PUBLISHED ARTICLES
THE RISKS OF USING A PARALEGAL SERVICE vs. AN ATTORNEY
Paralegal services cannot practice law. Due to the fact they may have been trained to fill out legal forms, does not and cannot replace an attorney. Why, because even before an attorney fills out the paperwork, he or she reviews the case and form a strategy. What is the importance of this? Once certain answers to crucial questions are filed, the party is committed to those answers. Once committed to an answer where the legal ramifications weren’t explained, can have lifelong consequences.
There is a long list of court rules, case laws and code sections dealing with every aspect of family law that is constantly changing. For example, a marriage of ten years is considered long term and there is a possibility of spousal support for life. So when a spouse puts down the marriage was for nine years six months, this could affect a spouse receiving a life support judgment. However an attorney knowing the law would know how to deal with this issue based on the current changes in statues and the newest case law. There is current case law dealing with length of marriage exceptions to the ten year rule.
Sometimes divorces start out friendly until one of the parties wants something changed that they both had agreed on. Then that party decides to hire an attorney who knows the law and the other party is left hanging there. Filing the papers beforehand may leave one of the parties’ venerable.
Common sense tells you, if someone has to be licensed to give you advice, there is a reason for it. Would you go to a medical doctor to have surgery, or his clerk who knows how to fill out the medical insurance forms?
The reason I am writing this article is because I have had people come into my office, who had hired one of these many services. In one case, the legal service botched up the paperwork so much, neither I nor the three other attorneys she spoke to, felt comfortable taking over the case. One woman paid $2500 for a service to fill out paperwork. Had she hired an attorney, she would have been advised on the best way to legally proceed on her case, have the paperwork completed and the cost would have been less than half that fee.
One paralegal service has a quote “If you don’t know your rights, you don’t have any”. This is true. Having a paralegal, who can’t legally advise you on your rights? You had them but you lost them.
PARTIES BEING BEING UNTRUTHFUL IN THE DIVORCECASE
In divorce court hearings a frequent problem with parties and witnesses is untruthfulness in their prior testimony under oath. Once this is proven by evidence to the contrary, what protects them from criminal prosecution? The Fifth Amendment to the U.S. and California Constitutions provides it.
This law states that no person can be compelled to give evidence against himself. The purpose of the privilege is to protect a witness from being prosecuted for the criminal act they would be admitting to.
This privilege against self-incrimination applies to any witness in any judicial proceeding. In a civil action, in order to invoke the privilege against self-incrimination, the witness must be faced with a risk of possible incarceration.
The privilege against self-incrimination for a witness is to be distinguished from the same right of a defendant in a criminal case. A defendant has the absolute right not to testify or answer questions unless he chooses to take the stand. Then and only then does he give up his Fifth Amendment right to remain silent. However in a divorce, which is a civil case, a witness has no option to refuse to take the stand. In the OJ Simpson cases, OJ didn’t take the stand in the criminal case but had to testify in the civil case.
At times in a dissolution action, the opposing attorney can present evidence to show a witness or party to the action made inconsistent statements while under oath. The witness or party is confronted about having committed perjury. The witness may then invoke the privilege against self-incrimination. Counsel for the questioning party must then inquire whether the witness has the right to invoke this privilege and may have grounds to objection. This issue may arise for example when financial bank statements don’t support IRS tax returns.
When a party answers he or she has been truthful, the party than opens the door to the issue of truthfulness and waives the right to use the privilege. The proper procedure of asserting the privilege is for the witness to wait until the question, which may incriminate him, is asked then invoke the privilege and not answer.
There is always a down side in civil cases when the Fifth Amendment is used however. Since the evidence of inconsistency is already in front of the judge, the trier of fact, using the privileged can be very telling. The court has a lot of leeway in imposing a variety of sanctions against that spouse, including the denial of affirmative relief. As one can see, a party may have the right to take the Fifth Amendment privilege, but it does not come without ramifications. One has to weigh at least in civil litigation, if it is worth the risk of possible court sanctions in protecting the information with a lie.
Dangers of DNA Donations
My client had an affair with a married woman whose body was later found in a county dump. The Defendant was first suspected after traces of his DNA was found on her underwear. Our DNA expert explained even if clothes are washed, sometimes traces of DNA can remain. Lucky for my client, overwhelming evidence later pointed to the husband and the charges were dismissed against my client.
Incoming students at UC Berkeley found cotton swabs in their welcome packages. The university wants students to voluntarily swab a few cells from the insides of their cheeks and give them to the university for DNA testing. A professor of Genetics and Development Biology who’s overseeing the project, swears he’s not trying to create a genetic database of thousands of undergraduates for any nefarious purpose. "Really, what nefarious purpose could there possibly be?" Really?
