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9th edition The Criminal Law Handbook Know Your Rights, Survive the System by Attorneys Paul Bergman & Sara J. Berman-Barrett Nolo’s Legal Updater We’ll send you an email whenever a new edition of this book is published! Sign up at www.nolo.com/legalupdater. Updates @ Nolo.com Check www.nolo.com/update to  nd recent changes in the law that affect the current edition of your book. Nolo Customer Service To make sure that this edition of the book is the most recent one, call us at 800-728-3555 and ask one of our friendly customer service representatives. Or  nd out at www.nolo.com. The law changes, but Nolo is on top of it! We offer several ways to make sure you and your Nolo products are up to date: always up to date 2 1 3 We believe accurate, plain-English legal information should help you solve many of your own legal problems. But this text is not a substitute for personalized advice from a knowledgeable lawyer. If you want the help of a trained professional—and we’ll always point out situations in which we think that’s a good idea—consult an attorney licensed to practice in your state. please note 9th edition The Criminal Law Handbook Know Your Rights, Survive the System by Attorneys Paul Bergman & Sara J. Berman-Barrett NINTH EDITION SEPTEMBER 2007 Editor RICHARD STIM Cover design SUSAN PUTNEY Production SARAH HINMAN Proofreading CHRISTINE SINNOTT Index BAYSIDE INDEXING SERVICE Printing DELTA PRINTING SOLUTIONS, INC. Bergman, Paul, 1943- The criminal law handbook : know your rights, survive the system / by Paul Bergman & Sara J. Berman-Barrett 9th ed. p. cm. Includes bibliographical references and index. ISBN-13 978-1-4133-0704-7 (pbk.) ISBN-10 1-4133-0704-3 (pbk.) 1. Criminal procedure United States Popular works. I. Berman-Barrett, Sara J., 1964- II. Title. KF9619.6.B47 2007 345.73'05 dc22 2007013009 Copyright © 1997, 2000, 2002, 2003, 2004, 2005, 2006, and 2007 by Paul Bergman and Sara J. Berman-Barrett ALL RIGHTS RESERVED. PRINTED IN THE U.S.A. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior written permission of the publisher and the authors. Reproduction prohibitions do not apply to the forms contained in this product when reproduced for personal use. For information on bulk purchases or corporate premium sales, please contact the Special Sales department. For academic sales or textbook adoptions, ask for Academic Sales. Call 800-955-4775 or write to Nolo at 950 Parker Street, Berkeley, CA, 94710. Dedication To Hilary, Julia and Daniel. —PB, SBB Acknowledgments Our thanks: To attorneys Jake Warner and Steve Elias of Nolo for first envisioning a book about the criminal justice process. To Janet Portman and Rich Stim for their hard work and dedication to the text. To Dean Laurie Levenson, a former prosecutor and legal commentator; Michael Roman, an experienced criminal defense attorney; and Ron Schlesman, a longtime probation officer, each of whom was kind enough to read through the entire text; and law professors David Sklansky, Peter Arenella, and David Dolinko of the UCLA School of Law and Michael Graham of the Miami School of Law for their many insights, critiques, and immensely helpful suggestions. To public defender and Concord law professor John Ciroli for his many insights into criminal defense practice. To attorney Steve Harvey for his insightful comments about the nature of the U.S. criminal justice system, and, To the many resourceful employees of Nolo who put their heart and energy into producing such warm and helpful books and making sure the public knows about them. To another former public defender, David Barrett, for answers to legal questions, for lock-up to courtroom reality checks, and for setting an example as one who truly pursued justice; and Much appreciation to Dr. LaVera Otoyo for sharing wisdom and stories gathered from her many years of service to America’s juvenile justice system. To the Martinez family, whose loving care enabled the long hours of research and writing. Thanks to UCLA law student Caleb Bartels for his research and contributions to the 9th edition. To UCLA School of Law professor Stuart Banner for his help with the death penalty section. Table of Contents Your Legal Companion Introduction A Walk-Through of the Case of State v. Andrea Davidson, a Fictional Robbery Prosecution 4 1: Talking to the Police Section I: Police Questioning of People Who Haven’t Been Taken Into Custody 13 Section II: Police Questioning of Arrestees 20 2: Search and Seizure: When the Police Can Search for and Seize Evidence Section I: The Constitutional Background 37 Section II: Search Warrants 41 Section III: Consent Searches 46 Section IV: The Plain View Doctrine 51 Section V: Warrantless Searches That Are Incident to Arrest 53 Section VI: “Stop and Frisk” Searches 55 Section VII: Searches of Car and Occupants 58 Section VIII: Warrantless Searches or Entries Under Emergency (Exigent) Circumstances 63 Section IX: Miscellaneous Warrantless Searches 64 3: Arrest: When It Happens, What It Means Section I: General Arrest Principles 75 Section II: Arrest Warrants 79 Section III: Warrantless Arrests 80 Section IV: Use of Force When Making Arrests 83 Section V: Citizens’ Arrests 86 4: Eyewitness Identification: Psychology and Procedures Section I: An Overview of Eyewitness Identification Procedures 93 Section II: The Psychology of Eyewitness Identification 96 Section III: Lineups 98 Section IV: Showups 103 Section V: Photo Identifications 104 Section VI: Motions to Suppress Identifications 105 5: Booking and Bail: Checking In and Checking Out of Jail Section I: The Booking Process 111 Section II: Arranging for Bail 114 Section III: Own Recognizance Release (Release O.R.) 124 6: From Suspect to Defendant: How Crimes Get Charged Section I: Crime and Criminal Cases 129 Section II: To Charge or Not to Charge, That Is the Question 131 Section III: The Mechanics of Charging 139 Section IV: Grand Juries 142 Section V: Diversion 144 7: Criminal Defense Lawyers: Who They Are, What They Do, How to Find One Section I: Do I Need a Lawyer? 