Questions About Miranda Rights Answered

Most of us are familiar with the opening lines of the Miranda Rights statement from watching the cop and criminal lawyer shows on television. "You have the right to remain silent," and so on. However, that is where most people's familiarity with the Miranda rights ends. Today we have criminal lawyers answer six common questions about this well-known statement.

When do the police have to read Miranda Rights?

A person suspected of a crime must be read their Miranda Rights prior to a custodial interrogation -- that is, a questioning session at the police premises. This means that:

• If the police feel they have enough information to make an arrest after a non-custodial questioning session, they can make the arrest without reading Miranda Rights.
• If you are just answering question in your home or on the street, but have been told you are free to leave, police don't need to give the Miranda speech.

Can what I say be used against me in court if police didn’t read me my Miranda rights?

If the statements were made voluntarily, it is usually admissible in court. You don't have to say anything -- but if you do, it is admissible.

Won’t my silence be used against me anyway?

If you have been read your rights, remaining silent cannot be used against you in court. However, if you have not been read your rights and remain tight-lipped from the moment police ask you a question, it can be argued that your silence (prior to being read your rights) indicates that you knew the police were going to arrest you, and implies guilt.

How do I avoid this conundrum?

Try to prompt the police person's reading of your rights, by saying something like "I have heard that I should always talk to an attorney before talking to the police, is that true?" The police should read you your rights at that point, and any silence from then on cannot be used against you in court.

Will I be treated worse by police if they think I am guilty?

No, you should not be. Many people are worried about the police thinking they are guilty - they shouldn’t be. The only people that your appearance of guilt or innocence should natter to are judges and a jury if applicable. Always request a criminal lawyer before answering police questions - getting legal advice should never be seen as a bad idea.

Reduced Criminal Penalties for Corporations on the Way?

Our penalty and sentencing guidelines are constantly under review, as the number of offenders in a particular crime changes, as governmental focus changes, and as the prisons fill, and them empty again. It seems that in the area of white collar crime, criminal attorneys may soon be seeing lighter penalties for corporations -- however, it is unclear what will happen to individuals.

The prompt -- Arthur Anderson

One of the most prominent and high profile cases that seems to have contributed to this shift in sentencing guidelines is the collapse of Arthur Andersen LLP. The company was convicted of destroying evidence in 2002, and subsequently went out of business. However, in terms of the judgement's impact on people, it was mostly innocents who bore the brunt of this verdict. Thousands of jobs were lost when the company went out of business, and this is neither socially or economically desirable.

Enter the Sentencing Commission

The role of the Sentencing Commission is to advise judges on the expected penalties for certain types of crimes, and also to provide minimum and maximum limitations on sentencing. Watching the Sentencing Commission's publications lets criminal lawyers advise their clients on the possible penalties for their crime. A recent 78-page report included a proposal to reduce the liability of a company for its employees engaging in criminal behaviour.

However…

The company must have programs already in place to combat white collar crime, and generally the compliance officer for the programs must have access to the board of directors for a company, or other equivalent body for smaller companies. The company must also be the ones to report the misconduct to the authorities, which would clearly indicate that it has no part in the alleged activities.

Fort Lauderdale criminal attorneys are supporting the proposal -- it certainly seems to work towards a more just penalty system in our country.

Email, Twitter, Faceboook - Not the Lock and Key of White Collar Crime

White collar crime can be a difficult area of defense for general criminal attorneys -- this is one of the reasons that you'll find specialists in the area. Much of the evidence in white collar crime relates to intent or knowledge, which can only be proven with recordings of conversations, letters, and witness accounts of relayed information. Increasingly, electronic methods of recording information are subject to scrutiny in criminal trials; these might include emails, or even ephemeral methods of relaying information such as Twitter and Facebook. However, it seems that prosecutors are not set to have the success that they expected by seizing email records; a recent case explains the precedent win for criminal attorneys.

The Bear Sterns Verdict and Impact

Two hedge fund managers at Bear Sterns were recently found not guilty on all of their fraud charges. The prosecution case was that they had lied to investors, informing them that the prospects seemed optimistic in order to prevent them from pulling out their funding, when in reality they were close to spent.

