Archive for the ‘Legal Process’ Category

Is a Utah Criminal Defendant More Likely to get a Not Guilty Verdict if he Wears Glasses?

Dec

Clayton Simms, Criminal Defense Attorney, on the topic of Crimes, Legal Process

A Utah criminal defendant, who wears glasses at a jury trial, is more likely to get a not guilty verdict if the crime is a violent crime, but he would be less likely to get a not guilty verdict if the crime involves fraud or theft.

The jury expert conducted research on the affect of wearing glasses for people charged with crimes. The jury expert discovered that wearing glasses increased the perception of “intelligence, dependability, industriousness and honesty.” Those that wore glasses were generally viewed as less threatening, which would be an advantage in crimes of violence, like robbery, kidnapping or assault. However, the advantages of wearing eyeglasses disappears for financial crimes, like mortgage fraud, securities fraud and theft.

A Utah criminal defendant who wears glasses in a fraud or swindle jury trial may be perceived as more intelligent and thus more likely to commit a white collar crime. In a financial crime a jury may determine that a defendant with glasses possesses smarts and skills necessary to carryout a white collar crime.

One of the more fascinating discoveries in the study was at an “attractive” defendant was more likely to receive a not guilty verdict. In addition, attractive criminal defendants received lighter sentences and were punished less severely when they were convicted.

Check out the full article of the art and science behind Eyeglasses and Juror Decisions

Tags: fraud, Glasses, Jury Trial, not-guilty, White Collar Crime
Posted in Crimes, Legal Process | No Comments »

Can’t Mention Gang Affiliation Unless Relevant

Nov

Utah Attorney, Brooke Winters, on the topic of Constitutional Rights, Criminal Defense Misc, Legal Process

Trials are the stage where prosecutors and defense attorney’s ‘put on’ their play. Although this may seem a negative reference to the Utah justice system, the reality is that each side will strategically present their case in a light most favorable to their client. However, there are rules and the rules must be followed.

With the heavy presence of gang activity and affiliation, it is very tempting for a prosecutor to inject evidence of gang affiliation into trials even if that evidence has no relevance on the offense being tried. Evidence of this nature is a no-no. In Dawson v. Delaware, 503 U.S. 159 (1992), the United States Supreme Court ruled in a capitol murder case that the prosecutor had violated the defendant’s First Amendment right to association by referencing the defendant’s association with the Aryan Brotherhood during sentencing. The Court went on to say that evidence of gang affiliation is only admissible if it has some ‘relevance’ to the case at hand. Id. at 166. Simply referencing gang affiliation to inflame the jury is not allowed. Although Dawson involved capitol homicide, the reasoning applies to any case where gang affiliation has no bearing on the issues being tried.

Posted in Constitutional Rights, Criminal Defense Misc, Legal Process | No Comments »

Can Jurors Can Opt for Nullification (find a guilty defendant not guilty) if They Disagree With the Law?

Nov

Utah Attorney, Brooke Winters, on the topic of Criminal Defense Misc, Legal Process, Utah Court

Even if you believe the defendant is guilty of the crime committed as a juror do you have the option of returning a “not guilty” verdict if you believe the law making the offense a crime is unjust? no, but it happens all the time.

Jury nullification has a history dating back to the founding fathers and the Constitution of the United States of America. In an effort to ensure the fairness of laws, the Constitution allows veto power of five separate powers. In other words, the House of Representatives, the Senate, the executive level of government, judges and juries all have the authority to veto or nullify a law they believe to be unfair.

It was the founding fathers who decided that a law must pass certain tests before it can be effectively enforced. One such test is through the jury. It was intended the jury would not only judge the accused but also the fairness of the law the defendant was accused of violating. The jury was given the right and authority as the finder of fact in a trial but they also have the authority to judge the law itself and nullify the law if it was deemed unfair.

The first case in America cited with jury nullification is the case of John Peter Zenger. Mr. Zenger was charged with libel for printing derogatory stories in his paper about Governor William Cosby of New York. It was clear, Mr. Zenger was guilty of violating the seditious libel law but his lawyer argued the law was outmoded. In a matter of minutes, the jury nullified the law and set Mr. Zenger free.

