Recent Blog Posts

They Are Listening

Berkon Law — Mon, 28 Nov 2011 00:38:00 GMT

A couple of trials recently, in which my client's words have hurt them in the case have frustrated me and compelled me to write this article. No, it wasn't as a result of police interrogation (though that will be the subject of a future article), it was a result of phone calls made by my clients from the jail.

It should come as no surprise that EVERY phone call made by an inmate from jail is recorded and monitored. In fact, I'm sure you have heard the recording that comes on periodically during your call warning you that your call is being recorded. However, that does not seem to stop some from talking about their case and making admissions, saying I'm sorry or instructing witnesses to lie under oath or worse over the jail phone.

Now some of you might be saying why anyone would be so naïve as to talk about their case over the phone. I asked the same question to these clients and the response was usually something like "I didn't think they could listen to everyone at once." Or "they cannot prove who I was talking to or about." WRONG!! While it is true the jail cannot listen to every call at once, they are recording every call. All a DA or cop has to do is order up an inmate's phone calls and a CD is created with all of the inmate's calls.

When I get these CD's from the DA each call is detailed by date, time, duration and number called. With that information, law enforcement can subpoena the number called from jail and find out who it belongs to and further match the details.

Some have resorted to talking in "code" thinking no one will be able to figure it out....WRONG!!! The context of the case and phone call is usually enough to figure it out.

The point is DO NOT talk to anyone about your case especially over the jail phone. This type of evidence is being used more and more and it is truly amazing how many inmates are talking openly or in code about their case. I know it's frustrating to be in jail and not be able to explain things to a loved one....but don't do it. There is no worse feeling for me in trial when a phone call is played to a jury and my client's voice can be heard making incriminating statements during a jail call.

Final point...law enforcement will sometimes set up situations where co-defendants will be put together and recorded. A recent murder case I tried, the co-defendants were put in a jail van to go to court instead of the bus. The van was rigged to record the conversation and video the entire ride. The co-defendant mentioned they thought it was weird they were in the van instead of the bus, but couldn't resist talking about the case, who ratted them out and what their defense strategy was going to be...it was brutal!!! Trust your gut, if something seems fishy...it probably is so make sure to play it safe and keep your mouth shut, at least about your case.

Good luck to everyone fighting their case, and as always feel free to contact the Law Offices of Richard Berkon for more advice.

Be Honest With Your Lawyer

Berkon Law — Mon, 28 Nov 2011 00:29:00 GMT

This may seem like an obvious statement, but it is really important to tell your attorney THE TRUTH when asked a question about the case.

Attorneys typically will ask their clients questions about the case and what really happened. Occasionally, the attorney will get a police report or interview of a witness or recorded jail calls which might be contrary to what the client has told the attorney in the past.

If this happens and your attorney asks you questions about it....you have to tell him or her truth, because nothing is worse than to have a lie exposed in trial, in front of a jury that has your freedom or life in their hands. If there is bad news, or bad facts and your attorney asks you about them, tell your attorney the truth.

Our job is to deal with bad facts and talk to you about them, because they may not be as bad as you think. Or else there maybe investigation we need to conduct to counter the bad evidence or facts that have come to light. If it comes to light in trial it is too late and it is hard to overcome.

Sometimes, I have had clients tell me the truth after lying initially, and I ask them why they did not tell me earlier. A common response I get is, "I was embarrassed to tell you." Please understand, you are not going to offend us. Most attorneys understand you are in a major fight (sometimes the fight of your life) and it can cloud judgment or just cause you to panic and not trust or tell anyone the truth.

If you have taken the time, effort and money to hire an attorney, you owe it to yourself to cooperate fully with him. Anything you tell us we take to our grave due to the attorney-client privilege, unless we think it is beneficial to your case in trial or plea negotiations and only after we have discussed that with you.

An attorney should provide you with an open path to communication through jail visits and / or phone calls. Use that path and tell your attorney everything they want to know.

Miranda Warnings

Berkon Law — Fri, 23 Jul 2010 07:00:00 GMT

The United States Supreme Court made a very important decision regarding Miranda this summer. I'm sure everyone is familiar with the Miranda warnings given by police officers before interrogation.

"You have the right to remain silent, anything you say can be used against you in a court of law, you have a right to an attorney present, and if you cannot afford an attorney one will be appointed for you...." the police officer will then ask if you understand these rights and if you give them up.

Well what happens if the arrestee doesn't say anything...he doesn't say he waives his rights (gives them up to answer questions), nor does he say he is invoking his rights (claiming his rights and interrogtation has to stop). The arrestee just remains silent, and over the course of three hours of interrogation he mutters a "yes" when asked by police if he prayed for forgiveness for the crime he commited.

For years, we defense lawyers would argue, if an arrestee makes known by body language he does not want to talk to police but never says it, he invokes his Miranda right and the interrogation should stop. Otherwise, anything the arrestee says should be thrown out of court. But this case hurts that argument.

The U.S Supreme Court held that an arrestee must invoke his Miranda rights unambiguously, that means an arrestee has to acutally say the words, "I want an attorney" or "I want to remain silent" or something similar that clearly, tells the cops you don't want to talk to them and you want a lawyer.

