Archive for the ‘Legal Process’ Category

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What is an outstanding arrest warrant in Utah?

Mar
08
Jesse, on the topic of  Legal Process
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Contrary to its name, an outstanding arrest warrant is not a good thing.  It is simply an arrest warrant that has not been served on a person.  A person might be evading law enforcement to prevent the warrant from being served or the person might not even know that law enforcement is looking for him.  Additionally, there might be a backlog of warrants to serve and therefore a law enforcement agency might have a lot of outstanding warrants.

When police pull over a vehicle, they typically search a warrant database to see if the suspect has any outstanding warrants.

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Jury Selection in Utah

Mar
03
Jesse, on the topic of  Legal Process
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Before a trial begins, the clerk of the court where the defendant will have his trial calls a panel of prospective jurors.  These people will sit in a courtroom and be able to see the judge, the prosecution and defense lawyers, and the defendant.  The judge will usually say something about the jury selection process (“voir dire”).  In most cases, each potential juror will stand up and say a few things about themselves (guided by a sheet of paper that the clerk handed out before they entered the courtroom).

After this, the judge or lawyers will ask the potential jurors questions about their background and general beliefs to ensure that anyone with biases or prejudices are not allowed on the jury.  If any attorney or judge feel that any of the potential jurors is not qualified for the case, the juror will be excused “for cause.”  A judge or lawyer can dismiss as many potential jurors for cause to ensure that the defendant gets a fair jury of his peers.

The prosecution and defense are also allowed to excuse some potential jurors with “peremptory challenges.”  This means that any lawyer can dismiss a potential juror without stating their reason.  The only thing not allowed are gender, ethnically, or racially motivated dismissals.  Other than that, it is at the discretion of the lawyer.

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Question: My daughter has to appear in Utah juvenile court. What should I do?

Feb
25
Jesse, on the topic of  Legal Process, Question
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Question: I’m so worried about my 16-year-old daughter.  She was charged with shoplifting from the mall (she says her friends bet her to do it) and now has to go to juvenile court.  I’ve never dealt with this kind of thing. What is juvenile court like?  My daughter is a really a good kid and just got mixed up in the wrong crowd.  I don’t want her to be branded a criminal forever.

The first thing you should do is to take a deep breath and realize everything will be okay.  In many juvenile court cases, the teenager simply made a bad choice.  Juvenile court was created to rehabilitate teenagers and help them become responsible adults, not punish and condemn them for a mistake.  Because that is the focus, you should be relieved to know that juvenile court exists to help your daughter, not simply punish her.

Your daughter is not alone in the crime she allegedly committed.  According to Utah courts, the most common types of crimes that juveniles commit are shoplifting, possession of alcohol, theft, burglary, possession of marijuana, destruction of property, possession of tobacco, trespassing, violation of curfew, and assault.  While the courts take criminal activity seriously, those violations do not justify giving a teenager a prison sentence.

Juvenile courts are different that adult courts.  The formality of adult court does not exist in juvenile court.  As the parent, you must attend all court hearings.  Members of the public can’t attend your daughter’s hearing to ensure her privacy.  Your daughter doesn’t have a right to a jury and can’t post bail to get out of detention (if she is required to go to detention).  One of the few things similar between juvenile courts and adult courts is your daughter’s constitutional right to due process.  This means that she must be told the charges against her, can call witnesses on her behalf, can cross-examine witnesses, and is protected against self-incrimination.  She also has a right to an attorney.

If your daughter is found guilty or admits to guilt, she will likely face restitution, fines, and/or community service.  Juvenile courts sometimes order a combination of all three.

As far as your daughter’s record, it will not be public information because it is only a shoplifting charge.  Only your daughter, you as the parent, and the attorney representing your daughter have access to your daughter’s record.  If your daughter committed a felony (and is 14 or older), certain parts of her record would be available to the public.

However, if your daughter is later convicted as an adult of a crime, her record may be made available to a probation officer.  Therefore, it is important that your daughter gets her record expunged.  A judge can expunge a juvenile’s record if the juvenile has stayed out of trouble for one year after the juvenile court ruled and the juvenile is 18.

Depending on the offense of a juvenile, it is wise to hire an attorney that can help you.

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Innocent Until Proven Guilty: What does this really mean?

Feb
16
Jesse, on the topic of  Constitutional Rights, Legal Process, Utah Law
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Photo: Ann Althouse

Our criminal justice system is based upon the idea that a person is innocent until proven guilty.  Until a jury decides whether they believe you are guilty or innocent, the law treats you as an innocent person.  During your trial, the prosecution has the burden of proof to convince a jury that you are guilty.  The belief behind this system is that if the government is going to take away your liberty, they must prove, beyond a reasonable doubt, that you in fact committed the crime.  If they cannot prove you are guilty, you are allowed to keep your liberty.  That is the way the system is supposed to work.

