JuryStar: Nifty but Primitive
Is there a Right to a Transcript from a Court Not of Record?
In Virginia, we have a two tier trial court system. The lower trial courts are General District Court (GDC) and Juvenile and Domestic Relations Court (JDR). The upper trial court is Circuit Court. Both the GDC and JDR are constitutionally defective. Their primary flaws are that the lower courts don't have a court reporter and do not have an option for a jury trial. Consequently, everyone convicted in the lower courts has an absolute right to appeal to the Circuit Court and get a brand new trial (trial de novo).The lower courts are also where preliminary hearings are held. Everyone who is arrested in Virginia is entitled to a preliminary hearing by statute. This entitlement is tenuous since the prosecution can drop a case prior to the preliminary hearing and thereafter indict the defendant. This allows prosecutors to get around the hearing and there is no remedy for it under Virginia law. See Kolesnikoff v. Commonwealth, JUL09, VaApp No. 3202-06-4. Nevertheless, preliminary hearings are quite often held because the prosecution does not want the defendant released from jail (because his charge is dropped until the grand jury next meets) and/or because it often serves as a good reality check for the defendant.
Here we get to something of a tricky point. There is no court reporter in GDC or JDR so there is no record of the preliminary hearing. There are two possible solutions to this. The first is provided under § 16.1-69.35:2 - "Proceedings in a general district court may be tape recorded by a party or his counsel." The second is under § 19.2-185 - "The judge of the court of record to which the case may be or has been certified may order the testimony of the witnesses at the preliminary hearing to be reduced to writing." Of course, under this statute the defense counsel must go to the judge in the Circuit Court and get an order requiring a court reporter to be in GDC or JDR before the preliminary hearing or there won't be recorded testimony to be transcribed. Circuit Courts in some jurisdictions have, in the past, pretty much refused to order court reporters for anything less than murder or rape; this is why I always had a tape recorder with me while I was a defense attorney. In other jurisdictions Circuit Courts have treated the request for a court reporter in a preliminary hearing as a pro forma matter and signed off on everything put in front of them.
A couple years ago the Virginia Court of Appeals put another layer upon this in Asfaw v. Commonwealth, APR10, VaApp No. 2496-08-4. Here's my summation of the case.
(1) There are two factors to be considered in deciding whether an indigent defendant is entitled to a state financed transcript of a preliminary hearing: (a) the strategic value the transcript provides to the defense, and (b) the availability of alternative devices that would fulfill the same functions as a transcript. (2) The strategic value of a transcript from a prior hearing can be presumed because of its potential use in impeachment. (3) All an indigent defendant has to assert is a reasonable basis for believing the transcript would (a) serve as a valuable discovery device in preparation for trial or (b) as a tool at trial itself for the impeachment of prosecution witnesses. (4) An indigent defendant's right to a transcript is waived if it is asserted so late that it would disrupt a scheduled trial. (5) When a transcript is requested so that the defense does not have to have a continuance to get it or cost the State extra money for expedited transcription the defendant has not waived his right to a transcript.In Asfaw there had been a court reporter at the preliminary hearing so the argument was entirely about whether the judge should have given the defendant a copy of the transcript. However, the court founded its decision in equal protection principles, so it could apply to situations wider than itself. On the other hand, it could also be a very limited decision. After all, there is clearly a statutory right for the defense to record any hearing and that is an "alternative device which would fulfill the same functions as a transcript." After all, wouldn't it be better to play a recording of the defendant's own voice to impeach him rather than introducing page 27 of the transcript into evidence?
