Seattle Criminal Defense Attorney

Ph# (206) 459-1310

Posts made in June, 2011

By on Jun 27, 2011 in Communication, Constitution, Court, Criminal, Noah Weil, Police, Procedure, Uncategorized | 0 comments

“You have the right to remain silent. Anything you say can and will be used against you. You have the right to an attorney. If you cannot afford an attorney, one will be appointed at no cost.” TV and movies have drilled those warnings, known as the Miranda warnings, into our collective conscious. Yet like so many things, the media’s version does not reflect the real world. Today’s post is about the origin of the Miranda warnings, when they’re required, their effect on a legal matter, and most importantly, how to use Miranda to protect yourself. Miranda v. Arizona As I explain further below, Miranda doesn’t deal with a defendant being given rights. It doesn’t even revolve around a defendant being made aware of their rights, although that’s a bit closer. What Miranda truly cares about is the Fifth Amendment and the admissibility of confessions. Miranda cares about making sure only reliable, reasoned confessions are permitted in court. You can read the full opinion here, but according to majority author Chief Justice Warren, Miranda dealt with “the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way.” This simple-seeming issue revolved around very fundamental forces. The first of those are our constitutional rights, specifically those granted to someone charged with a crime. The Fifth Amendment, the prohibition on compelled self-incrimination, was a response to a more barbaric time where people were tortured until they confessed to anything and everything. The Fifth Amendment, like almost all the others, can be waived. But that waiver must be knowing, intelligent, and voluntary (KIV), or it is (theoretically) ineffective. The other force at play was the rights of the victims and police and prosecutors, specifically the executive power that allows the government to gather evidence and prosecute people charged with crimes. The Court led off with a historical look at interrogation, (described as “inquisitional”) the colloquial “third degree,” and then the more modern psychological tactics of merely of establishing a false rapport. The Court noted the burden of custodial interrogation on a suspect, a process that “trades on the weakness of individuals.” The exact case was actually a collection of...

Read More

By on Jun 17, 2011 in Constitution, Court, Criminal, Noah Weil, Procedure, Sentencing/Penalties | 6 comments

Last week the Washington Supreme Court came down with an opinion that reverberated up and down the criminal bar. In State v. Monday, our state Supreme Court, in an 8-1 decision, reversed a murder conviction because of prosecutorial misconduct. It’s a fascinating opinion and well worth a read in its entirety. As one colleague said, reading it “…makes you proud to be part of the American judicial system.” From reading the coverage of the case, it looks like a lot of people misunderstand the takeaway from the opinion, and in general the role of the prosecutor and courts. Today’s post will explain those, and explain why the opinion was such a positive one for the concept of a fair trial. To explore the concept of a fair trial, we must start with the players. In this case the prosecutor and appropriate prosecutor behavior. Prosecutors represent a government, either city, state, or federals, in their prosecution of those they have deemed to have broken the law. In this state a criminal complaint, the formal document charging someone, will state the law was violated “against the peace and dignity of Washington.” The prosecutor’s job is nominally to restore that peace and dignity. As government employees generally, and prosecutors specifically, the State wields enormous power in its effort to convict someone of a crime. The resources of a city or county, not to mention the entirety of a police force, are at their disposal. In addition, prosecutors often receive certain inherent credibility from the general populace, a credibility which is quite relevant in jury trials. To stymie that enormous power somewhat, the rules of professional conduct (ethical rules for all attorneys) have a special section for prosecutors. Titled aptly enough “Special Responsibilities of a Prosecutor” the rule lists particular obligations of attorneys who hold that office. I spoke with a prosecutor once who was incredulous in the idea that prosecutors have special obligations, but indeed they do. The rule generally requires prosecutors to be forthcoming with evidence and not merely seek convictions, but to seek a fair trial based on evidence. The purpose of a trial is a fact-finding enterprise to resolve a dispute. Did the plaintiff copyright the song, or did...

Read More

By on Jun 8, 2011 in Civil, Communication, Consumer Protection, Court, Debt Collection, Noah Weil, Uncategorized | 0 comments

While I work primarily with clients accused of crimes, I also represent people on other matters. One of those practice areas involves people targeted by debt collectors. Today I go over one of the best laws protecting you and me from unscrupulous debt collection practices: The Fair Debt Collection Practices Act. What is the Fair Debt Collection Practices Act (FDCPA)? The FDCPA was enacted in 1977 to stop the most serious abuses of third-party debt collectors. The congressional findings, the reason the law was drafted, contains some really nice language including: “abundant evidence of the use of abusive, deceptive, and unfair debt collection practices,” “it is the purpose…to protect consumers against debt collection abuses,” and “means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts.” While I’ll be discussing the highlights of the FDCPA I urge you to review the full text of the law here. Keep in mind that while the FDCPA has been in effect for over 30 years, and was last amended in 1996, stories of abusive debt collection continue to persist today. For example, here, here and here. The problem is not the FDCPA itself (with one exception, see below). The problem is that most consumers simple aren’t aware of the FDCPA and how to use it to protect their rights. So let’s dive in. When does the FDCPA apply?   The first issue with any law is determining whether it applies to a situation. In some instances this can complicated. Luckily for us, it’s not particularly difficult here. You only need to know three key players: Consumer: A person (not a business or other fictional entity) who owes or is alleged to owe a debt. But note the FDCPA only applies to debts acquired for personal or household use. Not, e.g., business loans. Creditor: The originator of the alleged debt, the person or business who extended credit to the consumer. Debt Collector: The person or business who purchased the debt from the creditor. Technically known as third-party debt collectors because they were not a part of the original debt-creating contract. The FDCPA kicks in when there is a consumer and debt collector. In other words, the FDCPA...

Read More
The facts and circumstances of your case may differ from the matters in which results and testimonials have been provided. Every case is different, and each client’s case must be evaluated and handled on its own merits.