Mar 21, 2019
Dealing with law enforcement, whether officers or prosecutors, is a very intimidating experience. Unfortunately for the accused, this is a feature, not a flaw, of the American justice system. In an effort to allow law enforcement to investigate and, if necessary, punish individuals for committing crimes, society has effectively armed law enforcement with tactics that may seem harsh. However, the end result – taking a criminal off the streets, preventing him/her from committing a further crime – is why society allows such tactics.
Nevertheless, our justice system also allows for rights for the criminally accused, and retaining the services of an experienced criminal defense attorney is the best and most effective protector of these rights. Part of the collection of rights available to criminal defendants is the ability to block certain testimony at trial as privileged from disclosure.
One prime example is the confessional privilege. However, a State Senator is introducing a bill hoping to abolish this established right, effectively quashing a long-held legal tradition rooted in the common law. A discussion of the confessional privilege, and the current law in the California Legislature, will follow below.
Senate Bill 360
As mentioned above, an effort is afoot to eliminate the confessional privilege, albeit only in cases involving child abuse or neglect. Current State law, per the Child Abuse and Neglect Reporting Act, requires certain individuals, including clergy, to report to authorities whenever they, in their professional capacity, have knowledge of or observe a child whom the cleric knows or reasonably suspects has been the victim of child abuse or neglect.
An exception is made when the cleric acquires this knowledge or reasonable suspicion during a penitential communication. SB 360 would eliminate that exception.
The Confessional Privilege, Historically
The confessional privilege is a traditional and contemporary rule of evidence that forbids judicial inquiry into certain communications (spoken or otherwise) between clergy and members of their congregation. This privilege, like others, is based on the recognition of certain communication as not subject to otherwise obligatory disclosure. For example, this often applies to communications between lawyers and clients.
Similar to the spousal communication privilege, the confessional privilege exists because society has deemed communication between a cleric and a confessor to be sacrosanct, and above reproach. If, for example, a husband could not confide in his wife without fear of reprisal, the marriage would lose any semblance of trust and, in many cases, fail. In a similar way, the relationship an individual has with leaders in his/her church is granted a level of trust and honor that exempts it from use at trial. Failure to protect this communication would almost certainly result in fewer confessions and the loss of important societal support for many.
It should be noted that this privilege is not completely similar to another form of privileged communication – the attorney-client privilege. The purpose of that privilege is so that a client can receive the best possible legal defense (another time-honored tradition of our legal system). To require an attorney to report communications from his/her client would necessarily mean that the client would have to withhold information from the attorney, information that could exonerate him/her from the charges against him/her.
Speak to a Criminal Defense Attorney
If you have recently been arrested, or are facing an upcoming criminal trial, contact the criminal defense attorneys at Manshoory Law Group, APC as soon as possible. It is never wise to attempt to defend yourself against a criminal charge – even attorneys know this. Not only do prosecutors have many tools at their disposal, but they also have years of experience in convicting individuals.
The attorneys at our office can counter this experience. After an analysis of the circumstances of your crime, we will work to get you the best possible outcome. The attorneys here are available 24/7 to take your call. Contact the Los Angeles criminal defense firm today for an initial consultation.
Feb 21, 2019
Is a Confess to a Crime Alone Enough to Convict a Defendant?
When an individual is arrested for committing a crime, he/she is usually brought to a nearby police station for questioning. Unfortunately for the arrestee, the procedure used by law enforcement for questioning a suspect is extremely one-sided. In an attempt to ascertain the events which led to the crime, law enforcement will intimidate, harass, and pressure the arrestee into making a confession. While these actions are completely legal, confessions are sometimes coerced.
Retaining the services of an experienced criminal defense attorney can be crucial to having a coerced confession thrown out at trial. However, even if a judge rules that the confession can be introduced at trial, a legal principle known as corpus delicti is still applicable, which prevents the prosecution from relying exclusively on the confession of the arrestee for conviction, and requires the state to also introduce evidence linking the arrestee with the crime.
Recently, ostensibly in an effort to protect victims of human trafficking, the California Assembly introduced a bill that would allow an individual to report the occurrence of certain crimes, and be granted immunity from arrest, including sexual assault, human trafficking, stalking, robbery, assault, kidnapping, threats, blackmail, extortion, and burglary. A discussion of confessions, and when they cannot be used at trial, will follow below.
What is a Coerced Confession?
In California, all criminal defendants have the right to not be required to be a witness against themselves. In other words, no criminal defendant is required to provide the prosecution with evidence to convict him/her, such as being forced to confess to a crime.
