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Not Guilty In Minnesota

“Answers To Minnesota Criminal Law Questions”

Category Archives: Criminal Defense

May 20, 2013 Bail vs. Bond

Mankato Criminal Lawyer

When a person is arrested or charged with a crime a court date will be set.  At the first court date a judge will set conditions of release and bail in two amounts.  The higher amount will allow an individual to be released without conditions that need to be followed to be released.  The second lower number will allow release but only if the defendant agrees to follow conditions of the court.

For example John Smith is arrested for 3rd degree DWI.  At the first hearing the judge agrees to release Mr. Smith without conditions if he can post $12,000.00 or $1,000.00 if Mr. Smith agrees to be on an alcohol monitor.

Bail

Mr. Smith has the decision of either posting bail by bringing cash or a certified check for $12,000.00 or, if he is willing to agree to the release conditions, $1,000.00 to Court Administration.

If you post bail, the


Bond money will be returned to you at the end of your case minus court costs and fines, as long as you follow the rules of court.  If you miss court or break the conditions of release the court can forfeit your bail.

The second option is contacting a bail bondsman.  A bail bondsman will provide a bond to the court in return for a payment from the defendant or someone on his behalf.  Bail bondsman typically charge between 10-20% of the cost of the bail posted.  For example, Mr. Smith would need to pay the bail bondsman between $1,200.00 and $2,400.00 to be released without conditions.  If Mr. Smith was agreeable to conditions of release it would cost between $100 and $200.   If your bail is posted, the bondsman will keep the money paid in exchange for providing the bail at the end of the case.  You do not receive a refund or court costs paid like bail.

Each of these methods will allow a defendant to be released from jail.  Which one is utilized is up the defendant and his attorney.

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February 27, 2013 Minnesota DWI Basics

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December 24, 2012 Your Minnesota Criminal Attorney: Private, Public, or Yourself?

Private attorney

The pros to this option are mostly straightforward.  You can choose who the attorney is, and that choice can be made after getting recommendations from friends, lawyer review websites (for example, AVVO is a good place to start).  Your attorney may be more experienced than a public defender and may have a (somewhat!) lighter caseload, thus allowing him or her to pay more attention to

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the issues that come up in your case.

The cons to this option are equally straightforward.  In fact, that should likely be “con” in the singular, since the primary downside is cost:  obviously, unlike with the public defender, you’ll have to pay for your own attorney.  This may include both a retainer as well as further hourly fees.  However, a criminal attorney may not be as expensive as you may think, so it’s well worth calling around to check rates before you assume you can’t afford one.

Public defender

If you truly can’t afford to hire a private attorney, the public defender is another option.  Whether you can or can’t afford your own attorney is a determination that will generally be made by a judge when you appear in court.  The determination will involve a calculation of how much income and assets you have verses expenses such as housing costs and support of dependents.

Note that it’s also possible to have a public defender appointed to represent you before you ever appear in court.  If, for example, you are being interrogated by the police and wish to have an attorney present, you can be represented by a public defender at this point if you are financially eligible.

One positive aspect of public defender representation is, of course, the lack of cost.  Another is that you may be able to be represented by what’s called a Public Defense Corporation, a group designed to protect the interests of certain segments of the population, such as Native Americans or others of minority ethnic heritage.  The primary downside to this option is that there are many public defenders and you are not given the choice of which one represents you.

Yourself

Although you have a constitutional right to an attorney, you can waive this right and represent yourself in a criminal prosecution.  If you do so, it’s called acting pro se, i.e., on your own behalf.  In order to effectively waive your right to an attorney, a court will first have to determine whether you knew all of the relevant facts regarding the waiver of that right and whether the waiver was made voluntarily.  A defendant may choose this option if they are at odds with their attorney on issues such as how to present a defense, what evidence to present, or which witnesses to call.  If you do decide to represent yourself, be aware that the court will not “take it easy on you” simply because you do not have an attorney.  Pro se defendants are generally held to the same standard as licensed attorneys, and the court will not help you make your argument, suggest objections, or otherwise help you make your case.

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December 21, 2012 Anything You Say Can Be Used Against You?

Minnesota Criminal DefneseWe’ve all been warned plenty of times that poor conduct on social media sites can have adverse consequences in the employment world.  But going a step further, can such conduct become evidence against us in a criminal prosecution?  In one ongoing federal prosecution, several individuals are charged with terrorist conspiracy.  Part of the government’s evidence against them?   The fact that they “liked” on Facebook a group which allegedly supported terrorism.

The terrorism prosecution indicates that at least the federal government is ready and willing to use social media activity as evidence.  That means a wide variety of online conduct is up for possible evidentiary use:  Facebook postings, tweets, and comments in response to online articles.

