What Is the Burden of Proof in a Criminal Case?

The burden of proof, regardless of whether it is a civil suit or a criminal trial, is the burden that the prosecution or plaintiff must meet in order to be successful in the legal pursuit at hand. For prosecutors in a criminal case, they are looking to meet the burden of proof in order to secure a guilty verdict. The burden of proof they carry, however, is the highest one in U.S. law. Here, we will talk more about the burden of proof in a criminal case.

What Is the Burden of Proof in a Criminal Case?

Criminal defendants facing any level of charge, from misdemeanors to felonies, are all innocent until proven guilty in the eyes of the legal system. It may not feel like it as you confront this system, but it remains a fundamental standard of U.S. law. In order to prove a defendant guilty of criminal conduct, the prosecution must prove guilt “beyond a reasonable doubt.” The beyond a reasonable doubt burden of proof is the highest standard of proof there is and with good reason. The potential penalties a person faces when confronted with a criminal charge are steep and can result in loss of personal freedoms, civil liberties, assets, and so much more.

Proving that a defendant committed a crime beyond a reasonable doubt means that each individual element of the crime must be proven beyond a reasonable doubt. While the beyond a reasonable doubt burden is meant to be steep, it is by no means meant to be an impossible burden for the prosecution to carry. The prosecution is not meant to have to dispel any possible doubt. The burden itself says that only “reasonable” doubt must be eliminated to be successful.

The burden of proof starts and may very well stay with the prosecution. This, however, depends on other things at play during trial, such as the defense strategy. If the defense team asserts an affirmative defense, the burden of proof will shift momentarily  to the defense. An affirmative defense is one where the defense essentially says “Yes, but…” The defense is saying that the defendant may have engaged in the conduct alleged by the prosecution, but it was not criminal (or deserves a lesser criminal charge) because of extenuating circumstances. One of the most commonly mentioned affirmative defenses is self-defense when the defendant has been charged with a violent crime. In this example, the defense would be saying that the defendant’s behavior was justified and not criminal because he or she was defending himself or herself against an aggressor.

Should an affirmative defense be asserted, the burden of proof shifts to the defense. The burden in successfully asserting an affirmative defense will vary based on jurisdiction. Often, it is a preponderance of the evidence standard. The defense must prove through the presentation of reliable evidence that the affirmative defense is valid. This burden of proof is, of course, not as heavy as the beyond a reasonable doubt standard.  Once the burden of proof is carried to assert the defense, then the burden shifts back to the prosecution to disprove the defense beyond a reasonable doubt.

Criminal Defense Attorneys

There may be a great deal of legal jargon thrown your way if you face criminal charges. While it can be overwhelming, it can also be important to understand your rights and what you are up against. The criminal defense team at CDH Law can provide you with trusted legal guidance as well as a fierce defense in any criminal matter you may face. Contact us today.

What Is Covered by Attorney-Client Privilege?

Some people may have a vague sense of attorney-client privilege. To most, it may appear as some sort of expansive, invisible shield that keeps anything that goes on between them and their criminal defense attorney hidden. While the attorney-client privilege does offer significant protection surrounding communications between a client or a potential client and attorney, it is critical to understand the nature of this protection as well as its limits.

What Is Covered by Attorney-Client Privilege?

Generally speaking, communications between an attorney and a client, or a potential client, are privileged. This means that the communications must remain confidential. The privilege is held by the client and so only the client has the authority to waive the privilege. Attorney-client privilege was established to encourage a trusting relationship between attorney and client and because it is widely recognized that it is important for a client to be able to freely discuss issues and concerns with his or her attorney.

Let us discuss more specifically what is covered by the attorney-client privilege. All private communications where a client or potential client seeks advice from a lawyer on a legal issue are protected from disclosure unless it fits into an exception to the privilege. The fact that the communication must be private is important to note. Communications that are made in the presence of others will not be considered privileged. If a client talks to his or her attorney knowing that other people are listening, it will not be considered private and, therefore will not be covered by attorney-client privilege. The same is true for electronic communications. If a client sends his or her attorney an email and CC’s someone else on the email, it will not be covered by the privilege.

