12th Edition The Criminal Law Handbo ok Know Your Rights, Survive the System Paul Bergman, J.D. & Sara J. Berman, J.D. authors of Represent Yourself in Court • Translate “crimespeak” into English • Understand the trial process • Learn about juvenile court procedures Free Legal Updates at Nolo.com “A guided tour of the criminal justice system—intended both for the curious and for those who fi nd themselves caught up in it.” ABOUT.COM e Nolo Story Dear friends, Founded in 1971, and based in an old clock factory in Berkeley, California, Nolo has always strived to off er clear legal information and solutions. Today we are proud to off er a full range of plain-English law books, legal forms, software and an award-winning website. Everything we publish is relentlessly researched and tested by a dedicated group of in-house legal editors, whotogether have more than 150 years’ experience. And when legal changes occur after publication, we promptly post free updates at Nolo.com. 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TWELFTH EDITION AUGUST 2011 Editor LISA GUERIN Cover Design SUSAN PUTNEY Book Design TERRI HEARSH Proofreading ROBERT WELLS Index MEDEA MINNICH Printing BANG PRINTING International Standard Serial Number (ISSN): 1940-722X ISBN-13: 978-1-4133-1620-9 (pbk.) ISBN-10: 1-4133-1620-4 (pbk.) ISBN-13: 978-1-4133-1650-6 (epub PDF) Copyright © 1997, 2000, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, and 2011 by Paul Bergman and Sara J. Berman. All rights reserved. The NOLO trademark is registered in the U.S. Patent and Trademark Offi ce. Printed in the U.S.A. No part of this publication may be reproduced, stored in a retrieval system, or trans mitted in any form or by any means, electronic, mechanical, photocopying, recording, or other wise without prior written permission. 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. Call 800-955-4775 or write to Nolo, 950 Parker Street, Berkeley, California 94710. Please note 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. Dedication With love to Kevin, Hilary, and Vincent; and to Julia and Daniel. 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, Rich Stim, and Lisa Guerin 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. 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. 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. To UCLA School of Law Professor Robert Goldstein for his help with the domestic violence and child abuse sections. About the Authors Paul Bergman is a Professor of Law at the UCLA School of Law and a recipient of a University Distinguished Teaching Award. His books include Nolo’s Deposition Handbook (with Moore, Nolo); Reel Justice: The Courtroom Goes to the Movies (Andrews & McMeel); Trial Advocacy: Inferences, Arguments, Techniques (with Moore and Binder, West Publishing Co.); Trial Advocacy in a Nutshell (West Publishing Co.); Represent Yourself in Court: How to Prepare & Try a Winning Case (with Berman, Nolo); Depositions in a Nutshell (with Moore, Binder, Light, West Publishing); and Lawyers as Counselors: A Client-Centered Approach (with Binder, Tremblay, Weinstein, West Publishing). He has also published numerous articles in law journals. Sara J. Berman received her law degree from UCLA. She is a Professor at the Concord University School of Law, and a founder of the PASS Online Bar Review (www.passlaw.com). She has authored several bar review course texts and legal articles, and has lectured extensively for BarPassers, West Bar Review, and the Practicing Law Institute. She teaches criminal law, criminal procedure, criminal justice, legal writing and analysis, corporations law, and community property law. She is also the coauthor of Nolo’s Represent Yourself in Court: How to Prepare & Try a Winning Case. Table of Contents Your Legal Companion 1 Introduction: A Walk-rough of the Case of State v. Andrea Davidson, a Fictional Robbery Prosecution 3 1 Talking to the Police 11 Police Questioning of People Who Haven’t Been Taken Into Custody 13 Police Questioning of Arrestees 21 2 Search and Seizure 35 e Constitutional Background 39 Search Warrants 43 Consent Searches 48 e Plain View Doctrine 53 Warrantless Searches Incident to Arrest 54 “Stop and Frisk” Searches 58 Searches of Cars and Occupants 60 Warrantless Searches or Entries Under Emergency (Exigent) Circumstances 66 Miscellaneous Warrantless Searches 67 3 Arrest: When It Happens, What It Means 75 General Arrest Principles 78 Arrest Warrants 82 Warrantless Arrests 83 Use of Force When Making Arrests 86 Citizens’ Arrests 89 4 Eyewitness Identification: Psychology and Procedures 93 An Overview of Eyewitness Identification Procedures 95 e Psychology of Eyewitness Identification 97 Lineups 100 Showups 105 Photo Identifications 106 Motions to Suppress Identifications 107 5 Booking and Bail: Checking In and Out of Jail 111 e Booking Process 113 Arranging for Bail 117 Own Recognizance Release (Release O.R.) 128 6 From Suspect to Defendant 131 Crime and Criminal Cases 133 To Charge or Not to Charge, at Is the Question 135 e Mechanics of Charging 143 Grand Juries 145 Diversion 148 7 Criminal Defense Lawyers 153 Do I Need a Lawyer? 