DEFENDANTS GUIDE TO THE CRIMINAL JUSTICE SYSTEM
Once processed into the criminal justice system, none of the officials involved, from the myriad of Judges, Magistrates, Law Enforcement Officers, District Attorney, and their staff of legal assistants, care anything about you as a person nor how the criminal charges will affect your reputation, job opportunities, family relations, financial situation, or criminal record. The criminal justice system is all about money, particularly your money and how much you are willing to pay in order to stay out of jail.
DEFENDANTS GUIDE TO THE CRIMINAL JUSTICE SYSTEM " The criminal justice system is so fragmented that no single individual within the justice system is ever held accountable for malicious prosecution or a wrongful conviction". INTRODUCTION The information contained in this Defendants Guide To The Criminal Justice System is prepared for those defendants who have been wrongfully charged with a criminal offense. The author recognizes there are many dedicated Law Officers in the criminal justice system who are the first line of defense against the criminal element in our society. However, there are some Court Officials and Law Officers who abuse the privilege of their position, “To Protect and Serve” the citizens who place their trust in the fairness of the criminal justice system. This guide is intended for informational purposes only and is not intended as legal advice. The intent of this pamphlet is to prepare you, the defendant, for your appearance in court for the offense(s) for which you have been charged, and to teach you how to defend yourself in a courtroom by using the criminal justice system to your benefit. This Defendant’s Guide is the result of the author’s experiences over a seven year period in North Carolina Judicial Districts 27B and 29A. The author has attempted to be factual in the presentation of material without undue criticism.
There is an old adage that says, “If you are looking for Justice in the courts, you are looking in the wrong place”. Chapter 1 Due Process of Law Once processed into the criminal justice system, none of the officials involved, from the myriad of Judges, Magistrates, Law Enforcement Officers, District Attorney, and their staff of legal assistants, care anything about you as a person nor how the criminal charges will affect your reputation, job opportunities, family relations, financial situation, or criminal record. The criminal justice system is all about money, particularly your money and how much you are willing to pay in order to stay out of jail.
Thousands of people are unfairly convicted of crimes - Why ? Because the criminal justice system puts you at a disadvantage. You are up against experienced, government funded prosecutors and juries that are eager to assume you are guilty. Your Right to Due Process of Law: Your right to due process of law as guaranteed by the Fifth Amendment that you shall not “be deprived of life, liberty, or property, without due process of law” in combination with the Fourteenth Amendment guarantee of equal protection is to give every American citizen a clear-cut and powerful group of rights if he or she should be accused of a crime. The Sixth Amendment to the United States Constitution assures everyone “the right to a speedy and public trial, by an impartial jury”. In 1970 the federal Supreme Court cleared up the confusion as to what constitutes a criminal case and whether a state court might constitutionally limit the right to trial by jury. The Superior Court said that a jury trial must be provided to a defendant where the penalty for the crime charged would be imprisonment for longer that six months. An accused may not waive the right to a jury trial in a death sentence. The right to trial in all criminal cases “by an impartial jury” as guaranteed by the Sixth Amendment to the Constitution has been defined in the North Carolina district courts for a presiding judge to act as both Judge and Jury in misdemeanor cases. As a defendant, if you are found guilty of a misdemeanor or infraction in district court you may appeal your case to superior court for a trial by a jury of your peers. Both the plaintiff or the defendant, if they disagree with the presiding judge‘s decision, may appeal the district court judge’s decision to superior court for a new trial, called trial de novo. The trial in superior court is a completely new proceeding in which the evidence must be presented again as though the district court trial had never occurred. A misdemeanor trial in superior court must be conducted with a twelve-person jury, and a jury’s verdict of “guilty” or “not guilty”
must be unanimous. A defendant who is convicted of a misdemeanor or found responsible of an infraction in superior court has a right to appeal to the North Carolina Court of Appeals for appellate review of the trial. Appellate review is not another trial; the appellate court generally examines only alleged trial errors such as whether the presiding judge properly instructed the jury about the law applicable to the case or whether the judge properly allowed or disallowed certain evidence to be heard, or whether a search was properly conducted. If a court of appeals decision is not unanimous, the losing side automatically may have its case reviewed by the state superior court.
The right to trial in all criminal cases “by an impartial jury” as guaranteed by the Sixth Amendment to the Constitution has been defined in the North Carolina district courts for a presiding judge to act as both Judge and Jury in misdemeanor cases. As a defendant, if you are found guilty of a misdemeanor or infraction in district court you may appeal your case to superior court for a trial by a jury of your peers. Both the plaintiff or the defendant, if they disagree with the presiding judge‘s decision, may appeal the district court judge’s decision to superior court for a new trial, called trial de novo. The trial in superior court is a completely new proceeding in which the evidence must be presented again as though the district court trial had never occurred. A misdemeanor trial in superior court must be conducted with a twelve-person jury, and a jury’s verdict of “guilty” or “not guilty” must be unanimous. If you have been named as a Defendant in a criminal case, the first thing you should realize is that you are already considered guilty of the charge(s) by the District Attorney and his/her stable of Assistant District Attorneys (ADA); and more importantly, you are considered guilty of the charge(s) by the local Sheriff and his/her staff of Deputies. There will not be an investigation of the charge(s) against you as to your innocence or guilt by the Sheriff because the Sheriff's Department is the Investigative Branch of the District Attorney's Office, both working hand-in-glove to prove you guilty. If the charge(s) against you were brought by a Deputy Sheriff, it is the responsibility of the District Attorney to prosecute the charge(s) against you. A Sheriff in the State of North Carolina may be elected from the general population of a county and is not required to have a criminal justice degree in order to be elected to the position. In most Judicial Districts in North Carolina, a private citizen may simply go to the local courthouse and file a complaint against you with a Magistrate on duty - 24/7. Magistrates - act as judges working around the clock, issuing warrants of arrest, presiding over trials of small claims, ($5,000 or less), and performing marriages.
Their offices are usually located in or near the courthouse. The State of North Carolina has 719 magistrates through out the state. Magistrates are chosen by the elected Clerk of Court, appointed for two-year terms by the Senior Resident Superior Court Judge, under the supervision of the Chief District Court Judge of a judicial district, and confirmed by the Chief Justice of the Supreme Court. Magistrates are not elected to their position and, other than a Deputy Sheriff, are the least educated officials in the criminal justice system, requiring only a two-year community college degree. They are not required to have any legal training or a criminal justice certification to be appointed by the Clerk of Court. This is strictly a political appointment. However, magistrates have the most influence on charges brought against a defendant by a plaintiff, deciding on which criminal statute to charge a defendant based solely on the word of the plaintiff. Rarely, if ever, is a plaintiff charged with perjury for taking out a false-charge against a defendant. Complaints vary, but you may be charged with any number of 403 criminal offenses in North Carolina ranging from (1) harassing telephone calls to (2) assault by pointing a gun. Whether these charge(s) are true or not, you will still have to defend yourself in court against the Plaintiff, who is represented by the District Attorney and his/her staff of Assistant District Attorneys, and who are backed by the full weight of the criminal justice system. How you handle your defense is entirely up to you. You have the options of hiring a Defense Attorney to defend you, or you may defend yourself, acting as your own Defense Counsel - which is your legal right to do so, and by which the Presiding Judge must obey court procedures. If you choose to defend yourself you must learn these courtroom procedures as well as defense lawyerâ€™s tactics. The Criminal Justice and Legal System is designed on purpose to instill fear into a defendant. Before you go to trial, visit a courtroom and familiarize yourself with courtroom procedures. Donâ€™t be intimidated by the black-robed judge or prosecutorâ€™s demeanor towards you and the other defendants because they already consider you guilty of the charge(s). It is up to you or your defense attorney to prove your innocence. Public Defenders - All states must provide legal counsel for defendants who have been determined by a judge as financially unable to hire their own attorney. There are 11 public defenders in the state of North Carolina, and 121 assistant public defenders representing indigent people in 13 counties. (If the person is found guilty, he must repay the state). The Senior Resident Superior Court Judge appoints a public defender to a four-year term. In the remaining counties, representation is provided by private attorneys, at considerable costs to the defendant. Initial fees to hire a defense attorney to represent you will cost a minimum of $500 in District Court, and a minimum of $2,500 to $10,000 in Superior Court depending on the charge(s) against you. Warrant - Court authorization for law enforcement officers to conduct a search or
make an arrest. An electronic warrant on file with the Sheriff’s Department is sufficient “evidence” for a deputy sheriff to make an arrest and may or may-not be shown to a defendant at the time of his/her arrest, but the warrant and charges must be shown to the defendant by the magistrate “at the earliest opportunity” when the arresting officers bring the defendant to the magistrate’s office for “booking” into the local jail. The complaint by a Plaintiff will be reviewed by the Magistrate, who assesses the complaint and determines the charge(s) to be filed. Then the charge(s) are sent to the Sheriff's Department where a subpoena will be delivered by a Deputy Sheriff stating the date and time you must appear in district court for arraignment, or first appearance; or a warrant may be issued for your arrest by one of the Deputy Sheriff's. In North Carolina, Magistrates are judicial officers of the district court and have jurisdiction in criminal and civil cases. In many instances, a citizen's first contact with the judicial system comes through the office of the magistrate, as magistrates are the front-line protection of peoples' constitutional rights. However, if you are a defendant do not expect the magistrate or arresting law enforcement officers to assist you in any way with the criminal justice system process, because the magistrate is going to determine if you, the defendant, must post secured or unsecured bail and in what amount. Never put up your personal real estate property as collateral for bail. In criminal cases, the pretrial process begins with the magistrate, whose primary function is to provide an independent, unbiased review of charges and complaints by law enforcement officers or citizens. The magistrate determines if, and to what extent, further action is warranted when a police officer or a citizen claims that a crime has been committed.
Magisterial duties include issuing various types of processes such as arrest warrants or summonses, search warrants, subpoenas, and civil warrants. Magistrates conduct bond hearings to set bail and conditions of release in instances in which an individual is charged with a criminal offense. They determine whether or not a person should be charged with driving while impaired and hold the initial 30-day drivers license revocation hearing. Magistrates may also accept prepayments for traffic infractions and minor misdemeanors. Magistrates also have important civil responsibilities -- deciding evictions and cases involving up to $4,000.00 money damages in Small Claims Court, and issuing important processes in cases of alleged domestic violence.
Chapter 2 ARREST
I'M UNDER ARREST? You can be arrested in North Carolina if a judge or a magistrate has issued an arrest warrant which directs the police to take you into custody. If an arrest warrant has not been issued, you may be arrested if a police officer has reasonable ground to believe you have committed or are committing a crime. You may also be arrested if you have failed to appear for a criminal court date when you were required to do so. It is up to you, the defendant to keep track of your court date(s) by contacting the Clerk of Courts office If you are arrested, you will be brought before a magistrate for an Initial Appearance and he or she will determine if probable cause exists for the charge that you are facing. If probable cause is found, you will be advised of a date you must appear in court and the court will set conditions for your release and consider whether or not to release you on bond, and the type of bond to be set. Bond is a monetary guarantee for the court that you will appear each and every time you are ordered to do so while your case is pending. In North Carolina there are several types of bond. A secured bond may be satisfied with cash, property, or by a bondsman. A cash bond requires that the full bond amount be surrendered to the court in cash and it can be posted by anyone. (If you are arrested on charges of drug trafficking, you must prove that your bond money is coming from non-drug revenue sources before it will be accepted by the court.) The court will retain this money until your criminal case is concluded at which time it will be returned to you. The full bond amount will be forfeited to the court if you fail to appear for your trial. A property bond is one that posts the value of real estate in order to obtain pre-trial release from jail. You will not be permitted to put up your own property if a warranty deed or tax statement indicates that there is more than one owner, each owner must sign an agreement declaring that the property may be used to finance your bond. A surety bond is, in essence, a contract with a bondsman for the total amount of your bond. A surety bond is usually written for a 15% premium of the full bond amount and the premium will not be returned to you. An unsecured bond is a promise to appear in court when necessary and to comply with any set conditions. If you should fail to appear in court or violate any of the conditions of you release, you would be liable for a money judgment in the full amount of the bond. A written promise (sometimes known as a release on your own recognizance) is a signed promise to appear in court when scheduled and to comply with any set conditions of release. A custody release is a court order declaring that a defendant may only be
released into the care and supervision of a named responsible person. The most common use of this release involves the parent of a juvenile defendant. Not all people charged with crimes are entitled to bond. If you are charged with murder, you will not have a bond. If you are arrested for domestic violence you will not have a bond set until you see a district court judge or have been in jail for 48hours. If you are released on bond, the most important thing to remember is that you must be in court on the scheduled date. You must appear even if you have not been able to hire an attorney, to explain your situation to the court. It is at this time you must inform the court of your intend to represent yourself, or you may request a â€œcontinuanceâ€? when your name is called during your first appearance in court, Arraignment or Roll Call, in order to seek an attorney to represent you. It is not necessary for the Deputies to show you the warrant at the time of your arrest, simply a courtesy on their part if they choose to do so. An electronic warrant on file with the Sheriff's Department is sufficient cause for the Deputies to arrest you. One or more Deputies may suddenly appear on your doorstep requesting that you step-outside your residence so they may place handcuffs on you and haul you down to the local Magistrate's Office where you will be advised of Bail, and your arraignment date and time. You will be processed or Booked into the local jail where your picture or mugshot will be taken and/or finger prints taken, and in some situations you will be required to submit a DNA sample to be analyzed and placed in the Department of Justiceâ€™s criminal DNA data base, for further reference. All records against you are made available to the public upon request, including the mugshot of your arrest. If secured bail is required for your release and you are unable to raise the money for your bail, you may be asked to sign over your real estate property as collateral. Do Not sign over your real estate property as collateral for a secured bail even if it means spending a night in jail before a friend or family member can post bail for you. If you are found guilty of the charge(s) and unable to pay court costs and fines; your real estate property may be seized by the Sheriff's Department and auctioned off on the courthouse steps in order to pay off your debts to the Courts. Just about every Lawyer has a Real Estate Branch attached to their Law Firm, and will be more that glad to acquire your property, by paying off your debts to the courts. The is a very lucrative business for the local lawyers and their spouses, the spouses running the Real Estate Office for their lawyer husbands.