I've been asked whether I think Asfaw means that an indigent defendant is entitled to a transcript of testimony during a misdemeanor trial in lower court when the case has been appealed for a de novo trial in circuit court. It's a sensible question since Asfaw seems open to wider application. However, I must say that I don't see the courts applying the case in this manner. To begin with, the circuit court judge has not been given the power by the General Assembly to give the indigent defendant a transcript of a misdemeanor trial in lower court. As we all know from watching the ability of courts to deal with cases equitably thru taking cases under advisement being shorn away, unless the General Assembly has written a statute specifically allowing the judge to do something, he cannot. The argument against this would be that the requirement of a transcript is constitutional and therefore trumps Virginia law. I think this fails because of the statute allowing defendants and their attorneys to record the trials in lower courts by themselves.
I think Asfaw might be an orphan case. The Court of Appeals saw a case wherein the transcript was easily available and denied for no particular reason. It slapped down the judge for arbitrarily denying the transcript to the indigent defendant. Notably, it has not been mentioned in any case since it was issued. While it has only been a couple years, when a case is issued and no other case mentions it that often indicates that the case will be limited to its fact pattern.
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Posted Originally at CrimLaw - http://crimlaw.blogspot.com
Small Town Officer v. Big City Lawyer
Pitcairn County: Suppresion HearingSometimes it is interesting to see different perceptions of reality clash in the courtroom. Big City Attorney has traveled several hours from Metropolis to the the County of Pitcairn.
What to Expect If You Go to Jail And How to Get Out With the Help of a Bail Bondsman
By Tonya Page-Rynerson -
Being arrested and going through the booking process is a stressful situation. Most people are afraid of being placed in a holding cell with strangers, and rightfully so. However, although there is some caution needed, most people are being held for non-violent crimes: writing bad checks, prostitution, drug possession and theft. Only a small percentage is charged with violent crimes.
While awaiting your bail bondsman, keep in mind that you are being held with strangers who could have issues of their own that might make them emotionally unstable. It’s advisable to be on your guard, but with a friendly attitude.
A few tips while incarcerated:
� Don’t make any statements that could be derogatory towards religious or ethnic groups
� Don’t volunteer any personal information
� Don’t be too friendly and congenial
� Don’t give the impression that you are “too good” to be in jail
� Don’t let your guard down
� Don’t do anything that might raise suspicion from the jailers
� Don’t “act out” and be disruptive
� Don’t act scared or timid
Bail Bonds Costs and Release Options
The bail bond amount is based on the charges, and set by the judges in a County Bail Schedule. Depending on the details and severity of the crime, bail schedules have different bail amounts. For example, a DUI charge in LA County has a $15,000 bail and a DUI charge that involves an accident is set at $50,000.
California’s average bail amount is $25,000, and in many cases it can be higher. Most people don’t have that amount of money and will need to hire a licensed bail bond agent. Professional bail bondsmen are very experienced in this area, they know the jail systems and bail schedules, and can walk you through the entire process and handle release procedures. The jail release process can happen much sooner if a bail bondsman is contacted as soon as possible.
Only judges are allowed to lower, remove or raise the bail amount. Keep in mind that if you don’t bail out and decide to stay in jail and wait to see a judge, that will take three business days The judge will be considering many factors to determine your bail amount. They consider the severity of the offense, whether or not you are a danger to the community, amount of jail time should you be found guilty, your past offenses or arrest record, and your ties to the community. The judge could lower the bail, but they could also raise it or deny bail all together.
Payment for a bail agent is 10% of the full bail amount, which is regulated by the California Department of Insurance. Be aware of bail bondsmen who misrepresent themselves and who are willing to charge you less or only charge you a 5% bail bond amount. This means they are violating a California law and could be very dangerous for you. This should be a “red flag” and warrants some serious consideration about their ethical behavior. After all, do you want to hire someone who is not following the legal procedures of getting you released, and the possibility that you may never see your collateral again?
Getting arrested, spending a night in jail and the whole booking process is never fun. As they say, knowledge is power. Knowing exactly what takes place and expectations can be a bit comforting. Also, knowing your rights, responsibilities, how to conduct yourself, and arrange release, will help you to remain calm as well. Before you know it, you’ll be back home, safe and sound with your loved ones.