Unfortunately, the system isn’t that perfect.  When the news reports that a person allegedly committed a crime, most viewers automatically assume that the person is guilty.  If the newspaper reports on a teacher who is accused of having sex with his students, people assume that the teacher is guilty.

Even though our criminal justice system is based on “innocent until proven guilty,” the general public always rushes to judgment.  During jury selection, the judge or lawyers will usually ask, “Does anyone believe that because a person is arrested and charged with a crime, they probably committed that crime?”  Potential jurors often raise their hands.  As a defendant, you wouldn’t want that kind of person on the jury deciding your future.

Because the general public has a difficult time with the concept of “innocent until proven guilty,” it is critical that you hire an attorney who can explain this concept to juries.  If your attorney can prove that the prosecution cannot prove guilt, then you will be found innocent.

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Question: What is a plea in abeyance?

Jan
25
Jesse, on the topic of  Legal Process, Question, Utah Law
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Question: I went to court on a trespassing charge. Instead of jail, I got a “plea in abeyance” cause the judge said this was better. Now I have to do community service. There were lots of people in the courtroom, so I didn’t ask any questions. So what is a “plea in abeyance”?

The Utah Code of Criminal Procedure defines a plea in abeyance as, “order by a court… accepting a plea of guilty or of no contest from the defendant but not, at that time, entering judgment of conviction against him nor imposing sentence upon him on condition that he comply with specific conditions as set forth in a plea in abeyance agreement.” (Utah Code § 77-2a-1(1)).

Abeyance means “a state of suspension.” This means that if you take this plea, you are not being convicted of anything and the judge isn’t sentencing you. You just have to follow the conditions that the judge sets, and if you do, the court will reduce or dismiss your charges.

If you do violate the conditions, you will have to go back into court and explain why the judge should not find that you violated the conditions of the plea. If the judge finds that you violated the conditions, then she can terminate the plea agreement and enter a judgment of conviction and impose a sentence against you for the original crime that you were charged. It goes without saying that it is much better to follow the conditions of your plea in abeyance than to be convicted of a crime.

If you are going to court because you were charged with a crime, you should have a qualified attorney with you that can negotiate a favorable plea in abeyance for you.

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Defenses to Utah Crimes

Jan
05
Jesse, on the topic of  Legal Process, Utah Law
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When you are charged with a crime, you have to plead guilty, not-guilty, or no-contest in some circumstances.  If you plead not-guilty, you have to present a defense to the charges.  Here are some typical defenses that are used:

I Didn’t Do It

Prove that I did it: The prosecution has the burden of proving that you actually committed the crime because you are presumed innocent until proven guilty.  This mean that the prosecution has to convince a judge or jury that you were in the right place, at the right time, and you committed the crime.  You, as the defendant, are not obligated to present a case, call witnesses, or even argue that the prosecutor is wrong.  If the judge or jury doesn’t believe the prosecution’s story, then you will be found not-guilty.

I Wasn’t There

If you were charged with robbery of a bank at 3pm, your alibi defense would be that you were working across town from 1pm-5pm and couldn’t have robbed the bank.  For an alibi defense to work, you will have to convince the jury with evidence that your alibi is truthful.

I Did It, But It Was Self Defense!

Charges of battery (hitting someone), assault, and murder will often result in a self-defense claim.  The defendant will argue that their actions were justified because of the other person’s (the victim) threatening actions.  The questions that will be important here are (1) who was the aggressor, (2) was the threat that the defendant perceived a reasonable threat, and (3) did the defendant use only the reasonable force necessary to protect himself?  If a reasonable person in similar circumstances would have been justified in using the same force that the defendant used, then the defendant has the right to protect himself.  But the defendant can only use force that is reasonable to combat the threat (fist vs. fist okay, but shooting someone with a gun who only threatens you with a fist is not okay).

I Did It, But I Was Insane!

This defense rarely works, and when it does, the defendant doesn’t simply go free.  To prove insanity, the defendant must prove insanity, which can only be accomplished by involving psychiatrists.  The defendant must go through complex testing of their mental state.  If the defendant is found not guilty by reason of insanity, the defendant will be moved to a psychiatric hospital where they will be treated.  Sometimes, the time spent in this hospital will be longer than the prison sentence they would have gotten with a guilty plea.