Chapter 3 Problems with Criminal Justice System The first of many problems with the criminal justice system is simply allowing a person to walk into the Magistrates Office and file a complaint against another person without an investigation by either the Sheriff or the District Attorney as to the legitimacy of the complaint. Rarely in North Carolina is a Plaintiff prosecuted for “filing a false-complaint” or by committing perjury on the witness stand against a Defendant. Many of the ADAs will knowingly place perjured testimony against a defendant in an attempt to get a conviction or withhold evidence which would prove the defendant innocent of the charge(s). In most cases, the presiding judge will do nothing against either the Prosecutor or the Plaintiff for these “courtroom tactics“. For the Assistant District Attorney’s and their boss, the District Attorney, its all about winning a conviction.
Problems With Magistrate's Office Weak Link in Judicial Process In North Carolina, Magistrates are judicial officers of the District Court and have jurisdiction in criminal and civil cases. In many instances, a citizen's first contact with the judicial system comes through the office of the magistrate as magistrates are the front-line protection of peoples' constitutional rights. In criminal cases, the pretrial process begins with the magistrate, whose primary function is to provide an independent, unbiased review of charges and complaints by law enforcement officers or citizens. The magistrate determines if, and to what extent, further action is warranted when a police officer or a citizen claims that a crime has been committed. Magisterial duties include issuing various types of processes such as arrest warrants or summonses, search warrants, subpoenas, and civil warrants. Magistrates conduct bond hearings to set bail and conditions of release in instances in which an individual is charged with a criminal offense. Magistrates from each of the one-hundred counties in North Carolina are nominated by the Clerk of Superior Court, appointed for two-year terms by the Senior Resident Superior Court Judge, under the supervision of the Chief District Court Judge, and finally approved by the Chief Justice of the Supreme Court. Magistrates are officers of the district court, and they are subject to the supervision of the Chief District Court Judge in judicial matters. Magistrates are the lowest judicial official in the criminal justice system and usually the least intelligent of the judicial officials - the “weak link” in the judicial process. When appointed to their position, many Magistrates do not have any legal training,
criminal justice degree, law enforcement training, nor a higher educational degree beyond a community college general education degree. The only requirement to become a Magistrate is to be one of the "Good-Ole-Boys / Girls in local politics. Magistrates legal training in their assigned duties is provided by the Administrative Office of the Courts, of course, at taxpayers expense. The primary problem with Magistrates being allowed to review complaints and issue warrants, is that most Magistrates fail to follow up on the court proceedings, including testimony during the trial, against you, the Defendant - allowing the same Plaintiff, over a period of time, to file multiple-charges against the same Defendant. When a Plaintiff fails to get a conviction on the first complaint, all they have to do is go to the Magistrate and file another complaint against the same defendant. Most Magistrates will not enforce the stipulation which states the Plaintiff is subject to 30days in jail for falsifying statements on the complaint. Nor will the District Attorney prosecute a Plaintiff for giving false-testimony on the witness stand against a Defendant.
POLICE STATE: GUILTY UNTIL PROVEN INNOCENT IN A COURT OF LAW Make no mistake, the Arresting Deputies will use whatever force they determine is necessary to get you into a pair of handcuffs - even to throwing you to the ground and shooting you with a Taser or a service revolver. If you refuse to come outside your residence, you may be charged with (1) resisting arrest without violence, (2) resisting arrest with violence, (3) resisting a public officer, (4) resisting arrest, (5) threatening a public official / law enforcement officer (LEO), and if you are in your vehicle at the time and attempt to leave without authorization, you may be charged with (6) attempting to flee Law Officers, (7) vehicular assault on a LEO - claiming you attempted to run over an LEO - and you may be shot and killed by the Deputies by them using a Taser or their service revolver - AND you, the defendant, haven’t even been to court yet !
The more charges filed against you, the more confusing the criminal justice system is to you, the Defendant, and the more likely you will be found guilty of one or more of the charge(s). Remember that you have the right to appeal a misdemeanor conviction in district court, where the judge sits as both Judge and Jury, to superior court for a jury trial. If enough defendants appealed their convictions for a jury trial in superior court, it would slow down superior court cases and could potentially bankrupt the local district attorney’s annual budget. Usually a defendant is just happy to be able to stay out of jail by paying a fine and will not appeal a conviction to superior court. Recently, there have been so many abuses by LEOs in their use of police powers, as defined in the Eighth Amendment of the Constitution “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted“,
that a new branch of defense attorney has arisen to defend LEOs for these abuses against private citizens.
TASER NATION The Taser is the single most abused weapon in a LEOs arsenal of weapons available to an arresting Officer. While the Police Taser is considered by the manufacturer, Taser International, and Law Enforcement Personnel to be a non-lethal weapon, and should only be used by LEOs for defensive purposes, over 338 persons in the United States have died after being shocked with the 50,000 volt weapon. Recently a 17-year old in Charlotte, NC was shocked multiple times by a LEO, and died at the store where he worked - the LEO claiming the 17-year old boy was aggressive. Video tape of the incident clearly shows that the LEO abused his police powers by shocking the young man several times in succession. According to the ACLU, Darryl Turner is one of 10 people since 2006 to have died in North Carolina after being hit with a Taser. Since 2001, three hundred and thirty-eight people in the land of the free have died after being tasered by police officers, including pregnant women, their unborn child, the wheel bound elderly, the infirmed, mentally ill, 8-year old children, drivers for traffic violations, and the list goes on and on about the deaths of citizens tasered by abusive law enforcement officers.
CRIMINAL LAW Criminal law involves prosecution by the government of a person for an act that has been classified as a crime. Civil cases, on the other hand, involve individuals and organizations seeking to resolve legal disputes. In a criminal case the state, through a prosecutor, initiates the suit, while in a civil case the victim brings the suit. Persons convicted of a crime may be incarcerated, fined, or both. However, persons found liable in a civil case may only have to give up property or pay money, but are not incarcerated. A "crime" is any act or omission (of an act) in violation of a public law forbidding or commanding it. Though there are some common law crimes, most crimes in the United States are established by local, state, and federal governments. Criminal laws vary significantly from state to state. There is, however, a Model Penal Code (MPC) which serves as a good starting place to gain an understanding of the basic structure of criminal liability. Crimes include both felonies (more serious offenses -- like murder or rape) and misdemeanors (less serious offenses -- like petty theft or jaywalking). Felonies are usually crimes punishable by imprisonment of a year or more, while misdemeanors are crimes punishable by less than a year. However, no act is a crime if it has not been previously established as such either by statute or common law. Recently, the list of Federal crimes, dealing with activities extending beyond state boundaries or having special impact on federal operations, has grown. See Title 18. All statutes describing criminal behavior can be broken down into their various
elements. Most crimes (with the exception of strict-liability crimes) consist of two elements: an act, or "actus reus," and a mental state, or "mens rea." Prosecutors have to prove each and every element of the crime to yield a conviction. Furthermore, the prosecutor must persuade the jury or judge "beyond a reasonable doubt" of every fact necessary to constitute the crime charged. In civil cases, the plaintiff needs to show a defendant is liable only by a "preponderance of the evidence," or more than 50%.
TWO KINDS OF CASES In general, juries are called upon to decide two kinds of cases--civil and criminal. A civil case usually involves a claim for money damages or some claim with respect to property. The party initiating the case is called the plaintiff. The filing of the plaintiffâ€™s written claim, called the complaint, which is filed with the Clerk of Court, begins the suit. The defendant, or party who is being sued, responds to the complaint by filing his answer in which he admits or denies the claims made by the plaintiff. In some instances, the defendant may make a counterclaim against the plaintiff or a cross claim against one of the other defendants. All of these documents make up what are called the pleadings. A juror should always remember that these pleadings are merely written claims of the parties and not evidence. A criminal case is brought in the name of, and by, the State of Nouth Carolina against a person, the defendant, charged with breaking the law. The attorney who represents the state is called the Prosecutor. The case is ordinarily begun by the grand jury of a county. The written charge or accusation that is brought against the defendant is called an indictment. The indictment merely describes the crimes that the defendant is accused of committing and is not evidence. The fact that the grand jury brought an indictment against the defendant should also not be considered as evidence that the accused is guilty. The accused is not required to make a written answer to the indictment. He may plead guilty if he so chooses or he may plead not guilty and go to trial. ------------------------------------------------------------------------------------------------------------
ARRAIGNMENT After finding my name on the Roll Call Calendar List, I opened the doors into the courtroom from Hell - defendants were lined against the right side of the courtroom for traffic offenses while on the left side defendants were being arraigned by an Assistant District Attorney for their day in court. The judge sat like a Toad in his black robe trying to control the courtroom chaos while two Assistant Court Clerks danced around the Judgeâ€™s podium. A Bailiff walked up and down the center aisle spraying Spring Fresh to mask the body odor and pickled egg farts. Defendants were shuttled before the Judge like
lambs to the slaughter, none of whom appeared to have more than a high school education, coming to court in their ragged street cloths obviously didn't understand courtroom etiquette. Their life experiences showed on haggard unshaven faces, stringy hair, smeared makeup and bulging waistlines. I asked myself, “What am I doing here?”, a college professor with a Ph.D. in Biochemistry and former Assistant Secretary of the State of Florida Department of Environmental Regulation, among the drown-trodden of society, charged with assault by the same drug dealers I had turned in to the Special Agent-in-Charge Chris Swecker of the Charlotte Office of the FBI, Director of the State Bureau of Investigation Robin Pendergraft, and Narcotics Officer Mayrock “Rocky“ Smith of the Cleveland County Sheriff‘s Department under Sheriff’s Dan Crawford (19942002) and Raymond Hamrick elected Sheriff in November 2002. I stood behind a black Dude who was attempting to defend himself in court before Judge Charlie Horn (May, 2002). " Where did you get your legal training, don't you know I can box-car you? Do you know what that means Boy? It means I could sentence you to two 6-months prison terms back-to-back." I watched as the black Dude's pants leg started to tremble while the judge continued to rant at the black Dude. "I find you guilty of the charges and sentence you to 6-months supervised probation, two-hundred dollars in fines, and court costs of sixty-five dollars. Pay the Court Clerk on your way out. Next case, bellowed the judge." I was the next case and as many times as I had been in a courtroom, I felt my palms start to sweat. The Judge and I glared at each other from across the courtroom. I knew this particular judge for our families had been political enemies since I could remember, going back three or four generations. This was the same lawyer, Charles A. “Charlie” Horn, turned Judge by appointment from Governor Mike Easley who had The Shelby Star Editor “Skip” Foster, husband of District Court Judge Anna F. (Dina) Foster, place a letter in the Reader’s Forum on August 10, 1999 for the Plaintiff about me shooting into the back of the drug dealers truck when they pointed a pistol at me; a clear violation of the U.S. Constitution First Amendment. Judge Charlie Horn, a former employer of the Pruett’s, presided over the first charge brought against me, “vehicular assault”, a violation of the Judicial Code of Conduct Canon 2B, for a former employer / Judge to preside over a case involving an employee or family member. I was representing myself in the latest charge of “vehicular assault”. The Plaintiff was the drug dealer’s niece, Penny Atkins Evans, who was riding with Tommy Richard Pruett, Sr., and his son, T.R., Jr., when they chased me out of Polkville, riding less than five feet off the read bumper of my pickup truck. When I braked, forcing them around me, their brown and tan pickup sped past and then spun sideways in the middle of the two lane road blocking me from going around their truck. I had stopped about fifty feet back from their truck when the passenger side door of their pickup flew open. I saw a young woman, who I did not know at the time, struggling to get out of their truck with a bat-sized pole in her hand.
As she ran back towards my truck screaming and swinging the pole, I pulled off the left side of the highway into the roadside ditch in order to get out of her way and around Tommy’s truck. As I continued towards my farm, T.R. got out of their truck, throwing a large “gulp-drink” striking the read window of the shell covering the bed of my truck. The Pruett Clan, Tommy Richard Pruett, Sr., his son T.R., Jr., brother Richard “Ricky” Lee Pruett, and his wife Sandra, lived across the creek about fifty feet from the boundary line of my seventy acre farm. Every since I had moved onto the farm on July 4, 1976, I had problems with the Pruett’s because the first thing I had done was block off a road they had built across the creek, denying them access to the fire wood they had been cutting off my Grandparent’s farm after my Grandfather George Beam died in 1960. This is a true story that happened to the author in Judicial District 27B, Cleveland and Lincoln Counties, and Judicial District 24A, Rutherford County, between January 1999 and December 13, 2006, the same plaintiffs, Tommy R. Pruett, Sr. and his son, Tommy R. Pruett, Jr., being allowed to file eight false-charges against me, the defendant, James W. “Buck” Carr, and maliciously prosecuted by District Attorney William Carlos “Bill“ Young, a fellow-alumni of Appalachian State University and friend of Judge Charlie Horn. In the process of all the many and varied charges against the Author, I was falsely-arrested by Judge Charles A. “Charlie” Horn for “failure to appear” and numerous other times based solely on Tommy R. Pruett, Sr. and his son, T.R. Jr‘s testimony to Magistrates Pam Spurling Patterson and Larry G. Ware; assaulted by Cleveland County Deputies A. D. Collins and Shane Ledbetter, who nearly killed me when he Tasered me right behind my heart on September 7, 2006, both law officers refused a subpoena to supply the photo of my back where the Taser darts entered and the Taser data port information which would have convicted them of “abuse of police powers” and “assault upon a citizen by law enforcement officers” in violation of the U.S. Constitution eighth amendment.
