4.20.11 Criminal & Family Law

MIDTERM- NOT DUE NEXT WEEK

Week after next- Midterm-Pre-Sentence Report- From perspective of her attorney to judge, asking for lightest sentence possible. Look at presumptive charge (without terrorism charge), seriousness level, what are the factors that mitigate the seriousness of the offense. Do not take the stance that the charges are ridiculous. Judge wants to know that the person has learned something, has been rehabilitated. 3-5 pages.

LSF- Legally Significant Fact

Make sure that facts you use in applying law to facts are included in the statement of facts section.

Don't be afraid to reject what you've written, even if the sentences are good, if they don't accomplish what you're trying to do, set them aside and start again.

Ethics in Criminal Law

RPC-3.1
Fundamental difference between civil and criminal representation. Non-frivolous vs. establish every element.

RPC-3.8
Prosecutor has obligation to only follow allegations supported by probable cause.

Resources- RPC's, find ethical mentor, Attorney General issues published opinions, WA State Bar Hotline.

Confidentiality
RPC 1.4- Communication
Settlements/Pleas- Even if offer is ridiculous, the client must be informed.

RPC 1.2- Attorney determines methods.
Client determines objectives.

RPC 1.6- Disclosure obligations. (You should know this by heart.)


Criminal Law Process

Investigation (can run up to and into trial) > Charging > Arrest (bail, PC) > Arraignment (notice) > Pre-Trial Hearing (Case Scheduling Hearing) > Omnibus Hearing

PTH- motions to suppress or produce
State must turn over exculpatory (tends to negate guilt) evidence CrR 4.7
Not always clear cut.

OH- Last stop before trial, to determine if settlement can be made, or if an alternative to trial exists.
-What resolves a criminal case? Plea bargains- address underlying issue (drugs, etc.)
-Rehabilitation is expectation, although system is not set up to rehabilitate.
-Pleas- usually reduction in charge
--Low grade felony- judges hands are tied by sentence reform act, judge is required to sentence based on chart which calculates previous charges= Presumptive standard range- Non-exclusive, there may be other factors relevant to determination. Certainty but no leniency

Guilty Plea- I did it (no appeal)
Stipulation- You may read and decide (give up right to trial, presumption of innocence, may appeal)

Threat- Mandatory Minimums- strong motivation to make a deal

Stipulated Order of Continuance-SOC- Defendant will do A,B,C over a set period of time, and if completed, the charges will be dropped. (keeps it off the record, and hopefully addresses underlying issues)

Deferred Sentences- If Defendant agrees to deal, sentence will be pushed back set period of time, and at end of period if Defendant has acted accordingly, then sentence is eliminated. Record of conviction exists.

Appeal- Sitting en banc (the entire court sitting together, greater authority)
Commissioner- the dismissors of appeal requests

Harmless Evidentiary Error > Rule > Statute > Constitution