Anyone who lives in the US has a pretty good idea about what behavior is criminal; in other words, most people understand at least the basics of substantive criminal law. Criminal procedure refers to all the stages by which crimes are investigated, prosecuted, are reviewed. Compared with substantive criminal law, criminal procedure is not familiar or intuitive. Most people don’t know whether they have to open the car trunk when requested by a police officer during a traffic stop (no) or have to show up in court in response to a mailed subpoena or notice (probably not) or whether you can file a notice of appeal outside the statutory time limits if you have a really good reason (no.)
Just procedures in the trial court can take years in a complex case, and from there a criminal case can work through half a dozen court systems and a decade or more during the course of the direct appeal, post-conviction relief, and federal habeas corpus. A competent attorney is focused on the current proceeding, but considers the possibility of future proceedings as well; pre-trial motion practice can make a trial victory more likely, a good trial attorney preserves issues for appeal, and a good post-conviction attorney is familiar with the strict rules for exhaustion in federal habeas corpus.
Regardless of whether you (or your friend or family member) are guilty of the crime you’re accused of, you need to talk to a lawyer about the procedures and case history before deciding how to proceed.
No, the police probably can’t make you unlock your phone with your fingerprints.
Judge Steven C. Frucci in Virginia Beach recently decided that a criminal defendant could be forced to unlock his phone using his fingerprints . Reporting of the decision has suggested that the police can make you unlock your phone whenever they feel like it. They can’t, and that wasn’t what the Virginia Beach decision was about. The United States Supreme Court has already decided that police cannot search your cell phone without a warrant or an exception to the warrant requirement. That decision, Riley v. California , applied the Fourth...
read moreWill Apple’s security measures become standard?
With Apple’s new mobile operating system scheduled for release on Monday, it will be harder for the authorities to snoop around in confidential information on Apple devices. I’m thrilled. That’s partly because I’m an Apple user and I have all sorts of information that I am ethically required to keep secret. But mostly it’s because the government has become much too willing to snoop, and I want that to stop. The right against unreasonable searches and seizures is protected by the Fourth Amendment to the United States Constitution and...
read moreOregon’s bail requirements violate the constitutional right to bail
Historically, bail referred to a deposit of money or property with the court to ensure attendance at a future court date. That’s it. It included a promise to appear in court, but no other promises, and did not permit seizure of bail other than for failure to appear, so bail could not be applied to fines, costs, violation of a release agreement or unrelated judgments. Modern bail includes various other requirements, and those requirements may violate Oregon constitutional guarantees. Article I, section 14, of the Oregon Constitution,...
read moreWould you rather trust Edward Snowden or the NSA?
As you know, unless you’re living under a rock, Edward Snowden is a former National Security Agency contractor who released records relating to the NSA’s PRISM project. Although PRISM’s scope remains obscure, it appears that the NSA has been mining all sorts of data from big tech and communications companies. That data surely includes so-called ‘metadata,’ which is information about phone calls and e-mail messages, such as the sender and recipient. Response to Mr. Snowden’s revelations has been mixed; the data sought is not...
read moreYou can’t go home again - release conditions and no-contact orders
The criminal-justice system is scrupulously protective of some rights, such as the right to counsel or the right to a jury trial. The trial process is as long and involved as it is because of the importance of protecting those rights, especially the ones in the Fourth, Fifth, and Sixth Amendments (including counsel, jury, and confrontation) and Article, Sections 11 and 12 of the Oregon Constitution. The system does a much poorer job protecting those rights that are not central to criminal administration. Trial courts are perfectly happy...
read moreYou should not plead guilty just because you’re guilty.
I can’t count how many times I’ve had a client tell me that “I just want to go in and plead guilty, because I really did do it.” You should resist this temptation, at least until you speak to a criminal defense attorney. I understand why a criminal defendant might feel guilt or remorse and want to just admit everything to the judge. It’s a very bad idea. Most criminal cases are eventually resolved by plea. A significant percentage are nearly unwinnable by the defense, and in those cases defense counsel would advise a guilty plea...
read moreHow to get bail in an Oregon criminal case
New clients often start out by asking me how they can get out of jail and get back to their families and their jobs. Deciding whether to go to trial and how to prepare a defense may be more important, but it is less immediate, so everyone wants to start by working on bail. It’s easy to get a hearing in front of a judge on bail, but it is harder to persuade a judge to set a bail amount that an average person can afford, especially when faced with Measure 11 or other serious charges or an immigration hold. The right to bail is protected...
read moreDon’t be too zealous in Marion County
Criminal defense attorneys Andy Simrin and W. Keith Goody have been accused of contempt in Marion County for over-zealous advocacy of a death row inmate. Marion County Circuit Court Judge Jamese Rhodes entered an order removing Mr. Simrin and Mr. Goody as counsel for convicted murderer Gary Haugen, and, when Mr. Simrin and Mr. Goody filed a petition in the Oregon Supreme Court arguing that the order was invalid, they were charged with contempt. For those of you who haven’t been following the Gary Haugen saga, here it is in a nutshell; he...
read moreGeorge Zimmerman’s lousy attorneys
I have avoided commenting on the Trayvon Martin/George Zimmerman case because, like every other person in the entire country except possibly Mr. Zimmerman, I don’t know what happened. To me, the case is mostly about facts, and very minor changes in the facts affect whether Mr. Zimmerman is a murderer, a hotheaded bigot, or a hero. I find it a little easier to sympathize with Mr. Martin, because minority youths with a few petty smudges on their records are more likely to be defendants than victims in dubious prosecutions. But, with that...
read moreTop ten US Supreme Court cases on criminal law
This is my list of the ten most significant US Supreme Court cases relating to criminal law. I think I’ve cited every case on this list in a brief or motion within the last few months, and any competent criminal attorney would know most of these cases offhand. In Mapp v. Ohio, 367 US 643 (1961), the Supreme Court held that evidence could not be admitted in a criminal trial if it was obtained through an illegal search in violation of the Fourth Amendment. As the court explained in Mapp and since, they want to discourage police misconduct...
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