KNOW YOUR RIGHTS AND EXERCISE THEM CONFIDENTLY

In today's world it is more important than ever for you to be aware of your rights when contacted by law
enforcement and for you to exercise your rights in an intelligent manner.  For a number of reasons criminal
penalties have become shockingly severe.  The manner in which you interact with law enforcement can make
the difference between a jail cell or your life as you now know it.  Please consider the following suggestions and
remember your rights are like a muscle.  If you fail to exercise them then they atrophy, losing both meaning and
purpose.  Very brave people fought bloody wars to bestow these important rights upon you.  So use them.

First, if contacted by law enforcement ask if you are free to leave.  If they say yes, leave.  If you are told you are
not free to leave then do not say anything.  Nothing you are going to say is going to change the reality that you
are being detained and possibly arrested.  

In simple bullet form the following are the rights police officers are required to inform you of when you have
been taken into custody and subject to police questioning:

  • You have the right to remain silent;
  • Everything you say can and will be used against you in a court of law;
  • You have the right to the presence of an attorney during police questioning;
  • If you do not have an attorney then one will be provided to you free of charge.

You possess these same rights at all times regardless of your level of interaction with law enforcement.  Critical
to understanding these rights is also understanding that police will often manipulate the situation to not inform
you of these rights by gaming the issue of whether you are "in police custody."  Police know the law and are
trained in the nuances of the law, you should be too.  The law does not protect you from statements made
voluntarily to police or statements made before you were placed in a situation that a reasonable person would
feel amounted to police custody.  Police have no obligation to inform you of your rights until you are in custody.  
Seemingly meaningless statements in the heat of the moment such as, "I can't believe how stupid that was," can
and are often interpreted as confessions.  You can only talk yourself into more trouble.  Law enforcement is
trained to search for anything that can even be interpreted as inferring an admission of responsibility for
criminal conduct.  Therefore, do not ever speak to law enforcement if their is any possibility that you are a
suspect in a crime or may become a suspect in a crime.  Police are skilled at making you believe you have to
answer them, that you are going to jail right now if you do not respond or some other play on your feeling of
security.  If the police have a mind to arrest you, there is nothing any statement from you is going to do to
change that fact.  The law even allows police to lie ("rouse") to provoke answers from you.  Be smarter.  KEEP
YOUR MOUTH SHUT.

If you do wish to respond to questions from law enforcement do so through an attorney.  That way none of the
statements being made are coming from you and you are thus protected.  This degree of removal from the
situation also allows you to approach the discussion more consciously.  Many terrible injustices have occurred
throughout our history due to misinterpretation of alleged confessions.  False confession remains the number
one reason for innocent people being convicted of criminal acts.
PRETRIAL AND TRIAL RIGHTS

In addition to the rights that you possess upon initial contact with police officers, you also possess specific
pretrial and trial rights.  The following are a non-exhaustive list of your basic pretrial and trial rights.  This
information is not meant to be specific legal advice but merely a basic outline to give you information regarding
the criminal process and your rights within it. Within these rights and processes are many other collateral rights
and processes which are too lengthy and involved for a basic overview.  Feel free to give me a call to discuss
the more nuanced aspects of the trial process and your rights within it.

  • Reasonable bail-  You have a constitutional right to have reasonable bail set in any non-murder case.  
    The amount of our bail can very greatly.  For the most part, the Court has developed a standardized bail
    schedule that determines the amount of your bail.  Your bail may be adjusted upward or downward
    depending on factors that include but are not limited to the severity of the crime you committed, where
    you live, your connections to the community (including employment and school), your prior record on
    bail, and others factors.  Other considerations such as probation or parole holds for those persons
    arrested while on probation or parole may foreclose the opportunity for bail, at least initially.  For these
    people getting probation or parole on your side early is critical.  A bail hearing is the appropriate venue
    to alter your bail conditions.

  • Arraignment-  You have the right to be publicly informed of your charges in court by a judge and in
    documents from the prosecutor called a complaint or an information.  This first step of the criminal court
    process is call your arraignment.  In a felony case you have two arraignments, first at the initial stage of
    your court process ("on the complaint") then again after your preliminary hearing ("on the arraignment").  
    At your arraignment(s) you will be asked to enter a plea.  You technically have six options.  The most
    common three options are: innocent, guilty, or no contest (guilty but for potentially related civil purposes
    you are not responsibility).  The process continues until you either change your plea to guilty or no
    contest or until your case is determined by a judge or jury at trial.  You will be asked how you wish to
    exercise your speedy trial rights.  You will also likely be given your initial discovery by the prosecution at
    your initial arraignment.  In Santa Cruz County, this comes in the form of a compact disk.   

  • Speedy Trial-  You have the right to a speedy public trial.  At your arraignment you will also be asked by
    the court how you wish to proceed in terms of your right to a speedy trial.  If you are accused of a
    misdemeanor you must be brought to trial within 45 days if you are out of custody and 30 days if you are
    in custody, if you so choose.  For a felony you must be brought to trial within 60 days after arraignment
    "on the information" following a preliminary hearing or if you waive your right to a preliminary hearing.  
    Since your speedy trial right exists for your benefit, you may waive it.  There are various reasons to do
    so, the most common is that you are not in custody and the quality of your defense is increased by giving
    your lawyer more time to develop your case.  You also have the right to "pull your waiver" and reinstate
    your speedy trial rights, as you wish.  

