The Fifth Amendment to the United States Constitution is also found in the Bill of Rights and makes multiple requirements of the government in criminal prosecutions. The Fifth Amendment provides:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Fifth Amendment has the almost the largest number of rights that apply to criminal cases, second only to the Sixth Amendment, which we’ll discuss next week.
The Fifth Amendment requires that, in (most) federal prosecutions, a defendant must be indicted by a grand jury. This means that a group of people from the jurisdiction of the Court must meet and must hear the allegations brought against the defendant and decide that there is sufficient evidence to move forward with a prosecution before the defendant can be officially charged with a crime. This applies to all capital “or otherwise infamous” crimes which, in practice, means if you are being prosecuted in federal court, you have been indicted by a grand jury.
The Fifth Amendment also prohibits a defendant being tried for the same crime more than once: double jeopardy. This requirement means that once a person has been acquitted of a crime, he cannot be prosecuted for the same crime in the same jurisdiction. There are some limitations to this: if a defendant has been tried, but that trial ended in a mis-trial, or if the offense is a crime under both state and federal law, in which case the defendant can be prosecuted in both state and federal court.
The Fifth Amendment’s third prohibition is the right against self-incrimination. This right is depicted in every police procedural on television when the police advise the arrested person that she “has the right to remain silent and not answer any questions.” This prohibition also means that a criminal defendant cannot, unlike other witnesses, be compelled to testify when he is on trial. When a person “pleads the Fifth,” this is the section of the Amendment to which she is referring.
Finally, the Fifth Amendment establishes that a criminal defendant has a right to “due process.” Due Process is a very broad term that encompasses a multitude of other rights, which basically boil down to requirements that do not allow the government to put the defendant in jail and throw away the key without a trial.
Next week: the Sixth Amendment and speedy trials, impartial juries, and the confrontation clause, among others!
In celebration of Film Prize Weekend here in Shreveport, we’d like to tell you about a few of our favorite movies about the law. This is not, by any means, an exhaustive list. Nor is it a list of the “best” movies about the law. These are just a few of the movies we turn to again and again when we think about our profession. (Or some that just get quoted repeatedly at our office as we work!)
To Kill a Mockingbird
There’s a reason that, when we had to come up with pseudonyms to take the bar exam, we were told not to choose “Atticus Finch.” This movie and the book it is based on are the reasons why.
12 Angry Men
A look into the jury room most attorneys never get to see and a glimpse into the criminal court system many will never get to experience.
A Few Good Men
I think this movie is the reason many attorneys keep baseball bats in their offices. It is certainly one of the movies that is quoted in our office on a regular basis. “[We] want the TRUTH!”
Legally Blonde
“What, like it’s hard?” Elle Woods is treated by many people in her law school class and the firm where she’s interning as dumb because of her clothes, makeup, and hair. She proves them all wrong when that knowledge helps her save her client and allows her to take down her jerk of a boss.
My Cousin Vinny
Another underdog saves the day story. And a movie that may get quoted in our office more than is really necessary.
Chicago
Whenever we are getting ready for a trial, Katherine likes to think about Richard Gere singing: “Give ‘em the old razzle dazzle!” We practice law a fair bit more ethically than Gere does in this movie, but who doesn’t love a musical about murder?
On the Basis of Sex
Notorious RBG before she was notorious. This movie is the story of Ruth Bader Ginsburg as one of the few women at Harvard’s law school and how she started her career as a fearless champion for the rights of others.
Obviously, there are a million movies we know we’ve forgotten on this list, but these are some of our favorites. Drop by our facebook page if you’d like to give us a list of more to add to our to-watch list!
The Fourth Amendment to the United States Constitution is found in the Bill of Rights and, along with several others we’ll talk about over the next few weeks, provides protections for individuals against intrusions by the government. The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This requires that a law enforcement agency (or other government agency) that wants to search a person’s home or property must show probable cause that evidence of a crime exists within that location. Further, it says that the government may not seize a person’s property without also showing probable cause to believe that it is evidence of or proceeds from a crime. Any warrant, in order to be constitutionally valid, must also describe the place to be searched and the description must be clear, and it must describe the property, or the person in the case of an arrest warrant, to be taken or arrested.
This requirement of probable cause, along with the prohibition against unreasonable searches and seizures means that the government must show, to the satisfaction of a reviewing judge, that they have more than just a suspicion that evidence of a crime is going to be located at the location. A person also may not be arrested except upon a showing of probable cause.
The effect of this Amendment on criminal prosecutions in Louisiana can be seen in many procedures our courts follow:
In Louisiana, if a person is arrested without a warrant, a judge must review the arrest information within 72 hours (exclusive of legal holidays) to determine whether there was probable cause to effectuate that arrest. If there was, then the case may proceed. If not, then the arrestee must be released.