Rather, the prosecution must prove the defendant committed the crime through other evidence. It should be noted that this right concerns the defendant being forced to confess to a crime; there is nothing against the defendant voluntarily confessing to committing a crime.
How can a Confession be Thrown Out?
The issue thus becomes – what is and what is not a voluntary confession? The standard for an involuntary confession is whether law enforcement used tactics that undermined the suspect’s ability to exercise his/her own free will. This is a high standard and a difficult one for a defendant to meet without effective assistance of counsel. The key to establishing an involuntary confession is showing that some sort of improper interrogation tactic overcame the arrestee’s free will.
Evidence that shows an obvious overcoming of the arrestee’s free will includes torture or depriving the arrestee of food and/or water for an extended period of time. Other, less obvious, means which can be used to overcome an arrestee’s free will typically require an inquiry into the circumstances involving the confession.
For example, courts will look at the following factors to ascertain whether an arrestee’s free will was compromised:
- Whether law enforcement read the Miranda warnings to the arrestee prior to his/her arrest;
- The location of the questioning (a police station is typically considered more intimidating than at the scene of the crime);
- The length of the interrogation (the longer the interrogation, the more coercive it will be considered);
- Whether the arrestee requested an attorney, and, if so, whether law enforcement honored the request;
- Whether the arrestee decided to remain silent, and, if so, whether law enforcement respected that decision;
- Who initiated the conversation (a defendant who freely and voluntarily interacts with law enforcement may not be able to show coercion); and
- The arrestee’s age, level of maturity, mental/physical health, and experience with the criminal justice system.
As is clear, evidence other than putting pressure on the arrestee must be shown for a judge to rule a confession to be coerced. Speaking with an experienced criminal defense attorney will help to ensure that this evidence is brought to the judge.
Let Your Lawyer Do The Talking
If you have been arrested on suspicion of committing a crime, contact the criminal defense attorneys at Manshoory Law Group, APC as soon as possible. It is important that you resist every attempt to confess to any crime.
The attorneys at our office have years of experience in criminal defense law, including an understanding of your individual rights and responsibilities. If you inadvertently, or under coercion, confessed to committing a crime, we will do our best to mitigate the situation.
The Los Angeles attorneys here are available 24/7 to take your call. Do not wait, contact us today for a case analysis.
Feb 14, 2019
Is it Good to Cooperate with the Police?
Being stopped by police is no joke and can result in arrest and criminal charges if certain facts and actions are present. However, merely engaging with law enforcement is unnerving. What makes the experience so unnerving is the lack of familiarity with the criminal justice system, especially from the point of view of law enforcement.
Law enforcement has a greater depth of understanding of the criminal justice system because they deal in that arena on a daily basis. As a result, most individuals may not know specifically what their rights and responsibilities are. Retaining an experienced criminal defense lawyer can help level the proverbial playing field because he/she is also well versed in this arena, in most cases, also on a daily basis. Looking at the specific circumstances of a stop or conversation with a police officer, many may be unaware whether cooperation must be provided to law enforcement.
To this end, a California law, from the frontier days of the State, maybe get an overhaul. Currently, it is a misdemeanor to refuse to comply with a call for assistance by law enforcement, but a California Assemblyman is looking to repeal that 1872 law. A discussion of law enforcement’s power of arrest, and what cooperation is required to be provided to law enforcement, will follow below.
Why Should You Stay Calm and Cooperate with the Police?
California law allows law enforcement officers to arrest an individual in one of the following situations:
- Pursuant to a warrant; or
- Without a warrant, if one of the following is true:
- The officer has probable cause to believe that the individual has committed an offense in the officer’s presence;
- The individual has committed a felony, whether or not in the officer’s presence; or
- The officer has probable cause to believe that the individual has committed a felony.
Thus, in cases where there is no warrant for an individual’s arrest unless law enforcement is absolutely certain that the individual has committed a felony, the officer will typically have to rely on probable cause to arrest the individual. This reliance is routinely supported by questioning the individual.
Can you Refuse to Speak to California Police?
It is important to understand that, as the warning set forth in the U.S. Supreme Court case of Miranda v. Arizona, anything said to law enforcement can and will be used against the speaker. Inherent in this statement is the Federal Constitution’s guarantee against self-incrimination – that any individual will not be required to say something which could implicate him/her in a crime. As a result, it is important to understand what is required when interacting with law enforcement.
Miranda also notes that all individuals have the right to remain silent. This right should be exercised as much as possible, although there are times in which this right can be waived, such as in the case of mistaken identity or to provide an alibi.