  • Discovery-  Trial by ambush is illegal.  You have the right to discover the facts, science and witnesses
    that the prosecution is going to present against you at trial so that you can prepare to challenge them.  
    Discovery can be anything from police reports, videos, and audio taped conversations to expert reports,
    witness contact information and physical evidence.  In order to effectively defend a criminal case it is also
    essential that the defense conducts its own independent fact finding (investigation).  The police are
    skilled at conducting investigations to demonstrate that a crime occurred and that the evidence supports
    that it was the accused committed it.  Police rarely conduct an investigation to reveal that the accused
    may not have committed the crime.  Police work for the prosecutor and do their part to make their cases
    appear as straight forward as possible.  In order to succeed against criminal charges, it is essential that a
    proactive investigation be commenced as soon as possible with the intention of collecting facts to prove
    your position.

  • Preliminary Hearing- Your right to a preliminary hearing only exists in felony cases.  There are no
    preliminary hearings in misdemeanor cases or in the rare circumstance where your are subject to a
    grand jury indictment.  You have a right to a preliminary hearing within 10 days of your initial
    arraignment, if you so choose.  At your preliminary hearing, the prosecution is required to prove that it is
    more likely than not that you committed the acts with which you have been charged so that your case
    may be held for trial.  For the purpose of the preliminary hearing the evidence is taken to be true, so
    credibility of witnesses is generally not an issue.  It is really a question of whether the prosecution has
    enough evidence to go to trial rather than enough good evidence.  At a preliminary hearing, the judge
    has the power to reduce some felonies to misdemeanors, dismiss charges, or hold them for trial.  At a
    preliminary hearing, police can testify as to what other people told them ("hearsay") leaving the accused
    with no ability to confront the person who is alleging to have had the particular observation or
    experience.  For these reasons, more often than not, judges hold the cases for trial.  However,
    preliminary hearings provide an essential process for locking witnesses into their testimony and
    discovering how the prosecution expects to prove its case.    

  • Suppression Hearing-  Pursuant to the Fourth Amendment to the United States Constitution you have
    the right to privacy in your person, your papers, your home, your office, your car, and various other
    private places.  Various exceptions exist to this right that are often exploited by law enforcement.  
    Sometimes law enforcement officials step over the line in their aggressive pursuit to discover crime.  You
    have the right to challenge the constitutionality of the actions of law enforcement in their conducting of
    stops and searches.  This is true whether the searches are based upon a warrant issued by a judge or
    based on their own belief in the existence of "probable cause."  If you successfully challenge the
    constitutionality of a law enforcement stop or search then all evidence that resulted from that search may
    be excluded from use at trial.  The case may even be dismissed entirely because the primary evidence is
    not usable at trial.  It serves you to have an attorney that knows his or her way around a suppression
    hearing where law enforcement officials obtained evidence from any type of search.

  • Subpoena Power- You have the right to have the court compel witnesses to come to court and testify or
    present documents.  This power is called subpoena power.  Subpoenaing witnesses and documents is
    critical to the presentation of any case in court at both hearings and trial.  When it comes to the state
    threatening your very liberty, due process demands that you have access to all the evidence reasonably
    available to prove your innocence.  Your attorney can issue subpoenas directly.  If you represent
    yourself, you can ask the court to issue subpoenas.

  • Cross Examination-  You have the right to publicly confront witnesses and evidence against you in
    court.  Our system, aside from some notable exceptions, purports to despise the idea of secret
    evidence.  A critical skill of a lawyer is to first become aware of all the evidence against you and to then
    meticulously dissect and disprove that evidence through logic and through the presentation of opposing
    evidence.  

  • Jury-  You have the right to have your case heard and the facts of your case decided by a panel of
    twelve members of your community picked at random.  You have the right to ask questions of ("voir dire")
    potential jurors to eliminate possible biases or motives to be unfair.  You also have the right to strike any
    juror if you raise what the judge finds to be "good cause" for that juror's removal.  Depending on the
    nature of your case you also have the right to strike a certain number of potential jurors preemptorily (or
    without any cause).  You cannot be convicted of a criminal act until all twelve jurors unanimously agree
    that the prosecution has proven every element of a crime beyond a reasonable doubt.  At the same time,
    you cannot be acquitted (found not guilty) unless all twelve so agree.  If the jury is divided ("hung") then
    the prosecution has the right to retry the case indefinitely until a unanimous verdict has been reached.

  • Waiver of Rights-  At any point in the process you have the right to waive any and all of these rights
    and enter a plea of either guilty or no contest.  The prosecution's office has exclusive access to crime
    labs, access to the police pretrial, and a world of resources at its disposal.  Sometimes people
    intentionally or inadvertently do commit acts that constitute the elements of a crime.  Even in this
    scenario it is possible that unconstitutional conduct by law enforcement may invalidate the prosecution.  
    However, after this avenue has been exhausted it may become advisable to negotiate a predetermined
    punishment in return for your accepting responsibility for your conduct.  Never ever waive any
    right without thoroughly discussing all of your options with a lawyer that you trust.  You have the right to
    exhaust ever possible option in your defense before giving up your precious rights.  Remember
    practicing law is like practicing medicine, you can do it yourself but the likelihood of a successful outcome
    is much greater with a trained professional in your corner.  For that reason you right to counsel of your
    choice is perhaps your most precious right of all.  If I can be of any assistance to you in this regard,
    please do not hesitate to contact my office and set up a free consultation.