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.
Know your Fourth Amendment rights - searches, seizures, police powers, and constitutional law of traffic stops
This is a version of a talk I gave at the National Coalition of Motorcyclists (“NCOM”) meeting on October 15, 2011, in Federal Way, Washington. I spoke about the rights of a person stopped by the police, and the powers the police have to stop people, detain them, and search them. This talk was given to bikers, so I’ve removed some of the more colorful language from this version. Good morning, folks. My name is Rankin Johnson, and I’m a criminal and appellate lawyer from Portland. I’m here to talk about your rights when the police...
read moreShould even law-abiding citizens talk to the police?
As with any parent, part of taking my kids out in public involves telling them what to do if there’s a problem, such as if they are separated from me and my wife and need to ask someone else for help. Although crimes against children committed by strangers are rare, they do occur from time to time, and they are pretty much always committed by men. So, the kids are supposed to look for a mommy or, if one is not apparent, a police officer. As a criminal defense attorney, I routinely butt heads with police officers, and they are usually in the...
read moreIn Kentucky v. King, the US Supreme Court encourages sloppy police work as an excuse to skip getting a search warrant.
When the news gleefully announces that a bad guy has gotten off on a technicality, the technicality is usually an illegal search by the police, in other words, the Fourth Amendment to the United States Constitution, the supreme law of the United States. The Fourth Amendment prohibits “unreasonable searches and seizures,” and generally requires that the police get permission from a judge, in the form of a search warrant, before searching a private place, such as your house, your purse or briefcase, or your medical or bank records. Whether a...
read moreEvidence, proof and truth in criminal trials
Now and then someone, often a parent, will complain to me that there is “no evidence” that my client committed a crime. That conversation goes something like this: Parent: “He’s charged with driving under the influence, but I don’t even know why they arrested him. There isn’t any evidence that he did it.” Me: “Well, the police must have some reason. Do you have any idea what that is?” Parent: “The police saw him run a stop sign. And crash into a tree. And then he admitted that he had been smoking marijuana before driving....
read moreTrial practice tip for lawyers - how to avoid losing any trials ever.
I have never lost a trial in the Coos County Circuit Court.[1] I’ve never lost an appeal in front of the Supreme Court of Idaho.[2] I’ve never lost a hearing in front of the International Criminal Tribunal in The Hague.[3] I’ve never lost a game of jai alai, either.[4] Clever readers will have figured out the reason for my extraordinary winning percentages. Any attorney can use the same strategy. Attorneys who don’t go to trial have never lost at trial. Attorneys who don’t handle appeals never lose on appeal. I saw an attorney...
read moreIn Post-Conviction Relief appeal, Oregon Court of Appeals will consider actual-innocence claim
I represent in a post-conviction relief appeal a fellow who was convicted of sex offenses ten years ago. The victim of the offenses has since come forward to deny that my client committed the offenses; rather, she was persuaded to accuse my client by a relative who disliked my client. In the post-conviction trial court, the state moved to dismiss, arguing that post-conviction relief is not available for a claim of actual innocence. The trial court agreed and dismissed, and I appealed. In front of the Oregon Court of Appeals, the state sought...
read moreThe right to a grand jury indictment has lost its usefulness.
Grand juries once protected citizens from official harassment, because prosecution for serious criminal charges was not possible unless an independent grand jury decided that the evidence warranted it. The right to a grand-jury indictment in criminal cases is protected by the Fifth Amendment, and many states, including Oregon, have a comparable constitutional provision. Although grand juries were once an important check on government power, they aren’t any more. The United States is the only country that still uses them, and it’s time...
read moreState crime labs and sloppy forensic science
Science comes up routinely in court - DNA testing, breath tests for alcohol, chemical tests or gas spectrometer tests to determine what a substance is made of, often from a police-run crime lab. The lawyers aren’t usually experts in the science, and neither is the judge, nor the jurors, and so the science is usually explained through the testimony of a scientific expert such as an employee of the state crime lab who performed the test. When scientific testing is performed by industry, or by academia, the people doing the test have a...
read moreMiranda Warnings and Non-English Speakers
At the motion-to-suppress hearing, the police officer testifies: I read the defendant Miranda warnings, and I asked if he understood them. He said yes. I asked if he wanted to waive his rights and speak to me. He said yes. I asked if he had broken into the house and stolen the purse inside, and he said yes. Is that sufficient to show a valid Miranda waiver? Suppose that the defendant has dark skin, hair, and eyes and speaks with a heavy Spanish accent. Is it still enough? Would an immigration hold or Mexican driver’s license make a...
read moreWhy Can Misdemeanor Sentences be Worse than Felony Sentences?
Why doesn’t a one-year sentence for a misdemeanor violate Oregon’s proportionality clause, Or Const, Art I, sec 16? The general rule is that a sentence for a lesser crime is disproportionate if longer than the worst possible sentence for some greater crime. See e.g., Cannon v. Gladden, 203 Or 629, 281 P2d 233 (1955). Felonies of crime-seriousness (“CS”) 1 and no departure factors cannot lead to a worse sentence than 30 days in jail and 18 months of probation. Class A misdemeanors can lead to sentences of a year in jail, or six months...
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