Tonya Page Bail Bonds is a professional bail bond company serving Southern California. Bondsman Tonya Page works alongside her husband, Greg, of Greg Rynerson Bail Bonds. Together, they are a successful, family owned and operated business, and are expert bondsmen and licensed professionals with over 35 years of experience. They understand and want to help families that are in an urgent time of need. Contact them today for confidential California bail bonds assistance.
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DUI Attorneys – Criminal Defense For Driving Under the Influence
By Kay Zeeh -
If you’ve been pulled over by the police for a DUI, you have a hard road ahead of you. Driving under the influence, or DUI, demands immediate action on your part to ensure that your license will not be suspended or revoked and you don’t end up spending a lot of time in jail.
Why hire a DUI criminal defense attorney? In a number of states, including Arizona, a DUI charge generates two individual cases. The primary case is filed with the Department of Motor Vehicles, while the other case filed in criminal court. Since criminal defense lawyers have sparred in court with the same prosecutors on many occasions, they are familiar with the strategy the opposing lawyers will be using and know how to defend you.
When a DUI lawyer takes on your case, you’ll be asked exactly what occurred from the moment you were pulled over. After you give your account of what happened, they’ll explain what’s going to happen, including what will take place if the case goes to trial. Your attorney will review the police report, interview witnesses and examine the evidence. Given that it is tough to manage and review the whole thing on their own, they often have their office paralegals assist them.
You will have to go to criminal court within ten days from the date of the arrest. You will be requested to enter a plea of ‘guilty’ or ‘not guilty’. Odds are, your criminal defense attorney will tell you to plead ‘not guilty’ to the charges. This will give him time to review the details of your case so your defense can be established.
You attorney has tactics that he’ll use to help you get out of a DUI. He may, for example, argue lack of probable cause for the initial stop. If this strategy works, your attorney will then submit a petition to suppress any evidence that the police officer obtained when you were pulled over.
Your lawyer may also dispute the BAC results and claim they are unreliable. BAC stands for the Blood Alcohol Content test that is used by police to see if an individual’s blood alcohol level has reached or passed the maximum limit. The results could be considered faulty if your attorney can prove that the equipment has not been appropriately maintained or the test wasn’t correctly administered. If you have a health condition that could affect the reliability of the BAC test, your lawyer will pursue that avenue.
Your attorney will also question the police officers and attempt to prove there are inconsistencies in their testimony compared with the police report they filed. If he can cast doubt on the credibility of the arresting officers, you could get a ‘not guilty’ decision.
If the arresting officers processed you properly, and things are not working in your favor, then your DUI lawyer may recommend that you accept a plea agreement. However, if you don’t want to negotiate, you can choose to go to court. If you’re defeated in court, you can attempt to appeal the verdict.
Keep in mind that if you’re convicted of a DUI, you can expect huge fines and jail time. All of that is in addition to a huge increase in your car insurance rates, limitations on future employment opportunities, and a permanent felony record. So using the services of a criminal defense attorney is really the only logical approach to defending yourself if you get arrested for driving under the influence of alcohol.
If you’ve been pulled over for a DUI charge in Arizona, call the Petersen Johnson Law Firm in Phoenix as soon as you can. Experienced Arizona DUI attorneys, they will defend your rights in court, and may be able to get the charges dropped. Visit the website at http://www.petersenjohnson.com
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Self Defense Legal Issues – Can You Go to Jail For Self Defense?
By Cori Baker -
Today, hearing news of crimes such as rape, robbery, assault, and bullying has been one of our daily routine. With the rising crime rate nowadays, some people have opted to enroll themselves in Taekwondo, judo and other short-term martial arts classes to learn the basics of self-defense techniques. Others, however, prefer to bring self-defense tools with them.