THE STAGES OF A TRIAL The trial of both civil and criminal cases is conducted under similar rules of procedures and in much the same manner. The stages of trial usually include: (1) Opening Statements. An opening statement is made first by the attorney for the plaintiff and then by the attorney for the defendant. The purpose of this opening statement is to outline to the jury the facts of the case and what each side will attempt to establish through the presentation of evidence. This is only an explanation of what each side claims. Occasionally, the judge will make a preliminary charge which substitutes for opening statements.
(2) Presentation of Evidence. After both sides have been given the opportunity to make opening statements or the judge has made a preliminary charge, the trial moves to the stage in which evidence is presented by each side. The plaintiff first presents all the evidence that supports his contentions and is then followed by the defendant who presents his evidence. The plaintiff may then give evidence to disprove or explain some evidence presented by the defendant. Evidence may be in the form of a written document, an object, a photograph, or an X-ray. Such pieces of evidence are called exhibits. This physical evidence will be taken with you to the jury room and may be considered in your deliberation. Most evidence is presented in the form of spoken testimony of witnesses who have taken an oath to tell the truth. The attorney who has called the witness first asks questions of that witness; this is called direct examination. After direct examination is concluded, the lawyer for the other party may ask further questions of that witness, or cross-examine. After cross-examination, the lawyer who called the witness has a final opportunity to ask questions, which is called re-direct examination. You should pay close attention to each witness as he testifies, not only to what he says but his manner and actions. If at any time you are unable to hear clearly, make the judge aware of the problem by raising your hand. In some instances, the testimony of a witness who cannot be present at the trial may have been taken before the trial and written down. Such testimony, called a deposition, is given under oath, and if entered into evidence, should be treated as though the witness were testifying in court. All testimony, as well as remarks of the judge, attorneys, and other court officials are recorded by the court reporter. This constitutes the official trial record, which may be of importance in later proceedings. From time to time during the trial, you may hear the attorneys make "objections". Objections may be made for several reasons, including objections to the conduct of the parties or their attorneys, to the form of a question during the examination of a witness, or to the introduction of evidence. If the objection is deemed improper or not well founded by the judge, he will "overrule" it, and allow the proceedings to continue or the evidence to be introduced. If the judge finds the objection to be valid and proper, he may "sustain" it, thereby discontinuing that conduct or question or he may refuse to allow the introduction of evidence. Under the rules of law governing the introduction and admission of evidence, a lawyer is within his rights to object to the introduction of any evidence, which he believes is not proper. The judge is the sole authority on what evidence is proper. Since the evidence may be excluded, the jury is usually not allowed to hear arguments as to admissibility. Thus, the judge may send the jury out of the
courtroom to allow the attorneys to argue to him whether the evidence should be admitted. Sometimes evidence is viewed by the jury before the attorney has a chance to object. The judge may order the jury to disregard such evidence completely, and if so ordered, it should be disregarded and not considered as evidence.
(3) Final or Closing Arguments. After both sides have had an opportunity to present their evidence and have both "rested" their cases, they are given a chance to make final or closing arguments to the jury. First, the plaintiff's attorney, or the prosecutor in a criminal case, followed by the defendant's attorney will make closing arguments in which they sum up the evidence and testimony and try to persuade the jury to find in favor of their respective clients. These arguments, like the opening statements, should be listened to attentively but should not be considered as evidence in themselves. (4) Instructions. After the lawyers have concluded their final arguments, the judge will instruct you on the law that applies to the case, and you must apply that law to the facts as you find them in arriving at your verdict. You are bound under your oath to give full effect to the law as the judge states it to you. You must pay close attention to his instructions. If the judge should give you any instruction that is different from any statement in this pamphlet, you should accept his instruction as correct and be guided by it. (5) Jury Deliberation. Following the instructions, or charge by the judge, the bailiff will escort the jury to the jury room where you will conduct your deliberations. The foreman that was designated by the judge presides during the deliberations. The foreman acts as the chairman of the jury. It is his duty to see that discussion is carried on in a free and orderly manner, that the matters and issues submitted for your decision are fully and freely discussed, and that every juror is given an opportunity to express himself. No cell phones, pagers, or other communication devices, such as palm pilots, are allowed in the jury room. Such devices should be relinquished to the clerk of court, bailiff, or other court personnel until the conclusion of your jury service. After you retire to the jury room, you are entitled to have all exhibits brought to you. Should you feel that it is necessary to be reinstructed, or receive additional instruction on the law or to have certain testimony read to you, you may inform the judge through the bailiff. You should not, however, make such requests lightly, for they can be answered only by returning the jury to the courtroom where the Court will resume in full session. The procedure may require considerable time but is justifiable if you seriously believe it to be necessary or helpful to you in discharging your duty. In weighing evidence, an important distinction exists between civil and criminal cases in the degree of proof required to sustain an allegation. In a criminal case, the defendant must be proven guilty beyond a reasonable doubt in order to be
convicted. In a civil case, the party who has made an affirmative allegation against another must prove that allegation by a preponderance of the evidence to support a finding in his favor on that allegation. In each case, the judge will carefully explain to you the degree of proof required to support particular findings. You should pay the same careful attention to his instructions on this subject, as you are required to pay to all other instructions. In the jury room, differences of opinion arise among the jurors quite often. When this occurs, each juror should be allowed to express his opinions and reasons. By the process of careful and thorough reasoning, it is generally possible for jurors to reach a verdict. A juror should not hesitate to change his mind where there is good reason for doing so, but one who has a definite opinion on a question should not change that opinion unless he conscientiously is moved to do so as a result of the deliberations, his consideration of the views of his colleagues, or his own further thought on the matter. It would be wrong for a juror to refuse to listen to the arguments and opinions of the others or to deny the right of another juror to express his own opinions. All jurors should deliberate and vote on each issue to be decided. A juror should never vote against his conscience or his own judgment. He should vote only according to his own honest convictions, arrived at after a full and free discussion with his fellow jurors. After a verdict or after a mistrial, or disagreement, jurors are under no duty or obligation to discuss what took place in the jury room with the lawyers in the case or anyone else. CHAPTER 4 Court System
If your case is a misdemeanor, most likely you will be prosecuted in District Court by an Assistant District Attorney, ADA, instead of the elected District Attorney. A single district court judge, acting as both Judge and Jury, hears all misdemeanor cases, and decides if you the Defendant is guilty or not guilty of the charge(s). If you disagree with the presiding judge, you must state your opposition to the decision of the Court and state that you wish to Appeal the decision to Superior Court for a jury trial. This procedure, a Trial by Jury, will be considered to be an entirely new proceedings where you may request through the Discovery Process, all evidence the District Attorney has against you. The Discovery Process is not allowed in district court cases.
District Court - in civil cases, judges hear cases for all actions involving $10,000 or less. District Court also has preliminary jurisdiction over felony cases and over the trial of all misdemeanors and traffic infractions. This court also has exclusive jurisdiction over all juvenile proceedings, mental health hospital commitments and domestic relations cases. The State of North Carolina has 235 District Court judges who are elected by the voters for a four-year term and serve in 39 districts. The district court judge will always take the side of a law enforcement officer’s testimony over that of a defendant’s testimony because they are part of the same criminal justice system and the same law enforcement officers will appear before the same judges on numerous occasions. Supreme Court - the seven-member Supreme Court is the state's highest court. Justices decide questions of law in civil and criminal cases on appeal. The Supreme Court has the power to control and supervise the proceedings of other courts and has the authority to set court schedules and promulgate rules of practice and procedure for the trial courts. In North Carolina voters elect the Chief Justice and the six Associate Justices of the Supreme Court for eight-year terms. If you have been charged with a felony , you should have been arrested by a law enforcement officer or indicted by a Grand Jury, which is composed of 18 citizens chosen from the local community, or jury pool. Grand Jury - a body of up to 18 people who decide if there is sufficient evidence to charge a person with a felony based solely upon the evidence presented to them by the District Attorney. The Grand Jury process is nothing more than a “rubberstamp” for the District Attorney to get an indictment against a defendant.
The Grand Jury is convened at the request of the District Attorney, who presents evidence against you, the Defendant, to the grand jury members. The Grand Jury Process is held in “secret”, meaning that the process is not open to the public, nor will you, the Defendant, be notified that charges are being considered against you; nor will your attorney be allowed to present evidence in your defense - unless of course you are a LEO accused in the wrongful death of a suspect. As was the case of Deputy Christopher Long of the New Hanover County Sheriff’s Department in the shooting death of 18-year old Peyton Strickland, shot through the door of his apartment when Deputy Long claimed he thought he heard gun shots coming from the apartment as other LEOs of the SWAT team beat the door down with a battering ram. Peyton’s faithful dog Blaze was also killed in the incident when she tried to protect her owner. The second Grand Jury was convened to consider second-degree murder charges against Deputy Long after the first Grand Jury initially indicted Deputy Long and then the charge was withdrawn the next day because the Jury Foreman claimed he checked the wrong box on the indictment form. North Carolina Attorney General Roy Cooper sent a Senior Assistant Attorney General Patrick Murphy, a friend of FBI Special Agent-in-Charge Chris Swecker of the Charlotte FBI Office, to “oversee” the second grand juries indictment process of Deputy Long where Deputy Long was allowed to be present and testify in his own defense, a clear violation of the grand jury procedures and unprecedented in the grand jury process. A Grand Jury is strictly the District Attorney’s opportunity to “show and tell” members of the Grand Jury the evidence against you, the Defendant, in order to obtain an indictment of felony charges. Rarely does the District Attorney take more than 5 to 10-minutes to present the evidence to the Grand Jury. A bare majority of 12 out of the 18 members comprising a Grand Jury by a show of raised hands in agreement with the District Attorney are necessary to indict. Prosecutors have the constitutional duty under the due process clause of the Fourteenth Amendment to disclose evidence that is materially favorable to the defendant at a trial or sentencing hearing. Durham County District Attorney Mike Nifong is the poster-child for corrupt prosecutors when he withheld evidence in the indictment of three Duke University lacrosse players who were accused of raping a strip-tease artist during a fraternity party. DA Nifong withheld the DNA evidence from the grand jury that proved the lacrosse players were innocent. The Attorney General Roy Cooper had to step in to straighten out the mess created by DA Mike Nifong who was later disbarred. District Attorney William Carlos “Bill” Young of Judicial District 27B follows DA Nifong as a secondary poster-child for malicious prosecution by knowingly placing falsified testimony against the author. The Grand Jury Process is an archaic, outdated holdover from the British Criminal Justice System from which most all criminal justice systems in the United States
evolved, with the exception of the State of Louisiana which evolved from the French. However, the grand jury process is one of the ways used by a district attorney to indict a person for an alleged crime, whether falsely accused or not. Fragmentation of Criminal Justice System: The criminal justice system is so fragmented that no single individual within the justice system is ever held accountable for malicious prosecution or a wrongful conviction. Rarely, after hearing the evidence against a Defendant does a Grand Jury fail to indict a defendant. The only way to file a complaint of malicious prosecution against an elected District Attorney is with the State Bar Ethics Committee, which is comprised of all lawyers. If you do file a complaint against a District Attorney, expect legal repercussions ranging from more malicious prosecutions against you to being tried on the same charge(s) in District Court and Superior Court, which is called “Double Jeopardy” because you have been tried twice for the same offense. Trial Court Administrators - North Carolina has 12 trial court administrators serving in 14 of the state's 46 Superior Court districts. They assist in managing the day-to-day administrative operations of the trial courts, including civil case calendaring, jury use, and maintaining local court rules.
Judge or Justice - a public official who hears and decides cases brought before a court of law. Judges in North Carolina and most other states in the nation have passed a law declaring themselves immune from prosecution for a wrongful conviction. No judge has ever been elected saying they were running for the position to protect a defendant’s rights. Most Judges consider themselves above the Law and superior to the Defendants that are being tried before them, thus the names, Superior Court Judge, Supreme Court Justice, Chief Justice of the Supreme Court. North Carolina has seven justices on the Supreme Court, 15 judges on the Court of Appeals, 105 Superior Court judges, and 235 District Court judges. Superior Court Judges preside over administrative duties of Superior Courts within their elected Judicial District and are barred by court procedures to hear felony cases within their elected district. All judges in North Carolina must retire from the Bench when they reach 72 years of age, usually leaving a vacancy. Three candidates are selected by the local Bar Association to fill the vacancy. The list of candidates is then submitted to the Governor, who appoints one of the three candidates to serve out the remainder of the retiring judges term, 4-years for District Court Judges, 6-years for Superior Court Judges. As a defendant, you must ask yourself, “Why would a defense lawyer making $500,000 a year want to become a district court judge making $125,000 a year”?
