The Right to a Speedy Trial

Transcription

1 The Right to a Speedy Trial You have a constitutional right to a speedy trial in the United States and in New Jersey. You also have a right to see ALL of the evidence against you prior your date in court. The evidence is contained in a file referred to as your discovery. If you were found in possession of drugs or weapons, these items will be outlined in the discovery. Information given by the police officer(s) at the time of your arrest, documented witness testimony, lab reports containing drug analysis, and video evidence will also be included. The right to a speedy trial is an incredibly powerful tool to use against the state. Sometimes it takes a long time to gather evidence. If you were arrested for drugs, the state has to prove that the substance you possessed is in fact an illegal drug. White powder isn t necessarily cocaine, and these lab reports take time to produce. Laboratories can get backed up and scientists can be overwhelmed. Many times videotapes take far too long to produce. If a shopping mall or even a bank can t produce the video evidence against you in a timely fashion, your case can be dismissed based on your right to a speedy trial. There doesn t necessarily need to be drugs or video evidence involved in your case for this method to work. Sometimes the state is just slow. In these cases, you will need an attorney actively filing motions on your behalf. Simply obtaining your discovery requires both money, and paperwork. Judges will carry cases continually if you don t have an attorney on your side actively fighting for your constitutional rights.

2 Diversionary Programs Even if you can beat your case with defense attorney tactics, sometimes it s better to avoid the risk and accept admission into a diversionary program. In New Jersey, there are two common diversionary programs that the state offers, in lieu of a criminal charge. The first is known as conditional discharge, and it s only used for minor drug offenses such as marijuana possession under 50 grams 0r possession of drug paraphernalia. If you haven t used your conditional discharge, the state will give you a period of probation and no conviction. If you complete this probation without getting into trouble, your charges disappear entirely. If your charges are more serious and are at the Superior Court (felony), you might still be eligible for the Pre-Trial Intervention program, or PTI. This program is usually for third or fourth degree crimes in New Jersey. However, I ve seen some serious second degree charges like burglary, eluding, and gun possession resolved with admission into the PTI program. On the other hand, first and second degree crimes bear a presumption of incarceration, and typically will not be eligible for diversionary programs. Some drug charges won t be accepted into a PTI program or averted with conditional discharge based on your prior record. In these cases, drug court is a good option. You will face a much more stringent probation, with frequent drug testing, and you will have a criminal record. However, you will stay out of jail. Without an attorney, you might not be accepted into these programs. Having someone by your side that has a relationship with the prosecutor you are facing is a big deal. Additionally, many prosecutors would rather not fight a long grueling battle in court. If your attorney can create a good case on your behalf, and can also negotiate with respect to your character, you are far more likely to be accepted into these programs.

3 Suppression of Evidence Many times the evidence intended to be used against you can be suppressed, and made inadmissible by the Judge. This means the prosecutor cannot use this evidence against you in court. Often, the removal of one single piece of evidence is enough to have your case dismissed. One common way to have evidence suppressed is to challenge the legality of a search. Many times, police officers search you without a right to do so. There are countless forms of illegal searches ( unconstitutional ), so I ll cover a few. In most cases, when an officer searches you, he or she must have a warrant. Still, most searches occur without a warrant, so how do they stand up in court? A police officer must have a valid warrant exception which makes it legal for him to search you without a warrant. One example of this is Plain View, in which guns, drugs, or illegal contraband are seen plainly by a police officer in your car (or on you personally.) Even so, that officer must have already had a reason to be close enough to see guns or drugs in plain view. If he just decided to peer around your car or property, that plain view search will not stand up in court. If the officer pulls your car over for an invalid reason like suspicious looking vehicle or broken middle brake light, anything that results from the motor vehicle stoppage will also be thrown out in court. All stoppages have to be legal. It s up to us to prove that the police pulled you over without a good reason. An invalid stoppage results in an illegal search, and that evidence will be suppressed. Even if the police have a warrant, we may still have the search thrown out. Every warrant must be issued based on probable cause. If we make a case that probable cause did not exist for a warrant to be issued, any evidence found during the search will be thrown out. Sometimes the evidence against you is might be a statement that you made during your arrest. This is why the police are required to read your Miranda Rights. If any incriminating statements were obtained from you, and the police failed to properly advise you of your right to remain silent and the right to an attorney, then these statements should be suppressed in court.

4 Courtroom Tactics If you ve ever watched a courtroom movie like A Few Good Men, you understand that a cunning lawyer can beat a criminal case. The burden of proof in a criminal case is high: the state needs to provide proof beyond a reasonable doubt. A good attorney can cast doubt onto a countless number of elements on the day of your trial. We can challenge the credibility of the witnesses against you. We can make their testimony seem ridiculous, especially if we can trip up their recollection of events. Sometimes police officers can lose their credibility on the stand. The most famous example of this would be Mark Fuhrman in the O.J. Simpson trial. After having made some racist comments in his career as a police officer, all of the evidence with which he came in contact was suppressed. If we can prove that you had an alibi, your case can be dismissed. If we can show that there is another potential suspect, then there certainly doesn t exist proof beyond a reasonable doubt. We can challenge the actual chain of custody of the evidence. Who touched it? Who signed for it? Who drove it to the laboratory? Without a very clear chain of custody, evidence can be suppressed. Most times, cases don t go to trial. Trial is a risky proposition because we can t guarantee the outcome. Most clients don t like to feel like they are rolling the dice with their future. If negotiation results in a diversionary program, dismissal, or plea agreement, we can guarantee your result. Frequently our clients prefer to take a criminal record and probation instead of risking multiple years of jail time, even when they have a great case. We will offer you our most sincere recommendation, but the choice is ultimately yours. Sometimes trial is the best option and we will be sure to tell you when it is.

5 Challenging Probable Cause This is our number one way to fight criminal charges in New Jersey, simply due to the number of cases that we can beat due to lack of probable cause. Any arrest must be based with sufficient probable cause. In a DWI case, police have to issue field sobriety tests simply to have enough probable cause to give you a breathalyzer test. If these tests are conducted incorrectly, the probable cause doesn t exist, the breathalyzer result is invalid, and the case should be dismissed. This comes up constantly. If a police officer says that he smells marijuana in your car, puts you under arrest, and impounds your vehicle for it to be searched, it would be a highly contestable arrest. Without finding marijuana, it is hard to prove that he or she smelled imaginary marijuana in your vehicle. If a police officer responds to a noise complaint, and upon answering your door, he invites himself inside, he does not have probable cause to be in your home and anything that results from his illegal presence will be suppressed. As mentioned earlier, we can challenge the probable cause for warrants. They can be issued without a proper legal basis. If police stake out your residence looking for drug traffic, they need to have a good reason to be there to begin with. If they see people walking in and out of your home (consistent with drug sale) they still don t have probable cause. They would need to pull that individual over, catch him or her with drugs, and then get the individual to tell on you before they even have probable cause. Another question becomes, did they actually have probable cause to pull that person over to begin with? Searches, motor vehicle stops, and arrests must be based in probable cause. It s our job to prove that there was none.