Obviously, some key aspects of the case to be argued over by criminal attorneys would include whether the defendants were in fact optimistic about the fund's future or not; and whether their comments to investors were an accurate representation of their feelings. Without the widespread ability to record a person's thoughts at every second of the day, prosecutors are turning to expressions of thought in forms like email to help prove their case.

Is Email the Lock and Key of White Collar Crime?

This is where a jury of a person's peers plays such a key role in determining the apportionment of justice. Some of the defendant's emails may have indicated some level of doubt about the viability of the hedge fund. However, the jurors understood that not every email represents the entire truth, nor does it necessarily equate to a balanced and measured view of reality or a cross-section of the defendant's brain at any particular time.

Expert white collar criminal attorneys will be paying a lot of attention to this case, and using the finding for their own defendants in the future.

Are Criminal Lawyers' Clients Pressured into Pleading Guilty by Plea Bargains?

In a recent criminal trial, Judge Cormac Carney actually voided a guilty plea. As incredible as it sounds, although the defendant had actually said "Yes, I committed the crime and am willing to be punished for it," when the judge reviewed the facts of the case, he believed further investigation was needed. Today we are exploring why this might happen, and the challenges for criminal attorneys and their clients in deciding whether to take a plea bargain or to fight unfair charges.

What is a Plea Bargain?

In a plea bargain, the prosecutor offers some sort of benefits to an alleged criminal, in exchange for them pleading guilty. Much as to outsiders, this seems to flaunt the idea of justice (after all, shouldn’t people simply receive a sentence fit for their crime?), if every criminal case went to trial the court system would effectively be crippled.

In some cases, plea bargains might involve a reduced sentence. In other cases the charge is downgraded, from burglary to attempted burglary, for example.

The Real Controversy

There is controversy among law scholars, the general public and criminal lawyers as to whether plea bargains should even exist. We mentioned earlier that they seem a naturally unjust way to work, favoring practicality over true justice. But the issues run deeper than the simple possibility of letting some criminals out of prison before society believes they should be, as we can see from a real life case.

A Recent, Real Life Case

In a recent, real life case with criminal attorney Gordon Greenberg and former Broadcom founder and defendant Henry Samueli, the defendant entered a guilty plea which was reversed by the judge. The plea bargain was signed by Samueli on the understanding that he believed he had broken the law. However, this belief was based on a distortion of evidence by the prosecuting attorneys. Samueli's criminal lawyer may have advised him of this, or he may have only had access to the prosecutor's evidence.

What can be done about the situation? A plea bargain can sometimes make good sense for a defendant -- but there are plenty of gray areas that exist. Choose a criminal attorney who is a true expert in the crime field you have been charged with, and listen to their advice to avoid ending up a victim of the plea bargain system.

Inconsistent Penalties and White Collar Crime: What Are Your Rights?

Two cases that recently came to light in the Wall Street Journal highlight what could be perceived to be failings of our legal system -- two fairly similar fraud cases where the penalties were radically different. Florida criminal attorneys and their clients are at the mercy of judges' temperaments more than ever before, with the removal of sentencing regulation in some areas of the penal code. We look at this disparity, what causes it and what your criminal attorney can do if you feel you have received an unfair sentence.

Case 1: Michael Riolo
Michael Rioli, of West Palm Beach Florida, was found to be running a fraud scheme that cheated its investors out of around $15 million, early in 2009. His Florida criminal attorney represented well and advised Mr Riolo to hand in his computers and records as evidence to assist prosecutors, which he did. However, the judge in question handed out a 24.5 years sentence for the $15 million fraud.

Case 2: Michael Regan
Michael Regan ran a hedge fund in Massachusetts, and was also found to be defrauding investors. This time the sum in question was around $9 million, and victims included a widow and several elderly citizens. He also assisted prosecutors by handing in his evidence, and received only a seven year sentence.

Why the difference?
The difference is not due to the quality of their criminal attorney representation, but rather to two separate Supreme Court cases in 2005 and 2007 which mean that judges now have greater freedom to depart from sentencing guidelines. The point of the new laws was to give judges greater potential to ensure justice is served according to the individual merits of the case. Yet criminal attorneys are seeing cases that are superficially very similar receiving radically different sentences.