The Senior Resident Superior Court Judge of a judicial district is suppose to supervise all court proceedings and personnel within their respective judicial district. In a show of “impartiality”, felony cases are “heard” by other Superior Court Judges elected to the Bench from other Judicial Districts. Judges are suppose to abide by a Judicial Code of Conduct, meaning they are not to preside over a case if the judge is familiar with either the Plaintiff or Defendant. While the “Code” seems straight forward, many judges openly violate the Judicial Code, particularly, Canon 2B - when a District Court Judge presides over cases involving former employees, family members, or friends of the family. In many instances, a presiding judge will openly violate the Judicial Code of Conduct by helping either the Prosecution or Defense Attorney. The defendants only legal recourse is to file a Complaint with the Judicial Standards Committee. But again if you do file a complaint, expect legal consequences for your action because all judges are lawyers first and belong to the State Bar Association and Local Bar Associations. The Local Bar Associations decide which of the lawyers will file for election in the Judicial District, or for re-election. Over half of the judges up for re-election in North Carolina in 2008 ran unopposed for their seat on the Bench, a “legal” election laws practice to insure the re-election of a particularly group of judges within a judicial district. The judges in Cleveland County are re-elected time and time again because none of the lawyers in the Cleveland-Rutherford Bar Association will run against an incumbent judge, insuring their re-election for another term. Habeas Corpus - Latin for "You have the body." Most often, a writ of habeas corpus is a judicial order forcing law enforcement authorities to produce a prisoner they are holding, and to justify the prisoner's continued confinement. A petition for a writ of habeas corpus often is filed in federal courts by state prison inmates who say their state prosecutions violated federally protected rights in some way. Since many of the Supervisors of state prisons have removed the law libraries from their jurisdiction, it is extremely difficult for an incarcerated inmate to file an appeal or petition for a writ of habeas corpus, so called “Jail House Lawyers“. It is also an infraction for one inmate to help another with their legal case, which may result in denial of commissary privileges to solitary confinement. Federal law requires that all incarcerated inmates have access to a law library. How the North Carolina Department of Corrections is allowed to get around, or circumvent, this requirement is unknown to the author. Administrative Office of the Courts (AOC) - 266 AOC employees provide statewide support services for the courts, including information, technology, personnel, financial, legal, research and purchasing services. The office prepares and administers the $360 million annual budget.
JUDICIAL PROCESS: Whether, they’re elected or appointed, judges often get their jobs with help from other lawyers, i.e., Trial Lawyers Association. Last year, for the first time in North Carolina, a public financing program helped fund the campaigns of most candidates running for the state Supreme Court and Court of Appeals. The change made judges less reliant on campaign contributions from lawyers, i.e., Trial Lawyers Association, and others, i.e., Drug Dealers, who appear before them in court. But the reforms didn’t cover the District and Superior courts, where most of the two and a-half million, ( 2,500,000 ) cases are heard each year in the state of North Carolina. You, the defendant, are simply another number on the criminal docket 2000CRS7043 . Many who run for those judgeships get campaign contributions from people with a stake in how they rule. No group contributes more to such campaigns than lawyers, experts say. Many judges arrives on the Bench after the Governor appoints them. When there’s an expected vacancy, i.e., mandatory retirement at age 72, state law calls for the lawyers who belong to the local Bar to choose three nominees. Then the Governor appoints one of those candidates to fill the vacancy. Courts' Criminal Court Information System Receives Improvements, Gets Closer to eCourt Vision RALEIGH - The Criminal Court Information System, the courts' primary criminal information system, recently received improvements to provide faster, web-based processing of data by all court officials. These improvements were made by the N.C. Administrative Office of the Courts [AOC] with funding provided by the State Justice Institute [SJI]. [SJI was established by Congress in 1984 to direct grant funds toward improving the quality of justice in the United States.] This system is used primarily by clerks of superior court to process the approximately 2.5 million cases filed each year in North Carolina. The AOC made these changes as part of its overall vision to modernize the information system and to further the electronic processing of court cases, referred to as "eCourt." These enhancements are being tested in pilot sites across the state. They consolidate multiple data entry screens, which eliminate redundant data entry and provide faster processing of court information. For more information contact Jim Ryals, applications development manager, at 919 890-2159 or Sharon Gladwell, media contact, at 919 890-1394.
Magistrate System: warrants information system. Magistrate System is a vendor-written, centralized server-based system with a GUI
presentation. This system automates the magistrate's processing of warrants, criminal summons and magistrate orders. Release order information and bond information are also captured. Magistrates are automatically notified if an outstanding process exists for any of the participants on a warrant being entered (including witnesses). The system interfaces with the court criminal system, Automated Criminal Infractions System (ACIS), so that all process added or updated by the magistrate are immediately available for the clerks of court. The system is operational in 97 of the 100 counties in North Carolina. There is no presumption of innocence in the North Carolina Criminal Justice System. You are presumed guilty of the charge by the District Attorney and his or her staff of assistant district attorneys, ADAâ€™s , who represent the State, and more importantly law enforcement personnel which represents the investigative branch of the district attorneyâ€™s office.
UNDERSTANDING THE CRIMINAL PROCESS If you have been arrested of a crime, are under criminal investigation or suspect that you are, this is likely your first experience with the criminal justice system. Facing criminal accusations can be one of the most frightening and confusing experiences in your life. You are a single individual, yet you are facing experienced prosecutors backed by the vast resources of the government. This is done intentionally to instill a fear of the criminal judicial system into you, the defendant, who has little knowledge of the criminal justice system and will do just about anything in order to stay out of jail.
All criminal charges must be taken seriously. Generally, you get only one chance to defend yourself. Ignoring your legal problems will not make them go away. The decisions you make about your defense, right now will affect the rest of your life.
Whatever you do, you are strongly encouraged to obtain the services of an experienced criminal lawyer, immediately. DO NOT wait for the court to appoint a public defender for you. Choose an attorney or law firm that you feel comfortable with. THE CRIMES: The following are some basic crime definitions. MISDEMEANOR:
A crime punishable by up to one year in County Jail, or two years in State Prison, probation, including fines, court costs and/or community service. FELONY: A crime which is punishable by
one year or more in State Prison, including restitution to the victim(s). All felonies begin in District Court, where a preliminary hearing or arraignment is held. Felonies then proceed to Superior Court.
WOBBLER: Certain crimes can be charged as felonies or misdemeanors. Even if a wobbler begins as a felony, it may be reduced to a misdemeanor at sentencing or at the completion of a successful probation period. IF ARRESTED: If you have been arrested of a crime, you have a right to an attorney, and you have a right to a fair, speedy trial. You, also, have the right to defend yourself if you so choose.
You need an attorney before you talk to anyone. Getting the right attorney immediately can often prevent charges from being filed in the first place. If charges end up being filed, having the right attorney already onboard can ensure that your Constitutional rights are protected. THE ATTORNEY: If you cannot afford a private attorney, you have the right to a court-appointed public defender. However, if you are unfamiliar with the criminal justice system , it is strongly recommended that you always use an experienced criminal attorney and never defend yourself in a criminal trial. There are countless legal traps and loopholes that can result in unfair convictions and severe sentences.
Even a public defender is not free, depending on the outcome of the trial. Depending on the circumstances, if found guilty of the charge(s), you may be required to pay the public defender for his/her defense at the conclusion of your trial. Moreover, public defenders or court-appointed attorneys are often overburdened and cannot or will not always devote the time that your case requires. No two cases are alike, and each defendant needs and deserves the full commitment of his or her defense lawyer. IF UNDER INVESTIGATION: If you even suspect that you may be charged with a crime, speak to an attorney before you turn yourself into with a law enforcement agency, or are arrested for an alleged crime. Very often before formal charges are filed, there is an investigation. Law enforcement tries to gather as much evidence as possible to build their case against you, which is turned over to the district attorney. This is the Pre-File stage of a case. The pre-file stage is when having a good defense attorney can make the most dramatic impact on your case. The Pre-File period can be the most crucial stage of a criminal case. Since you havenâ€™t been arrested, you donâ€™t have any Miranda Rights. This is when most people fall into law enforcement traps designed to destroy their legal defense of the case. Most people naturally want to defend themselves, and many tend to explain or defend themselves to anyone who will listen - police officers, the judge at arraignment, investigators or even to by-standers. Resist the temptation to talk. It is human nature to want to defend yourself when accused of a crime. Most people who incriminate themselves, do so by trying to explain or defend themselves to the
arresting officers or judge at their arraignment. Resist this temptation ! Anything that you say can and will be used against you, and even the most seemingly innocent questions from a friendly law enforcement officer can severely damage your ability to defend yourself. Remember that the Sheriff / Chief of Police and their Deputies is the investigative branch of the District Attorney; all of which are “joined-at-the-hip” to the Judges, as all judges are lawyers, first and foremost, and belong to the same local Bar Association as are the local lawyers. In Judicial District 27B, the local Bar Association is the Cleveland – Lincoln Counties Bar Association which meets once monthly. In North Carolina, police brutality against common citizens of the state is so prevalent that a special group of lawyers has arisen to defend law enforcement personnel against such charges. Forget about the US Constitutional Fourth Amendment to govern law enforcement officers arrest and search powers; the constitutional and statutory restrictions on an officer’s authority to arrest, search, and investigate the offense(s) for which you have been charged. As protection against their excessive use of force while making the arrest, expect to be charged with resisting arrest and/or resisting public officers, or even assault upon a police officer. This is a legal maneuver law officers use to have you, the defendant, defending yourself against multiple charges. If you live in North Carolina, you live in a Police State. You are considered guilty until you prove yourself innocent of the charge(s) in a court of law. If questioned by law personnel, immediately ask for an attorney and make no statement(s) to law enforcement concerning the charge(s). All you are required to do is give them you name, residency address, and age. By asking for an attorney at the time of your arrest, law enforcement personnel are required to suspend all questions concerning the charge(s), and it is the obligation of the Court to provide you with an attorney, if you so choose, even if this legal maneuver requires you going to jail overnight. By law, law enforcement personnel must provide you with access to a telephone at the time of your arrest - be sure to make contact with the person you most trust. DO NOT make any statement(s) to the arresting officers, nor engage them in conversation, as many law officers will play the Good-Cop - Bad-Cop routine in order to solicit information from you. It is your responsibility to prove yourself innocent and keep track of court appearances by contacting the Clerk of Court’s Office for times and dates of appearances, another “catch-22“ situation. If you miss a court appearance, expect to be arrested and required to post bond, or put up your real estate property as collateral or remain in jail until your scheduled court appearance if you are unable to post the required secure bond. DO NOT expect any assistance from law
enforcement or court personnel, particularly the district attorney’s office.
If you are computer literate goto WWW.NCCOURTS.ORG and click on Court Calendars, and select the county in which your case will be tried. Or select Citation Query By Defendant Name and type in your name in the Defendants search box, last name first comma initial. Your name should appear beside the county in which you are to appear in court along with the date and Citation Number. Remember you are nothing more than another Case and Citation Number 201400065CR to the District Attorney.
Court procedures are all about money - your money - to feed a criminal justice system which is out of control. The effect of the Fourth Amendment’s due process clause, “nor shall any State deprive any person of life, liberty, or property, without due process of law”, is so vague and obscure that the U.S. Constitution’s Fourth Amendment does not apply under the North Carolina Constitution. What is written in the North Carolina Constitution and how you, the defendant, is treated by the North Carolina Criminal Justice System are entirely different than the U.S. Constitution, as applied in a federal court case. Most judges, district attorneys and their assistants could care less about you as a human being, your family, your financial situation, your physical or mental health, or the effect upon your career and family for you having a criminal record. The Judges and Lawyers simply want your money and/or your property. If you go to court expecting justice, you have come to the wrong conclusion about the criminal process. BOND / REAL PROPERTY: Many of the lawyers and judges in North Carolina have a Real Estate branch attached to their law firms and will use the courts to “steal” your property when you are unable to pay the bond, fines, and fees imposed upon you by the court judges.
IF ARRESTED If you have been arrested of a crime, you have a right to an attorney, and you have a right to a fair and speedy trial. It is strongly recommended that you always use an experienced criminal attorney and never defend yourself in a criminal trial. There are countless legal traps and loopholes that can result in convictions and unfair severe sentences. If you cannot afford a private attorney, you have the right to a court-appointed public defender. However, even a public defender is not free. Depending on the circumstances, you may be required to pay for the defense at the conclusion of your
trial. Moreover, public defenders or court-appointed attorneys are often overburdened and cannot always devote the time that your case requires. No two cases are alike, and each defendant needs and deserves the full commitment of his or her defense lawyer. The ideal situation is to hire a private attorney with whom you feel comfortable. Until you have an attorney, do not speak to anyone. Exercise your constitutionally guaranteed right to remain silent and not to incriminate yourself. Do Not answer any questions. All you are required to do is give the arresting officer you correct name and address. It is human nature to want to defend yourself when accused of a crime. Most people who incriminate themselves do so by trying to explain or defend themselves to the arresting officer or judge at their arraignment. Resist this temptation! Anything that you say can and will be used against you, and even the most seemingly innocent questions from a friendly law enforcement officer can severely damage your ability to defend yourself. THE BASICS The Crimes The Attorney The Arrest Booking Process Police Reports Charging Decision Bail: Bail is initially set by the arresting officer or the booking Magistrate. It is usually set according to a bail schedule published by the Court in each county. Many defendants will receive an "own recognizance" (O.R.) release and will not have to post bail. Bail reduction motions can first be made at the arraignment. There are also other (but limited) opportunities to bring a motion to reduce bail. Bail is made with cash or a bond. A bond requires a 10% fee to a bondsman plus collateral. The 10% is the bondman's fee and will not be returned. Cash bail is returned, less a small administrative fee, when the case is over. A bondsman list will be beside the jail telephone - first, call a person you can trust to arrange bail / bond. BONDSMAN AND ATTORNEYS, "All inmates will have the opportunity to contact a bonds person of their choice. A detention officer cannot recommend a specific bondsman. Inmates can contact their attorneys by telephone or written correspondence. Inmates without representation will have the opportunity to obtain legal counsel through the court system." You can not be held â€œincommunicadoâ€? and have the right to call a lawyer, your family, or a friend. What is not mentioned in the INMATE HANDBOOK, is that you may have to sit in
the county jail for a few days while the above process is carried out, or until you appear in district court wearing a flame-orange inmate's jumpsuit, to indicate to the "astute" Judge that you have been charged with a crime and are indeed an inmate in the county jail. This is The Arraignment phase of your case. DO NOT expect any help from Law Enforcement or court administrators in understanding the criminal justice system. The Arraignment: The law allows the police to hold a suspect for a limited period of time after the arrest. In most cases, you can be held up to 72 hours after the arrest -unless it is on a weekend or court holiday, in which case it can be extended one day. For example, if you are arrested on a Thursday before a holiday weekend, you can spend up to four or five days in jail before you see a judge. To find out when the first appearance will take place, call the booking information line at the jail, or the Clerk of Courts office. www.nccourts.org, click on Court Calendars, follow directions. Use the resources listed on this web site to educate yourself about the criminal justice system. After all, it was your tax money that the Administrative Office of the Courts used to set-up this web site. An attorney may make a special appearance (one appearance only) at the arraignment and may be able to request a bail reduction. In a misdemeanor case, once the law firm appears on behalf of a client, it is committed to the entire case, including trials. The Conference of District Attorneys was established as a state agency in 1983 under General Statute 7A-411. "There is created the Conference of District Attorneys of North Carolina, of which every district attorney in North Carolina is a member. The purpose of the Conference is to assist in improving the administration of justice in North Carolina by coordinating the prosecution efforts of the various district attorneys, by assisting them in the administration of their offices, and by exercising the powers and performing the duties provided for in this article." The Conference is governed by the elected district attorneys and assisted by a staff located in Raleigh. Primary responsibilities of the staff include, but are not limited to the following: Training: The Conference develops trial advocacy programs and short courses for prosecutors on a variety of legal issues as well as computer training and case management. In addition the Conference develops and implements training for the support staff of District Attorneys. Research: The Conference conducts research projects on needs and trends affecting prosecution and the Office of District Attorney. Victims' Rights: The Conference develops materials, training and suggested protocols for the implementation of victims' rights services provided by the District
Attorneys' offices. Publications: The Conference publishes a number of newsletters directed to prosecutors and support staff. In addition, it publishes training manuals, brochures, videos and a number of other materials to assist District Attorney personnel and / or the public who is served by the District Attorneys. LaKisha Johnson Lakisha.Johnson@nccourts.org The Traffic Safety Legal Assistant provides assistance to the Traffic Safety Resource Prosecutor by preparing for training's, providing technical assistance, legal research and more. The legal assistant is also available to assist you with any questions you may have regarding upcoming training's and serves as an avenue to provide information to the TSRP for you. Prison Nation - Justice Dungeon One in 150 adults is in lock up. One out of every 54 men 18 or older is in lock up. Overall, 750 people out of every 100,000 are imprisoned. No other country comes close, 2.3 million behind bars in the 'land of the free' The United States has more people in prison and jails, 2.3 million, than any other country. China, with a population four times as large and a reputation for repression, is a distant second, with 1.6 million people behind bars. District Court Judges District Court Judges are attorneys who are elected for each district in non-partisan elections for four years and must reside in the district in which they are elected. The Chief Justice of the Supreme Court of North Carolina designates one of the judges as Chief District Court Judge, and this judge has administrative duties, including assigning the judges to sessions of court. Both civil and criminal cases are heard in District Court. Generally, the District Court is the proper division for cases involving amounts in controversy of $10,000 or less. Domestic relations cases involving alimony, child support, child custody, divorce, equitable distribution, and juvenile matters are also heard in this court. In criminal cases, District Court has exclusive original jurisdiction over misdemeanor cases and most traffic offenses.