If you’re arrested for a felony in California, expect to give up a DNA sample.
Police departments are storing genetic samples from adults arrested for felonies, whether they go on to charge those people or not. The FBI and other states now collect DNA samples from immigrants who are detained, and some states store genetic samples from people found guilty of misdemeanors.
In Orange County, California, the District Attorney's Office will dismiss a simple misdemeanor charge, like possession of marijuana, if you give them your DNA sample.
The intent is to create a large genetic database that will allow police to solve more crimes, but critics say the cumulative effect may be unconstitutional. Criminal justice experts cite the Fourth Amendment privacy concerns and worry that the nation is becoming a genetic surveillance society.
Law enforcement agencies argue that taking genetic samples is akin to routine fingerprinting. The Department of State Health Services gave 800 anonymous blood samples to the Armed Forces DNA Identification Lab to help create a national DNA database.
I heard people say it's only used to find criminals and if you don't commit crimes you have nothing to worry about. Wrong! Here are actual cases where a person was not the perpetrator but in some cases agreed to plea because the attorney said that DNA is infallible.
In a homicide case, a Settle lab cross-contamination likely occurred when the contaminated work surface was used while testing a blood sample from a convicted felon during training. Next DNA analyst who used work station noticed contamination in chemical solution that is not supposed to contain DNA.
In a child rape case in January of 2004 in Tacoma lab, a forensic scientist failed to change gloves between handling evidence in two cases. When later he noticed contamination in chemical solution the Defendant was already convicted and sent to prison.
Another Forensic expert contaminated evidence in a King County rape case with DNA from a previous case, likely by failing to properly sterilize scissors.
In a rape/attempted murder case another expert misinterpreted DNA results, telling Seattle police their suspect was a match. Co-worker caught error 11 days later, just as charges were about to be filed.
Contamination and other errors in DNA analysis have occurred in crime labs all over the country. The list of DNA testing errors, uncovered through public-records requests and interviews with defense attorneys and experts, offers an unusual glimpse into what can go wrong. Crime lab officials here and elsewhere don't like to talk about the fact that the same test that can link someone to a crime scene with a few minuscule cells left on a doorknob can also be contaminated by a passing sneeze. Or that DNA tests are only as reliable as the humans doing them -- a troubling prospect when dealing with evidence that has the power to exonerate suspects or imprison them for life.
"The amazing thing is how many screw-ups they have for a technique that they go into court and say is infallible," said William C. Thompson, a forensic expert and professor of criminology and law at the University of California-Irvine.
Even the state-of-the-art FBI crime lab in Quantico, Va., was shaken by scandal recently when a DNA analyst, Jacqueline Blake, was caught falsifying her lab reports over a two-year period. Blake skipped an important step in her DNA tests, then lied about it.
The lesson to be learned? Avoid giving your DNA if possible because you don't have to commit a crime to be mistakenly charged or convicted of one.
Are You A Terrorist Under California Law?
California Penal Code Section 422 is filed by the District Attorney under the title " terrorist threat ". In the dictionary definition of " terrorist " (in the American Heritage College Dictionary (3rd. ed. 1998)), it states that a terrorist threat is the use of force or violence to intimidate or coerce societies or governments, often for ideological or political reasons. So why in California are many domestic violence, hate crimes, school and gang violence cases filed as "terrorist threats?
Section 422 states in abbreviated form: Any person who willfully threatened to commit a crime that will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on it's face and under the circumstances in which it is made is so unconditional and immediate that it causes the person to fear for their own safety or immediate family's safety.
It is interesting that the person making the threat does not have to intent of actually carrying out the threat.
Another interesting aspect of this statute is that it can be charged as either a misdemeanor or a felony. It is in the sole discretion on the prosecutor to file the charge either way. If it is filed as a felony however, it becomes a serious felony and falls into the 3 strike category, a subject for another article.
So how did a threat to use force or violence to intimidate societies or governments ended up being charged against a spouse having an verbal argument and making threats when no one was harmed at the time of the threat or after?
In the original enactment of section 422.5 it would be a felony to
" willfully threaten to commit a crime which resulted in death or great bodily injury with intent to terrorize another or with reckless disregard of the risk of terrorizing another."
To 'terrorize' was defined as "creating a climate of fear and intimidation by means of threats or violent action causing sustained fear for personal safety in order to achieve social or political goals."
This statute was found unconstitutional by the Supreme Court because the phase "social or political goals" was too vague. Therefore it was amended as part of the "California Street Terrorism Enforcement and Prevention Act" in1988.
