Right to Remain Silent-Use it!

baldufYou might be surprised to learn that students whose mother or father is a police officer or prosecutor when asked:  What would you tell your child about dealing with the police? The response is “Never talk to the police, or agree to let them interview you about anything, or let them search your car or apartment or backpack without a warrant.

You need to stop for a minute, and let that sink in.

The Right to Remain Silent.  You may know the famous “right to remain silent” protected by the Fifth Amendment however do you really understand that the protections of that right are for the innocent people as much as the guilty.  Too many people mistakenly assume that someone who remains silent must have “something to hide” or be guilty of something.  This is simply not true!

All over this country, prison cells are filled with innocent people falsely convicted for crimes they did not commit

Far too many Americans mistakenly think: “If the police want to ask me a few questions, and I know in my heart I have done nothing wrong, surely it cannot hurt to cooperate with them and do whatever I can to allay their suspicions and clear things up.” That attitude is certainly understandable, but it can be a deadly mistake, and it can land you in prison for a crime you did not commit, perhaps for the rest of your life.

So the take away here is….NEVER TALK TO THE POLICE OR AGREE TO LET THEM INTERVIEW YOU ABOUT ANYTHING, OR LET THEM SEARCH YOUR CAR OR APARTMENT OR BACKPACK WITHOUT A WARRANT….WHY:  BECAUSE YOU ARE NOT SMARTER THAN THEY ARE AND YOU ARE NOT SAFE BECAUSE YOU BELIEVE YOU DIDN’T DO ANYTHING WRONG.

When should I talk to police?

balduf-lawyer-talk-to-policeMany of our clients do not expect to be arrested or have a run in with the law.  In times like this many people want to tell “their side of the story” in an attempt to get the police to understand and release them.  It’s understandable, however ill advised.  The police are not there to help you and in many instances will coax you into talking so you can set the record straight.  Understand this, the police are not there to help you.  The job of the police is to get a confession during your interview, even if that means they must lie to you.  Additionally, they will often tell you that they cannot help you once you have contacted an attorney. It is not in your best interest to talk to police at any time without legal counsel.

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Family Offense Crimes

Family offense crimes

balduf-syracuse-attorney-family-offenses

Family offense crimes are very serious charges. Family crimes may include things like charges of domestic violence, abuse, child abuse, sex abuse, endangering the welfare of a child, along with Child Protective Services allegations. The outcome of these matters not only affect your freedom and criminal record but they may also affect your ability to see and spend time with your children, return to your home if there is an order of protection in place, and have extensive consequences to your job and home.

Family offenses should only be handled by attorneys experienced in both family and criminal court. Only attorneys with this type of interwoven legal experience can best advise you of how your matter should be handled for the best possible outcome in your case. Often times, these cases are transferred to “IDV Court” Integrated Domestic Violence Court. In this court, criminal and family matters are heard in the same Court, often by the same judge. It is imperative that you hire a lawyer to represent you that is familiar and comfortable in the IDV Court system.

When charged with a family offense, experienced legal help should be sought immediately, before you are interviewed by a State agency or law enforcement, or as soon into the matter as practicable. The earlier that you involve an experienced attorney in your matter, the better the chance for the best possible outcome in your case.

If you have been charged with a family offense or child protective matter, or have been interviewed regarding a pending family offense matter in Onondaga County, call me immediately at (315) 474-5533. I offer a free consultation to review all the facts and circumstances of your matter so that I can best advise you proceeding forward.

WHAT IS A HUNG JURY?

hung-jury-deliberation-baldufHaving obtained acquittals on behalf of clients as well as hung juries it is helpful to understand some of the basic jury concepts.

WHAT IS A HUNG JURY?

Sometimes a jury becomes hopelessly deadlocked in a criminal case, in which neither side is able to prevail.  Usually this means there is no unanimous verdict.  If the jury is “hung” the trial judge will declare a mistrial.  This is done generally when the jury, after extended deliberation, is unable to change its votes to reach the unanimous verdict required.  A new trial from scratch, with a new jury panel, is required.  The prosecutor or DA can decide not to retry the case, particularly if a majority of the jury favored acquittal.  Most often both the Defense Counsel and DA will attempt to speak with the jurors before they leave to get a feel for the case as they saw it.

CAN A HUNG JURY BENEFIT A DEFENDANT?

A hung jury often brings a Defendant one step closer to being able to walk away from the charges that have been hanging over their head or a plea to a lesser charge with less of a penalty.

SOME BACKGROUND ON JURY DELIBERATIONS

Once the judge finishes reading the jury instructions, the case is “given” to the jury who then retire to deliberate.

