A felony criminal case in Idaho state court may begin either by indictment or by the filing of an information. If the state opts for information (think of this as a formal complaint but no grand jury proceeding), a preliminary hearing will be held to determine if there is probable cause to believe that the defendant has committed a felony crime. Now this is not the situation with misdemeanors – a preliminary hearing only applies to felony cases.

Here’s the way this works – suppose that you are suspected of grand theft of $20,000 from a neighbor. The state prosecutor might go to a grand jury – the "secret" body that can "indict" a person if it finds there is probable cause, or the state can simply charge the offense and go to a preliminary hearing. Both the grand jury and the Magistrate at a preliminary hearing are charged to determine whether there is probable cause to believe that the crime has occurred and the charged person is liable.  The test for probable cause is whether it is more likely than not that the person committed the charged offense.  "More likely than not" is not proof beyond a reasonable doubt – it is just proof that makes it more probable than not the crime occurred.

The alternative way to get this $20,000 theft before an Idaho district court is to use the preliminary hearing process. Instead of a grand jury, the probable cause determination is made in an open, public hearing before a magistrate judge. The person facing the charge will be present, can have a lawyer to cross-examine the witnesses and best of all, everyone can evaluate the witnesses.

But should you waive your right to the probable cause hearing? This question arises because the state usually conditions any plea agreement on a waiver of the preliminary hearing. They frequently say something like: "Look, if you agree to waive the prelim, we will agree to recommend probation on a plea to the theft." In truth, the state would rather not have to go through the process of calling witnesses and having the hearing.

If you want to preserve the plea offer, you may decide to waive the preliminary hearing and let the case go to the district court. If you have already waived that other important right – to not say anything incriminating – and confessed to the theft, proving probable cause could be limited to your own confession. If you waive the preliminary you are usually only giving up the right to have the magistrate determine probable cause, but the burden of proof for probable cause is, as I said above, not proof beyond a reasonable doubt but proof by a preponderance. 

Talk to your lawyer about this as you head to a preliminary hearing. Have a plan – often that plan is intended to limit you punishment and waiving the preliminary hearing may not have any real effect in your case. There was a time when magistrates gave a serious look at the probable cause determination, but it seems to me that the lower burden of proof almost always insures a finding that binds over the case to the district court, so you may not be giving up much when the hearing is waived. On the other hand – if you are going to trial you may gain valuable information about the state’s case by forcing them to put on their witnesses at a preliminary hearing.  

Continue Reading Should You Waive Your Preliminary Hearing?

Yesterday I mentioned jurors, judges and lawyers – each providing a risk attendant to trial. Let’s face it, most of the time the decision to try a case is largely an exercise in risk management. Great motions that result in the dismissal of criminal charges are about as rare as pink bison roaming around Jackson Hole. We talk about great motions and we argue great motions but judges seldom grant the relief we would like for our clients. In civil cases this is also true. How many civil cases get tried? Not many. Mostly we file papers and shake our spears and argue our causes to anyone who will listen, but then we mostly settle. 

But what about trials? The great battles? Our great legal theaters?

Trial is risky. Yesterday I pointed out three risks, and here is another one that I do not often enough consider.  Witnesses are risky, too. It seems to me that in every trial some witness testifies to something that I never had expected to hear.

"Did you see the Defendant on March 3, 2010, at Piggly Wiggly?"

"No."

"What? I thought you told the investigator that you saw the Defendant at the Piggly Wiggly."

"No sir… all I said was I saw him. Can’t really say when I saw him, but it was not at Piggly Wiggly."

It happens. That killer witness who is expected to answer the "where was Waldo when the bank was robbed" question, changes his testimony. Now your defense evaporates and the alibi you had told the jury about in opening is gone.

A few weeks ago in a homicide case Courtney and I tried, I simply suggested to the state’s witness that our client believed he had been cleared through an intersection by pedestrians in a cross-walk. 

"I believe the Defendant thought he had been waived through," he said. Their witness confirmed that our client’s version of events was worthy of belief. He confirmed that our client had believed what he said he believed. 

"No further questions, judge." I sat down quickly.

Witnesses are inherently unpredictable. If you coach them too much they come off as coached. If you trust them to tell their story they come off as unprepared. 

Which takes me back to the premise advanced yesterday – trials are unpredictable. So before you go charging off to trial in your case, you must consider the risks. And here is one more thing to consider: nothing trumps experience.