Superior Court Judges Superior Court Judges are attorneys who are elected for each district in nonpartisan elections for eight-year terms. Regular superior court judges must reside in the district in which they are elected, but rotate from one district to another within their division. Special and emergency judges may also be assigned to particular judicial districts
by the Chief Justice of the Supreme Court of North Carolina. The Senior Resident Superior Court Judge has the most seniority of the superior court judges in the district and is responsible for carrying out various administrative duties. The Superior Court has jurisdiction in both civil and criminal cases. Generally, civil cases involving more than $10,000 in money and a few special categories of cases, such as those involving appeals from administrative agencies and constitutional issues, are tried in Superior Court. In criminal cases, the Superior Court has exclusive jurisdiction over all felonies and over misdemeanors appealed from a conviction in district court.
District Attorney The District Attorney is an attorney who is elected for a four-year term by the voters within the district he or she serves. District Attorneys are not allowed to engage in the private practice of law. Many prosecutors will ask two or more questions at the same time intended to trick a witness or the defendant into making a false statement. The primary duty of the District Attorney is to prosecute all criminal cases filed in the judicial district. The District Attorney represents the state in all criminal and some juvenile matters. In addition, the District Attorney is responsible for preparing the criminal trial docket and advising law enforcement officers in the judicial district when to appear in court.
Clerk of Superior Court The Clerk of Superior Court is elected for four years and must be a resident of the county in which he or she is elected. Unlike clerks of court in other states, the Clerk of Superior Court in North Carolina has numerous judicial functions.
As judge of probate, the Clerk has exclusive original jurisdiction over matters relating to the probate of wills, and the administration of estates, including appointing personal representatives, auditing their accounting, and removing them from office if necessary. The Clerk also presides over many other legal matters including adoptions, in competency proceedings, condemnation of private lands for public use, and foreclosures. The Clerk is responsible for all clerical and recordkeeping functions of the district and superior court. In addition, the Clerk receives and disburses money collected each year from court fees and fines. As Records Keeper, the Clerk is responsible for filing, processing, indexing, and maintaining records in the cases filed each year. The Clerk also provides public access to court records and copies of them as well. All records maintained by the Clerk's office in criminal and civil are public records unless law prohibits access to them. A public-access computer terminal should be available for your use.
As Administrator, the Clerk and employees are responsible for assisting the public in filing and accessing court documents, staffing the courtrooms, and performing the many complex duties required in order to ensure that court records are accurate. Finally, as Comptroller, the Clerk is responsible for receiving and investing the funds each year that come from court fees, traffic citations, fines, etc. It is from these fines and fees imposed on a defendant after conviction that finances the Criminal Justice System, pays the Judges and Court Clerks salaries, and supplements the District Attorney office and Sheriffâ€™s department annual budgets.
Magistrates Magistrates for each county are appointed for two-year terms by the Senior Resident Superior Court Judge upon nomination of the Clerk of Superior Court. Magistrates are officers of the district court, and they are subject to the supervision of the Chief District Court Judge in judicial matters. In criminal matters, magistrates issue arrest and search warrants and set bail. Officers who make an arrest with or without a warrant must take the arrestee for an initial appearance before a magistrate without unnecessary delay. A magistrate conducts an initial appearance for people arrested with or without a warrant where the magistrate must inform the arrestee of the charges, the right to communicate with counsel and friends, and the circumstances under which the arrestee may secure pretrial release, set secure or unsecured bail. The primary exception is when a person is charged with first-degree murder. Only a judge may set pretrial release conditions for the crime of murder, or for domestic violence offenses, domestic criminal trespass, violation of domestic protection violation orders, assaulting or communicating a threat to a spouse, or for kidnapping or abduction. Most domestic violence arrestees will be held overnight or for 48-hours before being released from custody. Magistrates have authority to accept guilty pleas to minor misdemeanors and pleas of responsibility to infractions; accept waivers of trial and guilty pleas to certain traffic littering, wildlife, boating, marine fisheries, state park recreation and alcoholic beverage violations; and accept waivers of trial and guilty pleas in worthless check cases.
What To Do When ARRESTED? (1) Submit to the Law Enforcement Officerâ€™s rough handling and abusive language while being handcuffed. The life you save may be your own.
(2) Ask the Arresting Officer to see the warrant and charges against you. Sometimes you will be asked to sign a receipt indicating that a subpoena was delivered to you, the Defendant. You must be given a copy of the subpoena, warrant, or citation. If there is a Digital Warrant on file with the Magistrate, you will most likely be given a copy after “first arraignment” in the Magistrate’s Office (3) If asked questions by the Arresting Officer - BE COURTEOUS - You only have to tell the Arresting Officer your name and current address - Be Truthful ! (4) Keep your mouth shut, DO NOT argue with the Arresting Officer. Expect to be treated as a criminal, (a) rough handling by LEOs, (b) discourteous behavior and abusive language by law officers - and considered guilty of the charge(s) and handcuffed to the wall of the Magistrate’s Office receiving room, without a care in the world about your physical or mental condition by the magistrate or arresting law enforcement officers.
CHAPTER 5 PERJURY Perjury: The crime of perjury consists of knowingly testifying falsely while under oath; the crime of subornation of perjury is committed when another person is induced or knowingly permitted to testify falsely. Many district attorneys and their assistants will allow a witness to commit perjury to obtain a dishonest advantage over a defendant, or to falsify an entry in a public record or report simply to win a case. This is considered to be official misconduct of a public official, I.e., using the powers of one’s office to obtain a dishonest advantage over a defendant, or to win at all costs. Again, the only recourse left to a defendant is a civil suit against the public official(s). The Senior Resident Superior Court Judge is suppose to supervise all court procedures within his or her judicial district in order to assure a fair and impartial trial for the defendant. In actuality, the Senior Resident Superior Court Judge will protect their fellow judges, the elected district attorney, and any law enforcement officials involved in an act of malfeasance or misfeasance by a public official. Rarely in the state of North Carolina is a plaintiff prosecuted for perjury or for filing a false-report against a defendant, for which the defendant has been falsely imprisoned by the arresting law enforcement officer, because the plaintiff has committed perjury by filing a false-complaint against the defendant.
(5) If interrogated by a Deputy Sheriff / Detective, IMMEDIATELY ask for your attorney, or that a court appointed attorney be assigned to your case. The Law Officer must stop the interrogation until your attorney is present.
(6) DO NOT answer any questions without your attorney present. (7) Ask to be able to make the one telephone call, by law, you are entitled. Call a friend to arrange Bail. On a domestic violence or DUI charge, you can be held for up to 48-hours without Bail. North Carolina General Statutes 133-31 Perjury; Punishment Any Person who shall willfully commit perjury in any affidavit taken pursuant to this Articles or rules pursuant thereof shall be guilty of a felony and shall be punished as a Class I felon. (1981, c. 764, s 1; 1993, c. 539, s. 1307; 1994, Ex. Sess., c. 24, s. 14 (c).)
IMPEACHMENT OF A WITNESS HOW TO IMPEACH A WITNESS: How to discredit a witness on cross examination, or how to prove the witness is lying or has lied about the defendant or has committed perjury in the past. Enough emphasis cannot be placed on how to impeach a witness. (1) A witnessâ€™s testimony may be disqualified by a pretrial statement that is not supported or not in agreement with the witnessâ€™s trial testimony. (2) Showing during cross examination that the witness or plaintiff inaccurately remembered the events about which the witness has testified, in this or a previous trial. (3) Showing that the witness is prejudiced against the defendant, or has in the past formed an unfavorable opinion against the defendant. (4) Showing that the witness has committed acts of misconduct as related to his/her truthfulness while testifying against the defendant, either to the arresting officer or a prior trial against the defendant. (5) Offering evidence that the witness has bad character traits for truthfulness or has committed perjury in the past testifying against a defendant. (6) Showing to the court that the stateâ€™s witness has received favorable treatment from the prosecutor with his/her own criminal charges in the past. A person is disqualified as a witness if it can be shown that the witness is incapable of understanding his or her duty to tell the truth, or has been convicted in the past for perjury.
Misuse of the Legal Process: Similar to false arrest and false imprisonment, but legally quite different, are what is known as malicious prosecution and abuse of power. You have a right to freedom from deliberate misuse of the law and courts. If you have been unjustly prosecuted for a crime because of someoneâ€™s malicious accusations, you can sue in a civil process. In the case of malicious prosecution you are properly detained but for improper reasons or motives. An example of malicious prosecution is when your neighbor, out of spite or dislike of you, goes to the police station or magistrate and accuses you of a crime; a warrant is issued for your arrest; you are arraigned, plead not guilty, are duly tried and are found innocent by the court. At the trial the testimony of your neighbor reveals both his hostility to you and the fact that there was absolutely no basis for the action. You have an action for damages called a tort against your neighbor but not against the arresting officer or against the prosecuting attorney because they were simply doing their duty. Your neighbor has interfered with your personal right of freedom from unjustified legal proceedings, and is libel to you for damages you have suffered in defending yourself in those proceedings and for damages to your reputation by you having a criminal record, for which you may be denied employment because of the criminal record. Torts and Crimes: A crime is an offense against the public at large or the state. A crime is a wrongful act against society. When a crime is committed, it is the stateâ€™s responsibility to institute, prosecute and bear the expense of legal action against the defendant in the court handling the crime. Torts: A tort is a civil wrong against an individual. A tort is usually committed when someone injures you physically, damages or misuses your property, attacks your reputation without justification or takes away your liberty and freedom of action without just cause. To recover damages for a tort you must prove that the act was committed with deliberate intent. A tort is an act that violates your private or personal rights, Unless the act that is also a crime, the state will do nothing about it. If you believe someone has violated your personal rights but has not acted against the interest of the public or society, it is entirely up to you to seek relief by suing him or her in the civil courts. Rights to Due Process of Law: (1) If you are arrested by the police you must be informed of your rights. You cannot be held incommunicado. You have the right to place a phone call to a lawyer, a member of your family, or a friend. (2) You have the right to consult a lawyer and are not required to say a word until
you have done so. The police may not continue to question you once you have invoked this right. Do not initiate further conversation with the police. If you cannot afford a lawyer, the court will appoint a lawyer for you. If you do not have a lawyer, call a friend or family member to have a lawyer sent to you.
(3) You have the right to know what charges are made against you and to have a hearing before a magistrate within a reasonable amount of time after your arrest. Usually your first appearance will be before a magistrate before being booked into the jail. Be sure to ask for a copy of the complaint and to be notified of the charges for which you were arrested. (4) You have the right to have reasonable bail set as security for your release. This will most likely occur when the arresting officer takes you to the magistrate’s office. (5) If you are held for trial, you have the right to a prompt and speedy trial. This is the reason misdemeanor cases are held before a district court judge, acting as both judge and jury. If you have been booked into the county jail, you will probably be wearing an orange inmate’s “jumpsuit” when you are taken to court for your arraignment, or first appearance in court. Keep your mouth shut and be observant while in the courtroom. If you are asked a question by the judge, show respect to the court by answering “Yes your Honor” or “No your Honor”. Do not engage other inmates in conversation while in the courtroom. (7) You have the right to confront and cross-examine your accusers and the witnesses against you, and to call witnesses on your behalf by subpoenaing them to court. You may also subpoena court documents that would be beneficial to you. (8) You cannot be tried twice for the same offense, called “double jeopardy”. (9) If you are convicted in district court you have the right to appeal the judge’s decision to superior court for a trial by jury. In North Carolina, you must invoke this right after the judge makes his or her decision, and the judge should inform you of your to appeal at that time. (10) If you are convicted, you cannot be subjected to cruel or unusual punishment.