Usually, any alternate jurors will now be released. Some attorneys like to seek out the alternates and ask their opinions of the case. The jurors are not required to speak to anyone, but some will. Without having the benefit of speaking with the other jurors, however, the alternates’ views are not always the same as the views of the actual jury. Nearly every trial lawyer, it seems, has a few stories of alternates predicting one verdict when the actual result was the opposite.

In New York State, jury verdicts must be unanimous. In other words, all twelve people must agree to the same verdict. If they don’t agree, the case is “hung” and must be retried in front of another jury. Different judges will permit a jury to deliberate for different lengths of time.

Jurors in New York are no longer sequestered (held together in a hotel overnight) in all cases if they don’t reach a verdict by the end of the day. Jurors are sequestered in New York only in serious violent felony cases.

In many cases, the jury will send notes to the judge requesting certain portions of the trial be read back by the Court Reporter, or requesting that the judge reread portions of the jury instructions.

Be sure to hire a true trial attorney with real and recent trial experience when you are facing criminal charges that will forever impact your life.  Call me at William Balduf, Esq. at 315 474-5533.

See also:

How Do I Post Bail?
CRIMINAL CHARGES CAN CHANGE YOUR LIFE.

How Do I Post Bail?

To post bail there are two types of bail- cash bail and bail bond.

how-do-i-post-bail

 

Post Bail  – Cash Bail

If both the person who will post bail and the defendant are in court, cash bail can be posted in the courthouse, and the defendant can be released before being transferred to jail. This most commonly occurs at the initial arraignment. If you plan to post bail for a defendant following an arraignment or other court appearance, you should tell a court officer, so that the defendant will be held in the building for release. Bail posted in the courthouse must be paid in cash; the courthouse cashiers do not accept any form of check.

Bail can also be paid at the Justice Center in Syracuse, NY, Local Justice Courts and other various City Courts and jails. Jails will accept certain kinds of certified or government checks as well as cash, but there are restriction on the amount and type.

Post Bail – Bail Bond

If you are posting a bond, you will need to find a bail bondsman. They can be located through the yellow pages or online, and often have offices near the courthouse. Bail bondsmen must licensed by New York State; make sure you deal with one who has a valid license.

How Do I Get My Bail Money Back?

If the defendant has made court appearances as required, cash bail should be returned at the end of the case. When the case is over, the judge should issue an order for the return of bail (“exonerating” the bail). The Local Court, City Court or Justice Center, Sheriff’s Department will issue a check to the person who deposited the bail. If the case has ended in a conviction, 3 percent of the bail will be kept by the government. If your bail has not been returned after 6 weeks you may wish to contact an attorney to assist you in its return. You should have your bail receipt available when you call, so that you can provided the information they will need to find the case.

What If My Bail was Forfeited?

If a defendant does not come to court when required to do so, the judge may order that bail be “forfeited,” or kept by the City. There is a procedure, called “remission of forfeiture,” which allows a person who posted bail to apply for it to be returned if it has been forfeited. Some people hire a lawyer to do this, but you can do it on your own if you cannot afford a lawyer. Keep in mind that there is a strict deadline for a “remission of forfeiture” application: you must apply within one year of the date that the court ordered the bail forfeited. If the bail was forfeited in Supreme Court (a felony case), the application must be made to the court that issued the forfeiture order. If it happened in Criminal Court (a misdemeanor case), the application is made to a Supreme Court judge in that county.

An application for “remission of bail” must be made in writing. If you are proceeding without a lawyer, you should ask the court clerk for instructions about how to proceed.

What if I can’t post the cash bail or bond?

First, you or your family member has to find out when you are scheduled to go in front of the Judge.  Hiring any attorney to help you convince the Judge not to set a high bail or release you on your own recognizance is suggested.

If they won’t set bail, this means you may have two prior felonies.  You will need an attorney to obtain a bail hearing in front of the Judge able to set bail under those circumstances.

Contact William Balduf, Esq. and let his 30 years of experience work for you.  Serving Syracuse and Oswego, New York.

See also:

SHOULD I TALK TO POLICE?

 Criminal Charges and Defense

 

SHOULD I TALK TO POLICE?

balduf-syracuse-criminal-lawyerTALKING TO THE POLICE CANNOT HELP YOU.

If the police are talking to you, it’s because they suspect you have committed a crime. Often law enforcement personnel start by saying they do not actually suspect you.  That they are looking at someone else for the crime.  They just want some information from you. Remember if the police lie to you– this does not protect you from the statements you make.

Anything you say can be used against you even if you think it has nothing to do with the criminal case being discussed.

