More on Not Talking to the Police

The following is from a police report in a recent false prescriptions case.  The defendant (now our client) said he returned an investigating police officer's phone call (to be nice!) but didn't give the officer any information.  In his mind he may be right, but let's look at what information the police - trained and motivated to get as much info as possible from people they are investigating - learned from "just a few questions."

I [Officer Friendly] received a return call from [the defendant].  I explained to him that I was investigating a case where it was reported several false prescriptions were filled at Denver pharmacies.  I asked the defendant if he knew anything about the prescriptions.  He acknowledged he knew about the prescriptions, and what I was referring to.  He wanted to speak with his attorney before speaking further.

From this brief, friendly, innocent sounding exchange, the police (and prosecutors) now will claim to know (1) what the defendant sounds like (to be compared to recordings they may have of defendant at the pharmacies), (2) that the defendant knows about the false prescriptions (i.e. a crime was committed), and (3) the defendant knew what the officer was talking about (i.e. defendant committed the crime).  Of course by calling back the defendant also confirmed his phone number, identity, and that he is still around.  All this free information now potentially can be used against the defendant - to find, arrest, prosecute and possibly convict him.

What should the guy have done?  He should have called a lawyer BEFORE calling the police back.  After making the mistake of calling the officer back, he compounded it by not politely declining to answer ANY questions until AFTER he spoke with his lawyer (of course a smart lawyer would have prevented that).

Note that Officer Friendly did not tell the defendant that anything the defendant said could and would be used as evidence against him.  The officer knows this is not required.  Contrary to what you've seen on TV, the famous Miranda advisement only applies to questioning while in custody; phone chit chat doesn't count. 

The defendant here unknowingly helped police to build a case against him.  Will they help him defend it?

Call Sanderson Law, 303-444-8846, before you even think about talking to the police.

Accused of copyright infringement? Read this.

Recently we've seen more cases involving allegations against clients of copyright infringement. 

The allegation comes in the form of an email to the client, claiming that a photograph or similar on its website infringes on the owner of that photograph etc.  Computer searches silently scouring the internet make it easier and cost effective for various organizations including so-called national law firms claiming to have enforcement rights to send out these types of email (which can include spam and emails easily mistaken for spam). 

The email demands payment in exchange for a retroactive license to use the photograph, and threatens all kinds of nasty legal consequences if the client refuses.  The question always is Should the client just pay the requested amount?

 

In order accurately to evaluate any alleged claim and decide whether to "just pay," we send a letter (not an email) to the demanding organization asking for information relevant under the applicable remedial statute, i.e., 17 USC 504.  This is the provision of the United States Code that governs recovering damages for copyright infringements. 

The letter asks the demanding organization - in order to be able to evaluate its demand - to advise:

1.     whether you (including the copyright owner) are seeking to recover actual damages and/or profits of the alleged infringer.  If so, please provide information as to how much you are seeking and any documentation supporting same.

2.     whether you are seeking statutory damages and if so, the total amount sought (including for each alleged actionable infringement).

3.     whether you are claiming any alleged infringement was committed willfully, and on what basis.  Kindly provide any supporting documentation.

4.     whether you maintain that the alleged infringer was aware or had reason to believe that its acts constituted an infringement of copyright, and on what basis you do so.  Kindly provide any supporting documentation.

5.     what is your basis for threatening to seek an award of court costs and attorney fees?

6.    Also, kindly provide documentation confirming that you are authorized to resolve on the owner's behalf any alleged copyright infringement, in addition to a proposed release license agreement duly executed also by that person.

         It is then up to the demanding organization to respond or not.  Failure to respond with the requested information could mean that any claimed recoverable damages are minimal or non-existent and/or that the demanding email is nothing more than a shakedown attempt.  Of course receipt of the requested information allows a more intelligent analysis (in view of the applicable law) in determining whether to pay or not. 

     Call Sanderson Law, P.C., at 303-444-8846, if you or someone you know needs help.

 

 

 

Talk to the police? No way.

They say art imitates life.  Sometimes it is the other way around.  I'm thinking about all those TV crime shows where the suspect stupidly answers police questions only to find himself in deeper trouble.  Fact:  Most criminal defendants are such because they talked to the police.

Let's be clear:  In criminal law, the only time you must answer questions is if you properly have been subpoenaed.  Typically that means personally being served specific paperwork (which you can challenge), called into court, seated in the witness chair, and questioned before a judge.  And even then - if you don't mind being held in contempt and placed in jail for a while - you still cannot be forced to utter a word (at least in this country).

So why do people talk to the police?  One reason is they think they have to (they don't).  Another reason is that they think it will help (it won't).  Beyond those reasons you get into all kinds of psychological theories about why people talk to the police. 

There is no need to complicate things.  Police ask questions when they don't have enough information.  If they don't have enough information, why give more to them?  A lack of information usually means lack of enough reason (or cause) to arrest you, or search your house, or seize evidence from your trunk. 

