PALM DESERT LAWYER EXPOSES THE CIVIL AND CRIMINAL JUNGLE
Oct. 18, 2014
If you got arrested or were in an auto accident over the Memorial Day weekend you have found yourself in a jungle. A jungle that is more dangerous than any other in which you could have gotten lost. You do not know what to do. Should you talk to the insurance company adjuster or the police? Who do you call for information...the lawyer on TV with all the same numbers? What do all these legal terms you are hearing really mean in laymen's language?
This week we will navigate the criminal terms and next week we will look at the accident language.
The Criminal Terms Definitions are:
Criminal Act: Is an act committed by a person, against the public, that violates a California law and which is punishable by the government.
Arraignment: Is the first court appearance for both a misdemeanor and felony where the defendant enters a plea of guilty or not guilty. The date is listed on the bottom of the citation you received.
Miranda Warning: Is the statement of rights the police recite when you are taken into custody. They include your right to remain silent and to have an attorney etc. One of the most common concerns I get from new clients is "but they did not read me my Miranda rights". I explain that these rights ONLY have to be administered IF law enforcement is going to question you. With many cases police can make a case without asking any questions and obtaining any info from the arrestee.
Misdemeanor: A crime for which the punishment is usually a fine and/or up to a YEAR in the county jail. Sometimes a crime that is a misdemeanor for the first offense becomes a felony for repeated offenses. Any crime not a misdemeanor is a Felony which carries over a year in PRISON... instead of jail. This is what is called hard time.
Nolo Contendere: The Indio Court does not accept a NOLO plea which is the NO CONTEST we see on TV. Thus our local defendants have to enter a plea of guilty instead of Nolo. It has the same effect as a plea of guilty as far as a criminal sentence is concerned. However it may not be considered as an admission of guilt for any other purpose such as a related civil case. In other words, on a DUI with injuries the lawyer handling the civil accident case for the victim cannot refer to the guilty plea and must still prove liability (guilt).
Plea Bargain: Is a negotiated agreement between the defense and the DA in a criminal case. Typically the defendant agrees to plead guilty to a specified charge in exchange for an oral promise of a lower sentence. However the Indio DA's are not very eager to enter into a plea bargain. They have a lot of young lawyers that want to put a notch on their belt by trying more cases so they can get advanced out of the misdemeanor courts.
Preliminary Hearing: Is also called a Preliminary Examination. It is a legal proceeding used with a felony whereby the DA has to show that a crime has been committed and the defendant is "connected" with the crime. It is not the guilt beyond a reasonable doubt standard...yet.
Pre Trial Hearing: This is the misdemeanor proceeding after an arraignment where the DA and the defense attorney get a chance to talk to see if there is a basis of a plea to something. If so then this is the DA's proposed sentence he would recommend to the judge. Sometimes the DA is so jammed with trials that they "give away the court house"....but this does not happen often. In addition each DA has their own set of rules for reductions.
Probable Cause (PC): A police officer must have PC... which is a reasonable belief that the person has committed a crime. For instance, when an officer sees a car speeding, making an unsafe lane change or with a broken tail light, he now has probable (reasonable) cause to stop the car. If the officer then smells alcohol, sees a bag of drugs or a gun on the front seat, he can further investigate for a possible DUI, possession or sales of drugs or possession of a loaded firearm etc.
Prosecutor: Is the lawyer (DA) representing the county who prosecutes the case
Public Defender: Is the attorney appointed by the judge to represent an indigent defendant.
Reasonable Doubt: Generally in a criminal case a defendant is entitled to a not guilty verdict if in the minds of the judge or jury, guilt has not been proven beyond a reasonable doubt.
Rules of Evidence: These are the standards governing whether evidence (information) in a civil or criminal case is admissible. Not all evidence is admissible and it is hard for a client to understand why a lawyer will not be able to submit certain evidence in the trial.
Witness: Is the person who comes to court and swears under oath to give truthful evidence as to his knowledge of the facts in issue between either party in a case.
Sentencing: If a defendant pleads guilty or goes to trial and is found guilty, then the judge decides the penalty (sentence) to be imposed. This could include jail time, probation and or a fine.