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9th edition
The Criminal
Law Handbook
Know Your Rights, Survive the System
by Attorneys Paul Bergman
& Sara J. Berman-Barrett
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please note
9th edition
The Criminal
Law Handbook
Know Your Rights, Survive the System
by Attorneys Paul Bergman
& Sara J. Berman-Barrett
NINTH EDITION SEPTEMBER 2007
Editor RICHARD STIM
Cover design SUSAN PUTNEY
Production SARAH HINMAN
Proofreading CHRISTINE SINNOTT
Index BAYSIDE INDEXING SERVICE
Printing DELTA PRINTING SOLUTIONS, INC.
Bergman, Paul, 1943-
The criminal law handbook : know your rights, survive the system / by Paul
Bergman & Sara J. Berman-Barrett 9th ed.
p. cm.
Includes bibliographical references and index.
ISBN-13 978-1-4133-0704-7 (pbk.)
ISBN-10 1-4133-0704-3 (pbk.)
1. Criminal procedure United States Popular works. I. Berman-Barrett, Sara
J., 1964- II. Title.
KF9619.6.B47 2007
345.73'05 dc22
2007013009
Copyright © 1997, 2000, 2002, 2003, 2004, 2005, 2006, and 2007 by Paul Bergman
and Sara J. Berman-Barrett
ALL RIGHTS RESERVED. PRINTED IN THE U.S.A.
No part of this publication may be reproduced, stored in a retrieval system, or
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Dedication
To Hilary, Julia and Daniel.
—PB, SBB
Acknowledgments
Our thanks:
To attorneys Jake Warner and Steve Elias of Nolo for first envisioning a book about the
criminal justice process.
To Janet Portman and Rich Stim for their hard work and dedication to the text.
To Dean Laurie Levenson, a former prosecutor and legal commentator; Michael Roman, an
experienced criminal defense attorney; and Ron Schlesman, a longtime probation officer,
each of whom was kind enough to read through the entire text; and law professors David
Sklansky, Peter Arenella, and David Dolinko of the UCLA School of Law and Michael
Graham of the Miami School of Law for their many insights, critiques, and immensely
helpful suggestions.
To public defender and Concord law professor John Ciroli for his many insights into criminal
defense practice.
To attorney Steve Harvey for his insightful comments about the nature of the U.S. criminal
justice system, and,
To the many resourceful employees of Nolo who put their heart and energy into producing
such warm and helpful books and making sure the public knows about them.
To another former public defender, David Barrett, for answers to legal questions, for lock-up
to courtroom reality checks, and for setting an example as one who truly pursued justice;
and
Much appreciation to Dr. LaVera Otoyo for sharing wisdom and stories gathered from her
many years of service to America’s juvenile justice system.
To the Martinez family, whose loving care enabled the long hours of research and writing.
Thanks to UCLA law student Caleb Bartels for his research and contributions to the
9th edition.
To UCLA School of Law professor Stuart Banner for his help with the death penalty section.
Table of Contents
Your Legal Companion
Introduction
A Walk-Through of the Case of State v. Andrea Davidson,
a Fictional Robbery Prosecution 4
1: Talking to the Police
Section I: Police Questioning of People Who Haven’t Been
Taken Into Custody 13
Section II: Police Questioning of Arrestees 20
2: Search and Seizure: When the Police Can Search
for and Seize Evidence
Section I: The Constitutional Background 37
Section II: Search Warrants 41
Section III: Consent Searches 46
Section IV: The Plain View Doctrine 51
Section V: Warrantless Searches That Are Incident to Arrest 53
Section VI: “Stop and Frisk” Searches 55
Section VII: Searches of Car and Occupants 58
Section VIII: Warrantless Searches or Entries
Under Emergency (Exigent) Circumstances 63
Section IX: Miscellaneous Warrantless Searches 64
3: Arrest: When It Happens, What It Means
Section I: General Arrest Principles 75
Section II: Arrest Warrants 79
Section III: Warrantless Arrests 80
Section IV: Use of Force When Making Arrests 83
Section V: Citizens’ Arrests 86
4: Eyewitness Identification: Psychology and Procedures
Section I: An Overview of Eyewitness Identification Procedures 93
Section II: The Psychology of Eyewitness Identification 96
Section III: Lineups 98
Section IV: Showups 103
Section V: Photo Identifications 104
Section VI: Motions to Suppress Identifications 105
5: Booking and Bail: Checking In and Checking Out of Jail
Section I: The Booking Process 111
Section II: Arranging for Bail 114
Section III: Own Recognizance Release (Release O.R.) 124
6: From Suspect to Defendant: How Crimes Get Charged
Section I: Crime and Criminal Cases 129
Section II: To Charge or Not to Charge, That Is the Question 131
Section III: The Mechanics of Charging 139
Section IV: Grand Juries 142
Section V: Diversion 144
7: Criminal Defense Lawyers: Who They Are,
What They Do, How to Find One