Defendants who believe that they or their property have been searched unlawfully or absent probable cause may file a motion to suppress the results of the search and the Supreme Court has held that if those searches were conducted without probable cause, the evidence cannot be used against the Defendant.
Check back with us next week for our favorite legal and law-related movies in celebration of Louisiana Film Prize Weekend!
Constitution Day is tomorrow, September 17. It celebrates the day in 1787 that the Constitution of the United States was ratified.
For the next month or so, we will be taking one day each week to commemorate an amendment to the US Constitution that has an impact on our daily practice of law. On September 23, we will discuss the Fourth Amendment’s prohibition against unreasonable searches and seizures and requirements that warrants issue only upon probable cause and with specific descriptions of the property to be searched and seized or the person to be arrested. (Then we’ll be taking a break here in the middle to celebrate the Louisiana Film Prize and Prize Fest Weekend on October 16 with a list of our favorite movies about the law. Viva!). On October 7 we’ll resume our regularly scheduled programming to discuss the Fifth Amendment’s requirement that a case be instituted by grand jury, its protections against double jeopardy and self-incrimination, and due process requirements. On October 14, we’ll discuss the trial rights established by the Sixth Amendment, including: the right to a speedy trial, a public trial, an impartial jury, to confront one’s accusers, and to an attorney. Finally, on October 21, we’ll discuss the Eighth Amendment’s prohibitions against excessive bail, excessive fines, and cruel and unusual punishment.
As a preview to all of that, we’d like to remind everyone of the preamble to the Constitution, the language that starts off the document that establishes and defines the powers and limitations of our government:
We the People of the United States of America, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Join us in the coming weeks as we look to those parts of the Bill of Rights that we celebrate every day in our criminal defense practice.
Effective August 1, 2019, the Louisiana legislature has made a few changes to the States’ expungements laws. The first change makes clear that the records that must be removed from public access after an expungement order is signed include records of arrest or warrants for failure to appear bench warrants provided that bench warrant was related to the same offense(s) for which the person is seeking an expungement. This change will close a loophole that could have allowed an individual to receive an expungement, have their arrest record for the original arrest removed from public access, but have their rap sheet still show an arrest or an outstanding warrant for a bench warrant if they had failed to appear in court for any reason for that same charge.
The second change increases the availability of expungements for individuals with felony convictions. Also, taking effect on August 1, 2019, Code of Criminal Procedure Article 978 now allows individuals who are entitled to a first offender pardon pursuant to Article IV, Section 5(E)(1) of the Louisiana Constitution to be eligible for an expungement, as long as the offense they are attempting to expunge is not a crime of violence as defined in La. R.S. 14:2(B) or a sex offense as defined in La. R.S. 15:541.
The First Offender Pardon contained in the Louisiana Constitution automatically pardons an individual who has been convicted of a non-violent crime (or of mingling harmful substances, extortion, or illegal use of weapons or dangerous instrumentalities) who has completed his sentence. This effectively means that, for those convicted of only one felony, who may not have been sentenced pursuant to Article 893, they will be eligible to expunge their arrest and conviction immediately upon completion of their sentence, provided they are otherwise eligible for a first offender pardon.
If you or someone you know thinks you may now be eligible for an expungement, please contact our office for a consult at (318) 459-9111.
On Friday, June 21, 2019, the United States Supreme Court issued a ruling reversing the conviction of Curtis Flowers for First Degree Murder after his sixth trial. Four of Flowers’ previous trials had been overturned for prosecutorial misconduct in jury selection and the fifth ended in a mistrial. The issue before the Supreme Court was whether the prosecution’s systematic removal of black potential jurors from the jury was a violation of the Court’s precedent in Batson v. Kentucky. Flowers’ case was the subject of much public and media scrutiny over the past year due to its being featured in the second season of the podcast “In The Dark.”
Scotusblog has a good write-up of the opinion issued by Justice Brett Kavanaugh:
“The State’s relentless, determined effort,” Kavanaugh concluded, “to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.” Such a history, Kavanaugh stressed, cannot be ignored when considering Evans’ intent going into Flowers’ sixth trial.
Justice Kavanaugh’s full opinion and those of the two dissenting Justices, Thomas & Gorsuch, can be read here.
For those of you with children under the age of 18 who sometimes ride in your vehicle, be aware that new laws have been enacted which may have an impact on you.
Senate Bill 76 increases the ages for many child safety restraints and requires that a child meet not only the height and weight requirements, but also the age requirements set in the statute for each type of restraint.