Posted in Criminal Defense Misc, Legal Process, Utah Court | No Comments »

Brigham City v. Stuart – A Recap of Exigent Circumstances

Nov

Utah Attorney, Brooke Winters, on the topic of Criminal Defense Misc, Dealing with Police, Legal Process, Utah Court

In July, 2001, the police were called to a Brigham City home with a complaint of a loud party. When police arrived, their attempts to announce their presence went unheard at which point the police moved to the rear of the house where they observed through a window several adults restraining a teen who had thrown a punch that drew blood. One of the officers announced his presence again with no response and then entered the house announcing his presence again.

The issue is whether the police officers acted within the law when they entered the house without a search warrant. Was announcing their presence enough to enter the house? The answer is yes.

Exigent circumstances allow law enforcement to enter a property without a warrant under certain circumstances. These circumstances include:

Whether the offense is a grave offense-particularly a crime of violence
Whether the suspect is reasonably believed to be armed
Whether the showing of probable cause connecting the defendant to the offense is more than minimal
Whether the police have strong reason to believe that the suspect is in the premise being entered
Whether there is a likelihood the suspect will escape if not swiftly apprehended

The United States Supreme Court, in a unanimous ruling, reversed the Utah Supreme Court ruling indicating that due to the violence, police entered the house under exigent circumstances and a warrant was not necessary.

Posted in Criminal Defense Misc, Dealing with Police, Legal Process, Utah Court | No Comments »

Alternatives to Adversarial Justice Available in Utah

Nov

Utah Attorney, Brooke Winters, on the topic of Criminal Defense Misc, Legal Process, Utah Court

The United States has a true adversarial system in which the finders of fact, the juries are neutral, there is a clear “winner” and the losing party has the opportunity to appeal the decision to a higher court. Although this seems to be the most fair of systems to all parties involved, there is criticism citing the cost of the adversarial system. So what are the alternatives?

Within our own adversarial system, we also have a non-adversarial system which encourages parties in a dispute to resolve their issues without litigation. Mediation and arbitration are two such vehicles for dispute resolution. With mediation, the parties come together and with the assistance of a mediator, work to negotiate a resolution. Each party must come to the table with a willingness to make concessions and hopefully come to a mutually agreeable resolution. In arbitration, the parties come together and each party is given an opportunity to present its best case and any evidence. The case is decided by an arbitrator. Although there is a clear winner in this type of case resolution, arbitration is binding and there is no forum for appeal for the losing party.

Each option offers an alternative to the adversarial system of justice which can be very time consuming and costly to each party. Clearly this is an exciting option in civil cases but can it also be used in resolving some criminal cases?

Drug courts are an excellent example of handling criminal cases, minor drug offenses, in a non-adversarial setting and Utah courts both in the state and federal systems are embracing this practice. Drug possession is a criminal offense and the typical punishment, if convicted, is incarceration. Our courtrooms are flooded with drug cases and our jails are filled with drug offenders. The idea of a non-adversarial option in handling this social, not criminal problem is an innovative way to resolve these cases. There are other current social problems which are currently being handled criminally which might benefit from a non-adversarial system similar to drug courts. Some of these might be prostitution, first time DUI offenders, domestic violence and juvenile problems. The United States needs to make a move away from an adversarial system for certain types of crimes. In doing so we will be able to more effectively concentrate on more serious offences and free up valuable resources in our over-burdened court system.