Section I: Do I Need a Lawyer? 151
Section II: Court-Appointed Attorneys 154
Section III: Private Defense Attorneys 160
Section IV: Self-Representation 170
8: Understanding the Attorney-Client Relationship
in a Criminal Case
Section I: Confidentiality 181
Section II: Client-Centered Decision-Making 185
Section III: Lawyer-Client Communication 191
Section IV: Representing Guilty Defendants 192
Section V: Competent Clients 194
[...]... want to understand how the process works and where in the process you can expect to have an effect on how the case is prosecuted Whatever prompts your interest, the criminal justice system belongs to you You have a right to know how it works The information in this book tells you what you never learned in high school civics 2 CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM Our book is in... book describes the criminal justice system as it tends to operate throughout the country But each state, as well as the federal government, has its own set of criminal laws and procedures Thus, if you need to know the terms of a specific law, or the procedures your local court will follow, you will need to consult the rules for your jurisdiction Chapter 27 explains how to find such rules and other important... Psychology and Procedures, and Chapter 17, Fundamental Trial Rights of the Defense 6 CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM 8 Andrea’s answers to Officer Daniels’s questions lead the officer to suspect that evidence linking Andrea to the robbery is inside her home (such as some of the loot and a cap that the robber wore during the robbery) Officer Daniels wants to get hold of this evidence... could arrest her Had the woman responded to Officer Yu, the officer might not arrest her for loitering However, she might be subject to arrest for a different offense, such as trespass (unlawful entry on someone else’s property) 16 CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM The Questionable Legality of Loitering Laws Many people argue that police officers use loitering laws to clear neighborhoods... in future editions Introduction A Walk-Through of the Case of State v Andrea Davidson, a Fictional Robbery Prosecution .4 4 CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM A Walk-Through of the Case of State v Andrea Davidson, a Fictional Robbery Prosecution T his walk-through is intended to quickly familiarize you with what may happen as a case wends its way through the criminal. .. police officer reasonably suspects that a 14 CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM person has engaged in criminal activity, the officer can detain the person and ask for identification A person who refuses to provide identification commits the crime of resisting an officer’s lawful order (Hiibel v Nevada, U.S Sup Ct 2004) Also, laws typically require drivers who are stopped for speeding... does the case have to be thrown out? lawyers and public defenders? does the lawyer make all the decisions? before they can warn her about her “Miranda” rights, can what she says be used against her in court? in jail, is their conversation confidential? See Chapter 1, Talking to the Police to have to provide Andrea with “due process of law ? See Chapter 7, Criminal Defense Lawyers: Who They Are, What They... the events leading up to the assault Question: Does Rozmus have to answer the officer’s questions? Answer: No Rozmus has a constitutional right to remain silent, and if Officer Mayorkas fails to warn Rozmus of the Miranda rights before questioning begins, then nothing Rozmus says is later admissible in evidence 22 CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM The Miranda Case Ernesto Miranda... what to do should at least ask the officer to return at a later time 18 CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM Delay the Interview People who are uncertain about whether to talk to a police officer needn’t feel trapped into giving an immediate “yes” or “no.” Being confronted by a police officer tends to make many people nervous and anxious, which renders them unable to give completely... questions? 22 15 Can the government ever use statements against defendants if they were obtained in violation of Miranda? 22 12 CRIMINAL LAW HANDBOOK: KNOW YOUR RIGHTS, SURVIVE THE SYSTEM 16 Are there circumstances in which a statement by a suspect can’t be used against that suspect even if a Miranda warning is given? 23 17 Am I entitled to have my case dismissed if the police questioned . attorney licensed to practice in your state.
please note
9th edition
The Criminal
Law Handbook
Know Your Rights, Survive the System
by Attorneys Paul Bergman. 9th edition
The Criminal
Law Handbook
Know Your Rights, Survive the System
by Attorneys Paul Bergman
&
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