The new law requires:
rear-facing child restraint systems for any child under the age of 2
forward-facing restraints with an internal harness for children over the age of 2 who have outgrown the manufacturer’s height and weight requirements for the rear-facing child restraint
a booster seat with a vehicle lap-shoulder belt for children over the age of 4 who have outgrown the manufacturer’s height and weight requirements for a forward-facing restraint system; and
an adult safety belt for a child who has reached the age of 9 years old and has outgrown the previous restraint systems height and weight requirements.
Please note that a child must meet both the age and height and weight requirements to move to the next safety restraint; otherwise, the child must be placed in the more restricting of the categories which applies.
If you or someone you know falls afoul of these new restrictions, contact us for a consult at 318-459-9111.
The Annotated Podcast by BookRiot is one of my favorites because it covers all kinds of topics about books (and makes book recommendations), but this particular podcast is all about something that is also relevant to our work.
The May 7th episode discusses organizations that provide used books to inmates in prisons across the country and some jurisdictions’ attempts to restrict inmates’ access to used books.
Medical Payments insurance, or med-pay, is usually an addition to a liability insurance policy that provides money in the event the insured is involved in an accident which causes him physical injury for which he has to seek medical treatment.
Med-Pay coverage is a great way to pay for medical expenses after you have been in an accident because it will pay for your medical expenses regardless of whether or not you were at fault for the accident.
Medical Payments coverage will also provide coverage to other passengers in your vehicle who have been involved in an accident and to individuals who have been involved in an accident with you.
If you have been involved in an accident and are not sure what to do next, give us a call at (318) 459-9111 to set up a consult.
UM Insurance is uninsured or underinsured motorist insurance. It is usually an optional addition to a liability policy. Liability insurance is insurance an individual purchases to provide coverage in the event that he causes damage to another person. Uninsured/Underinsured motorist insurance, unlike liability coverage, which provides coverage to the other driver, provides insurance coverage to the purchaser if he is involved in an accident with a driver who has either no insurance or insufficient insurance to compensate him for his damages.
UM insurance kicks in when another driver is at fault for an accident, but that driver has no insurance or has policy limits that are smaller than your damages.
In Louisiana, the minimum coverage allowed for a liability policy is $15,000 per person/$30,000 per accident. If you are injured in an accident with more than a minor soft tissue injury, these minimums are very unlikely to adequately compensate you for your medical expenses, lost wages, and emotional distress damages to which you are entitled. UM coverage steps in to cover you for the loss.
In Louisiana, UM coverage must be actively declined by the purchaser of an insurance policy. Unless you decline this coverage, or reduce the amount of coverage, it will provide you UM coverage in the same amount as your liability coverage. We recommend that our clients not reject UM coverage. It provides additional protection to you in the event you are in an accident with one of the 12-14% of the population in Louisiana who is uninsured.
If you have been in auto accident and you are unsure of what steps you should take next, give us a call at (318) 459-9111 to set up a consult.
Immediately after the accident:
Immediately following a car accident, if the vehicles are drive-able and it is safe to do so, you should remove them from any traffic they are blocking. You should not, under any circumstances, leave the general area of the accident; however, because you may be charged with a hit and run or with leaving the scene of an accident.
Even if the accident occurred on private property, you will likely want to contact law enforcement. This will ensure that a report documenting what happened is created, which is useful if litigation will follow your accident.
If you or the other people involved in the accident are injured, you should call for emergency medical services.
Make sure you have your driver’s license, proof of insurance, and registration available to show the law enforcement officers who arrive on scene and exchange that information with the driver(s) of the other vehicle.
Also, take pictures and document the damage to all vehicles involved in the accident, as well as the scene, if it is safe to do so. Law enforcement will usually not do this and this information is incredibly helpful in resolving any property damage or injury claims resulting from the accident.
If you are visibly injured, you should also photograph those injuries immediately and as the injury progresses or heals.
Call your insurance company and the insurance company for the other driver(s) involved in the accident and report it.
After the initial report:
If you need additional medical treatment, you should follow-up with a doctor as soon as possible. If you do not have a general practitioner, visit your local urgent care or ER. Make sure you then follow the instructions they give you regarding medication, follow-up treatment with your own physician, or referrals to other physicians.
If your injuries are soft-tissue, you may want to follow-up with a chiropractor who can assist in easing those injuries and get you back on your fee more quickly. A good chiropractor can also help you to locate another doctor if your injuries are more severe than you originally suspected and ensure that you get the right treatment for your injuries.
If you have been in an accident and suffered injuries, we would love to discuss your options for resolution with you.
Sometimes it can be difficult to negotiate with your insurance company (or the other driver(s)) on your own behalf. If you or a loved one has been in an accident and you’re not sure what to do next, give us a call at (318) 459-9111 to set up a consult.
Law Day is celebrated annually on May First and, according to the American Bar Association, is:
a national day set aside to celebrate the rule of law. Law Day provides an opportunity to understand how law and the legal process protect our liberty, strive to achieve justice, and contribute to the freedoms that all Americans share.