In Utah, the insanity defense will not work because the state abolished it.  However, a defendant can be found guilty but mentally ill.

Whatever defense you want to present, having the assistance of a qualified attorney will help you to decide what kind of defense is best for your case.

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Verdicts in Utah

Nov
24
Jesse, on the topic of  Legal Process, Utah Law
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After a trial, there are only four verdicts available.  All verdicts in a criminal case must be unanimous.

Guilty: If a jury finds the defendant guilty, the defendant’s next step is a sentencing hearing.  The defendant has the right to be sentenced within 30 days, or if he chooses, the same day of conviction.

Not-guilty: If a jury finds the defendant not-guilty, the defendant is free to leave and the case is over.  The defendant cannot be charged again for the same crime on the same facts (double jeopardy).

Not-guilty by reason of insanity:  If a jury finds the defendant not-guilty by reason of insanity, the defendant may be moved to a psychiatric hospital where they will be treated.  Sometimes, the time spent in this hospital will be longer than the prison sentence they would have gotten with a guilty plea.

Guilty and mentally ill:  If a jury finds the defendant guilty and mentally ill, the defendant will go to prison, a psychiatric hospital, or a combination of both.

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Hung Jury in Utah

Nov
03
Jesse, on the topic of  Legal Process
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All verdicts in a criminal case must be unanimous.  So what happens when the members of a jury do not agree?  This is called a “hung jury” and the judge will declare a mistrial.  The court will then order a new trial.

Many defense attorneys believe that this is the best thing next to an acquittal.  The advantage to this verdict is that the defense has a “do over” and can treat the first trial as practice.

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Self Representation vs. Hiring a Utah Attorney

Oct
14
Jesse, on the topic of  Constitutional Rights, Legal Process
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The Utah Constitution gives every Utah citizen the right to represent themselves in court.  (”A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, full right to be heard according to law. Judicial Canon III b 8).  It is called pro se representation.  But should you take advantage of that right?

Defendant will represent themselves for various reasons:
•    Defendant doesn’t want a lawyer.
•    Defendant doesn’t want to hire a lawyer.
•    Defendant thinks it will be fun to act like a lawyer.
•    Defendant can hire a lawyer, but the crime is so small that they don’t want to pay for a lawyer
•    Defendant watches television shows with lawyers and thinks being a lawyer is easy.
•    Defendant thinks he knows the rules of the court.
•    Defendant is in jail and wants to write her own appeal to the Supreme Court.

Generally, it is a good idea to hire a lawyer.  After all, it is a lawyer’s job to know how to navigate the court system.  All lawyers go to law school for three years to learn how to be a lawyer, so reading a book on how to represent yourself in court is not a good idea if you’re going up against a prosecutor with years of experience.

However, there are some instances where a person wouldn’t need a lawyer.  If someone is charged with a small crime, like a traffic ticket, it might not make sense to hire a lawyer.  But if a person is charged with a DUI, they definitely need a lawyer.

To decide whether to hire an lawyer or not, the first thing you should do is find out the maximum punishment  for the crime you are charged with.  If the punishment is a $50 fine, you probably don’t need an lawyer.  But if the punishment is $1,000 and up to six months in jail, you need an lawyer to help you.

A lawyers will know the rules of evidence, how to address everyone in the courtroom, and will know the rules of the court.  A judge doesn’t have to explain things to a lawyer as she would with someone representing themselves.  Although you may ultimately choose to represent yourself, judges can sometimes be more tolerant with pro se litigants than with lawyers.  But that tolerance will only go so far–the judge will know that one party knows the law and the other party thinks they know the law.

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Posting bail in Utah

Sep
28
Jesse, on the topic of  Legal Process
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Photo: Dave77459

Photo: Dave77459

If a suspect is arrested and put into jail, the defendant has to appear before a judge (usually within 48 hours after being booked).  When the defendant goes before the judge, the judge looks at the charges and decides whether or not to continue holding the suspect in jail.  Sometimes a judge will decide that a suspect is too dangerous to be released.  More often, the judge allows a defendant to be released.  This is the point that a bail amount is set.

Bail is a way for the courts to help ensure that a defendant appears in court.  Money is given to the court to hold until the defendant shows up for their court dates.  After a case is over, the money is given back to the person who posted the bail.

Bail is determined by Utah’s Uniform Bail Schedule.  Reasons for a high bail amount include the seriousness of the crime, the defendant’s flight risk, or if the defendant doesn’t have an attorney.  In the latter case, the judge may ask the prosecutor what they think the bail amount should be.  This is why it is important for defendant’s to hire an experienced attorney who can ensure that the bail amount is fair.

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