Any admission might be used later on to put you or someone you care about, at the scene, with someone like a co-defendant or co-conspirator, and would be one less thing the prosecution would have to prove.  You will hand them what they need on a silver platter.  Even if you are innocent, and you only tell the truth, and you don’t tell any little white lies, it is possible to give the police some detail of information that can be used to convict you.

The benefit to having an experienced attorney represent you is that your response is “please contact my attorney”-then say nothing else.  Most people look to hire a lawyer after they have been arrested and charged with a crime.

But if you are being investigated for a crime, having a lawyer can sometimes prevent you from ever being charged with a crime at all.

WHAT IF THEY THREATEN TO THROW ME IN JAIL.

Remember, you are never obligated to talk to the police. But they may keep calling if they want to question you, for whatever reason.

They can come to your home, or your work and the continuous requests and contacts they make can be quite threatening and intimidating. They are calling to you gather evidence for a case, very possibly against you.

Don’t talk to them even if they threaten to put you in jail if you don’t talk with them.  If they have detained you, it’s because they already have enough evidence to arrest you and want to see if you will make some kind of admission and thus, give them an even stronger case against you. Seldom is confessing or giving law enforcement a stronger case a good way to stay out of jail.

Be wary, even if successful in staying out jail for a day your statement could ultimately land you in jail for years.

For some reason so many people think they are savvy enough or eloquent enough or well educated enough to be able to talk to the police and convince them not to arrest them.  You are not smarter than the police.  No one ever talked his way out of an arrest—and you prove this if you talk to them without representation.

EVEN IF YOU ARE GUILTY AND WANT TO CONFESS AND GET IT OFF YOUR CHEST..DON’T TALK TO THE POLICE.

People plead guilty every day.  There is plenty of time to confess and admit guilt at a later stage of the proceedings. What’s the rush? Get a lawyer first. Let the lawyer set up a deal whereby you get something in exchange for accepting responsibility for the offense. A better plea bargain, or maybe even immunity. If you confess to the police, you get nothing in return. Zero. In fact, you probably get a harsher prosecution because the state’s case is now airtight, now that you have confessed.

EVEN THE INNOCENT CAN GET CAUGHT IN A LIE.  THERE ARE NO GUARANTEES OF AN ACCURATE ACCOUNT OF YOUR STATEMENT BY POLICE.

But no matter what you say, anything could be misconstrued, misinterpreted, or otherwise used against you. There is no Miranda in effect if the police are just talking to you, and you aren’t under arrest. And even then, Miranda does not offer the protections most people think it does.

Police can take what you say out of context, and deliberately or accidentally misunderstand your statement, and turn it around against you. If you don’t talk to the police, they won’t have anything they can say about you.

A person who is completely innocent and asserting their innocence can simply deny some insignificant fact, tell some little white lie or simply make an inadvertent mistake of fact in their effort to sound as innocent as possible. But if the police have evidence that you claimed something that was not true it makes your entire statement look like a lie.  Can’t you see it now….just like on TV the prosecutor will ask:“Why did he lie to the police? Why indeed would he lie to the police, unless he were guilty?” Your credibility is now shot.

What if the police officer remembers something wrong? What if he remembers you said “X” when actually you said “Y”? If the police officer takes the witness stand and contradicts your statements at trial, it will also destroy your credibility. You can take the witness stand and say “I never said that!” But it’s your word versus a police officer. Who’s the jury going to believe?

IT IS NEARLY IMPOSSILBE TO TELL THE SAME STORY TWICE EXACTLY THE SAME WAY EVEN IF YOU ARE HONEST AND INNOCENT.

If you tell your story one time at trial and you tell the truth and you’re innocent, there’s very little the prosecutor can do by way of cross examination. But if you’ve told your story twice, once at trial, and once previously in a statement to the police, many months apart, the chances are very high that, even if you are telling the truth, some little details in your statement are going to change.

A good cross examiner will pick up on these changes and will relentlessly question you about them in an effort to make it look like you are lying.

THE POLICE DO NOT HAVE THE AUTHORITY TO MAKE DEALS OR GRANT LENIENCY.

People say all the time that they gave a statement to the police because the police told them that they would be better off if they confessed, better off if they admitted what they did wrong, better off if they cooperated. The police will make vague statements that things will go easier on the suspect if he simply admits what he did wrong. The police will also make vague statements suggesting that they will do what they can to help the suspect, that they will put in a good word for the suspect, if the suspect will just come clean.  Yes, they can mislead you and what you say can still be held against you.

So remember the police do not have authority to make deals, grant immunity, or negotiate plea agreements without the direct authority of the District Attorney or US Attorney (in Federal Court). Despite the impression that the police are helping you, they are actually helping themselves.