Will cops make up stuff if you don't give it to them?  Of course.  They are only human (newsflash to many judges, prosecutors and jurors) and prone at least to the same temptations to lie - to look better, or advance, or win - as anyone else.  But a lying cop is the exception.  A lying cop is a sitting duck, defenseless to an inquiring and probing defense team.  A lying cop will lie again, increasing the chances he or she will be caught.  Judges love cops, but not the lying kind.

When police (and judges and prosecutors) are arrested, they don't talk to the police.  Why should anyone else?

Being questioned by police?  Smile and politely insist on a lawyer.  Stick to it.  Don't fall for or submit to anything the police say in response.  They are trained to get you to talk, in all kinds of friendly, reasonable sounding and sneaky ways.  One of my favorite ploys is when the cop says "How can we know what happened unless you tell us your side of the story?"  What?  Whether the cops know "the story" is not a suspect's problem!  By telling them your story odds are you make yourself more of a suspect.

Even if you are "just a witness" you do not have to talk to the police.  And since you don't know what the cops know, or what or who they are looking for, or even whether you are "just a witness" - cops don't have to be honest or answer or tell you anything about their investigations - why would you want to risk digging your own grave?

If you choose to talk to the police, you'll only increase the odds of spending way more time (and money) with a defense lawyer anyway.

Here at Sanderson Law, P.C., we can help if you find yourself in a situation.  Best call us before you talk to the police.  303-444-8846.

8 Things to know about Domestic Violence offenses in Colorado

8 Things to know about Domestic Violence offenses in Colorado

1  Domestic Violence Can Be Any Crime

It's commonly misunderstood that Domestic Violence charges mean that someone was violent during the events concerning the charge. In Colorado, "Domestic Violence" of course means an act or threatened act of violence upon someone with whom the accused has had intimate relationship. But that is not the only way a crime may be classified as "Domestic Violence." It also includes any crime committed as a means of coercion, control, punishment, intimidation, or revenge against an intimate partner. So, for example, if a girlfriend breaks her boyfriend's Sony Playstation when he is not even home, because she is mad he went out with another girl to the movies, it is arguably an act of domestic violence.

2  Colorado Has Mandatory Arrest Laws

For most crimes, a peace officer in Colorado is given discretion when and where, and even if, to charge and or arrest someone. Not so in Domestic Violence Cases. If officers are called out and they have probable cause to believe someone committed an act of Domestic Violence, the suspect of the crime must be arrested. The legislature has told the officer that he must do this "without undue delay" meaning that if the person is there, the arrest must be made then and there. In addition, the arrested person will be booked into jail and cannot be given a bond until the victim has been informed of the bond hearing and given a right to be heard.

3  A Victim Cannot "Drop Charges"; Only the State "Presses Charges"

For whatever reason, the person who reported the crime may decide they no longer want to pursue a case (perhaps they never wanted to go forward with the case); this does not however mean that the case will be dismissed on that fact alone. All crimes in Colorado are said to be affronts to the peace and dignity of the State. Despite someone being designated the victim, only the DA who is prosecuting the case can make the call about whether the case goes forward or not. Except for unusual circumstance, even a judge cannot dismiss the case.

4  Domestic Violence cases are Victim's Rights Cases

Under the Colorado Constitution, some crimes are considered victims' rights cases. By definition, all Domestic Violence crimes are victim's rights cases. This means that the victim has several rights, including the right to consult with the DA before any offers are made and when bond is addressed. They have the right to speak at sentencing and to be notified when an incarcerated defendant will be released. Despite the fact that a victim cannot control whether a case is prosecuted or not, the victim can have a dramatic effect on how a case turns out.

5  Sometimes, Misdemeanor Charges Can Be Elevated to Felony Charges

In Colorado, if a person is convicted of an offense which would otherwise be a domestic violence misdemeanor and has already been previously convicted three times of acts of domestic violence, the person may be considered a habitual domestic violence offender and misdemeanor may be bumped to a class 5 felony. If the person is found by the court to be an habitual domestic violence offender, the court would then sentence in the presumptive range for a class 5 felony or 1 to 3 years. The DA has to give notice to the accused that they intend to do this, but keep in mind that while the accused may initially be charged with only misdemeanors, the DA may amend the charges upward if the accused has a significant domestic violence criminal history.

6  A Domestic Violence Conviction Will Impact Gun Rights

Federal law mandates that anyone convicted of a Domestic Violence charge can not possess a firearm. If the Domestic Violence conviction is for a felony, State law also makes it a felony to possess a firearm. These bans are for lifetime.

7  A Domestic Violence Conviction Will Result in DV Classes

Any sentence imposed by the court for a domestic violence crime, must order the defendant to complete a treatment program and a treatment evaluation. The domestic violence management treatment board, a state agency, approves both the treatment providers and the treatment. This gives the board a tremendous amount of power. In most cases, even for very low level misdemeanors, this means at least 36 one hour sessions over the course of 36 weeks. The treatment is required even if the person receives a deferred judgment and sentence. The only time treatment will not be imposed is if the person is sent to prison.