To defend ourselves from different forms and types of harm is not only reasonable, but it is also legally right. However, it’s incorrect to think that the law will always be on your side because there are legal ramifications as well. Because of these issues, some people doubt the possibility of going to jail for defending oneself. Can anyone be jailed for self-defense? This is a common question asked by some people because they are afraid of getting caught if they bring some protective devices along with them.
Because every state has its corresponding laws, there can be lots of misconceptions and interpretations when it comes to self-defense. Regardless of their differences, a self-defense lawsuit case usually favors the person without intent to hurt another human being. In other words, you cannot just attack another unarmed man and file for a self-defense case. Otherwise, you might end up in jail. More so, you cannot use a higher level of force than that used by the attacker. Even though these scenarios are vague, these are situations that can get you arrested even if you were just defending yourself from your perpetrators.
If you kill or seriously injure the perpetrator, regardless of the scenario you were in, you still have to prove that the damages were unintentionally done. Even though this was just a form of self-defense, the police will still have to do some investigation on what had happened. Thus, you need to prove your innocence and defend yourself in court. No matter how one-sided it may seem, this is how self-defense law works. To avoid being charged, it is mandatory that you call 911 first. If you are attacked by the perpetrator and you used some device to defend yourself before the police authorities arrive, you will not be charged with a crime. Because of these situations, you should always keep telephone numbers of police authorities. If you intentionally pass up the chance to call the authorities and decide to use force or weapon to defend yourself, then you might have difficulty defending yourself in court.
Apart from these scenarios, there are also rules when it comes to carrying self-defense weapons such as stun guns, pepper sprays and tasers. If you do not want to be convicted, then be aware of your local laws and legislations on self-defense.
Cori Baker enjoys writing for Beststungun.com which offers stun gun and tasers as well as a host of additional products.
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Castle Doctrine: the 2012 Disposition
Virginia's General Assembly has been considering and reconsidering the possibility of passing a statutory Castle Doctrine. The World’s Best Car Defense System
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Posted Originally at CrimLaw - http://crimlaw.blogspot.com
Criminal Defense Attorney – Choosing Wisely
By Abraham Avotina -
Being charged with a crime is a frightening proposition for anyone dreading jail time. To battle the charges and see to it that your rights are upheld in a justice system eager to put felons behind bars, you need a good criminal defense attorney. Even if you have no intention of going to trial and are only interested in pleading out, it helps to have a good legal mind on your side. A lawyer can give you advice on how best to proceed, negotiate with the prosecutor, and oftentimes, provide more specialized services than a public defender. But, not every lawyer is of equal worth. Here are some things you can do to ensure you find the right one.
You should definitely keep your goals in mind when looking for a criminal defense attorney. If you want to plead out, it makes little sense to pay top dollar to find a lawyer renowned for his skill in front of a jury. Likewise, you don’t want a lawyer known for his ability to negotiate quick deals if you are planning to plead “not guilty” and fight the charges to your last breath. Lawyers are usually very straightforward when it comes to their strengths, preferences, and weaknesses. They won’t want to take on a client who has a different endgame in mind.
You may be thinking that every criminal defense attorney is basically in the same field. But that really isn’t true. If you’ve been charged with breaking and entering, for example, you’ll want to find a lawyer who has a history of handling these types of cases. You don’t want to hire a DUI lawyer for a murder trial. You can save yourself a lot of time and frustration by narrowing your search to those firms who advertise based on the types of law they tend to practice. If you have a relationship with a lawyer who doesn’t quite practice in the right field, you can always ask them for a referral.
Sometimes, it seems as though every courtroom drama shows the relationship between defendant and criminal defense attorney as a combative one. For example, a brilliant lawyer is willing to provide the best service money can buy, but he still regards his client as scum behind closed doors. This is not reflective of reality. Find a lawyer you can trust and who will be willing to converse with you without laying down judgment. It isn’t a difficult combination to find, so it makes no sense to settle for anything less.
Searching for a criminal defense attorney Los Angeles? Be sure to visit: http://www.gunsberglaw.com/.
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