Lesson learned....you should never talk to police if you are the target of investigation or under arrest. At that point, the police want you to say something that hurts your case. I don't know how many clients I have had who say they thought they could talk their way out of it, or out of going to jail. It never happens!! You should invoke or claim your Miranda rights and ask for a lawyer. Let the lawyer decide if it is in your best interest to talk to the police.....usually not, but occasionally it is a good idea. Bottom Line....GET A LAWYER FIGHTING FOR YOUR RIGHTS!!

Don't Bring Drugs into Jail!!!

Berkon Law — Fri, 23 Jul 2010 05:10:00 GMT

It might seem obvious, but to knowingly bring a controlled substance into jail as a visitor or inmate is a felony under Penal Code Section 4573. However, this very issue was brought before the California Supreme Court in two decisions this summer.

The facts are essentially the same....each defendant was carrying a small amount of methamphetamine on their person. Each was arrested and patted down by officers, however the officers did not find the dope. During the booking process into jail, each defendant was strip searched and the dope was found. They were then charged with knowingly bringing a controlled substance into jail under PC 4573.

They were tried, convicted then appealed. The issue was the defendants did not "knowingly" bring a controlled substance into jail because they were involuntarily arrested and booked into jail. When each defendant left their home that day they did not "know they were going to jail". Creative argument, but the Cal Supremes did not buy it. They affirmed each conviction, saying that if a defendant is arrrested and booked and dope is found on their person in the jail, they are guilty of "knowingly" bringing a controlled subsance into jail.

So the lesson is......NEVER CONSENT to a search by police officers. However, if you are being searched, either by consent or incident to an arrest and the police do not find any illegal susbstance you might be holding...might as well give it up. Why....because the simple possession of a controlled substance may be a misdemeanor. Bringing a controlles susbstance into a jail is a FELONY.

Character Evidence to Prove Guilt

Berkon Law — Sun, 27 Jun 2010 22:15:00 GMT

It is fairly well settled that character evidence to prove a defendant has a "propensity" to commit certain crimes is inadmissable. For example, let's say I am charged with shoplifting a shirt from a department store. Three years ago, I was convicted of shoplifting a pair of pants from a department store. At trial for the new offense, the prosecutor cannot bring up my prior shoplift conviction to argue to the jury that I am a thief and have the propensity to steal. Thus, I must have committed the current theft because I have stolen in the past. That is called character propensity evidence and it is inadmissable.

However, there are exceptions to this rule. One exception is with respect to Domestic Violence cases. In those cases, the prosecution can use past incidents of domestic violence WHETHER THE POLICE WERE CALLED OR NOT to argue to a jury a defendant is violent in his relationships with women and therefore must have committed the current domestic violence charge.

One way to keep this evidence out is if it is too remote in time. The law is murky when it comes to length of time. It would be easy if the law said anything over ten years is inadmissible, but such is not the case. Recently, a California Appellate Court (People v. Johnson, 2010 DJDAR 8662) held that prior Domestic Violence incidents from 15 and 18 years ago were not too remote in time to be admissable in the current domestic violence case.

Thus, if you or a loved one are charged with Domestic Violence, it is critical that you hire an experienced Criminal Defense Attorney who can navigate this complex area of the law and fight for your rights to a fair trial.

New Exception Created for Warrantless Police Search of Your Home

Berkon Law — Sun, 27 Jun 2010 21:30:00 GMT

One of the fundamentals of our Constitution is that our homes are free from government intrusion i.e. police entry and search without a warrant. However, there are exceptions to that rule called "Exigent Circumstances". That means an officer can enter a home without a warrant if one of the exigent circumstances exist. For example, if a police officer comes upon a home and hears screaming as though someone is being hurt or killed, the officer can enter the home (break in if necessary) to save that person's life.

The exigent circumstances are generally limited to Emergency (save life or property), Hot Pursuit, or to Prevent the Destruction of Evidence. Recently, a California Appeals Court has added an exigent circumstance which would allow a police officer to enter your home without a warrant. In People v. Chung, 2010 DJDAR 8189, neighbors heard loud howls and yelps coming from Chung's condo. They had heard the same noises earlier in the week and became concerned for the safety of the animals inside. The neighbors called police and reported what they had heard coming from Chung's condo. The officers knocked on the door, and Chung answered only peaking his head out. The officers told Chung why they were there and he denied owning any dogs. While speaking with Chung, the officers heard a faint whimpering coming from within Chung's condo. They asked Chung for permission to enter and search his condo, but Chung refused. The officers then entered Chung's condo without a warrant citing the sounds of a hurt animal as the "exigent circumstance" to check on the dog's well being. When the officers entered, they found a small dog bleeding and near death in the bathroom. Additionally, they found a dead dog in the freezer. Chung was arrested and charged with animal cruelty.

Chung challenged the warrantless entry by police as not falling under the "exigent circumstance" exception to the warrant requirement. The appellate court did not buy the argument and held that officers may enter a home without a warrant in order to check on the welfare of a live animal in distress.

While this case seems like a good decision, police officers are constantly trying to push the envelope with respect to warrantless searches. If you find yourself in that position, it is important to hire a good lawyer to challenge the lawfulness of police actions.

Welcome to Our San Diego Criminal Defense Blog

San Diego Criminal Defense Lawyer — Wed, 27 Jan 2010 19:56:00 GMT

Our attorneys are pleased to announce the launch of our Criminal Defense blog with an Rss feed available at http://www.berkonlaw.com/Blog/Entire-Blog-Feed/RSS.xml.