Family Justice Center

Archive for the ‘Criminal Law’ Category

The main role of a criminal lawyer is to persuade – whether that be magistrates, judges or a jury. The criminal lawyer may have to convince the magistrate or judge as to law or he/she may be attempting to convince the jury as to the facts most favourable to his/her client.

In terms of the court passing a sentence whilst the objective seriousness of the offence is the most important factor in determining a sentence – the accused’s subjective factors are also important. A criminal lawyer can use the accused’s subjective factors in an attempt to persuade the court to mitigate the accused’s sentence due the level of the accused’s moral culpability for the offence, the accused’s remorse and contrition and the accused’s prospects for rehabilitation.

The role of a criminal lawyer is not a cake walk – it can involve high degrees of stress, strain and hard work. Stresses arise in most cases given that the potential consequences for the client are not favourable however, this is particularly so when the client is facing a lengthy custodial sentence. The criminal lawyer not only has the stresses of the client facing the judicial system but also the extended stresses of accused’s family and relatives who are at times just as anxious as to the verdict.

However, as with anything an important aspect for success is preparation! The criminal lawyer must know the law and he/she must know the brief. From here the criminal lawyer must have a case theory that can be argued to bring the accused either within the law or outside of the facts that the prosecution are alleging. As there would be opposing lawyers in any criminal case, presenting the idea in favor of the accused and persuading others to accept it requires many inputs from the accused.

Expert criminal lawyers are those who have handled a variety of cases on crime and can easily identify the strategies which could help the client. Criminal lawyers learn new extensions of the laws and legal aspects involved with each case they undertake. The success of a criminal lawyer depends on his ability to adapt to the new requirements demanded by the new criminal cases, which he undertakes. The criminal lawyer should have good experience as a practitioner and needs to be aggressive enough to ethically defend the accused. As mentioned, the art to being a successful criminal lawyer is persuasion – one cannot be persuasive without being prepared in having a cogent and well structured argument.

A defendant’s right to a speedy trial is guaranteed by the United States and California Constitutions.  A “speedy” trial means that a person has the right to go to trial within a reasonable time after being arrested and charged with a crime.  

What is a “reasonable time”?  In California, “reasonable time” means the following: (1) 30 days for misdemeanor offenses when the defendant is in custody at the time of his arraignment (arraignment is the first court hearing where the defendant is read his rights and can enter a plea of guilty, not guilty or no contest); (2) 45 days for misdemeanor offenses when the defendant is not in custody at the time of his arraignment; (3) for any felony offense a defendant has a right to have his trial within 60 days of his arraignment in the superior court.

The right to a speedy trial can be waived.  A defendant is entitled to waive his speedy trial rights, which means that they agree in open court to continue their case for a date past the speedy trial period.  In order for this to be done, the defendant must expressly agree on the record in court to “waive time”.

Why would a defendant agree to waive his speedy trial rights and have his case essentially delayed?  Often times it is beneficial for defendants to waive their speedy trial rights in order to provide their attorney (or themselves if they do not have an attorney) with more time to strategize or to negotiate a better plea bargain with the district attorney.

On the other hand, there are certain situations where a defendant may not want to waive his speedy trial rights.  For example, if they are confident in their defense and want to make the district attorney prepare for trial with less time – to put pressure on the district attorney – they may want to have their trial heard within the speedy trial periods discussed above.

Sincerely,
Garret Weinrieb
Valerio | Weinrieb Criminal Defense Attorneys

(note: Information contained within this article is intended for general information purposes only and is not, nor is it intended to be, legal advice for any individual case or situation. The information contained within this article is not intended to create an attorney-client relationship and use of this article, and any information contained herein, does not constitute such a relationship.)