This year’s theme is: Free Speech, Free Press, Free Society. Again, from the American Bar Association’s website:
In the United States and around the world, freedom of speech and the press are among the most important foundations for a free society. Free speech and free press are prominent topics in public discourse and litigation. It is impossible to imagine a free society without these individual liberties, yet historical and current debates surrounding them continually challenge us to consider their boundaries and resilience. Changes in technology have reshaped how free speech and free press work in the everyday world.
To read more about Law Day in the United States, check out the American Bar Association’s website here.
Many of us have fitness apps loaded on our phones: Nike+, Apple’s Health App, Zombies, Run!, and the list goes on and on, but there’s a new option now available from the Federal Bureau of Investigation:
The FBI Physical Fitness Test App is now available on the Apple App Store and Google Play Store
The FBI markets this app as a way to “learn what it’s like to train as an agent.”
The problem, as we criminal defense lawyers see it? This app tracks your location, as most fitness tracker apps do, so it can log mileage for walks or runs, for example; however, if law enforcement wants that information from your average fitness tracker app, they are going to have to go to that company and ask nicely (most companies will say no as they have determined that the cost of providing their customers’ data to the government is much more expensive than the pain of not acquiescing to the government’s requests), or they have to go to court and get a search warrant ordering that company to provide them the records. And in order to get a search warrant, they must demonstrate to the court’s satisfaction that they have probable cause to believe evidence of a crime will be located in the information they want that company to disclose.
This app? Gives them access to your location data without any type of court order or supervision.
This app requests your phone provide your precise and approximate location, that it have permission to read the contents of your USB storage, and have full network access, prevent your phone from sleeping, and read your Google service configuration.
There may be nothing harmful, here, but there are so many non-governmental fitness tracker apps, we wouldn't use one that willingly gives information on our every move to the government. Be thoughtful about the apps you install on your phone and think hard before you willingly become a witness against yourself.
If you or someone you know is facing criminal charges and your location data is being used against you, give us a call at (318) 459-9111 to set up a consult.
Remember way back in December when we talked about civil asset forfeiture? Well, on February 20, the United States Supreme Court issued a ruling in Timbs v. Indiana that could change a lot of that.
In that case, Tyson Timbs pleaded guilty to a drug and theft charge in state court. The maximum monetary penalty for those offenses was $10,000. At the time of his arrest, law enforcement had seized a Land Rover that Timbs had purchased for $42,000 using proceeds from his father’s life insurance. Law enforcement alleged that Timbs had used the vehicle to transport heroin, justifying their seizure of the vehicle. After litigation in the state courts over the forfeiture of a vehicle valued at over four times the potential penalty for his drug offense, the United States Supreme Court agreed to hear the case.
The USSC ruled that the Eighth Amendment’s protections against excessive fines apply to the states under the Due Process Clause of the Fourteenth Amendment and, in keeping with its prior ruling in Austin v. United States, 509 U.S. 602, held that these types of forfeitures fall within the protections of the clauses cited above when they are at least partially punitive.
This ruling strikes a blow against civil forfeitures by state law enforcement agencies across the country. If you or someone you know is facing criminal charges and the government is also attempting to seize their assets, give us a call at (318) 459-9111 to set up a consult.
La R.S. 14:79 establishes the criminal consequences for violating a protective order:
On a first conviction that does not involve physical violence, the offender shall be fined not more than $500 or imprisoned for not more than 6 months, or both.
On a second conviction that does not involve physical violence, the offender shall be fined not more than $1,000 or imprisoned with or without hard labor for not less than 14 days nor more than 2 years. The first 14 days must be served without benefit of probation, parole, or suspension of sentence.
If the violation involves physical violence, the offender shall be sentenced to pay a fine of not more than $1,000 and imprisoned with or without hard labor for not less than 3 months nor more than 2 years. The first 30 days of the sentence shall be without benefit of probation, parole, or suspension of sentence.
On a second or subsequent conviction within 5 years involving physical violence, the offender shall be sentenced to pay a fine of not more than $2,000 and imprisoned with or without hard labor for not less than 1 year nor more than 5 years. The first year without benefit of probation, parole, or suspension of sentence.
Louisiana Code of Criminal Procedure Article 320(K) states that a violation of any bond condition (including the violation of a protective order issued as a condition of bond) shall be considered constructive contempt of court and shall result in the revocation of bail and the issuance of a bench warrant for the defendant’s arrest or remanding the defendant to custody. The Court may then increase the defendant’s bail, add additional conditions to his bail, or hold him without bail pending trial.
If you or someone you know is facing charges for violating a protective order, please contact our office to set up a consult at (318) 459-9111.