LEGAL TERMS / DEFINATIONS A Accused: formally charged but not yet tried for committing a crime; the person who has been charged may also be called the defendant. Acquittal: a judgment of court, based on the decision of either a jury or a judge, that a person accused is not guilty of the crime for which he has been tried. ADA: Assistant district attorney. An assistant district attorney works for the elected District Attorney. An ADA will review and prosecute cases as assigned. ADA's meet
with law enforcement, witnesses, and victims. They generally have authority to dispose of those cases assigned to them. Adjournment: putting off or postponing business or a session of court until another time or place. Adjudication: the judicial decision that ends a criminal proceeding by a judgment of acquittal, conviction, or dismissal of the case.
Affidavit: a written statement that the writer swears is true. Aggravating factors: factors that make a crime worse than most similar crimes. Aggravating factors are often defined by law and include such things as: victim very old, gang related, done for hire, especially cruel, defendant does not support his family, or took advantage of a position of trust. Aggravated range: When a person is sentenced, this indicates a sentence that is more severe than the “presumed” sentence for a given crime. A defendant may receive more time if the judge finds aggravating factors. If no aggravating factors are found, the sentence will come from either the “presumptive” or “mitigated” range. Alleged: said to be true, but not yet proven to be true; until the trial is over, the crime may be called the “alleged crime.” Appeal: a request by either the defense or the prosecution that a higher court review the results of a decision on certain motions or in a completed trial. This can be an appeal from superior court to an appeals court, or an appeal from district court to superior court for a trial. Arraignment: to bring a prisoner before a judge to ask how he pleads to the charges against him. Arrest warrant: A written order issued by the District court or magistrate including a statement of the crime of which the person to be arrested is accused, and directing that the person be arrested and held to answer the accusation before a magistrate or other judge. Assailant: person identified as the attacker. B Bail: an amount of money set by the court that allows a person charged with a crime to be released from custody. The purpose of bail is to insure that the offender will return to court. Bailiff: a uniformed officer who keeps order in the courtroom. Bench: how the judge is sometimes referred to as in “the bench;” also where the judge sits during the proceedings. Bench warrant: an order issued by a judge to bring to court an accused person who has been released before trial and does not return to court when ordered to do so; or a witness who has failed to appear when ordered to do so. Beyond a reasonable doubt: the degree of proof needed for a jury or judge to convict an accused person of a crime. Bond: in criminal court, a term meaning the same thing as “bail;” generally a certificate or evidence of a debt.
Bond Forfeiture: a hearing to determine if the bond on a defendant is to be forfeited after a defendant fails to show for court. Forfeited bond money goes to the public schools. Bondsman: (also Bail Bondsman) a licensed person or person working for a licensed company, who will post bond for a defendant upon payment of a fee. The fee is generally fifteen per cent (15%) of the bond.
Booking: an official police record of the arrest of a person accused of committing a crime which identifies the accused, the time and place of arrest, the arresting authority, and the reason for the arrest. C Calendar: a document listing cases for hearing before a court. Calendars may be for district court, superior court, motions, forfeitures, criminal docket management, plea, or trials. Capital Case: This is a first-degree murder case in which the jury can impose either a life sentence or the death penalty. If a person is guilty of first-degree murder and there are any statutory aggravating factors then the State has to seek the death penalty. Charge: the formal accusation filed by the prosecutorâ€™s office that a specific person has committed a specific crime; the filing may be called â€œpressing charges.â€? Clerk of Court: an officer of a court of justice who has charge of the clerical part of its business-- who keeps its records and seal, issues process, enters judgments and orders, gives certified copies from the records, etc. Commitment: the warrant or order by which a court or magistrate directs an officer to take a person to prison. Complaint: a term in civil cases that signifies a filing of a suit. In criminal court, the complaint is the reporting of a crime to authorities. Concurrent sentence: running together; when two or more sentences are served at the same time. Opposite of consecutive sentence. Consecutive sentence: successive; succeeding one another in regular order; one sentence beginning at the completion of another. Continuance: postponement of a court hearing; putting it off until another day. Criminal Court: a court that hears cases concerned with the alleged violation of criminal law. Criminal Docket Management: A system used to review cases that have been taken to criminal superior court. Generally, an ADA meets with defense attorneys and reviews the strengths and weaknesses of a case. If no plea is worked out during CDM, cases are set for trial during CDM. Criminal Justice System: the government agencies charged with law enforcement, prosecution of alleged violations of the criminal law, the court hearing of charges against the accused, and the punishment and supervision of those convicted. Criminal Law: the law whose violation is considered an offense against the state and is punishable upon conviction by imprisonment and other penalties for adult offenders and by action of a juvenile court for juvenile offenders.
Cross Examination: the examination of a witness by the party opposed to the one who produced him during a trial or hearing, or upon taking a deposition. CRS: Initials showing a case is in superior criminal court. CR is the designation for a case still in district court.
D DA: Commonly refers to an attorney for the community elected by the people in his district to represent the interests of the general public, including crime victims, in court proceedings against people accused of committing crimes. Other jurisdictions use other terms: prosecutor, such as U.S. Attorney (a federal prosecutor), solicitor, or stateâ€™s attorney. Defendant: a person who has been formally charged with committing a crime; the person accused of a crime. Defense Attorney: the lawyer who represents the defendant in legal proceedings. Victims are usually not required to speak with defense attorneys except in court, but may do so if they choose. Deferred prosecution: Prosecution that the DA postpones for a certain period of time. The North Carolina Legislature has authorized District Attorneys to place defendants who commit offenses up to class H felonies on supervised probation with the agreement that the charges will be dismissed if probation is successfully completed. Defendants placed on deferred prosecution cannot have been on probation before. They are subject to all the regular conditions of probation such as paying restitution and community service. If the time elapses with no problems, the D A will dismiss the case. Deferred sentence: defendant enters a guilty plea, receives probation for a certain amount of time, and gives up the right to trial. The DA dismisses the case if the probation is completed successfully. Direct examination: the first interrogation or examination of a witness during trial by the party on whose behalf he is called. Discovery: Process by which the DA provides to a Defense Attorney information gathered during the investigation of a felony; the ascertainment of that which was previously unknown. Dismissal: a decision by the prosecutor or other judicial officer to end a case for legal or other reasons. Disposition: the final judicial decision which ends a criminal proceeding by a judgment of acquittal or dismissal, or which states the sentence if the accused is convicted. District Attorney: Commonly refers to an official elected by the people of the community in his/her district to represent the interests of the general public, including crime victims, in court proceedings against people accused of committing crimes. Some jurisdictions use other terms: such as prosecutor, U.S. Attorney (a federal prosecutor), solicitor, or stateâ€™s attorney. District Attorneyâ€™s Report: A report that is prepared by law enforcement in felony cases to inform the District Attorney what the facts are in a case. This is also known
as a â€œfelony report.â€? District court: where misdemeanor cases are heard concerning the violation of state statutes. Double jeopardy: putting a person on trial more than once for the same offense; double jeopardy is forbidden by the U.S. Constitution.
E Electronic House Arrest: Defendants are placed on supervised probation and monitored electronically twenty-four hours a day. Defendants on this program must remain in their homes when not at their employment or receiving treatment. A response team responds to violations twenty-four hours a day. Endorsement of witnesses: all prosecution witnesses must be named. Enhanced Intensive Probation: Intensive probation with the added requirement of electronic monitoring of the defendant similar to that used in electronic house arrest. Exculpatory: clearing or tending to clear from alleged fault or guilt. Ex parte: on one side only, done for one party. Expert witness: Woman/man of a science educated in the art, or persons possessing special or peculiar knowledge acquired from practical experience. Extradition: the surrender by one state to another of an individual accused or convicted of an offense outside its own territory and within the territorial jurisdiction of the other. Evidence: testimony and objects used to prove statements made by the victim and the accused. Exceptional Case: a case designated during Criminal Docket Management process as one so complicated as to fall outside the time guidelines of the general CDM rules. F Failure to appear (FTA): defendant does not appear for court, order for arrest is issued. Felony: a crime of graver or more atrocious nature than those designated as misdemeanors, carrying more potential jail time for an offender. Felony diversion: DA does not file charges if certain conditions are met. First Setting: The initial hearing for a case in the Criminal Docket Management process. Final Setting: The final hearing for a case in the Criminal Docket Management process. Cases not disposed of during this setting are set for trial. Fugitive: one who flees or escapes from some duty or penalty. G Grand Jury: a grand jury is composed of eighteen citizens who meet in felony cases to determine whether a crime occurred and whether the defendant can be held accountable for the crime. If twelve of the eighteen jurors, agree then they return a true bill of indictment. The office of the District Attorney prepares indictments.
H Hung jury: a jury whose members cannot agree whether the accused is guilty or not; mistrial.
I Impeach: to discredit the truthfulness of a witness. Indictment: a formal written accusation, made by a grand jury after submission by the prosecutor and filed in a court, alleging that a specific person committed a specific crime. The office of the District Attorney prepares indictments. Indigent: an accused person who has been found by the court to be too poor to pay for his/her own attorney. Infraction: minor violations of the law that do not rise to the level of misdemeanor. Driving offense make up the bulk of charges designated as infractions. Innocent: free from guilt; free from legal fault. This should not be confused with the term â€œnot guilty.â€? Not guilty is a verdict by a judge or a jury that a person accused of a crime did not commit it or that there is not enough evidence to prove beyond a reasonable doubt that the accused committed the crime. Intensive Probation: Defendants are on supervised probation, have curfews, and see probation officer at least once a week. Investigation: the gathering of evidence by law-enforcement officials (and in some cases prosecutors) for presentation to a grand jury or in a court, to prove that the accused did commit the crime. J Jail: a confinement facility. Technically, a jail is administered by a local lawenforcement agency for adults and sometimes juveniles who have been accused of committing a crime but whose trials are not yet over, and persons who have been convicted and sentenced to imprisonment for one year or less; (see prison). Judge: a judicial officer who has been elected or appointed to preside over a court of law. Judgment: a courtâ€™s final determination of the rights and obligations of the parties in a case. This may be in answer to a motion or trial. Jury: a group of citizens who decide whether the accused is guilty or not. They are selected by law and sworn to determine certain facts by listening to testimony in order to reach a decision as to guilt or innocence. Jury selection: the process by which the judge, the prosecutor, and the defense attorney screen citizens who have been called to jury duty to determine if they will hear the evidence and decide guilt or innocence in a particular trial. Juvenile: a person accused of an offense who is too young at the time of the alleged offense to be subject to criminal court proceedings as an adult and is therefore handled in the juvenile justice system. M
Magistrate: person who can issue warrants when a person is accused of a crime. The magistrates are clothed with power as a public civil officer and have additional duties such as setting bond, hearing small claims, and accepting payment for certain infractions and misdemeanors. Misdemeanor: offenses lower than felonies and generally those punishable by fine or imprisonment otherwise than in penitentiary. These crimes are generally punishable by no more than 150 days in jail. Mitigating Factor: a factor that make a crime less deserving of punishment than most similar crimes. Mitigating factors are often defined by law and include such things as: defendant was very young; the person was honorably discharged from the armed forces, etc. A comprehensive list can be found in North Carolina General Statute 15A-131340.16(e). N Not guilty: a verdict by a judge or a jury that a person accused of a crime did not commit it or that there is not enough evidence to prove beyond a reasonable doubt that the accused committed the crime. Not guilty plea: a formal response by a person accused of committing a specific crime in which the accused says that the charges are not true and he did not commit the crime. Notice: a written order to appear in court at a certain time and place. O Offender: an adult who has been convicted of a crime. Offense: a crime; technically, in some jurisdictions, only the most minor crimes are called offenses. Opening statement: an outline of anticipated proof. Its purpose is to advise the jury prior to testimony of the facts relied upon and of issues involved; and to give the jury a general picture of the facts and the situations so that the jury will be able to understand the evidence. Order of Arrest: an order for the arrest of a defendant following the filing of charges or failure to appear when required by the court. P Parole: the conditional release of a convicted offender from a confinement facility before the end of his sentence with requirements for the offenderâ€™s behavior set and supervised by a parole agency. Penitentiary: a state or federal prison. Perjury: deliberate false testimony under oath involving a material fact. Perpetrator: a person who actually commits a crime. Personal recognizance: the promise of an accused person to the court that he will return to court when ordered to do so; given in exchange for release before and during his trial. Petition: a document filed in juvenile court alleging that a juvenile should come under the jurisdiction of the juvenile court for some offense or asking that the
juvenile be transferred to criminal court for prosecution as an adult. Plea: a defendant’s formal answer in court to the charge that he has committed a crime. Some possible pleas include: guilty, not guilty, no contest, or not guilty by reason of insanity. Plea bargain (agreement): a plea agreed to by a defendant and the prosecutor; a negotiated plea that may set out exact terms relating to punishment and disposition of a case. Pre-sentence investigation (PSI): report compiled by the Probation Department after plea and before sentencing to make sentencing recommendations to the judge. Probation: conditional freedom granted to an offender by the court after conviction or guilty plea with requirements for the offender’s behavior set and supervised by the court. Probation hearing: a hearing before a judge to review the performance of a defendant while on probation. Hearings are not generally held unless a probationer has violated some term of their probationary sentence. Prosecutor: an attorney for the community elected by the voters of a district to represent the interests of the general public, including crime victims, in court proceedings against people accused of committing crimes. Some jurisdictions use other terms for the prosecutor, such as U.S. Attorney (a federal prosecutor), district attorney, or state’s attorney. Public defender: an attorney employed by a government agency to represent defendants who are unable to hire private counsel. R Remand: to send back to a lower court. Typically refers to a situation where a Defendant in Superior Court asks to return a misdemeanor conviction to District Court for compliance with the judgment of that court. Restitution: State law allows the prosecutor to request restitution (repayment for the victim’s losses) as part of the sentence of any defendant who is found guilty of a crime. Reimbursable losses include out-of-pocket expenses (such as repair costs, medical bills, and stolen property) which have not previously been covered. Retainer: the fee a defendant pays for an attorney to represent him. Rights of the defendant: the powers and privileges which are constitutionally guaranteed to any person arrested and accused of committing a crime including: the right to remain silent; the right to an attorney at all stages of the proceedings; the right to a court-appointed attorney if the defendant does not have the financial means to hire her/his own counsel; the right to release on reasonable bail; the right to a speedy public trial before a jury or judge; the right to the process of the court to subpoena and produce witnesses; the right to see, hear and question the witnesses during the trial; and the right not to incriminate himself/herself. Rule 24 hearing: a hearing before a judge in first degree murder cases. The purpose is to determine whether the State will be seeking the death penalty in the case.
