The job for Denver criminal defense lawyers is frequently to show ambiguity and uncertainty in the facts. Today I'm going to talk about a case where uncertainty is really bad for defendants. Yesterday I talked about the consent exception to the exclusionary rule. I mentioned that consent is a crucial tool for the state. Using consent, they can avoid the burden of showing that a search was supported by a warrant and probable cause. Today I'm going to dig a bit deeper into consent, because it's just that important. Any Denver criminal defense lawyer will tell you that the nature of consent given by a defendant can make or break a case.
In general, it is people's natural reflex to be nice to police officers. That's good. There is no reason to piss off somebody who could seriously impact your fate during the potential criminal case against you. Despite all your constitutional rights, a cop who does not like you can really screw you over. However, where people struggle is finding the balance between being nice and protecting themselves. A person can be courteous and still be firm. And that's extremely important in the case of consent. The problem is that any sign of uncertainty can be taken as consent. If you say no, then OK, the court may rule you've given consent. If you've given consent in the first place, then try to revoke it, you may be out of luck. Basically, your Denver criminal defense lawyer will have a much easier time getting the evidence suppressed if you are very clear.
Also, if you make your wishes clear, you won't have to worry about going back and forth. If it appears you're unsure about letting the cops search you or your stuff, they'll keep trying to convince you. That just gives you more opportunities to say something wrong. Something that could get you in bigger trouble, or be used against you at trial. If you just say "no, you need a warrant" or "no, I want a lawyer," you're done. You get to call an attorney who will have dealt with something like this before. So be courteous, but firm in declining to consent to any searches of you or your belongings.
Showing posts with label evidence. Show all posts
Showing posts with label evidence. Show all posts
Monday, August 29, 2011
Sunday, August 28, 2011
Denver criminal defense lawyer / the consent "exception"
Yesterday on the Denver criminal defense lawyer blog, I took a look at the exclusionary rule. The exclusionary rule says that if a cop does a search without a warrant and probable cause, the evidence can't be used against you in court. In that post, I mentioned that there are a lot of exceptions which mean the evidence can be used against you even if there is not a warrant and probable cause. I'm going to start with the exception that drives Denver criminal defense lawyers like me nuts: the consent exception.
Basically, the rule with consent is that if you consent to a search of your belongings, your Denver criminal defense lawyer can't come back later and suppress the evidence. This is a problem for defendants in a lot of cases, because cops are really good at getting you to consent. They'll tell you it'll go quicker if you let them have a look. They'll also imply that you don't really have a choice, they can do it the easy way or the hard way. That part is technically true, although if they do it the "hard way" you reserve your right to challenge the search later and possibly get crucial evidence thrown out of the case against you. Basically, the police will not be clear on the importance of waiving your fourth amendment rights. And make no mistake: when you consent to a search, you are waiving your fourth amendment rights.
Adding to this is a problem of basic human psychology. Many suspects think that only guilty people will invoke their rights, or refuse consent. They think if the cops hear "no," they will look more guilty, and things will go worse. However, if you've been pulled over, or stopped on the sidewalk or whatever, you already look pretty guilty in the eyes of law enforcement. Giving in to a request for a consent search isn't going to change that. It's just sacrificing one of your crucial weapons in the possible case against you down the road. Once you consent to the search, you are also telling the police that it's OK to bring anything they find into the case against you. A clear, vocal, renunciation of consent puts the burden of showing probable cause and possibly a warrant squarely on the shoulders of the prosecution. Do you really want to do the prosecutor's work for him?
Basically, the rule with consent is that if you consent to a search of your belongings, your Denver criminal defense lawyer can't come back later and suppress the evidence. This is a problem for defendants in a lot of cases, because cops are really good at getting you to consent. They'll tell you it'll go quicker if you let them have a look. They'll also imply that you don't really have a choice, they can do it the easy way or the hard way. That part is technically true, although if they do it the "hard way" you reserve your right to challenge the search later and possibly get crucial evidence thrown out of the case against you. Basically, the police will not be clear on the importance of waiving your fourth amendment rights. And make no mistake: when you consent to a search, you are waiving your fourth amendment rights.
Adding to this is a problem of basic human psychology. Many suspects think that only guilty people will invoke their rights, or refuse consent. They think if the cops hear "no," they will look more guilty, and things will go worse. However, if you've been pulled over, or stopped on the sidewalk or whatever, you already look pretty guilty in the eyes of law enforcement. Giving in to a request for a consent search isn't going to change that. It's just sacrificing one of your crucial weapons in the possible case against you down the road. Once you consent to the search, you are also telling the police that it's OK to bring anything they find into the case against you. A clear, vocal, renunciation of consent puts the burden of showing probable cause and possibly a warrant squarely on the shoulders of the prosecution. Do you really want to do the prosecutor's work for him?