It is also important to be aware that, while communications themselves are protected, facts, in general, are not protected. For instance, while you may not be forced as a witness to answer a question about what you told your lawyer about what happened at a certain time and place, you can be forced to answer a question about what happened at a certain time and place (assuming you do not have a separate privilege against self-incrimination under the Fifth Amendment to the Constitution). The communication is privileged, not the facts. Additionally, physical objects are not covered by attorney-client privilege. If you think stashing an instrumentality of a crime with your attorney will protect you, think again. Turning items over to your attorney does not mean they will be safeguarded by attorney-client privilege.  

Criminal Defense Attorneys

Attorney-client privilege is a cornerstone of the criminal justice system in the U.S. The legal system has recognized that the ability of a client to freely communicate with his or her attorney outweighs the desire of a court to have unrestricted access to all of the information gatherable. At CDH Law, we hold the attorney-client privilege to be a sacred thing, laying the solid relationship with form with our clients as we relentlessly defend them against any criminal charge they may face. Contact us today.

What Is the Difference Between a Misdemeanor and a Felony?

New York falls in line with most other states in dividing crimes into two central categories. There are misdemeanors and felonies. Both levels of crimes can carry significant penalties. There are, however, some distinctive features of misdemeanors and felonies that should be noted.

What is the difference between a misdemeanor and a felony?

Generally speaking, misdemeanors are considered to be crimes that are not as serious as felonies. The fact that misdemeanors are considered to be less serious than felonies is, in turn, reflected in the potential penalties one faces if convicted of such a crime in the State of New York. Felonies tend to carry longer prison sentences and bigger fines.

In New York, misdemeanors are separated into three classes. Class A misdemeanors are considered to be the most serious class. They are punishable by up to one year in jail and up to three years of probation. Furthermore, Class A misdemeanors carry fines upwards of $1000.00 or, alternatively, twice the amount the defendant gained as a result of the criminal act. One example of a Class A misdemeanor is assault in the 3rd degree.

The next level is Class B misdemeanors which carry a potential penalty of up to 90 days in jail and up to one year probation. Furthermore, Class B misdemeanors carry fines upwards of $500 or, alternatively, twice the amount the defendant gained as a result of the criminal act. One example of a Class B misdemeanor is prostitution.

The last category of misdemeanors is referred to as “unclassified misdemeanors.” The penalties for the misdemeanors found in this category are set forth by the specific laws that define each unclassified offense. One example of an unclassified misdemeanor is reckless driving.

Unlike misdemeanors, felonies are divided into five separate classes. Class A felonies are considered to be the most serious and those charged with a Class A felony face a potential lifetime prison sentence. An example of a Class A felony is murder in the 1st degree. The next level of felonies are Class B felonies. Class B felonies carry a potential punishment of up to 25 years in prison. Sex trafficking is considered to be a Class B felony.

The next class of felonies, a Class C felony, can carry a potential sentence of up to 15 years in prison. Aggravated possession of a weapon is considered to be a Class C felony. Next, you have Class D felonies that are punishable by up to 7 years in prison. Aggravated identity theft is considered to be a Class D felony. The last class of felonies is Class E. A Class E felony carries a potential sentence of up to 4 years in prison. Defrauding the government is considered to be a Class E felony.  These are just examples, but there are many types of felony and misdemeanor offenses and it is important that one discuss the level of offense charged with an attorney very early in the criminal justice process.

It is also important to note that felonies, unlike misdemeanors, can result in the loss of civil liberties such as the right to vote, the right to run for public office, the right to own a firearm, and can also result in the loss of the ability to hold certain professional licenses.

Criminal Defense Attorneys

While misdemeanors and felonies can vary in the severity of their sentences, both can have far-reaching impacts on a person’s life. Having a criminal record can have adverse consequences on everything from job prospects to the ability to secure housing. At CDH Law, our team of dedicated criminal defense attorneys is here to fight for you and your future. Contact us today.

How to Prepare for Cross-Examination

Criminal trials are complex and, of course, can be very stressful, particularly for the defendant. If you are called as a witness in a criminal trial, whether you are the defendant or not, you should be as prepared as possible for what is going to happen, or what might happen, when you are on the stand. Witnesses are called to the stand by either the prosecutor or the defense. On direct, the side that called the witness first gets to question him or her. Next, the other side has the opportunity to cross-examine the witness. Cross-examination is, generally speaking, limited to questions relating to matters that were raised during direct examination. The main purpose of cross-examination is most often to undermine the credibility of a witness called by the other side. Witnesses should, therefore, be prepared for a difficult and sometimes heated line of questioning.