This 1988 statue is the same that exists today but proscribing "criminal" rather than "terrorist" threats. However, despite the amendment change to "criminal threats", case law continues to refer to violations of PC422 as "terrorist threats" even though the body of the statute does not refer to terrorism.
Although once filed in gang intimidation cases has now stretched to hate crimes and domestic violence. Sometimes it is stretch to thin and filed too readily.
How Do I Find The Best Criminal Defense Lawyer? I recently was asked by an Orange County family to help work on a case with an attorney they had already retained. They didn't want to release him because they had already paid his substantial retainer in full. Their brother, the defendant, was charged with first degree murder with gang allegations. These allegations mandates a life prison term. The reason for hiring me was because the defendant did not feel comfortable with what was going on with his case. The attorney had only visited him in jail a few times and never discussed his defense. This lawyer was referred to them by a close friend, a newly sworn in attorney who use to share an office with the man he recommended.
When I received a copy of the attorney's file, I was shocked. The lack of preparation for trial and incompetence in court was blatant malpractice. When the D.A didn't comply with his minimal request for discover, he did nothing. He advised me that he believed the defendant was guilty so he was going to sit back and let the District Attorney try prove up the case. So, what can you do?
Here are a few research steps to follow, in the path of finding a good lawyer.
Experience- being in practice a while is important but what kind of cases they handled during that time is more important. Have they handled your type of case?
No General Practitioners - if the attorney practices more then two areas of the law, it is to many areas. The above attorney handled immigration law, bankruptcy, personal injury, criminal and tax law. A man in all fields is an expert in none.
Free Consultation - this gives you a chance to see if the attorney knows what he/she is talking about and that you both are a good match.
Personal Representation - make sure the attorney your discussing your case with, is the one who will be handling the case. Some criminal defense firms charge phenomenal fees based on the experience of the attorney who owns the firm. Later, you find out your case has been handed off to new and inexperienced associate attorney or a contracted attorney.
Case Load - like the Public Defender's office, you just might get a great attorney. However, if they are handling several cases, they are not so great in devoting the time your case needs.
State Bar Review - is good for the attorneys good standing. Prior complaints are available to view.
Website- is a great place to review an attorney. Most, if not all experienced attorneys, have websites.
They are proud of their experience, education and victories. Some sites even give legal information about the offense you are charged with. Some even have a page of testimonials from former clients and judges. This is invaluable. Be cautious, however, of attorney testimonials. Sometimes attorneys exchange testimonials with each other.
In criminal cases you want an attorney now, if only to help relieve the stress of the unknown. The above defendant used only one source and didn't do any research. Do your research.
White Collar Crimes and How Are They Defended
Although there is no set definition of white collar crime, the term is used to characterize a number of nonviolent crimes of dishonesty. These crimes are committed by professionals or entrepreneurs under the veil of legitimate business activity. Today, there is a trend toward tougher punishment for white collar crimes. A recent example is the Bernard Madoff case where Madoff received 150 years in prison. This case is a good example of the effects white collar crime can have on our society.
White collar crime can be charged in different ways depending on the illegal activity. Some criminal activities are prohibited by specific laws while others are prosecuted under one or more general laws criminalizing dishonest behavior. White collar crimes include: embezzlement, false statements, obstruction of justice, bribery, fraud (federal mail, wire, and bank fraud), federal perjury.
Tax Crimes are often charged for failing to file a tax return or filing a false tax return because it is interfering with the administration of the internal revenue laws. Tax evasion has been effectively used to arrest and convict persons who have committed more serious offenses but the prosecutor didn't have enough evidence to press charges on those offenses. For example; Al Capone, Pete Rose and Sun Myung Moon.
Computer Crime is an area of the law in which the government is constantly adding new offenses to keep up with the growth in new technologies. Federal and California Penal Codes include provisions covering computer crime such as contaminant into a computer system and using computers as part of a scheme to defraud.
In some criminal trials, the prosecutor proves all the elements of a crime but the person accused is not punished because he or she has a valid defense.
Some defendants accused of white collar crimes claim entrapment by the government by claiming they were induced to act, and would not have acted unlawfully otherwise. Another defense used by businesses is that a particular businessperson was acting alone without the authority of the company.
Felonies and white collar crimes can carry the strictest punishments. Federal sentencing guidelines contain a method for calculating fines to be paid by organizations that commit crimes. Businesses that are found guilty of operating for a primarily criminal purpose incur fines equal to their total assets.
California also has laws that allow the authorities to seize property connected with the commission of a crime.
Due to the of lack of monitoring by our government ,our corporations', as well as individuals has resulted in numerous acts of white collar crimes both large and small. These acts have consequences to our society that will stay with this country for several years to come if not decade's.