Saturday, August 27, 2011
Denver criminal defense lawyer / the exclusionary rule
I've already talked some about the standard of proof that law enforcement needs to get further information, probable cause. I've also talked about one powerful weapon in a Denver criminal defense lawyer's pocket: affirmative defenses. In this post, I will talk about what happens when the prosecution cannot prove there was probable cause. I will also talk about why this is another important tool for a Denver criminal defense lawyer.
The Fourth Amendment says that the government is not allowed to use unreasonable searches and seizures to get evidence against the people. Originally, the Fourth Amendment only applied to the federal government. Eventually, a bunch of Supreme Court cases said that the 14th Amendment meant that the entire bill of rights (the first 10 amendments) applied to the states as well as the federal government. So the states were also not allowed to perform unreasonable searches and seizures.
Of course, at the beginning there was no remedy. Basically the evidence from the warrantless and causeless search could be introduced. All your Denver criminal defense lawyer could do is get mad about it. After getting convicted, you could sue the police. Unfortunately, it is notoriously difficult to sue the police, or the government in any capacity for a variety of complicated reasons.
So several states and the federal government made a rule that any evidence from an unreasonable or warrantless search would not be allowed at trial. Eventually, this rule was made mandatory by the Supreme Court of the United States for every single state. This is called the "exclusionary rule." So if the police stop you on the side of the road for no reason at all, and find drugs in your bag, the evidence of the search cannot come in to court. That means the drugs can't be introduced. There are a lot of exceptions, which I may or may not go in to later on this blog, but that's essentially the gist of it.
Additionally, anything that is the direct result of the illegal search is not allowed to be introduced at trial. That means if the police search you illegally and find drugs, then you make statements confessing, those statements can't be used against you. That's because without the illegal search, you never would have made the statements at all.
The exclusionary rule is one of the most important concepts in criminal law. It deters police officers from making illegal stops. It prevents the state from benefiting from its own illegal actions. The exclusionary rule has its critics, but nobody has really figured out a better way to manage it, so essentially it's unlikely to go anywhere.
The Fourth Amendment says that the government is not allowed to use unreasonable searches and seizures to get evidence against the people. Originally, the Fourth Amendment only applied to the federal government. Eventually, a bunch of Supreme Court cases said that the 14th Amendment meant that the entire bill of rights (the first 10 amendments) applied to the states as well as the federal government. So the states were also not allowed to perform unreasonable searches and seizures.
Of course, at the beginning there was no remedy. Basically the evidence from the warrantless and causeless search could be introduced. All your Denver criminal defense lawyer could do is get mad about it. After getting convicted, you could sue the police. Unfortunately, it is notoriously difficult to sue the police, or the government in any capacity for a variety of complicated reasons.
So several states and the federal government made a rule that any evidence from an unreasonable or warrantless search would not be allowed at trial. Eventually, this rule was made mandatory by the Supreme Court of the United States for every single state. This is called the "exclusionary rule." So if the police stop you on the side of the road for no reason at all, and find drugs in your bag, the evidence of the search cannot come in to court. That means the drugs can't be introduced. There are a lot of exceptions, which I may or may not go in to later on this blog, but that's essentially the gist of it.
Additionally, anything that is the direct result of the illegal search is not allowed to be introduced at trial. That means if the police search you illegally and find drugs, then you make statements confessing, those statements can't be used against you. That's because without the illegal search, you never would have made the statements at all.
The exclusionary rule is one of the most important concepts in criminal law. It deters police officers from making illegal stops. It prevents the state from benefiting from its own illegal actions. The exclusionary rule has its critics, but nobody has really figured out a better way to manage it, so essentially it's unlikely to go anywhere.
Friday, August 26, 2011
Denver criminal defense lawyer / preponderance of the evidence
So on the Denver criminal defense lawyer blog I've been looking at a variety of burdens of proof. Obviously the most crucial one in the criminal justice system is reasonable doubt. However, I've forgotten another crucial one. The "preponderance of the evidence" generally simply refers to the majority. It means there is a 50.00000000000000001 percent chance that something happened. This is the standard of proof used to determine fault in civil law cases. If you can prove you were harmed by just a bare majority of the evidence, you get damages. In criminal law, obviously the ultimate burden of proof is different. However, the "preponderance" standard still has its place.
