Articles Posted in Criminal defense

joe-perales-117891-copy-300x198The practice notes for the rules of evidence remain an important cornerstone of justice in Chicago. Specifically, the court wants to hear, see, witness, and assess evidence that is accurate and timely. Without the rules of evidence, the court process is delayed, and the outcome is inevitably compromised. If we take the example of hearsay, it is clear that the courts wish to hear from the actual witnesses to a crime rather than second-hand stories that are subject to contamination, misinterpretation, and deception. Moreover, the access to direct evidence and witness testimony allows for cross-examination, an important verification and confirmatory aspect of the court process.

Defending attorneys should be well-versed in the allowable question and answer formats. It is a given that some clever lawyer somewhere is going to try to bend the rules by asking a leading or irrelevant question. The defendant must be prepared for the rigors of a cross examination. Many rape and sexual assault cases collapse for no other reason other than that the victim is unable to withstand the detailed and embarrassing process of cross-examination. The court does have decorum, but it is also not a place for false modesty. The judge and jury wish to hear things as they happened and as they relate to the charge that has been brought forward.

Facts Rule the Court

javier-villaraco-235574-copy-300x225The right to bail is constitutionally protected in Chicago and across the USA and is relevant in the wake of increased custodial sentencing. It is a key piece of procedural content for the court process. Many ordinary members of the public do not understand how bail works. That means that they are at risk of spending significant time in jail on remand rather than being out on bail. The court is faced with three main considerations when deciding whether or not to give bail:

  • The risk of absconding
  • The risk of committing other crimes whilst on bail

800px-One_US_dollar_note_0127_22-300x133The bedrock of the consumer protection laws in Chicago is the need to protect members of the public from unscrupulous business practices. Specifically, the law was written in response to consumer complaints that largely went unaddressed. It was noted that in some cases, the bureaucratic minefield of forms and procedures meant that consumers were unable to get to the decision-makers who might have made a difference. The laws were carefully designed in such a way as not to hurt the business community, a community that has contributed much to the prosperity of the state and its cities.

Putting the Consumer First

It is important to understand the fact that the law perceives the consumer to be a vulnerable entity that needs to be protected from powerful business interests. The “customer is right” ethos sometimes masks the manipulation of consumers in order to get them to spend more money on things that are most profitable to a given business. False advertising and even price mislabeling are common tactics. The consumers find themselves in a situation where they are effectively backed into unfair contracts. These arrangements are hard to exit without significant consequences for the consumer.

3scbuulajgg-matthew-hamilton-300x200Knowledge of sentencing guidelines is not only important for those defendants who have been found guilty of a crime in Chicago, but it is also important for those who intend to enter a guilty plea or have a reasonable expectation of being found guilty. The guidelines act like a framework within which the court is expected to operate. They offer guidance to the judge as to the minimum and maximum sentences anticipated depending on the facts of the case. The range can be quite significant, and many offenses lie in the middle. It is for this reason that a sliding scale of punishment has been adopted.

Understanding the Difference Between Potential and Actual Punishments

Unlike some jurisdictions where sentencing is a technical and artificial exercise of matching index points to a punishment scale, Chicago, like the rest of the USA, demands a much more sophisticated approach. This includes weighing up the relative aspects of the aggravating and mitigating features. Two people who have been involved in an identical crime might get significantly different sentences under the guidelines. The public may perceive this to be unfair, but in reality, it is a reflection of the true nature of crime in which the differences are often more important than the similarities.

zjrupeakpzi-aidan-meyer-300x200There are few issues that are guaranteed to raise legal temperatures higher than that of “justified police shootings.” Issues of outright racism and civil rights have come to the fore as a consequence of this specific issue. The media has played its role in sensational coverage, which often masks the serious legal issues at stake. You only have to read about the Laquan McDonald case to understand some of the complexities involved.

The fact that the law is not very clear gives leeway to all sorts of interpretation. The law enforcement officers have assumed (incorrectly) that the law is designed to cover them at every opportunity. Meanwhile, the courts are left somewhat hopeless by the experience of having to litigate and mediate that which is nearly impossible to handle fairly. The charged atmosphere also means that consideration has to be given to the practicalities of how the verdict will be received.

The Starting Point

gus-ruballo-158652-copy-300x200Airplane carriers have faced some criticism for removing passengers who are already booked on a flight. Some have argued that it is a violation of the contract to carry law while others put it down to bad customer care. Recently there was a particularly embarrassing incident when a passenger was forcibly evicted in such a violent manner that he sustained significant injuries, which were then shared with the world via social media.

From a legal point of view, the question was whether the actions of the carrier were justified and legal. This is the intersection of civil liberties and consumer protections. For example, there are questions about whether a carrier can arbitrarily refuse to carry a passenger. There are exceptions that are based on security considerations, but more often than not, the issues in the USA involve overbooking. The behavior of the carrier representatives can also constitute a cause for criminal and civil action.