Statistics
Preliminary statistics indicate that on average, judges are giving longer sentences for white collar crimes, while social crimes are receiving fairly similar sentences across the country.

What can you do?
There is currently an inquiry running as to whether the new guidelines have created inequities and unwarranted disparities in the sentencing system. However, clients do not need to wait for the outcome of the trial - your Florida criminal attorney can explore all legal avenues and let you know whether you have a good case to appeal a sentence.

The Law and You: Child Porn

The internet has made many things in our life easier -- shopping, keeping in touch with distant friends and family, researching, working - everything that counts. Unfortunately it has also made it infinitely easier to break the law. With the prevalence of porn on the internet and the lack of filtering by porn sites of legal from illegal material, you may be needing a criminal lawyer for something you didn’t know you were doing wrong. Miami criminal attorneys with experience in child pornography laws explain the basics.

The facts
The definition of child pornography in the US comes from Title 18, Part 1, Chapter 100, §2256. It designates a 'child' as any person under the age of 18, and for an image or video to be classed as pornography it must contain:
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person

The inclusion of simulated sex makes these laws much broader -- easier to be charged under, but in some cases easier for a criminal attorney to defend. Publishing the appearance of a minor being engaged in sexual misconduct can also be prosecuted under US law -- so, for example, adult websites displaying models (even legal-age ones) in pigtails, surrounded by stuffed animals and with heavy makeup making them look younger could actually be prosecuted under child pornography laws. People viewing this type of images would also be classed as consuming child porn, and may need criminal attorney services.

The First Amendment protects distribution of adult pornographic images, but not those of children.

Laws can be used against children also
In the US in the last 12-24 months, there have been a spate of cases involving teens taking nude self-portraits and distributing to partners or friends. For example, Florida criminal attorneys recently defended a 16-year-old girl and her 17-year-old boyfriend who faced court after a teacher accidentally uncovered nude images of the girl on the boy's phone. The photos were shared with nobody else, yet the teens were charged with producing, directing or promoting child porn -- even more serious than consumption of child porn.

Finding the Right Fort Lauderale Criminal Attorney

When playing golf here in Fort Lauderdale with clients or colleagues, whose name is mentioned when talk turns to hiring a criminal attorney? Chances are, the professionals in your foursome haven't yet been faced with that necessity.

If that distant possibility becomes reality, however, you'll need a trustworthy referral, fast. Here's how to quickly judge which Fort Lauderdale criminal lawyer will best represent you.

You may already be putting on the brakes, denying the possibility of future prosecution. With today's complex laws governing medicine, banking and other professions, though, it's possible to find yourself under investigation without deliberately committing a crime.

And so, just as you build your referral network for other services, it's a good idea to have someone qualified in mind to call should you find yourself in need of a criminal lawyer. If you're like most professionals, you may be assuming you can call on those golfing buddies for an acceptable referral.

The first thing to remember is that, unless your colleagues have actually worked with a criminal lawyer, they may be basing their referral on secondhand knowledge. If you've been charged with a crime, you need to know the person representing you has specific experience defending against similar charges.

For example, a Fort Lauderdale criminal attorney who specializes in domestic violence or drug cases may have never defended a client accused of white collar crime. Even more importantly, professionals accused of bank fraud, insider trading or crimes likely to trigger a grand jury investigation require the services of an experienced Federal criminal defense attorney.

Once you've received a referral, research that criminal attorney by asking the following questions:

1. How much experience do they have working with defendants in cases like yours?

2. How successful has that specific history as a Fort Lauderdale criminal lawyer been?

3. What resources do they have available to ensure a strong defense in your case?

4. Into what courts are they admitted to practice (US Supreme Court, Federal Courts, or US Tax Court, for example)?

5. How have they been ranked by their peers? Their Martindale-Hubbell Bar Register ranking is a good measure of their professional standing among other attorneys.

The answers to these questions will enable you to discern whether or not a Fort Lauderdale criminal attorney to whom you've been referred is actually appropriate to defend you. By taking the time to learn more about a potential defense attorney, you can be assured of the proper defense before the need ever occurs.