How to Prepare for Cross-Examination

In preparing for cross-examination, a witness should focus on a few critically important facts reviewed with the attorney who will be calling them to the stand. A detailed narrative that a witness will have to recall when under the pressure of cross-examination is not a viable situation. The witness is likely to freeze up or have the narrative sound disingenuous or rehearsed. The witness should be prepared to deliver the “headline” of why he or she was brought to testify in the first place. Come to court with the important things at the top of your mind. Then, when on the stand, you will be more likely to get that important information right out front as opposed to it being lost in a long speech.

Witnesses are under a lot of pressure as it can often feel like the fate of the defendant rests on their shoulders. To minimize the pressure and fear that a witness can face, a witness should remember that there is a safety net built in should they struggle with cross-examination. The attorney who initially calls a witness has an opportunity to question the witness after cross-examination.  This is called re-direct examination. During re-direct, an attorney can often mitigate much of the damage a witness may have caused during cross-examination.

To prepare for cross-examination, a witness should also be mindful of body language. Be prepared to use confident body language while on the stand. Make eye contact and keep your head up while being questioned. Additionally, a witness should plan to dress conservatively for court. It can also be beneficial for a witness to get into the right mindset for cross-examination. It can be uncomfortable to be questioned by the attorney for the other side, particularly in a situation where the attorney is trying to undermine the credibility of the witness. A witness should make every attempt to avoid open hostility toward opposing counsel. In fact, the demeanor of the witness should not change when being questioned by either side. A jury will notice a shift in demeanor and likely hold it against the witness in one way or another.

Criminal Defense Attorneys

At CDH Law, we take great care to prepare everyone involved in a criminal trial. We know that a trial can be won or lost in these kinds of important details and we make every possible effort to help ensure all witnesses are properly prepared for trial. We do this because of our commitment to mount the strongest possible defense for our clients facing criminal charges. Contact us today.

What Is Proper Court Etiquette?

Watching courtroom dramas on TV is not exactly an accurate portrayal of what going through the criminal justice system may look like. While there may be some truth in these representations, it is still important to separate reality from TV dramatics. If you are going to court, whether it be as a defendant, witness, audience, or juror, you should be prepared to comply with proper court etiquette or you can land yourself in some trouble.

What Is Proper Court Etiquette?

First and foremost, you need to be prepared to show respect for the judge and his or her courtroom. This is accomplished in a few different ways. For instance, showing respect can be accomplished through the way you dress and present yourself in court. Dress conservatively and as professionally as possible. Avoid jeans. Hats and sunglasses should be removed prior to entering the courtroom, otherwise, you will likely be instructed to do so when you enter.

Your behavior should also reflect a respect for the judge and the courtroom. Being in court can be intimidating. This can be even more true when you are not quite sure what to expect. Listen to the judge as they are charged with running the courtroom and keeping order. Failure to comply with a judge’s directions can easily result in you being held in contempt and/or being escorted from the courtroom by the bailiff. If you are addressing the judge, address him or her as “your honor.” Speak to the judge in a way that reflects the fact that you respect the position of authority. Answer clearly and directly. Avoid gestures that may be taken as disrespectful, such as rolling your eyes.

There are other things you will be expected to do in order to show respect for the judge and the ultimate authority the judge holds in the courtroom. For instance, you will need to stand when the judge enters the courtroom. You should wait until the judge takes his or her seat before you should be seated.

Other rules of courtroom etiquette include being on time. In fact, you should be early. Additionally, when you are in the courtroom, things may get heated at times. If you are put on the witness stand, you may become upset at some point. You should make every possible attempt to remain calm. Do not yell. Also, only the person testifying should be speaking in the courtroom. So, if you are not on the witness stand or are simply seated in the gallery, refrain from talking.

While some may view these rules as archaic, or overly conservative and restrictive, they reflect a type of order that acts as a pillar of the justice system. Respect the system and the authority within the system and things will proceed much more smoothly.  Even if you don’t agree with why you are in court in the first place, failing to act appropriately in court can only hurt your cause.