155 Court-Appointed Attorneys 158 Private Defense Attorneys 164 Self-Representation 174 [...]... confronts the woman and asks her to provide identification and explain what she is doing in the neighborhood The woman refuses to respond Under the loitering laws of many states, Officer Yu can arrest the woman for loitering The officer had a reasonable basis to believe that the woman posed a danger to the community Because she didn’t 16 | THE CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM. .. 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... information in the book will no doubt assist those defendants who choose selfrepresentation, the authors assume that those facing criminal charges for which jail or prison is a possibility are represented by an attorney, either privately retained 2 | THE CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM or appointed at government expense The book is, however, designed to empower criminal defendants... to trial, rather than argue that the police got it wrong How knowledgeable am I about the law governing the events about which I’m being questioned? People sometimes unwittingly provide evidence of their own guilt because they inaccurately believe that their behavior does not amount to criminal conduct They may think they are explaining their innocence, while the police officers are using their explanation... regard the change of story in itself as suspicious and indicative of guilt Thus, 18 | THE CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM even if you want to cooperate with police officers, you ought to first make sure that you have a clear recollection of the events about which the officers are asking If you are unsure what to do, at least ask the officer to return at a later time Delay the. .. so the judge appoints a lawyer to represent her Will the attorney ask Andrea to tell her side of the story? Can the attorney do anything to help Andrea if she tells the attorney that she committed the robbery? What kinds of legal challenges can a defense attorney make before a case goes to trial? Does the lawyer have to keep everything Andrea says confidential? 6 | THE CRIMINAL LAW HANDBOOK: KNOW YOUR. .. often read to suspects? What’s the difference between private lawyers and public defenders? If the police fail to warn Andrea of her Miranda rights, does the case have to be thrown out? If Andrea is represented by a lawyer, does the lawyer make all the decisions? If Andrea talks to the lawyer while she’s in jail, is their conversation confidential? What does it mean for the government to have to provide... asked the judge to order the sheriff to bring a few other prisoners to court so that they could testify on his behalf at the trial The judge refused Garcia’s request, on the ground that Garcia first had to serve subpoenas on the prisoners and Garcia hadn’t done that As the judge told Garcia during the trial, “That’s your problem, Mr Garcia, that’s not the court’s problem We’re not here to practice law. .. another time.” Among other things, delay provides an opportunity to consult with a lawyer, and perhaps to have the lawyer present during the interview, if the person ultimately decides to talk Might the police learn about any unrelated crimes I have committed as a result of the interview? People may talk to police officers because they are confident that they can demonstrate they are not involved in the. .. HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM What decisions about her case does Andrea have the right to make? See Chapter 8, Understanding the AttorneyClient Relationship in a Criminal Case, Chapter 11, Developing the Defense Strategy, and Chapter 19, Motions and Their Role in Criminal Cases Andrea’s lawyer talks to her about the possibility of entering into a plea bargain What rights would Andrea . attorney, either privately retained 2 | THE CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM or appointed at government expense. The book is, however, designed to empower criminal. have to participate in the lineup? 4 | THE CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM Instead of conducting a lineup, could the police have shown the store owner a picture. 12th Edition The Criminal Law Handbo ok Know Your Rights, Survive the System Paul Bergman, J.D. & Sara J. Berman, J.D. authors of Represent Yourself in Court • Translate