151 Section II: Court-Appointed Attorneys 154 Section III: Private Defense Attorneys 160 Section IV: Self-Representation 170 8: Understanding the Attorney-Client Relationship in a Criminal Case Section I: Confidentiality 181 Section II: Client-Centered Decision-Making 185 Section III: Lawyer-Client Communication 191 Section IV: Representing Guilty Defendants 192 Section V: Competent Clients 194 [...]... want to understand how the process works and where in the process you can expect to have an effect on how the case is prosecuted Whatever prompts your interest, the criminal justice system belongs to you You have a right to know how it works The information in this book tells you what you never learned in high school civics 2 CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM Our book is in... book describes the criminal justice system as it tends to operate throughout the country But each state, as well as the federal government, has its own set of criminal laws and procedures Thus, if you need to know the terms of a specific law, or the procedures your local court will follow, you will need to consult the rules for your jurisdiction Chapter 27 explains how to find such rules and other important... Psychology and Procedures, and Chapter 17, Fundamental Trial Rights of the Defense 6 CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM 8 Andrea’s answers to Officer Daniels’s questions lead the officer to suspect that evidence linking Andrea to the robbery is inside her home (such as some of the loot and a cap that the robber wore during the robbery) Officer Daniels wants to get hold of this evidence... could arrest her Had the woman responded to Officer Yu, the officer might not arrest her for loitering However, she might be subject to arrest for a different offense, such as trespass (unlawful entry on someone else’s property) 16 CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM The Questionable Legality of Loitering Laws Many people argue that police officers use loitering laws to clear neighborhoods... in future editions Introduction A Walk-Through of the Case of State v Andrea Davidson, a Fictional Robbery Prosecution .4 4 CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM A Walk-Through of the Case of State v Andrea Davidson, a Fictional Robbery Prosecution T his walk-through is intended to quickly familiarize you with what may happen as a case wends its way through the criminal. .. police officer reasonably suspects that a 14 CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM person has engaged in criminal activity, the officer can detain the person and ask for identification A person who refuses to provide identification commits the crime of resisting an officer’s lawful order (Hiibel v Nevada, U.S Sup Ct 2004) Also, laws typically require drivers who are stopped for speeding... does the case have to be thrown out? lawyers and public defenders? does the lawyer make all the decisions? before they can warn her about her “Miranda” rights, can what she says be used against her in court? in jail, is their conversation confidential? See Chapter 1, Talking to the Police to have to provide Andrea with “due process of law ? See Chapter 7, Criminal Defense Lawyers: Who They Are, What They... the events leading up to the assault Question: Does Rozmus have to answer the officer’s questions? Answer: No Rozmus has a constitutional right to remain silent, and if Officer Mayorkas fails to warn Rozmus of the Miranda rights before questioning begins, then nothing Rozmus says is later admissible in evidence 22 CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM The Miranda Case Ernesto Miranda... what to do should at least ask the officer to return at a later time 18 CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM Delay the Interview People who are uncertain about whether to talk to a police officer needn’t feel trapped into giving an immediate “yes” or “no.” Being confronted by a police officer tends to make many people nervous and anxious, which renders them unable to give completely... questions? 22 15 Can the government ever use statements against defendants if they were obtained in violation of Miranda? 22 12 CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM 16 Are there circumstances in which a statement by a suspect can’t be used against that suspect even if a Miranda warning is given? 23 17 Am I entitled to have my case dismissed if the police questioned . attorney licensed to practice in your state. please note 9th edition The Criminal Law Handbook Know Your Rights, Survive the System by Attorneys Paul Bergman. 9th edition The Criminal Law Handbook Know Your Rights, Survive the System by Attorneys Paul Bergman &