Sensitivities of Aviation Law

clem-onojeghuo-173534-copy-300x205Shoplifting is classified under the theft statutes. The key provisions are contained in statutory instrument number 720 ILCS 5/16-1. It is at the lower end of the crimes of dishonesty but can still be prosecuted and lead to terms of imprisonment. Over the years, there have been many changes that were designed to reform the regime. For example, there are some new sophisticated techniques for shoplifting that may not have been covered by the original statutes in Chicago. That is why defense attorneys have to ensure that they are up to date with the latest versions of the law. This is one of the most prosecuted crimes not because of its seriousness but rather its frequency of occurrence. Shoplifting is an occupational hazard for marketplaces because there are always people who want to take things without paying for them.

Contrary to popular belief, this is not a crime that is consigned to the lower orders of society. Rather, it cuts across, and there have been instances of perfectly wealthy people who have been caught shoplifting. Sometimes, it is a case of temporary economic deprivation; other times, the defendant may be suffering from psychosocial problems such as kleptomania. It is imperative that the defense attorney explores all the possible explanations before the client is either found guilty or sentenced. The existence of a recognized condition might be a mitigating factor in such cases. It is also important to advise the client not to accept higher charges in order to avoid appearing in court because the resultant criminal record can become a hazard.

Protections for the Defendants

wil-stewart-24563-copy-300x200Public consumption is a controlled activity. The laws relating to public intoxication in Chicago are designed for the express purpose of protecting the public from the effects of alcohol and other drugs. In any case, anyone that is caught with a DUI and a blood alcohol level that exceeds 0.08 is immediately liable for prosecution. The open container laws mean that you can be charged even if you did not consume the product. The implicit assumption is that there is no other legitimate reason for opening a container of alcohol unless you intend to consume it. Clever defending attorneys may try to play about with the syntax of the statute but the spirit of the law is clear.

The statute states that it is illegal to transport, carry or possess any container with alcohol when they are within a passenger area of a car whilst on a highway. Those who are still opening cans of beer and placing them in the cup holder as they drive are actually committing an offense, even if they can prove to the court that they never actually drank the alcohol. Even more heinous is the idea of holding the can in one hand whilst driving. Not only does that break the rules on public consumption of alcohol, but it is also potentially dangerous driving, which is taken seriously by the courts.

A Complex Law that Captures Both Drivers and Passengers

patrick-schopflin-38860-copy-300x200Chicago has instituted a number of stringent requirements for children or minors being in possession of alcohol. The Minor in Possession (MIP) laws are unique in they focus on the one with parental or supervisory responsibility as being an exception clause. For teenagers, the MIP laws tend to capture those who are drinking and driving whilst under age. The penalties will typically also include the suspension of the driver’s license in order to reflect the specific circumstances in which this crime is committed. The law is written in such a way that you can be charged with Minor in Possession infringements even if you were not drinking at the time. The key constituent elements of the crime are all about carrying alcohol rather than just consuming it.

There has been some discussion as to whether the law has a built-in privacy provision that would protect dwelling places from prosecution. This is in addition to the usual political process of legislating. In reality, most of the enforcement takes place on the road or in bars/public drinking places. Unless the information about the crime was discovered during an alternative investigation, it is not a given that the law enforcement agencies will invade the privacy of your home in order to assess whether you are in contravention of the Minor in Possession laws. The specific wording of the law says that the law is intended to capture those who have alcohol on them in a public place or a place that is open to the public when they are not 21 years of age.

Possible Penalties and Sanctions

aaron-burden-149693-copy-300x225Although Chicago would like to make itself a friendly place for businesses, there are some types of businesses that will never be welcomed here. One of them is telemarketing fraud, an infringement on consumer protection laws. This offense has gotten the attention of legislative bodies and the wider legal community because it affects communities in a big way. A particularly resourceful criminal can defraud a whole segment of the community and leave them in difficult circumstances. It is for this reason that the offense is recognized as being serious and attracts prosecutorial interest whenever the facts are proven. Underpinning the law is the expectation that businesses will follow a code of ethics. Unfortunately, there are some industries that do not abide by such a code.

The self-regulation model has failed in a world of cutthroat competition. Those who play by the rules end up being priced out of the market whilst those who are taking consumers for a ride are given an expressway to seemingly insurmountable success. The law is clear about the obligations to sell in an honest manner, regardless of the temptation to take competition to its zenith. The victims are typically trusting and vulnerable. These have always been aggravating features in virtually any crime that you can think of in Chicago. The courts have continued the tradition of punishing those offenders who target the most vulnerable.

Reporting and Gathering Evidence