SAVAN: The Statewide Automated Victim Assistance & Notification system. SAVAN is a free, anonymous, computer-based telephone program that provides victims of crime two important services: court information and information from the jail and the department of correction about defendants being held in custody. Victims should contact the DAâ€™s office for information on this important service. Search warrant: an order in writing, issued by a judge or magistrate, in the name of the state, directed to a sheriff, or other officer, commanding him to search a specific house, shop, or other premises, for specific property related to a crime. Second Setting: the second court hearing during the Criminal Docket Management process. Statute: an act of the legislature declaring, commanding, or prohibiting something. A law. Subpoena: a court paper requesting the appearance of a witness or documents to be present at a court proceeding. Summons: a citation requiring a defendant to appear in court to answer a suit to which has been brought against him. Superior court: where most felony cases are heard concerning violation of state statutes. Supreme court: a court of higher powers and extensive jurisdiction; our state has supreme court and the United States has a Supreme Court. Suspect: a person who is believed by criminal justice officials to be one who may have committed a specific crime, but who has not been arrested or formally charged. Once arrested a suspect is called a defendant. T Testimony: statements made in court by people who have sworn or affirmed to tell the truth. Transcript: In court it is a verbatim writing of what was said in court during a trial, or a paper writing setting out terms of a plea taken from a defendant. Also a copy of an original writing or deed. Trial: an examination of issues of fact and law before a judge and sometimes a jury at which evidence is presented to determine whether or not the accused person is guilty of committing a specific crime. Traffic Court: an administrative court that hears only traffic matters, usually uncontested.
U U.S. Attorney: a federal prosecutor. V Venue: a neighborhood, place, or county in which an injury or crime was done; or where a hearing/trial is held. Verdict: the decision of a judge or jury at the end of a trial that the accused defendant is either guilty or not guilty. Victim Compensation Program: a program of the state designed to provide
compensation to victims of certain crimes for their damages and expenses. Initial application for funds is generally made through the office of the District Attorney through the use victim impact statements. Victim Impact Statement: a form provided to allow victims of crime to provide the court with their comments about the impact the crime had on them. Victim Witness Assistant: Employees of the District Attorney's Office that are assigned to provide information and assistance to the victims of crime. They act as liaison between the victim and the Assistant District Attorney assigned to a case. W Waiver: the intentional or voluntary relinquishment of a known right. Warrant: see arrest warrant and bench warrant. Watson Hearing: a procedure in death penalty cases where the defense attempts to require the state specific what aggravating factors it will use in seeking a death sentence. Witness: a person who has directly seen an event, such as a crime or who has other knowledge that is related to a court case; or some thing, such as a piece of physical evidence. Writ of execution: a writ to put in force the judgment of decree of a court.
Misdemeanor offenses are heard in District Court. A person convicted of a misdemeanor offense may receive a small amount of active jail time depending upon the person's prior criminal record. If a person has been arrested and unable to post bond, he or she will be escorted to court by a uniformed law enforcement officer on the appropriate date. If a person is free on bail, he or she must be in court at the appointed time indicated on the release order. If a person has been served with a summons, he or she must report to the county courthouse at the designated time on the summons and find the courtroom in which the case will be heard. There will be a list of names outside the courtrooms. Find your name and enter that courtroom. If you cannot find your name on any of the lists, check with the clerk of courts office located in the courthouse.
Advice From A Defense Attorney: What Happens when You are Arrested In addition to knowing what your rights are when you are arrested (see Rights You Need to Know if You are Arrested), it is important to know the typical procedure for an arrest. An arrest takes place when the police hold you in custody and your freedom to leave is restricted. While the precise order in which your arrest is processed may vary from state to state, the following article outlines the basic procedures you will face when you are arrested. When you are arrested, you will be taken to a police station and told why you are being held. At this point in your arrest, you will only be generally advised of the
charges against you; your charges will be formally explained at an arraignment where you will also learn of the potential consequences for being guilty of the charges that you face. The police will also want to question you. It is important to be aware that you must be read your Miranda Rights (see Miranda Rights: A Brief History) before you are questioned. It is usually a good idea not to speak to police officers until you have a lawyer present.
Being booked for jail may include having your picture taken, revealing your name and address and being fingerprinted. Be aware that police have the right to book you before you are able to contact friends, family or an attorney. Shortly after you are booked, it is your legal right to have loved ones informed of your arrest and to contact a criminal defense attorney. As you are booked by the police department, any personal property on you during your arrest (i.e., clothing, money, jewelry, etc.) will be taken from you for safekeeping. Your belongings should be carefully inventoried and you should receive a copy of the inventory. Be sure to read the inventory and check it for accuracy before you sign it. Your personal property will be returned to you upon your release from jail if it was not illegal or seized at evidence. You will be required to remain in jail until your trial date or until you are able to post bail. Bail is the amount of money you must pay to be released from jail until your trial. When you post bail, you are making an agreement that you will appear in court for your trial. Failure to appear for your scheduled court date will result in a forfeiture of bail reimbursement (see How to Post Bail). An arraignment is a court session where you are formally charged with a crime and must plead guilty, not guilty, or no contest to the charges that you face. A not guilty plea will result in a trial where you may confront and cross-examine your accusers and allow a jury to hear your case. A guilty or no contest plea will result in a sentencing for the crime you admitted to. If you choose to plead guilty or no contest you are willingly and knowingly giving up your right to a trial by jury, your right to not incriminate yourself and your right to challenge the charges you face (see Whatâ€™s a Plea Bargain?). It is usually a good idea to consult a criminal defense attorney before you make a plea to ensure that you know the consequences you may face for the plea that you make. At your arraignment, not only will you be formally charged with a crime, but your trial date or sentencing date will be scheduled based on the plea that you make. The amount of bail will also be set based on the seriousness of your crime, past criminal activity and community connections. While you are awaiting your arraignment and trial, you may be required to participate in a line-up to give your accuser(s) an opportunity to identify you. You may also be required to provide a sample of your writing, provide a hair sample, or
many other things that allow law enforcement officers to associate you with the crime you have been charged with. It is very important to have an attorney present during any of these procedures. An experienced criminal defense attorney should be able to inform you of your rights and make sure that your rights are protected throughout your arrest and criminal investigation.
What is a Plea Bargain? A plea bargain is an agreement between the prosecution and the defense whereby a person accused of a criminal offense may plead guilty to a criminal charge in exchange for a more favorable settlement. Often times, suspects either face several criminal charges or a severe criminal charge with impending severe consequences. As a way for the prosecution to secure a conviction, they often offer a defendant a plea bargain. This not only ensures a guilty verdict on at least one charge a suspect may face, but allows the prosecution to speedily process a case. This saves valuable time and money and allows a prosecutor to take on a heavier caseload.
A favorable settlement for most suspects often includes one of the following: a shorter prison term, lower fines, lesser charges, and/or dropped charges. While plea bargains allow cases to move quickly through the court system and seem to be advantageous to all parties involved, their use in the legal system is highly contentious. One reason this is a controversial issue is because it allows criminals to face lesser charges and lesser penalties for severe crimes. In this way, justice is not really served to a victim. Plea bargains are also controversial because many say that they reduce the U.S. justice system to the negotiation skills of an individualâ€™s attorney and do not allow due process to determine true justice. Another way plea bargains are controversial is that they ask a suspect to give up several of his or her rightsâ€”namely, the right to not incriminate yourself, the right to a jury trial and the right to confront and cross-examine your accuser(s). This is a concern because it is often uncertain if suspects know the rights they are waiving and if they are doing so voluntarily. For example, a suspect that is innocent of a criminal charge may choose to plead guilty to receive a lighter sentence if they are lead to believe they do not have enough evidence to support their innocence. When this happens, it is a gross misuse of the criminal justice system that causes innocent people to pay criminal penalties and secure a criminal record that will follow them for the rest of their lives (see How Will Pleading Guilty to a Felony affect Your Life). Despite the controversy over plea bargains, they are widely used in the U.S. legal
system. In fact, 95% of the felony convictions in the U.S. are from guilty pleas. That means only 5% of felony cases actually go to trial. While this helps alleviate a bogged down court system and makes the legal process more efficient, it often is not in the best interest of true justice.
Plea bargaining is not available in all circumstances and prosecutors must adhere to strict guidelines that are specific to each state when bargaining for a plea agreement. Despite this, extreme caution should be taken when you are offered a plea bargain. It is very important that you consult an experienced criminal defense attorney to make sure that you understand the potential consequences of accepting or rejecting a plea bargain. Making a plea bargain is a binding agreement and you may not rescind your guilty plea at a later date. If you are planning on pleading guilty to a crime, it is important that you not only hire an attorney with criminal defense experience, but an attorney with strong negotiating skills who has experience negotiating plea agreements (see How to Hire a Criminal Defense Attorney).
Can I represent myself? What can a lawyer do
Yes, a person is allowed to represent him or herself in court; this is called Pro Se representation. However, we strongly recommend that a person (even a lawyer) not represent him or herself for several reasons. First, there are specific procedures set forth in the applicable rules (for example, The Florida Rules of Criminal Procedure) that must be followed. Failure, to follow the procedural rules can have a severe adverse impact on a litigantâ€™s case. Also, there are complex rules regarding evidence that a person without a legal background will not be aware of as well as many other points of law that will be missed by a person who is not well versed in a particular area of law. Finally, a person with an emotional and personal interest in a case may not make the best choices regarding how to proceed on a case; this applies to attorneys who want to represent themselves as well. If you are found guilty of a crime in the State of Florida you will become a convicted felon and, as a consequence, you will lose your civil rights. If you are not a U.S. citizen you can even be deported. A criminal defense attorney knows what the State must prove to get a conviction for every type of Criminal offense. He or she also understands the possible defenses to those crimes, which puts criminal lawyers in a better position when defending a case. Remember that you should always consult an attorney before pleading guilty or no contest to any criminal charge. COURT APPEARANCE A criminal defendant should have made all necessary arrangements to arrive at the courthouse, and eventually at the appropriate courtroom, about 30
minutes early. Never park illegally, and never risk being seen in an inappropriate vehicle or with inappropriate acquaintances. Prosecutors and courtroom deputies can and are very curious in this regard.
Arriving early will give you an opportunity to familiarize yourself with your surroundings, meet and confer with your attorney regarding any last minute questions or comments, and will assure that you will never be late for your appearance. When you arrive early, you may find the courtroom door locked Sit quietly on the bench nearest your courtroom, and be sure to follow all of the instructions of the bailiff or courtroom officer. Often, an attorney will arrive late for a court appearance, but judges understand that they usually have to be in more than one courtroom at a particular time. Even if your attorney is not in the courtroom, you should always be seated there, and do not leave unnecessarily. Judges always make a mental note of defendants who arrive late, and they are sensitive to defendants who sit in court patiently and politely for their attorney to arrive.
Never arrive late for a court appearance. Judges do not like it. They feel that they have to be on time for court, and you should as well. Some judges consider it a major transgression, and take defendants into custody when they arrive late. But all judges consider it impolite, and indicative of an irresponsible individual who obviously does not take his criminal case seriously. DRESS TO IMPRESS You never have a second chance to make a first impression, and your courtroom attire says a lot about your attitude and respect for the court and the judge. I always tell my clients to dress as if they were going to church, to a funeral, or on an important job interview. Personally, I do not care whether you are a professional or not, this is the most important thing going on in your life right now, and I want you to take every opportunity to gain the upper hand. I know that I try at all times to be the best dressed lawyer in the courtroom. It is my goal that no DA is ever been better dressed, more appropriately dressed, or more expensively dressed than I, especially when I am in trial, and this helps to give me confidence. There is no reason that you should not be the second best dressed person in the courtroom. (This always annoys the DA.)
If you happen to wear suits to work, wear them to court. If you do not, you should be prepared to invest in one. You do not need to buy an entire wardrobe, even if you are going to be in a prolonged trial. Obviously, one must also make sure he or she is well groomed, alert, and in the right frame of mind. (This obviously applies to in custody defendants as well.) Haircuts are mandatory, as is good grooming. No visible tattoos, and no facial
jewelry of any kind for men. The formality of dress clothes and good grooming results in added confidence, intimidation of the prosecutor, and recognition by the judge that you are showing respect for the court. But it is the jury who will decide your fate, and if they come into court for the first time, they should not be able to tell who is the attorney, and who is the criminal defendant. If you see them looking around for the defendant, then you know that they will be impressed with how seriously we take our case.