Criminal Defense Attorneys

Proper etiquette in every situation helps make a good first impression. This holds true in the courtroom setting as well. How you act, how you dress, and how you appear in court can have far-reaching consequences on important matters such as the outcome of your case. At CDH Law, we are here to discuss all aspects of your case in order to mount the most rigorous criminal defense possible. Contact us today.

What Are the Benefits of a Judge Trial?

If you have been charged with a criminal offense, you may face the difficult choice of whether you want a bench trial or trial by jury. A bench trial is another way to say that you want a trial by judge, or you want a trial where the judge, as opposed to a jury, decides your fate. It is a big decision and one that commonly begs the question as to what the benefits of a judge trial may be. Here, we will discuss those potential benefits in more detail.

What are the benefits of a judge trial?

One of the major benefits of a judge trial is simply that proceedings in a judge trial tend to be much less informal. A judge is less likely to strictly enforce and insist on courtroom procedural rules and is even likely to overlook many of the rules of evidence that become so hotly contested in jury trials. A judge trial can, in turn, be much less stressful for a defendant. It is only the judge, defendant, and attorneys. There is no need to face a box of jurors watching the defendant’s every facial expression throughout the trial.

Additionally, defendants and their attorneys do not have to make opening statements in a judge trial. There is also no need to have jury instructions drafted for the judge. While there is a rather strict procedure for the structuring of arguments at a jury trial, such formality is often waived at a judge trial. A judge is even likely to accept evidence in a case that would otherwise be denied if a jury was present. The attorneys, both defense and prosecuting, are also more likely to be given the opportunity to discuss, and even agree upon, certain relevant facts of the case. Such flexibility can have extensive advantages.

Because of the formalities that must be observed and the fact that a jury would need to be selected, judge trials are often much less time consuming than jury trials.  These are things worth considering when evaluating your options.

It is also important when considering choosing a judge trial over a jury trial that you take your particular case and charge into account. Some cases can present very complex legal questions. Having a judge decide these complexities as opposed to leaving it to a jury to unravel legal knots can be very beneficial. In fact, it is common for defendants in cases involving complex facts or more complicated legal issues to opt for a judge trial as opposed to leaving it up to a jury to try and understand things and weigh in their favor.

Criminal Defense Attorneys

At the end of a judge trial, the judge renders the verdict as to whether a defendant is guilty or not guilty. The decision to opt for a judge trial or jury trial can have a significant impact on the outcome of your case. Talk through your options with the team of experienced criminal defense attorneys at CDH Law. Contact us today.

The Pros and Cons of Accepting a Plea Deal

Plea deals are fairly common in resolving a criminal case. In fact, it may even be claimed that the judicial system has come to depend on plea deals to help manage caseloads and reduce the number of cases that go to trial. The time and expense saved when a plea deal is made helps to alleviate the strain on the criminal justice system. The benefits of a plea deal are not, however, just enjoyed by the judicial system, but may also be enjoyed by the criminal defendants who enter into such agreements. Accepting a plea deal can have significant benefits. There are, however, potential disadvantages that should be considered as well.

The Pros and Cons of Accepting a Plea Deal

Two of the main reasons that a defendant may accept a plea deal is the lighter sentence and/or a reduced charge. A plea deal is often accepted because the prosecutor offers the defendant a lighter sentence for a crime. This can mean the defendant spends less time or no time incarcerated which may not have been the case had a criminal conviction occurred at trial.

Prosecutors will also often offer reduced criminal charges in negotiating a plea deal. A defendant facing a felony charge may see that charge bumped down to a misdemeanor in a plea deal. Having a reduced criminal charge could have important impacts. A lower charge usually means a reduced sentence. It can also mean a person who may have been a convicted felon and therefore facing a loss of certain civil rights will not have to suffer those consequences. Additionally, the reduced charge may be eligible to be sealed from a criminal record where the heightened charge may not have been. 

Should the defendant retain private counsel for the criminal case, accepting a plea deal can also save money. Without needing an attorney to represent him or her at trial, the case ends much more quickly. This will save time and money when a private attorney, as opposed to a public defender, has been retained.

There is another benefit of accepting a plea deal that should not be discounted. Accepting a plea deal means that your case has been resolved. The uncertainty, fear, and anxiety that can come with awaiting trial can be severe. Accepting a plea deal and having it all over can be a relief, to say the least.