Posted in Criminal Defense Misc, Legal Process, Utah Court | No Comments »

Crime Victims Rights in Utah

Nov

Utah Attorney, Brooke Winters, on the topic of Constitutional Rights, Criminal Defense Misc, Legal Process, Question, Utah Law

It should come as no surprise to learn that crime victims have rights and those rights are protected under the Utah Constitution which provides in pertinent part:

(a) To be treated with fairness, respect, and dignity, and to be free from harassment and abuse throughout the criminal justice process;
(b) Upon request, to be informed of, be present at, and to be heard at important criminal justice hearings related to the victim, either I person or through a lawful representative, once a criminal information or indictment charging a crime has been publicly filed in court; and
(c) To have a sentencing judge, for the purpose of imposing and appropriate sentence, receive and consider, without evidentiary limitation, reliable information concerning the background, character, and conduct of a person convicted of an offense except that this subsection does not apply to capital cases or situations involving privileges.

Although there are state and federal statutes protecting victims’ rights including state constitutional amendments, an amendment to the United States Constitution extending constitutional rights to victims has never been passed putting victims at a distinct disadvantage in the system. Currently, because victims’ rights are not guaranteed by the U.S. Constitution whereas defendant’s rights are, victims are not on equal footing with defendants as far as enforcing their rights and being provided with appropriate and meaningful remedies.

First, even though the Crime Victims’ Rights Act provides for victims’ rights enforcement through a writ of mandamus there is currently a four district split as to the appropriate standard of review leaving victims’ without an adequate remedy thereby compromising their rights. Second, none of the state statutory rights extended to victims or the Crime Victims’ Rights Act provides for civil damages as an appropriate remedy for rights violations. Although there is a question as to who would pay in the event civil damages were an option or if this is even an appropriate remedy for enforcement, it would at least provide some teeth to a statutory system of rights which might be described as un-enforceable due to a lack of available remedies. It is clear, just based on these two examples, that enforcing victims’ rights is a challenge courts are currently facing. However, within the last few years, Utah had enacted legislation which provides a remedy for victims whose rights have been violated by allowing for a “do-over” provision. Under, Utah Code Annotated 77-38-11, that as long as a victim does not unduly delay in seeking to protect their rights and was not voluntarily absent from relevant proceedings, the court must first determine whether there was a violation of rights and can proceed to determine the appropriate remedy such actions as are necessary to provide to the victim the right to which the victim was entitled which may include reopening previously held proceedings. Obviously this is a step in the right direction and will hopefully will provide a meaningful remedy should rights be violated.

Although the area of crime victim’s rights is still evolving, there are services in Utah where victims can get assistance.

• Utah Crime Victim Reparations – They assist victims, through financial compensation, to help them get their lives back on track which includes medical and dental care, mental health counseling, funeral and burial costs, cost of relocation if necessary, lost wages, loss of support to defendants and child care.
• The Department of Health and Human Services – Services include a domestic violence program through Child and Family Services and the Utah Domestic Violence Counsel which offers assistance through a 24/7 hotline which when called can offer victims free help including counseling and shelter programs.
• Utah Crime Victims Legal Clinic – Serves as a contact point, including a website, which provides victims with information outlining their rights and contact information for crime victim service agencies throughout the state including websites, addresses and phone numbers for these agencies. In addition being a great resource for victims, the Crime Victims Legal Clinic provides free legal representation to crime victims whose rights are at issue. This is possible through pro bono attorneys and law students dedicated to protecting victims’ rights.

Posted in Constitutional Rights, Criminal Defense Misc, Legal Process, Question, Utah Law | No Comments »

The Uncertain Road to Medical Marijuana in Utah

Nov

Utah Attorney, Brooke Winters, on the topic of Crimes, Criminal Defense Misc, Drugs in Utah, Legal Process

The 2011 Utah legislation session is long over and legalizing marijuana for medical purposes was not even a blip on the legislative radar. Currently in Utah, it is a class B misdemeanor to possess as little as an ounce of marijuana for personal use resulting in up to 6 months in jail, a fine, probation and even substance abuse classes.

As of this year, 16 states and the District of Columbia have passed legislation legalizing marijuana for medical purposes. There are 6 more states with pending legislation. Each state regulates the quantities an individual is allowed to possess and registration requirements. Although these states have legalized medical marijuana, it remains illegal under the Controlled Substances Act therefore individuals in all states can still be prosecuted federally.