ATTITUDE It is always important to show respect for the court. Answer the judge's questions in a loud, clear and confident voice, and always answer, "Yes, sir" and "No, sir." Attorneys address the judge as "Your Honor." As a defendant, you may do this, but I like you to address them as "sir" or "ma'am," because when a defendant addresses the judge as "Your Honor," it sounds as if he has been prepped by his attorney. This is not a bad thing, but if you answer the judge's questions with a "Yes, sir" or a "No, sir," it will indicate to the judge that you are not just doing what your lawyer prepared you to do, but that this is the way you speak in normal polite conversation with people whom you respect. This says a lot about you. Look the judge in the eye when you speak with him or her, but don't be afraid to ask permission to consult with your attorney if you need to, or ask a witness to speak up if you are unable to hear them. CONTACT WITH THE PROSECUTOR Some prosecutors have the bad habit of talking indirectly to, and sometimes indirectly with, a defendant. Some talk to the attorney while in close proximity to the defendant under the guise of talking with the attorney, others will make small talk with you. My rule is for my clients is to totally ignore the prosecutor if and when this should happen. This is for many reasons, the two most important of which are that he, the prosecutor, is committing an ethical violation, and he probably is doing this to attempt to gain information or a tactical advantage. Remember, the prosecutor is your worst enemy. Being nice to him sends a bad message, that you have some sort of respect for him, and that you want to endear yourself to him. But ignoring him lets him know that you are not worried about what he thinks of you in terms of your respect for him. You are not going to show any sort of respect for a lawyer who wants you convicted, because his evaluation of the case and his going forward with your prosecution is a reflection of his poor judgment and case evaluation. Secondly, the reason he is committing an ethical violation (however slight) is probably so that he can gain some insight into your personality. If you are a witness in your own defense, many Prosecutors will ask a series of question at the same time in an attempt to confuse you and solicit an improper
answer to the questions. Take your time in answering the questions and ask the Prosecutor which question he / she wants you to answer first. DO NOT be intimidated by the Prosecutor or his / her demeanor towards you because they already consider you guilty of the charge(s) against you.
KEEP YOUR COMPOSURE It is very important that you maintain your sense of innocence at all times, but you should never react negatively (or positively) to any testimony. The jury expects that you have heard or read all of the negative evidence before you hear it from the witness stand, so if you were to react negatively to certain evidence, you could be tipping them off as to what evidence is true and what is not true. For example, you may hear an adverse witness testifying about all sorts of incriminating evidence, and then hear something that causes you to react with body language or different demeanor. This immediately tells the jury that all of the previous incriminating evidence is true, and that you only dispute the most recent testimony. If you simply keep a poker face, that is, sit quietly and politely through the entire trial, they will not be tipped off as to what you dispute, and what you don't. Be on time for court. You should arrive at court at least fifteen minutes early for every court appearance which you are required to attend. Do not take this instruction lightly. Your attorney may happen to arrive late, but judges understand and tolerate that because they know that lawyers often have more than one appearance scheduled at or about the same time. But you, as a defendant, need to arrive at the courthouse on time (preferably early) for each and every court appearance. Judges keep track of who is in court on time and who is not, because bailiffs and other courtroom staffers make sure to tell them. Dress appropriately for all court appearances. Although the appropriate dress code differs from client to client, a good rule of thumb is to dress the way you would dress if you were going to church, or if you wanted to make a good impression at an important job interview. This shows respect for the court and the judge. Even defendants who are in custody and dressed in jail garb should be sure to be well groomed and polite in court. "Attitude matters." Show respect for the court and the judge, and even for the prosecutor (your worst enemy). Trust me, judges do consider this when considering important decisions on a case. If they know that a defendant is always respectful to the court, that defendant will benefit from it.
Because you as a defendant have the right to go last, after all of the prosecution evidence has been laid out, and the right to remain silent and testify if and only
if you decide to, the jury will have a tendency to keep an open mind and give you the benefit of the doubt. WHY PREPARE THE PROSECUTION OF YOUR DEFENSE The most important procedural right of the defense is that we get to go last. The prosecution has to put its entire case on before we have to present any evidence. They have to disclose their entire case to us before trial. And with a few exceptions, the defense has to tell them nothing. Why would any defendant want to waive this very important procedural advantage? In other words, why tip them off, just so they can mold their case to fit any weaknesses in your defense? It is the defense's right to mold its case around the weaknesses in the prosecution's case. And why give the police time to investigate and possibly cast doubt on your story? Let them hear it for the first time when they are the least ready to do so, at the same time the jury hears it, and just before the case is submitted to the jury for a verdict. PREPARATION FOR TRIAL You should visit the courthouse where your case will be pending and sit through a few criminal hearings and be observant of how the Prosecutor conducts himself or herself in court. At least 50% of what goes on in a courtroom is visual, i.e., how the Defendant appears, the remaining 50% is verbal. The Prosecutor is attempting to verbally paint a picture in the judgeâ€™s or juryâ€™s mind of what happened to cause you to be charged with a criminal offense. RESEARCH THE LAW This would seem obvious, but one would be surprised how many times cases are handled without a thorough research of the law. Laws changes from time to time and it is very important to keep abreast of the changes. Most courthouses will have a set of law books in the library for defendants to use. There are so many different procedural and substantive aspects to even a simple case, a good Defense Lawyer must be on top of all the changes.
There are four basic concepts that I tell all of my witnesses. They are as follows: (1)Listen to the question. (2)Consider the answer. (3)Answer the question and only the question. DO NOT expond on your answer and give the Prosecution evidence he / she may use against you. (4)Tell the absolute truth and if possible answer with a simple Yes or No. DO NOT elaborate or give more detail about something - to go into greater detail about something that has already been spoken about or described in broad terms.
ANSWER THE QUESTION AND ONLY THE QUESTION This, too, seems obvious, but one would be surprised to know that this is the area where most witnesses make serious mistakes. DO NOT volunteer information.
Chapter 6 Malfeasance Offenses Committed by Public Officials: Whether elected or appointed, all public officials, judges, governors, legislators, or law enforcement officers are subject to the law and must obey the law of their jurisdiction. Civil and Criminal Offenses Applicable to Public Officials: Nonfeasance: the omission or failure to perform a duty or undertaking that the public officials is obligated to perform as part of his or her office. Failure to execute a writ and failure to obey a court order are examples of nonfeasance. Malfeasance: the commission of an act that the public official has no right to do and that may be a criminal violation, such as acceptance of money by a County Commissioner to vote in a certain way, or for a judge to accept money from a defense lawyer to rule in favor of his or her client, or for a judge to violate the Judicial Code of Justice by presiding over a trial where family or former employees are involved. Misfeasance: the improper performance of an act that the public official perform but should not perform in the manner in which he or she has performed it. Misfeasance is the failure to do a lawful act in a proper manner. A public official is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit. Official misconduct is a class A misdemeanor. Malfeasance would include offenses that are statutorized in every criminal code, committed not only by public officials but also by ordinary persons. (1) Unauthorized or excessive use of force by a law enforcement officer, ie., assault and battery upon a citizen. (2) False arrest or false imprisonment by an arresting law enforcement officer. (3) Extortion or accepting a bribe ( accepting unlawful fees ).
(4) Unauthorized wiretapping (federal felony) or bugging (state offense). (5) Perjury and subornation of perjury. The crime of perjury consists of knowingly testifying falsely while under oath; the crime of subornation of perjury is committed when another person is induced or knowingly permitted to testify falsely. An example of perjury and subornation of perjury is when an assistant district attorney knowingly allows a witness to testify against a defendant, the witness having committed perjury in the past against the defendant. Misfeasance in this example would be when the presiding judge fails to charge the witness with perjury, a misdemeanor offense in North Carolina carrying a 30-day jail sentence; the judge has committed misfeasance for failure to do a lawful act in a proper manner; official misconduct is a class A misdemeanor. The assistant district attorney has committed subornation of perjury by inducing or knowingly permitting the witness to testify falsely against the defendant.
Another act of perjury associated with judicial proceedings is to knowingly make material false statements on important affidavits and documents such as complaints filed with a magistrate, or falsifying a tax return, or for a Supervisor of Elections to falsely report election returns. This is called false swearing which is perjury outside of or apart from a judicial proceeding. (6) Official misconduct and misconduct in public office, I.e., using the powers of one’s office to obtain a dishonest advantage for oneself or falsifying an entry in a record or report. (7) Intimidating witnesses, the defendant, prisoners, or other persons. An example of intimidation would be for a presiding judge to interrupt the testimony of a defendant charged with “resisting public officers” and threaten the defendant by asking him or her if they wish to be charged with “assault upon a law officer”. The law officer has committed misfeasance when he or she refuses to honor a subpoena to bring instruments and documents to court which would prove the defendant innocent and themselves guilty of “police brutality” , “improper conduct while making an arrest”, and most importantly for testifying falsely (perjury) on the witness stand against a defendant. (8) Aiding, assisting, or permitting the escape of a prisoner. Escape is the crime of getting away from lawful custody without the use of force. Breach of prison is the crime of getting away from lawful custody by the use of force. If you get into a street fight, are detained by a law enforcement officer but manage to open the door of their police car and get away from custody, or skip out the back door of the police station in the confusion of booking several other persons involved in the incident, you are guilty of escape. The arresting police officer is guilty of permitting escape if they carelessly leave the door of their police car unlocked allowing a prisoner to
escape, or fail to secure a person they have arrested with handcuffs, or fail to properly secure a defendant while being booked into the magistrate’s office waiting room. (9) Extortion by a public official or employee by obtaining payment because of his or her office by the use of force, violence, intimidation, or fear. An example would be for a police officer to cite a person for a traffic violation but offers to withdraw the charge(s) in lieu of money or sexual favors. Another example commonly used in North Carolina is for a state judge to put pressure on the lawyers who have cases in his or her court to loan the judge money or for the lawyers to donate money to his or her reelection campaign, for which they will receive favorable rulings by the presiding judge. (10) Bribery is the extortion of money or gratuities by a public official for a person to receive a favorable ruling on an issue before the official. An example would be for a building inspector who demands money or expects a gift for certifying your building has completed the proper construction phases or is safe for occupancy, or for a County Commissioner to rule favorably on a rezoning issue, or for the Board of County Commissioners to rule favorably for a waste handling company to take over county services, or receive kick-backs for transporting county waste to a particular waste handling facility, or if they accept gifts, travel privileges on corporate airplanes, refrigerators, washer-dryers, fishing - recreational excursions for themselves and other family members, provided or sent to them whether anonymously or not. Bribery is the offering, giving, soliciting or receiving of money or some other valuable thing to influence a person to act in a manner contrary to his duty, or to reward him or her for so acting. Originally the offense of bribery applied only to corrupt giving to judges. (11) Obstruction of Justice is a general phrase used to cover offenses in which a conscious effort is made to interfere with the proper functioning of the courts and police officers. It is obstruction of justice and a violation of the Judicial Code of Justice for a judge to knowingly preside over a case when the plaintiff is a member of his or her family or a former employee of the judge, or for the judge to “quash” a subpoena for a witness to testify for the defendant identifying the presiding judge as a former employer of the plaintiff. In this example the judge is guilty of obstruction of justice for suppressing evidence favorable for the defense of the defendant.
Defendant’s Responsibility In the event of inconclusive physical evidence in a case, the character of a defendant can sway the jury. Most jury members will convict a defendant if the prosecution is able to portray the defendant in a negative light, the jury members allowing their emotions to intervene or over-ride their intellect and the evidence, thus the reason for the prosecution to attack the character of a defendant.
Therefore, it is the responsibility of the defendant to dress appropriately for their court appearance before a jury of their peers. That is the reason for the defendant to look at the jury during a trial, make no facial expressions or shaking of the head when they are attacked by the prosecution. Remember that the prosecutors do not care about you, the defendant. All they are interested in is to win at any cost even if it means attacking your character, reputation, or even knowingly placing perjured testimony against you, and/or knowingly withholding evidence proving you are innocent of the charge(s) against you.
In order to have a fair and lawful trial, there are rules that all jurors must follow. A basic rule is that jurors must decide the case only on the evidence presented in the courtroom. It is up to You and your Defense Attorney to place a 'reasonable doubt in the Jury's minds that will get you acquitted of the crimes for which you were charged. CAMERA and RECORDING DEVICES Another question to consider is ‘Why are video cameras, photographs, and any other recording device (verbal or visual) not allowed in a courtroom?’ The answer is quite obvious to those of us who have been tried in a Court of Justice – it is because the Judges, Prosecutors and Lawyers do not want their actions during a trial to be shown to the general public.. A law was recently passed in North Carolina restricting public access to Documents of Complaints against Judges and decisions of the Judicial Standards Commission considering these complaints. Neither are the Presiding Judges names placed on the Verdict Document which is kept by the Clerk of Superior Court. In North Carolina a Defendant only has one chance to expunge (erase) his/her criminal record, and only those charges within a 1-year period. The remaining charges and/or decisions remain on your criminal record for as long as you live and even follow you into the grave. This is why a Defendant must take any criminal charge against him/her serious. No longer is there a Stenographer typing away on a shorthand typewriter, recording the courtroom procedures from which a written copy may be obtained, but an Assistant Court Clerk with a ‘mask’ over her mouth dictating into a recording machine of the questions and testimony between Prosecution, Lawyers, and Witnesses against the Defendant. These verbal translations of courtroom procedures will cost the Defendant and/or his Defense Lawyer a minimum of $150 and will be kept on file for only 6-months after the conclusion of the trial. NO recordings are made in District Court where most of the trials take place and where a Defendant is arraigned for trial in Superior Court.
Restriction of visual or verbal recording devises from a Court of Law goes all the way up to to Federal Supreme Court where 9-Justices, appointed for life, makes the most profound legal decisions governing our nation. GOOD LUCK!
Published on May 18, 2014