As an example, if law enforcement is accusing an individual of committing a crime at a specific time and at a specific location, and the individual can prove that he/she was not in the location at that time, speaking to law enforcement may avoid the formal filing of charges against the individual. Nevertheless, it is also important to understand the consequences of exercising this right. As an example, while it is an individual’s right to refuse to provide identification to law enforcement if requested, such refusal may result in an arrest.
Once an arrest is made, however, it is never advisable to speak to anyone without first consulting with a criminal defense attorney. Their understanding of the law will ensure that nothing is said which could act against the interests of the arrestee.
Best Practices When Dealing With the Police
If you have been arrested on suspicion of committing a crime, contact the criminal defense attorneys at Manshoory Law Group, APC as soon as possible. The attorneys at our office have years of experience in criminal defense law, including an understanding of your individual rights and responsibilities. We can advise you of your legally-required responsibilities, as well as what information is not required to be provided to law enforcement.
We are available 24/7 to take your call. Do not wait, contact us today for a case analysis.
Feb 7, 2019
How Does Mental Illness Play a Role in the Criminal Justice System?
Being arrested turns lives upside down, and includes a future of an investigation into their alleged wrongdoing, as well as a trial in which details of their life become public knowledge, and a potential long-term future of incarceration. Retaining the services of an experienced criminal defense attorney can be instrumental to minimizing the effect of these issues. In most cases, the arrestee knows and understands the situation – that he/she is being accused of committing a crime.
However, some members of society may not truly comprehend the present situation, and, may not even comprehend that the act he/she is accused of committing was wrong. A recent article in the Chico Enterprise-Record illustrates the increasing percentage of inmates in California jails and prisons who are mentally incapacitated, making the California penal system a de facto mental institution.
California does provide a Diversion Program for those with mental incapacity, and a discussion of this Program will follow below, along with a discussion of the legal defense of insanity.
What is Competency to Stand Trial?
The State is not permitted to try and convict a person of a crime if he/she is incapable of understanding the proceedings against him/her or is unable to meaningfully participate in his/her own defense. This determination is made after criminal charges are filed and does not depend on person’s state during the time of the alleged crime.
This right is guaranteed by the U.S. Constitution as part of receiving a fair trial. However, convincing a court that a criminal defendant is incompetent can be tricky, and a defendant must prove he/she does not have the ability to rationally or factually understand the proceedings, or assist his/her attorney with preparing for trial.
Mental illness can cause these types of cognitive difficulties, and as long as the accused is incapable of understanding what being tried for a crime really means, the case cannot proceed. But, if competency is later restored, the State could choose to pursue prosecution at that time. If incompetency is found, the accused will be required to undergo psychiatric treatment and/or be committed to a treatment facility so doctors can attempt to control and manage any existing mental illness.
What is a Mental Health Diversion Program in California?
California’s Mental Health Diversion Program, a pretrial diversion program, allows some criminal defendants to receive mental health treatment when they are accused of a crime. Pretrial diversion, which may be requested at any point in a criminal proceeding before a defendant is sentenced, allows an eligible defendant to postpone further action in his/her case in order to participate in a treatment program.
Upon the successful completion of a pretrial diversion treatment program, the charges against the defendant will be dismissed. The record of the arrest will be sealed, and it will be as if the arrest had never happened.
To be eligible for the Mental Health Diversion Program, the defendant must provide evidence of each of the following conditions:
- He/she must have been diagnosed with a mental health condition other than an antisocial personality disorder, borderline personality disorder, or pedophilia;
- The diagnosed mental health disorder must have played a significant role in the commission of the charged offense;
- Based on the opinion of a qualified mental health professional, the defendant would respond to mental health treatment;
- He/she not only consents to the diversion program, he/she waives his/her right to a speedy trial and agrees to comply with the mental health treatment; and
- The court believes that he/she will not pose an unreasonable risk of danger to public safety.
Probably the biggest obstacle of the elements noted above is being able to prove that the defendant has been diagnosed with a mental health disorder. To successfully show this element, the defense must present evidence of a recent diagnosis by a qualified mental health expert.
The expert may rely on any relevant evidence, including his/her examination of the defendant, the defendant’s medical records, and even the arrest report, which may illustrate the state of mind of the defendant.
What Does Not Guilty by Reason of Insanity Mean?
If the pretrial program is not available, the defendant can offer a legal defense of insanity, which, if accepted, means that he/she cannot be found guilty of a crime because he/she was legally insane when alleged to have committed it.
Under California’s insanity defense, a defendant is considered legally insane if either he/she:
- Did not understand the nature of the criminal act; or
- Did not understand that what he/she was doing was morally wrong.