8  No In Home Detention on DV cases

For non-DV cases, in-home detention, sometimes called Electric Home Monitoring or EHM, is normally available as a sentence to custody or as a condition of probation. However, someone who is convicted of a Domestic Violence crime, is not eligible for home detention in the home of the victim. The only way someone could qualify for home detention is if they did not live with the victim - obviously something that rarely happens with married couples.

* * *

Top Ten Advice for New Lawyers

     From 25 plus years experience practicing law, here is my current top ten list of advice for new lawyers:

1.  It is the client's case so act accordingly.
2.  Don't procrastinate.
3.  Make "to do" lists and follow them.
4.  Read and apply the rules.
5.  Review, prepare, strategize and memorialize.
6.  Shepardize.
7.  Follow up.
8.  Timely return phone calls, emails, letters etc.
9.  Keep expenses down.
10.  There are no shortcuts.

What does a lawyer do?

Lawyer -v.

To advocate allege assert appeal bargain brief battle argue urge encourage cajole control console petition plead persuade dissuade defend demur deflect reflect object motion negotiate litigate mitigate mediate interrogate strategize theorize analyze organize apologize memorialize minimize emphasize legitimize rationalize neutralize update placate supplicate vacate inform perform advise counsel solicit elicit express address redress present represent research review investigate cogitate calculate speculate articulate estimate question answer shield involve solve resolve absolve combat communicate predict plan explain prove disprove evince convince include exclude preclude introduce deduce craft draft attack act react redact enact extract protect inspect discover disclose confide connect expect process produce propound expound respond contest protest retest meet greet confer infer refer defer deter check double-check proof learn discern listen hear talk speak seek tweak edit execute examine offer proffer demand decline accept reject claim name implead interplead supersede succeed sell excel proceed correct amend contend extend modify educate wait dictate type write right read fight cite surmise summarize Shepardize dispute refute rebut remind define conclude exude note tote appear cheer steer voirdire mail call deliver copy forward fax think enforce file serve send resend observe quash summon subpoena dance advance maintain debate state restate probate teach preach praise raise assist resist persist calm soothe smooth agree disagree instill distill open close instruct construct deconstruct parry sue do undo redo try retry practice perfect settle oversee underscore follow-up arrange engage assuage distinguish diffuse warn forewarn save sacrifice study steady ready intuit invoke simplify clarify justify rectify respect redirect relate exculpate anticipate appreciate ease please appease comfort assure help prepare care.

            - my take on what lawyers do, by Dave Sanderson 11/16/15

 

 

Expert testimony in defending sex assault cases.

     The following comes from a Colorado Court of Appeals case announced 10/9/14, People v. Brown,  permitting a defense expert to testify regarding defendant's likelihood of being the offender.  Prosecutors make frequent - often questionable - use of "experts."  As can be seen here, defense expert testimony can help too: 

“B. Defendant’s Expert Testimony

¶31      Trial courts have broad discretion to exclude expert testimony if it is unreliable or irrelevant, or if its probative value is substantially outweighed by the danger of unfair prejudice. People v. Ramirez, 155 P.3d 371, 378 (Colo. 2007). We will not disturb the trial court’s ruling unless it is manifestly erroneous. Id. at 380.

¶32      All relevant evidence is admissible unless the United States or Colorado Constitutions, statutes, or court rules provide otherwise. CRE [Colorado Rule of Evidence] 402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” CRE 401; accord Jones, ¶17 (admissibility of evidence does not depend on a specific theory of relevance).

¶33      Here, defendant sought to admit testimony by a psychologist who performed a sex offense specific evaluation of defendant. The psychologist’s report found that (1) defendant had a sexual interest consistent with the interests of the general adult male population of the United States and (2) defendant’s interest in voyeurism was not significant enough to classify him as abnormal.

¶34      The trial court excluded this evidence because it was irrelevant and an attempt to “back-door” an opinion that defendant was not guilty of the charged offenses.

¶35      Evidence that defendant did not have a statistically significant interest in voyeurism would tend to make it less probable that he videotaped the victims for the purpose of sexual gratification, which is an element of the offense of unlawful sexual contact. The evidence was therefore relevant to that charge.

¶36      Further, at a pretrial hearing, defense counsel and the psychologist made clear that the psychologist would limit his testimony to the results of his evaluation. They added that the psychologist would not express an opinion about defendant’s guilt or innocence of any charge.

¶37      We therefore conclude that the trial court abused its discretion when it excluded the psychologist’s testimony concerning the charge of unlawful sexual contact. The trial court should allow defendant to present such evidence on retrial.”

            If you or someone you know is charged with a crime, call Sanderson Law, P.C., or email arl@sandersonlaw.net, to help.  303-444-8846.