CAN YOU REALLY PREVENT A CRIMINAL CHARGE?

Not in every case, but absolutely, it often works out that way. If the police simply don’t get enough evidence, then they can’t charge anyone. The case will die.

And if you do still get chargedit was almost certainly going to happen anyway and was not avoidable. So we move on to other defenses and ways to beat the case.

ve committed a crime. Often law enforcement personnel start by saying they do not actually suspect you.  That they are looking at someone else for the crime.  They just want some information from you. Remember if the police lie to you– this does not protect you from the statements you make.  Do not talk to police.

Anything you say can be used against you even if you think it has nothing to do with the criminal case being discussed.

Any admission might be used later on to put you or someone you care about, at the scene, with someone like a co-defendant or co-conspirator, and would be one less thing the prosecution would have to prove.  You will hand them what they need on a silver platter.  Even if you are innocent, and you only tell the truth, and you don’t tell any little white lies, it is possible to give the police some detail of information that can be used to convict you.

The benefit to having an experienced attorney represent you is that your response is “please contact my attorney”-then say nothing else.  Most people look to hire a lawyer after they have been arrested and charged with a crime.

But if you are being investigated for a crime, having a lawyer can sometimes prevent you from ever being charged with a crime at all.

WHAT IF THEY THREATEN TO THROW ME IN JAIL.

Remember, you are never obligated to talk to police. But they may keep calling if they want to question you, for whatever reason.

They can come to your home, or your work and the continuous requests and contacts they make can be quite threatening and intimidating. They are calling to you gather evidence for a case, very possibly against you.

Don’t talk to them even if they threaten to put you in jail if you don’t talk with them.  If they have detained you, it’s because they already have enough evidence to arrest you and want to see if you will make some kind of admission and thus, give them an even stronger case against you. Seldom is confessing or giving law enforcement a stronger case a good way to stay out of jail.

Be wary, even if successful in staying out jail for a day your statement could ultimately land you in jail for years.

For some reason so many people think they are savvy enough or eloquent enough or well educated enough to be able to talk to the police and convince them not to arrest them.  You are not smarter than the police.  No one ever talked his way out of an arrest—and you prove this if you talk to them without representation.

EVEN IF YOU ARE GUILTY AND WANT TO CONFESS AND GET IT OFF YOUR CHEST..DON’T TALK TO THE POLICE.

People plead guilty every day.  There is plenty of time to confess and admit guilt at a later stage of the proceedings. What’s the rush? Get a lawyer first. Let the lawyer set up a deal whereby you get something in exchange for accepting responsibility for the offense. A better plea bargain, or maybe even immunity. If you confess to the police, you get nothing in return. Zero. In fact, you probably get a harsher prosecution because the state’s case is now airtight, now that you have confessed.

EVEN THE INNOCENT CAN GET CAUGHT IN A LIE.  THERE ARE NO GUARANTEES OF AN ACCURATE ACCOUNT OF YOUR STATEMENT BY POLICE.

But no matter what you say, anything could be misconstrued, misinterpreted, or otherwise used against you. There is no Miranda in effect if the police are just talking to you, and you aren’t under arrest. And even then, Miranda does not offer the protections most people think it does.

Police can take what you say out of context, and deliberately or accidentally misunderstand your statement, and turn it around against you. If you don’t talk to the police, they won’t have anything they can say about you.

A person who is completely innocent and asserting their innocence can simply deny some insignificant fact, tell some little white lie or simply make an inadvertent mistake of fact in their effort to sound as innocent as possible. But if the police have evidence that you claimed something that was not true it makes your entire statement look like a lie.  Can’t you see it now….just like on TV the prosecutor will ask:“Why did he lie to the police? Why indeed would he lie to the police, unless he were guilty?” Your credibility is now shot.

What if the police officer remembers something wrong? What if he remembers you said “X” when actually you said “Y”? If the police officer takes the witness stand and contradicts your statements at trial, it will also destroy your credibility. You can take the witness stand and say “I never said that!” But it’s your word versus a police officer. Who’s the jury going to believe?

IT IS NEARLY IMPOSSILBE TO TELL THE SAME STORY TWICE EXACTLY THE SAME WAY EVEN IF YOU ARE HONEST AND INNOCENT.

If you tell your story one time at trial and you tell the truth and you’re innocent, there’s very little the prosecutor can do by way of cross examination. But if you’ve told your story twice, once at trial, and once previously in a statement to the police, many months apart, the chances are very high that, even if you are telling the truth, some little details in your statement are going to change.