Although there are some Utah legislators who would like to see more studies regarding the issue, there are others who are adamantly opposed to advancing such legislation saying that although there may be some benefits associated with its use that it would be difficult to control and easily abused.

Utah Attorney General, Mark Shurtleff has indicated in recent interviews that he would support the Legislature in considering legalizing marijuana for medical purposes. After battling cancer himself he said “I certainly understand why people need it and doctors would prescribe it.”

Medical marijuana has been found to be useful for treating the symptoms of chronic diseases, pain management and nausea associated with cancer treatments but for now is still illegal in Utah.

Posted in Crimes, Criminal Defense Misc, Drugs in Utah, Legal Process | No Comments »

Plea Bargaining and the Utah Judicial Process

Nov

Utah Attorney, Brooke Winters, on the topic of Criminal Defense Misc, Legal Process, Question, Utah Court

Plea bargaining first made its way into the criminal justice system during the mid-nineteenth century and has since become a powerful tool in adjudicating cases. There appears to be much debate over why plea bargaining has developed but one thing is clear and that is there is no singular answer. The most common factors cited in the rise of plea bargaining include: crowded court dockets, the oppressiveness of pretrial detention, the low quality of public defenders, the financial incentives of private attorneys, lazy prosecutors and uninformed judges. Several of these examples are not very complimentary to the players in the criminal justice system suggesting that we are sacrificing justice in the name of laziness and personal greed. In speaking with those in the Utah legal community, both judges and attorneys alike, have suggested plea bargaining is a necessary tool to keep the wheels of justice moving and without it, justice would come to a screeching halt. The overwhelming support in favor of plea bargaining is due in part to budget constraints and overcrowded dockets however, plea bargaining continues to develop in areas where court congestion is not a problem suggesting that plea bargaining is not simply a knee jerk response to a system overwhelmed but instead a shift in previously defined roles and how they affect justice.

In a cost benefit analysis; there are some very definite benefits to plea bargaining as opposed to taking every case to trial. Many supporters suggest plea bargaining has more to offer the players in the criminal justice process than a trial based system. It is suggested that plea bargaining allows the prosecutor to be more efficient, thereby being able to handle a greater case load than if more cases went to trial. The same would be true as well for judges, as they would be able to effectively handle a greater case load, and move their cases along with little or no delay. This is very attractive for judges who are faced with increasing pressure, due to case volume, to keep their docket moving. Additionally, plea bargaining is perceived as offering the accused a choice. There is a strong incentive in choosing plea bargaining over trial for both the prosecutor and the accused because there is more control over the outcome.

However, as attractive as plea bargaining looks from the standpoint of efficiency, cost effectiveness and predictability, there is also a downside. Plea bargaining gives enormous control over the outcome of the case to a single player in the process, the prosecutor. By giving such control to the prosecutor, it effectively removes the judge and reduces their role to that of an overseer of events. This is a far cry from the more active traditional role referenced previously. Similar to the different branches of government, the criminal justice system is based on a division of authority where no singular person has greater authority than another. Each person, the prosecutor, defense attorney and judge, has a role in the trial process which helps to ensure the victim, society and the individual rights of the accused are protected in the search for truth. By circumventing this process in favor of one which puts more power in the hands of a single person, the truth finding process is compromised in favor of efficiency.

From a defense perspective, plea bargaining is a lot like playing the odds in Las Vegas. The defendant must guess at what the evidence is and how strong the case is against him and hope that he does not guess wrong. In this situation, you run the risk of extracting guilty pleas from an innocent defendant who takes the safer bet but society pays as well in the case of a guilty defendant who due to plea bargaining gets a lighter sentence.

Critics of plea bargaining argue compromising the outcome of a case through the plea bargaining process is morally wrong. Indeed, the critics suggest efficiency is not enough to justify a system which although resolving some issues creates others such as wrongful convictions, broad prosecutorial power and sacrificing trials in favor of pleas. Ultimately plea bargaining plays an important role in the Utah criminal justice system and will not be going away anytime soon.