Again, mental health evidence, most likely from a mental health professional, will help to establish the defendant’s perception of reality, both at the time of the crime and during the criminal trial.
What is an Alternative Sentence?
Because mental illness can significantly affect a person’s ability to control his/her actions or understand the implications of what he/she is doing, it is possible to receive a sentence that foregoes time in jail in favor of a combination of probation and psychiatric treatment.
This option focuses on addressing the root of the problem – mental illness – instead of imposing sentences that will not fix the situation. An experienced criminal defense attorney will know how to argue in favor of this outcome to the prosecutor and court so the mentally ill defendant receives rehabilitation and not just punishment.
Speak to a Criminal Defense Attorney
If you have been arrested on suspicion of committing a crime, contact the criminal defense attorneys at Manshoory Law Group, APC as soon as possible. The attorneys at our office have years of experience in criminal defense law, including how mental incapacity affects the ability of the arrestee to understand the circumstances of his/her arrest. After understanding your specific circumstances, we will work to provide the most effective defense possible.
The attorneys here are available 24/7 to take your call. Do not wait; contact us today for an initial consultation.
Jan 25, 2019
Facebook – Instagram – Twitter – Yelp – Reddit. Each of these online sites, along with many others, allows individuals to express themselves, verbally and pictorially. And while these sites were ostensibly begun to allow individuals to offer opinions and commentary, some posters have, unfortunately, tended toward personal attacks, defamation, libel, and argumentative statements. In some cases, threats have been made online.
Even though the online world is a new phenomenon in today’s society, laws nevertheless apply. Consequently, an individual making a physical threat online can receive the same repercussions as a physical threat made in person. As a result, it is extremely important to be cognizant of what one posts online for the world to see. Failure to do so may result in criminal charges.
Recently, a California man was arrested for making threatening statements, via Instagram, to relatives and friends of those killed last year at Marjory Stoneman Douglas High School in Parkland, Florida. According to the complaint, the individual used several Instagram accounts to send harassing messages to the families, such as “I killed your loved ones ha ha ha.”
A discussion of online harassment, as well as what typically qualifies as a criminal act, will follow below.
What Is Cyberstalking?
Generally, online harassment, sometimes known as “cyberstalking,” is stalking that takes place via an electronic communication device. Online harassment is not a new crime; rather, it is the same as the traditional crime of harassment, but instead of being performed in person or via print, it is harassment done through an electronic medium, such as the Internet.
In California, stalking or harassment laws prohibit one individual from making harassing or threatening statements to another individual to the point where the second individual fears for his/her safety and/or the safety of his/her family. When those threats or harassment are communicated via the Internet, through email, via text messaging, over the telephone, through fax, video message, or any other electronic device, the crime is more accurately referred to as online harassment.
The penalty for online harassment in California is imprisonment of up to one year and/or a fine of up to $1,000. Thus, online harassment is a misdemeanor. However, penalties are enhanced when the aggressor pursues the same individual in violation of a court restraining order, in which case the prison term now has a range of two to four years.
Additionally, individuals convicted of felony harassment also face stricter penalties if they continue to stalk their victims. Finally, in some cases, an individual convicted of online harassment may be required to register as a sex offender.
What are the Examples of Online Harassment?
According to the law, online harassment occurs when an individual willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another individual, and who makes a credible threat with the intent to place that other individual in reasonable fear for his/her safety, or the safety of his/her immediate family.
As this can be interpreted in an extremely broad manner, some common examples of online harassment include:
- Sending manipulative, threatening, lewd, or harassing messages via an electronic medium;
- Hacking into an individual’s online accounts, and changing the victim’s settings and passwords;
- Creating false online accounts on social networking and dating sites, impersonating an individual, or attempting to establish contact with the individual by using a false persona;
- Posting messages to online sites containing the individual’s personal information, such as a home address, phone number, or other identifying information, or posting messages which can be derogatory, lewd, or controversial, of which may result in a backlash to the individual according to internet fraud statistics;
- Uploading unauthorized photographs or videos;
- Disseminating false information, spreading rumors, and/or publishing defamatory or libelous statements; and
- Signing up for online mailing lists and services using the individual’s name and e-mail address.
Speak to a Criminal Defense Attorney
If you have been charged with a crime, contact the criminal defense attorneys at Manshoory Law Group, APC as soon as possible. When criminal charges are pending, time is your worst enemy.
The criminal defense attorneys at our office have years of experience in California and federal criminal law, including knowledge of potential online crimes. After gaining an understanding of your specific circumstances, we will work with you to provide the most effective defense possible. The attorneys at our office are available 24/7 to take your call. Do not wait, contact us today for an initial consultation.