Accepting a plea deal, however, does not necessarily come without potential disadvantages. For instance, you will not have your day in court to undermine the prosecution’s case. For all the weaknesses the prosecution may have in its case, it will not matter because the case will be over before these weaknesses are exposed. The weaknesses of the prosecution’s case may have meant that you would not have been convicted should the case have gone to trial. This brings us to the next disadvantage of accepting a plea deal.

Accepting a plea deal means you have no chance at a “not guilty.” A plea deal means you are agreeing to plead guilty to a crime in exchange for leniency. This can be a difficult reality to face, particularly if you did not, in fact, commit the crime alleged.

The reality that you will be pleading guilty to a crime also means that this will go on your criminal record. It is possible that it will remain on your record for life. Depending on the nature of the charge, it may not be eligible to be expunged and that means it will follow you around indefinitely.

Criminal Defense Attorneys

Accepting or rejecting a plea deal has serious implications for a criminal defendant. Discuss your options with the knowledgeable criminal defense attorneys at CDH Law. Contact us today. We are here for you.

What to Expect During a Jury Deliberation

The criminal justice process can seem like a complex whirlwind of activity. It can be difficult to keep up. This can cause even more anxiety for a person facing criminal charges. One of the most important steps in the process is jury deliberation. This takes place after both sides have fully presented their cases and the jury goes to render a verdict. Here, we explain a bit more about what you can expect during a jury deliberation.

What to Expect During a Jury Deliberation

At the end of trial, after both sides have given closing arguments, the presiding judge gives jury instructions. These instructions inform the jurors as to the legal standards they are tasked with applying as they decide whether a defendant is guilty or not guilty. After jury instructions have been given, the jury convenes for deliberations.

Prior to deliberations, the jury selects a foreperson who is responsible for presiding over the deliberations and, when a verdict is reached, will deliver the verdict in the courtroom. After a foreperson is selected, deliberations commence as the jury goes through all of the evidence that was presented at trial. The foreperson works to focus the review and ensuing discussion. The foreperson also has the critical task of making sure all members of the juror are applying the jury instructions provided to them by the judge.

The jurors can take deliberation time to debate the evidence of the case. Jury members are not allowed to access any outside resources, including the internet. In fact, it is considered to be juror misconduct to consider evidence that was not presented at trial. Such misconduct will likely result in a mistrial and the case will have to be heard in totality by a new jury. Should anyone have questions requiring clarification, they may submit the question to the court to get further clarification.

Once all the evidence has been reviewed with care and the appropriate legal standards provided in the jury instructions have been applied, the foreperson calls for a vote on the verdict. Should a consensus be received from the vote, then the verdict is then delivered to the court. In most cases, the court provides the jury with written forms that have all possible verdicts on them. When the jury has arrived at a decision, the appropriate verdict form need only be selected from the pile.

Most criminal cases require a unanimous jury vote. Every federal case requires a unanimous decision. If the jury vote is split, the jury will continue to deliberate. Should the jury be unable to reach a consensus by the end of the day, they may be sequestered in some rare cases, which means they will be housed in a hotel and prohibited from contact with other people and news sources. Most of the time, the jury will just be sent home with instructions not to discuss the case with anyone and to avoid news reports on the case.

Should the jury be unable to render a verdict, it is deemed to be “hung.” This means there is a mistrial. Should the government wish to continue pursuing charges, then a new trial will be conducted before a new jury. In some cases, however, the government may decide not to pursue the charges any further.

Criminal Defense Attorneys

If you or a loved one is facing criminal charges, you most likely have many questions about the process. CDH Law is here with answers. You can count on our knowledgeable team of criminal defense attorneys. Contact us today.

What Factors Are Considered in Setting Bail?

Bail is a type of pre-trial restriction imposed upon a defendant to help make sure that they remain in compliance with the judicial process. Posting bail is often necessary in order to secure the conditional release of a defendant. Release on bail is made with the promise that the defendant will once again appear in court when it is required. Bail amounts are typically set by judges when the defendant makes his or her first appearance in court after the arrest. The judge usually has the discretion to stay with a standard bail amount according to posted bail schedules, set the bail higher or lower than standard bail, or deny bail altogether. In the alternative, the judge may choose to waive bail, release on the defendant’s own recognizance, or set other special conditions for the defendant’s release.