Further, previous Minnesota court decisions demonstrate that there can be other consequences to evidence of social media activity,

beyond simply supporting a charge of criminal conduct.  First, online chatroom activities have been used as part of the basis for a search warrant of the person’s computer in situations where the person’s chatroom conduct indicated there could be scope for a criminal prosecution.  Second, online activity such as Facebook postings or the creation of online content could be used as evidence of the premeditation of a crime.

However, as a Maryland court recently noted, there is significant potential for the government to fabricate or tamper with electronically-stored information from a social networking site.  One way to attack the use of such evidence would be to argue that the prosecution insufficiently “authenticated” the evidence (“authentication” refers to the process of showing that evidence is what it purports to be).

For example, one of the most common instances in which online activity is sought to be introduced in a criminal prosecution is a prosecution for attempted sexual offenses involving a child, since law enforcement officers or their agents sometimes pose as children in online chat rooms in an attempt to catch sexual predators.  In these situations, the admission of the evidence of the defendant’s online activity is more straightforward, since the law enforcement officer or agent can testify that the evidence introduced is a correct representation of the online chat.  In other types of criminal cases with evidence involving a Facebook or Twitter post, however, where there is no other party involved to testify that the evidence is a correct representation of the post, it may be more difficult for the prosecution to prove the evidence’s authenticity.  The prosecutor may have to ask a potentially hostile witness to confirm that printouts of postings allegedly made by a defendant were in fact correct, which may be difficult to do.

Because of the relatively recent advent of social networking sites, cases involving this type of evidence are still few and far between.  This area of law is likely to develop and change quickly; until then, it’s going to be hard to have a definitive idea of when and what type of evidence could be admissible in a criminal prosecution.  With that in mind, erring on the side of caution when using social networking sites is undoubtedly a good policy!

Because of the relatively recent advent of social networking sites, cases involving this type of evidence are still few and far between.  This area of law is likely to develop and change quickly; until then, it’s going to be hard to have a definitive idea of when and what type of evidence could be admissible in a criminal prosecution.  With that in mind, erring on the side of caution when using social networking sites is undoubtedly a good policy!

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December 7, 2012 Is Anyone Listening To Me? The federal wiretapping statute

People are often in totally opposite groups as far as their beliefs on whether or not, at any given time, it’s possible that a law enforcement agent could be listening to a phone call or conversation:  some, the more paranoid, almost expect such intrusion, while others, the more naive  assume this never actually happens in real life.  Under what’s known as the federal wiretapping statute, along with Minnesota’s own state wiretapping statute, the reality is somewhere in the middle.  Police and other law enforcement officers do use these statutes as part of investigations in some circumstances.  And while The Wire may have provided a good introduction to wiretapping law, there’s a lot more to know about it.

The federal wiretapping statute

 Wire tapThe first thing to understand is that the statute is not simply about allowing police to listen in on suspects’ conversations.  The statute has two equally important purposes:  to protect the privacy of communications, and to set out circumstances in which interception of those communications is permissible.  The privacy aspect is not just rhetoric—the law actually allows a person whose communications are unlawfully intercepted by a third party (which generally does not include a law enforcement agent) to sue over the illegal interception.

What the law does allow is the interception of wire, oral, or electronic communications by law enforcement officers if specific, detailed procedures are followed.

Procedure

Here’s where having watched The Wire comes in handy.  In order to lawfully intercept wire, oral, or electronic communications, police officers must first submit an application to a judge.  The judge can only grant the application if he or she finds probable cause, similar to that required for any other search.  The judge must also find that normal investigative procedures have been tried and failed, or appear unlikely to succeed or to be too dangerous.  In other words, a wiretap is intended to be an avenue of last resort, not a way for the police to begin an investigation.

Challenging evidence obtained from a wiretap

If you are charged with a crime and the government intends to use wiretap evidence in its prosecution of you, you can challenge that evidence on several grounds.  First, you can argue that the law enforcement agents who intercepted the communication did not in fact have an order allowing the interception.  Second, if there was such an order, you can argue that the order was defective or that there was a failure to follow the law in obtaining the order.  Additionally, you could argue that the way in which the communication was intercepted was not the same as that allowed by the order.

Minnesota’s wiretapping laws

 

Because one purpose of the federal wiretapping statute is to protect the privacy of communications, a state law that is more liberal in allowing interception of communications will be considered to be preempted by the federal law and thus invalid.  States are therefore free to enact their own wiretapping statutes, but these must be equally or more restrictive as the federal law.  In the case of Minnesota, the wording of the state law is nearly identical to the federal law.  However, any future changes in the federal law can leave the corresponding portions of the Minnesota law open to challenge if, due to the federal change, the state law provision becomes less restrictive than its federal counterpart.

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