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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27134
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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my son was arrested in august on thief charges in illinois.

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my son was arrested in august on thief charges in illinois. he has been going to court every month on continuances. my question is-- when he was arrested, he gave a statement to the police. he did not sign, initial or get to read or get a copy of his statement. was he suppose to?
Submitted: 7 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 7 years ago.
Customer

To assist me in answering your question, can you tell me how long the case has been going on and if your son is planning on going to trial on these charges?
Customer: replied 7 years ago.
he was arrested in aug of this year and his lawyer is trying to get the charges dropped down to a misdermenor. he doesn't know if a jury trial is better or a judge trial. he pleaed not gulity. just wanted to know if that statement can be used .
Expert:  Zoey_ JD replied 7 years ago.
Customer

Thanks for the reply. Hopefully, your son's lawyer will be able to succeed in getting him a misdemeanor offer, and the statement won't turn out to be a concern.

If the statement was taken but your son didn't sign off on it, that might create credibility problems if the state wanted to use it against him. It's not required that they have him read and sign it, but to do so would authenticate it. Without that your son could deny that he said any such thing.

Generally, if the prosecutor is going to use a statement attributed to the defendant, he will alert the defense of that. In my state, they have to give formal notice of that at a defendant's arraignment, and they have to give a copy of the statement to the defense as part of the pre-trial discovery process.

If the state is planning on using the statement and the case is going to trial, your son's lawyer can file a motion for a pre-trial hearing to suppress the statement (keep it from being used at trial) by claiming that it was taken in violation of his Constitutional rights. Constitutional issues such as this are decided on a case-by-case basis at these hearings, and the test is what a reasonable police officer would do under all of the circumstances.

During the hearing, both the prosecution and the defense would get to question the officer who took the statement. The prosecutor would attempt to demonstrate that your son was given his rights and made a knowing and voluntary waiver of those rights resulting in the statement. The defense would cross-examine and attempt to show that the police had overstepped their authority and behaved improperly. At the close of the hearing, both sides would make a brief argument to the judge, using the evidence that came out at the hearing to support their position. Then the judge would give his ruling. If he decides that the police behaved properly (usually the case) the statement can be used. If he decides it was taken improperly, it could not be used at trial.

_____

If I've helped, please click the green Accept button so I can get credit for my work.

This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your state for specific legal advice.

Customer: replied 7 years ago.
to make a long story short,he was caught with a stolen laptop which had a lo-jack system on it. when the police came to his house,of course they used the "you won't see your wife or kids again and your wife will be charged also and your kids will go to dcfs,so they were using the scare tactic on him. it is his first offense. just for advice do you think he shoukld go for the jury trial or judge? which would be more to his advantage in your opinion?
Expert:  Zoey_ JD replied 7 years ago.
Customer

Before I answer, what have they actually charged him with? Just theft and/or possession of stolen property, or are they saying he committed a burglary.

Is the state offering him jail time for this?
Customer: replied 7 years ago.
i believe it is thief and possesion of stolen property. his laywers assure him he won't go to jail. the laptop was valued at 1800.00
Expert:  Zoey_ JD replied 7 years ago.
That's what I figured. Something like this is generally brings a probation offer.

The right to a jury trial is a very important right, and one that you shouldn't give up lightly if you're a defendant heading for trial on a the case. I have tried cases in front of juries, and I have in some cases recommended my client try the case directly to a judge. But when I recommend a judge trial, there is always a very good reason. Generally, a defendant will get a much better shake from a jury, because they can be sympathetic. Judges on the other hand, are trained to hear evidence impartially.

If I have an ugly case, and a client with a bad record, but the case is weak legally for the prosecution and I need the trier to understand the law and not hold my client's priors against him, I like a judge trial. If I have a sympathetic and/or likeable client with a clean record, I like a jury better. Every now and again a judge will sort of hint that that a defendant should consider a judge trial. That usually means he's leaning in the defense direction but there's no guarantee.

_____

If I've helped, please click the green Accept button so I can get credit for my work.

This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your state for specific legal advice.


Edited by FranL on 12/3/2009 at 2:44 AM EST
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