For example, there are certain things your Denver criminal defense lawyer can use to help you get acquitted called affirmative defenses. These state that even if the prosecution actually did prove every part of the crime, you should be acquitted anyway. One of these is self defense in murder cases (this is the case in some states, I don't think it is true in every state). That means even if you intentionally kill somebody, and the prosecution can prove you did it, you can still be acquitted if you can prove self-defense. However, the prosecution does not have to prove "no self defense" beyond a reasonable doubt. It is up to you and your Denver criminal defense lawyer to prove that you acted in self-defense. So the absence of any evidence about self defense will mean you get convicted. At the same time, you don't have to prove self-defense beyond a reasonable doubt. Just having a sliver more evidence than the prosecutor will be good enough. So preponderance of the evidence is one example of where a burden of proof that is not beyond a reasonable doubt can be decisive in a criminal case.
For example, there are certain things your Denver criminal defense lawyer can use to help you get acquitted called affirmative defenses. These state that even if the prosecution actually did prove every part of the crime, you should be acquitted anyway. One of these is self defense in murder cases (this is the case in some states, I don't think it is true in every state). That means even if you intentionally kill somebody, and the prosecution can prove you did it, you can still be acquitted if you can prove self-defense. However, the prosecution does not have to prove "no self defense" beyond a reasonable doubt. It is up to you and your Denver criminal defense lawyer to prove that you acted in self-defense. So the absence of any evidence about self defense will mean you get convicted. At the same time, you don't have to prove self-defense beyond a reasonable doubt. Just having a sliver more evidence than the prosecutor will be good enough. So preponderance of the evidence is one example of where a burden of proof that is not beyond a reasonable doubt can be decisive in a criminal case.
Thursday, July 28, 2011
Denver criminal defense lawyer / probable cause
In light of last week's discussion of reasonable doubt, I thought it might be useful to talk about some other burdens of proof. Reasonable doubt is obviously the most important tool for Denver criminal defense lawyers, because it can singlehandedly get the defendant acquitted without anything else. A defendant can simply argue that the prosecution did not prove the case beyond a reasonable doubt. If the jury agrees, the defendant is acquitted. That said there are several other burdens of proof (or levels to which the lawyer must prove his case) that are crucial during a criminal trial.
Probably the most important is probable cause. This is the level of proof the state must meet in proving evidence is admissible. It applies for both out of court testimony and evidence found through searches. This is because the Fourth Amendment requires officers have probable cause to believe a crime has been committed and that the search will unveil evidence of the crime (the Constitution doesn't actually say that, but the courts have read that into the amendment). So if your Denver criminal defense attorney can show that either of these things did not happen, the fruits of the search are excluded. That can be so fatal to the prosecution's case the evidence is simply excluded.
In the case of a "seizure" or an arrest, the prosecution has to show that either they had probable cause to believe a felony took place, or that they directly saw a misdemeanor. Either of these is good enough to justify an arrest. If these are not present, any answers you give during interrogation after arrest, or things found during searches at your arrest can't be put into evidence at trial.
So what in the world is probable cause anyway? Basically there is no great way to easily define it. It really is evidence that gives one pretty strong reason to suspect, though that's probably not terribly helpful either. The way lawyers look at it is this: there are a million cases where the Supreme Court and lower courts have looked at evidence and testimony and said "yes" or "no" to the probable cause determination. Your Denver criminal defense attorney knows these cases and can put together the strongest motion possible to exclude the evidence against you.
Probably the most important is probable cause. This is the level of proof the state must meet in proving evidence is admissible. It applies for both out of court testimony and evidence found through searches. This is because the Fourth Amendment requires officers have probable cause to believe a crime has been committed and that the search will unveil evidence of the crime (the Constitution doesn't actually say that, but the courts have read that into the amendment). So if your Denver criminal defense attorney can show that either of these things did not happen, the fruits of the search are excluded. That can be so fatal to the prosecution's case the evidence is simply excluded.
In the case of a "seizure" or an arrest, the prosecution has to show that either they had probable cause to believe a felony took place, or that they directly saw a misdemeanor. Either of these is good enough to justify an arrest. If these are not present, any answers you give during interrogation after arrest, or things found during searches at your arrest can't be put into evidence at trial.
So what in the world is probable cause anyway? Basically there is no great way to easily define it. It really is evidence that gives one pretty strong reason to suspect, though that's probably not terribly helpful either. The way lawyers look at it is this: there are a million cases where the Supreme Court and lower courts have looked at evidence and testimony and said "yes" or "no" to the probable cause determination. Your Denver criminal defense attorney knows these cases and can put together the strongest motion possible to exclude the evidence against you.
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