A good cross examiner will pick up on these changes and will relentlessly question you about them in an effort to make it look like you are lying.

THE POLICE DO NOT HAVE THE AUTHORITY TO MAKE DEALS OR GRANT LENIENCY.

People say all the time that they gave a statement to the police because the police told them that they would be better off if they confessed, better off if they admitted what they did wrong, better off if they cooperated. The police will make vague statements that things will go easier on the suspect if he simply admits what he did wrong. The police will also make vague statements suggesting that they will do what they can to help the suspect, that they will put in a good word for the suspect, if the suspect will just come clean.  Yes, they can mislead you and what you say can still be held against you.

So remember the police do not have authority to make deals, grant immunity, or negotiate plea agreements without the direct authority of the District Attorney or US Attorney (in Federal Court). Despite the impression that the police are helping you, they are actually helping themselves.

CAN YOU REALLY PREVENT A CRIMINAL CHARGE?

Not in every case, but absolutely, it often works out that way. If the police simply don’t get enough evidence, then they can’t charge anyone. The case will die.

And if you do still get chargedit was almost certainly going to happen anyway and was not avoidable. So we move on to other defenses and ways to beat the case.

Contact William Balduf, Esq. and let his 30 years of experience work for you.  Serving Syracuse and Oswego, New York.

See related articles:
How Do I Post Bail?

CRIMINAL CHARGES CAN CHANGE YOUR LIFE.

criminal-charges-change-lifeCriminal charges can change your life.  Being convicted of felonies, misdemeanors, drug or weapons charges can change your entire life.  In addition to possible jail time, there are lifetime ramifications of a criminal conviction.  The ability to get or keep a job, carry certain types of firearms, and hold certain types of professional licenses are all affected by a criminal history.

The decisions made in your criminal case now will impact the rest of your life. Make sure you call someone with EXPERIENCE to advise you properly and protect your rights.

William Balduf, Esq. understands what you are facing. With extensive experience with criminal law, he has proven time and time again that we have what it takes to handle even the most complex of cases. He know what is on the line and we know how important it is that we tenaciously defend it. For this reason, should you choose to work with William Balduf, Esq. you will be able to breathe easier knowing that we will take your case seriously. William Balduf, Esq. provides superior legal services unmatched by any competitor, without the cost of a large firm.

Regardless of the exact circumstances that you are facing, if you seek legal representation from William Balduf, Esq. he will immediately launch into action. No matter whether you are looking to get the charges dismissed, if you are hoping to at least get the penalties lowered or if you are preparing a case to go to trial, he will apply the same level of high-quality preparation and care. Call now 315 474-5533 or email williambalduf@gmail.com. Make an Apppointment

See also:

Should I Take A Breathalyzer Test?

Legal Tactics for Child Abuse Charges

child-abuse-chargesFor all criminal matters and particularly  child abuse charges the best way to handle them is to anticipate the arguments and proof and try to address them in advance, or at least be prepared at trial.  The following are some common tactics and suggestions for ways of handling sex abuse cases:

Before trial the following can possibly be done to help defend child  abuse cases and charges:

  1. The defendant’s statement indicates he was the subject of sex abuse as a  child:  Investigators routinely elicit this information from defendants, perhaps in an effort to seem sympathetic during the interrogation,  but more likely, to attempt to get that information before a jury, which is likely to believe that someone who has been abused in the past will be an abuser.  The U.S. Government Accountability Office surveyed studies and concluded that there was no conclusive evidence that those abused as children would become abusers as adults.  http://www.gao.gov/products/GGD-96-178.  If you have this inflammatory information in the interrogation, a motion can be made in limine to keep it out.  If it’s deemed relevant a Frye Hearing can be requested arguing that if the science does not support this, the evidence should not come in.  An additional agreement here is that even if it does, it’s probative value is outweighed by its prejudicial effect.
  2. The claim that the child’s school performance deteriorated after the alleged abuse:  This is often given antecdotally by relatives.  But again, there is a study that supports a conclusion that there is no correlation between childhood sexual abuse and poor school performance.
  3. A motion could also be made here to preclude the use of any testimony of declining performance by the child, or ask for a Frye Hearing.
  4. CSAAS as witnesses. A motion can be made to preclude them as a witness/expert.
  5. Youthful indiscretions. Particular attention should be made as to whether the prosecution will try to highlight the many children with many mothers. This can possibly be limited by citing People v. Presha  83 AD3d 1406.

Contact William Balduf, Esq. and let his 30 years of experience work for you.  Serving Syracuse and Oswego, New York.

See also:

SHOULD I TALK TO POLICE?