Considerations in Setting Bail

According to New York law, the court, in setting bail, must consider the type and level of control or restriction necessary to make sure that the defendant attends future court dates. In determining the extent of the bail restriction necessary to impose upon a defendant, a judge will usually consider things such as the seriousness of the alleged crime. It is pretty standard practice that a more serious criminal charge will result in a higher bail amount. This can be problematic in many situations, however, because police tend to arrest suspects on the most serious charges that the facts may possibly substantiate.

A judge will also usually consider the defendant’s criminal record and whether there are any outstanding warrants for the defendant. A significant criminal record will tip in favor of a higher bail amount. If there is an outstanding warrant for the defendant in another jurisdiction, it is a possibility that the judge will deny bail and keep the defendant in custody.

Essentially, a judge is evaluating the potential threat a defendant poses to a community if released and also the potential flight risk of the defendant. Factors such as the defendant’s criminal history and the charges the defendant currently faces go towards the potential threat to a community. Other factors focus more on the reliability of the defendant to reappear in court when required.

This is why a judge will look to the defendant’s ties to the community when setting bail. Those who are invested in their community are usually less likely to flee. They are also, incidentally, less likely to endanger others or perpetrate other crimes while out on bail. Ties to the community include things like relatives living in the area. A judge may still be stringent on setting bail regardless of community ties if the defendant has a history of missing court hearings or is a proven potential flight risk. For instance, if a defendant was apprehended while trying to evade law enforcement, he or she will usually be seen as a flight risk and a bail determination will reflect this accordingly.

Criminal Defense Attorneys

The criminal defense attorneys at CDH Law are here to fight for you right from the very beginning of criminal proceedings. We will be there, standing by your side, at your bail hearing and beyond. For strong legal counsel, you can depend on us. Contact us today.

What Is Voir Dire?

The road to a criminal trial is paved with many, detailed steps along the way. Many criminal cases never see trial as a plea bargain is reached prior to any formal trial proceedings taking place. Other times, the case ends up before a jury. Who comprises this jury depends on who is summoned for jury duty the day of jury selection and who makes it through voir dire.

What is voir dire?

Voir dire, a French phrase with Latin roots, means “to speak the truth.” During voir dire, potential jurors are questioned to see if any of them have any biases or prejudices that would disqualify them from serving. Voir dire is geared towards establishing a venire, a panel of potential jurors, who are competent and able to be fair in their service. It is an important process and one that must be carefully conducted. Errors during voir dire are commonly used as grounds for appeal.

Voir dire begins when the venire is assembled in the courtroom. The judge will ask questions aimed at helping to ensure everyone is legally qualified to serve. The venire will also be asked whether jury service would cause an undue hardship. The attorneys for both sides will be given the opportunity to question the jurors as well. The questions are designed to weed out any potential biases that might lead a juror to favor one side over the other.

There are limits to what kinds of questions the attorneys may ask. They must refrain from asking very personal questions. They must also refrain from asking jurors how they would decide the case.

After questioning the venire, the attorneys begin making their challenges. There are two types of challenges: challenges for cause and peremptory challenges. There is no limit on the number of challenges for cause an attorney may make. These types of challenges are reserved for jurors that are not qualified or able to serve in the case. In order to strike for cause, a specific reason must be stated.

With peremptory challenges, there is no need to provide a reason. Attorneys for both sides are given a limited number of peremptory challenges and these are usually used to excuse potential jurors the attorneys feel would, for some reason or another, decide unfavorably. While no reason for a peremptory challenge is required, an attorney cannot assert a peremptory challenge based on race or class. If the judge grants a challenge to a juror, the juror will be struck from the jury panel. Once challenges are completed, the judge will place the remaining jurors in the jury box to begin trial.

Criminal Defense Attorneys

While there are many steps in a criminal trial, every step has the potential to powerfully impact the defendant’s situation. Voir dire, for example, is oftentimes referred to as one of the most important parts of the criminal trial. The failure to effectively participate in voir dire can mean your case is over before it even starts. At CDH law, our team of dedicated criminal defense attorneys takes every step in the criminal process very seriously. We fight for our clients at every turn. Contact us today.