involve searches of automobiles, residences, bags or purses, or other items or property that are "searched incident to the arrest;"
* "stop and frisks:" a challenge to the "stop and frisk" questions whether police had a "reasonable suspicion" to stop and individual and "frisk" them, which lead to the discovery of contraband or some other illegal item used as evidence;
* inventory searches: when someone is arrested and police conduct an "inventory search" of an arrestee's articles can be a very important issue to challenge. Police are required to follow strict requirements to conduct an inventory search if the police have not obtained a warrant. For instance, if a person is arrested for suspicion of driving under the influence, and the police conduct a warrantless "inventory search" that turns up some type of illegal item found in the vehicle during the search, the defense would need to thoroughly review the "inventory" procedures to test whether the police followed the proper protocol or simply conducted an illegal, warrantless search of the vehicle.
Motions challenging the "identification" of an accused: these challenges test whether a witness's "identification" of a defendant involved an unnecessarily suggestive identification procedure which violates due process. If this has happened, the identification should be suppressed, meaning not admissible at trial.
Motions challenging "confessions and admissions:" these challenges involve the review of whether a confession or admission was involuntary, and thus violates due process. In order to successfully suppress a confession or admission, the defense must demonstrate that the totality of circumstances show that a defendant's statements were not voluntary. Additionally, before a "custodial interrogation" may legally occur, police must follow the rights provided for by Miranda v. Arizona, 384 U.S. 436, 467-73 (1966) ("Miranda warning"). These rights include, among other things, the right to remain silent and the right to counsel. After the right to remain silent has been asserted, it must be honored and authorities cannot initiate further interrogation.
E. Pretrial Hearing: a pretrial hearing usually takes place approximately 30 days before the "calendar call" date. At this hearing, the parties (the defense and prosecution) update the judge about any possible negotiations for a plea agreement and whether the parties have concerns about evidence or discovery issues.
F. Calendar Call: the hearing date scheduled for calendar call is the time in which the prosecution and defense formally announce whether they are "ready" to proceed to trial.
G. Negotiation for Plea Bargain: an agreement between the defense attorney and prosecutor happens in many cases. This negotiation results in a guilty plea agreement and usually involves the reduction of charges and/or a reduced potential penalty. The defense attorney has an obligation to persuasively negotiate with a prosecutor in order to obtain the best possible plea agreement for a client. If an agreement is reached, a defendant enters a formal guilty plea resulting in the waiver of the defendant's trial rights, and a sentencing hearing will subsequently take place. If an agreement is not reached, a case will continue to trial.
The trial is the formal proceeding used to determine whether the prosecution is able overcome the presumption of a defendant's innocence by proving a defendant guilty beyond a reasonable doubt. The trial itself follows a series of stages: (1) jury selection; (2) opening statements; (3) the prosecution's case in chief; (a) the admission of evidence through witnesses or by stipulation; (b) cross-examination of witnesses by the defense; (5) the conclusion of the prosecution's case; (6) the defendant's case in chief; (a) admission of evidence by the defense; (b) cross-examination of witnesses by the prosecution; (6) the conclusion of the defendant's case in chief; (7) rebuttal by the prosecution; (8) settling of jury instructions outside of the presence of the jury; (9) instructions on the law by the judge to the jury; (10) closing arguments by the prosecution and defense; (11) rebuttal argument by the prosecution; (12) jury deliberations; (13) the verdict. If there is a conviction, the court will then schedule a sentencing hearing.
I. Sentencing: If there has been a plea bargain, or a defendant has lost at trial, the court will schedule and then conduct a sentencing hearing. At this hearing the defendant appears before the judge, and the judge imposes the "sentence" upon the defendant. Unless there has been a negotiation preventing the prosecution from doing so, the prosecutor retains the right to argue for any legal sentence during this hearing. Additionally, the defendant has the right to make a statement to the court, and the defense attorney has the right to argue for what the lawyer believes to be the appropriate or desired sentence. If there were victims to the crime, they are also permitted to speak during the hearing. At the conclusion of the hearing, the court sentences the defendant, and the sentence involves probation or prison and the length of the underlying sentence.
* Sentencing Memorandum: it is often advisable for the defense lawyer to draft and file a "sentencing memorandum" in advance of the sentencing hearing. This memorandum includes a presentation of the law, issues and items that the defense would like the court to take into consideration for mitigation of punishment, and often includes exhibits, which usually consist of letters of support or requests for leniency from friends and family to the sentencing judge.
* If there has been a conviction as the result of a trial, a defendant has a right to file an APPEAL. Please see the "appeal" tab for more information about this aspect of the criminal justice system.
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