Posted in Criminal Defense Misc, Legal Process, Question, Utah Court | No Comments »

The Ultimate Question = Prosecutorial Misconduct

Oct

Utah Attorney, Brooke Winters, on the topic of Criminal Defense Misc, Legal Process, Utah Law

It is impermissible for a prosecutor to ask a witness during cross examination regarding the veracity of the testimony given by other witnesses in the case. Should the prosecutor ask such questions it could constitute reversible error.

The test used for determining whether a prosecutor’s statements are improper and constitute error is whether the remarks “`called to the jurors’ attention matters which they would not be justified in considering in reaching a verdict.’” Improper statements will require reversal if they are determined to be harmful. State v. Emmett,839 P.2d 781, 785 (Utah 1992) (quoting State v. Johnson,663 P.2d 48, 51 (Utah 1983) (quoting State v. Creviston,646 P.2d 750, 754 (Utah 1982))).

There are several Utah cases which illustrate this type of impermissible questioning. In United States v. Emmett, the prosecutor asked the defendant if he thought his son was lying during previous testimony regarding allegations of sexual abuse. The Court stated, “it is improper to ask a criminal defendant to comment on the veracity of another witness. The question is improper because it is argumentative and seeks information beyond the witness’s competence. The prejudicial effect of such a question lies in the fact that it suggests to the jury that a witness is committing perjury even though there are other explanations for the inconsistency. In addition, it puts the defendant in the untenable position of commenting on the character and motivations of another witness who may appear sympathetic to the jury. This question, therefore, was… improper.” 839 P.2d 781 (Utah 1992).

Similarly, in State v. Palmer the prosecutor questioned the defendant whether E.N.’s mother was “mistaken or lying” regarding a conversation she testified about. Defendant argued that questions regarding the veracity of the other witnesses amount to prosecutorial misconduct and the court concluded the questions amounted to “obvious error.” 860 P.2d 339, 343-344 (Utah App. 1993)

Although 801(d)(1)(B) “permits the introduction of a declarant’s consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive…” Id. the purpose of the rule is to rebut charges of a recent fabrication or improper influence or motive, but not to bolster the believability of a statement already uttered at trial. See Tome, 513 U.S. at 157-58. The danger in allowing the admissibility of post-motive consistent statement is that they “could easily lead to abuses—a witness could bolster his or her testimony by repeating the same version of facts to any number of persons who could then testify to those out-of-court statements. SeeTome, 513 U.S. at 157-58 (stating rule addresses rebuttal of an alleged fabrication, “not bolstering the veracity of the story told”). State v. Bujan, 2006 UT App 322, 142 P.3d 581.

Ultimately, prosecutors have a duty to avoid all improper tactics. As a servant of the law prosecutors should prosecute vigorously the cases which come before them but not at all costs. The goal is not simply to win a case but to ensure justice is done.

Posted in Criminal Defense Misc, Legal Process, Utah Law | No Comments »

Domestic Violence and Gun Laws in Utah

Oct

Utah Attorney, Brooke Winters, on the topic of Constitutional Rights, Crimes, Criminal Defense Misc, Legal Process

Domestic violence is abuse which occurs between two people in a close relationship. It can take the form of physical abuse, sexual abuse, threats of future abuse and emotional abuse.
If convicted of a domestic violence related offense not only do you face fines and jail but you also lose your right to possess a firearm, forever. Under 18 U.S.C. § 922(g)(9) “[i]t shall be unlawful for any person . . . who has been convicted in any court of a misdemeanor crime of domestic violence . . . to possess in or affecting commerce any firearm or ammunition.”
This means that anyone convicted of simple assault, assault on a female, or any other misdemeanor assault and the victim is a spouse or former spouse, live-in partner, child or parent or if they have a child together, will be forever banned from owning a firearm. If caught possessing a gun after a domestic violence conviction you can be prosecuted in federal court and receive up to ten years in federal prison.

Posted in Constitutional Rights, Crimes, Criminal Defense Misc, Legal Process | No Comments »

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