By this I mean that an experienced trial lawyer is your best hedge against the unpredictable. Those personal injury mills – you know – "we settle every case for 100 times what the insurance carrier wants to pay" – those guys seldom if ever try cases. So if your case seems likely to go to trial, get yourself an experienced trial lawyer. Think about this – if you were on a plane that had lost power and was about to ditch in a river – would you rather have "newby" pilot with little or no real world experience or Sully Sullenberger at the yoke?

An actual trial of a civil or criminal case is just that sort of thing. The sky will get black and the rains will pour down and it will seem like you are going to die. You might. You need someone to fly you out of that weather and protect your future.

But enough about dark clouds and unpredictable results. It’s August. The sun is shining and in another week I will be riding a bike 500 miles or so through the mountains of Idaho. If you have a question about whether you should be going to trial, give us a call.

Continue Reading Here’s Another Risk Associated With Trial – Witness Testimony

Every day I am faced with advising clients on the risks associated with trials. Whether the case is civil or criminal, at some point you face this question: Should you go to trial or accept a settlement? The thing about settlement – as our esteemed Congressmen and women would be happy to tell us today ("economic meltdown averted") – is that EVERYONE walks away from the table wondering how much more they could have gotten. And – as we frequently tell our clients – everyone walks away feeling like they got screwed.  Sorry to say it, but it is true. Everyone.

But what about the risks of trial? Consider these three:

The first risk of trial is predictability.  When you go to trial in any case, civil or criminal, you are asking a jury to decide what set of facts existed at the relevant time. Was the defendant driving under the influence of drugs or alcohol? Was the plaintiff injured as a result of the defendant’s negligence? How fast was that truck going? 

You see the job of the jury is to find the facts underlying a case, and then to apply the law to the facts and render judgment. Juries are not predictable. They are not generally trained for this task and often they get lost in the details of the case. They may look at a "fact" that is obvious to you and not believe it to be what you believe it to be. By way of example, in a case I tried a couple years ago, the question before the jury was whether a young woman had consented to sexual activity with my client. My client testified about their ongoing relationship, their having lived together, the circumstances that evening, and eventually "the act" having occurred at her apartment. The jury did not believe the young woman had voluntarily consented to sex. Even with all of our "proof," the jury went the other way.  Juries are inherently unpredictable.

The second risk associated with trial is attorney performance. I hesitate to mention this but not all attorneys have similar experience or abilities. Some lawyers believe that misdemeanor criminal experience is the same as trying felony cases. Nonsense. I looked at a website from a young attorney the other day who was playing up a dozen or so misdemeanor jury trials – many of them resulting in not guilty findings. Misdemeanor battery is not the same as felony aggravated assault. DUI is not the same as manslaughter. The skills needed to try a misdemeanor cases are similar, but the experience is not the same. And then there is the actual performance problem. That "hot-shot" trial lawyer can have a bad day, or even a bad witness. It happens to all of us. Prepare as we will, it does not always go our way. Trials are fluid – we have to react to rulings by the judge, changed testimony from witnesses and reactions of jurors to our story. Lawyer performance at trial is also inherently unpredictable.

The third risk is client performance. A client is on trial from the moment he or she is first gawked at by the jury. The client is under a magnifying glass. How he or she dresses, gets to court, walks from the parking lot to the court house, and reacts to testimony – well – the jurors are watching it all. And then there is the "should the client testify" issue that we face in every criminal case. In a wrongful death or accident case the issue is likely "when" should our client testify and how will he or she do under cross-examination. Clients at trial are inherently unpredictable, too!

So in the face of all this uncertainty a settlement of the case can be very appealing. A settlement produces a result – and eliminates the uncertainty. So should you go to trial?

Times a wasting and I must go to a client meeting, so I will follow up on this tomorrow – but until then – think of other ways in which the average case can be "unpredictable." How about the unpredictable nature of that judge? Black robes do not make you more predictable! And jury instructions. After thirty years I still think they are often incomprehensible. And juror experience? Nothing trumps experience! So the jury trial is full of unpredictability!

Continue Reading Three Risks Of Going To Trial – and yes, there are more!

Courtney Peterson is back with more info on expungement:

Expungement in Idaho isn’t really a complete expungement of all the records in a case. I suppose it’s a bit misleading to use the term “expungement.” In Idaho, you can have your case dismissed based on Idaho Code 19-2604, but the record that you have been charged is still there. A search for your case on the Idaho State Repository will show that you were charged, even if the case has been dismissed or you’ve been granted a Withheld Judgment. The record will reflect the disposition of the case; for example, “Dismissed By Court” or simply “Dismissed.” Evidence that you were charged and perhaps convicted of a crime in Idaho will never fully be erased. There will always be a record of what violation you were charged with, whether you were convicted, acquitted at trial, given a withheld judgment, or the charges dismissed. The only exception to this rule is if the court has sealed the case, which generally only occurs in juvenile or certain domestic relations cases.

Most people who call about expungement tell us they want their conviction “completely off” their record so that no one in the world will ever have access to it again. Sorry – that is just not going to happen. Once you have been charged, absent a court miracle or clerical mistake, the fact that you were a suspect in a criminal case will show up on the Idaho State Repository. Additionally, there will always be a record on the FBI’s National Crime Information Center (NCIC for short). This is a national database that only law enforcement personnel have access to, but that record lists every arrest and every charge in your history. There is no real procedure to get these records expunged or erased.

Now, the good news. In Idaho, you get one Withheld Judgment. ONE. If you plead guilty to a charge, whether misdemeanor or felony, you can ask the court to grant you a Withheld Judgment. If you are eligible, the court will hold off on entering a formal judgment of conviction against you when you plead guilty. The judge will instead withhold judgment and after you have successfully completed probation, you can petition the court to dismiss your case. The beauty of a withheld judgment is that it allows you to honestly say that you have not been “convicted” of the specific crime you were charged with. If you’re successful on probation, you can have the case dismissed and there will never be a judgment of conviction against you. Keep in mind, however, that there will still be a record of the charge and your guilty plea on the Idaho State Repository.

Don’t let the fact that you’re only afforded one Withheld Judgment deter you from attempting to get a case dismissed after probation. Even if the judge has entered a judgment of conviction in your case, you can still petition the court under Idaho Code 19-2604 if you’ve successfully completed your probation.

Want more information about getting a case dismissed even without a Withheld Judgment? Give us a call.

Continue Reading Expungement Isn’t Really Expungement In Idaho

I heard again yesterday the old story about Oliver Wendell Holmes’ reminder to his law clerk, who questioned whether a decision was "just" or not. Holmes is reported to have told the clerk, "we’re not in the justice business; we’re in the law business." Indeed we are. There are unjust results that flow from our system, and you may judge yesterdays decision as unjust. The system worked fine – and the jury did it’s job. Their decision is simply that, their decision. Just or unjust, each side had their day in court and now we all move on.

While the country debates the jury verdict in the Casey Anthony trial, I thought it might be good to take a minute to consider how any criminal case can be destroyed by the DEFENDANT – not the lawyer – who thinks he or she can talk their way out of trouble. Consider the following three things you can do to destroy your criminal case, some of which are illustrated by the Anthony case.

First – lie to the police or investigators. Why can’t defendants simply not talk to the police? Every 5 year-old in this country has heard that he or she "has the right to remain silent," but nobody ever does. Instead of simply refusing to answer questions, most defendants tell the investigators some story that they think will get them out of trouble, but rather, sinks their ship. If you tell lies to the police, then expect the prosecutor to reveal you as a liar. Silence is better than lying and even telling the truth to the police without first talking to a lawyer is dangerous. Remember that Casey Anthony’s lawyer had to admit in opening statements that she was a liar. That is not the way you want any case to start.

Second – tell the lies to your friends and family. Investigators and police call your friends and family members "witnesses." What you tell them will almost certainly be used at trial to impeach you – that is a nice way of saying that your lies to your friends will also be used to reveal you as a liar. Again – the truth may set you free but those little lies to friends can convict you. Don’t be tempted to tell friends and family about your situation, just sit tight and let time take its course. You don’t need your brother’s best friend’s former girl friend to show up at trial and testify that you told her a different story than the one you told the jury! 

Third – insist on taking the stand at trial. Smart clients listen to their lawyers. Some clients never listen and insist on doing it their way (mostly these are lawyer-clients, or clients who think they know more than their lawyer). The Defendant in a criminal trial always has the right to take the stand and frequently I advise my clients to do so. The jury trial is all about the story of the case. Usually the Defendant will have to tell the story, but not always. Many cases are won by lawyers who are brave enough to keep their clients off the stand. It depends on the case, and the defense offered. And it depends on the ability of the defendant to stay out of trouble on cross-examination. My point is this – listen to the lawyer who is trying your case. No matter what those talking heads and vigilante former prosecutor turned millionaire TV talk show hostess insist – the person who knows you and the case is YOUR lawyer.

Getting ready for trial? Think you may have blown it by talking to the police or lying to a friend? You may have, but that verdict in the Anthony trial reminds us that juries usually take the instructions to heart and insist that the prosecutor prove its case beyond a reasonable doubt. Trust your lawyer and the jury and play it smart.

Continue Reading Three Ways To Destroy Your Criminal Case