Defending Yourself in Criminal Cases

Posted on January 3, 2016 in Civil Law

When an individual is criminally charged, the law gives him the right to a lawyer or counsel. However, this includes the right to represent one’s self in the trial. Defending yourself in criminal cases may be a little bit odd, but it is possible, with the authorization of the judge concerned. This means, such right to self-representation although vested, is not automatic.

If you are charged with a crime and you stand trial for such, you will be given the right to an attorney or be assigned one if you will make a request and if you can validly show that you cannot afford to hire one. On the other hand, if you tell the judge that you will be defending yourself, the judge will have to hold a meeting where you need to answer questions to make sure that you fully understand what you are letting yourself into. You must understand that defending yourself in criminal cases is tantamount to waiving the right to counsel, which is a serious business.

Courts would like to ensure that criminal trials are objective and rational; hence, judges, in turn, would like to make sure that defending yourself in criminal cases is not something that you do haphazardly. The judge needs to know that you fully understand what you are asking, and you can convince him that you are capable of representing yourself on trial and understand the risks of not having a lawyer.

If the judge doubts your ability to represent yourself, he will either disallow you to act per se or appoint a lawyer to protect your rights, until your competency can be ascertained. This process may involve requiring you to undergo a psychological evaluation.

Defending yourself in criminal cases may make sense in some situations. In general, the severity of the punishment that a crime entails will have a lot to say whether you need to hire a lawyer to defend you or just represent yourself at trial; thus, the lighter the punishment, the more likely that self-representation is viable. For instance, if you are charged with shoplifting or some traffic offenses, you may survive the trial without hiring a lawyer. However, if you are charged with violent crimes such as murder, you should need to get the assistance of a legal counsel.

On the other hand, some crimes have punishments that may appear relatively negligible but have harsh consequences in the future. So, before deciding whether to hire a lawyer or self-represent yourself, you should first try to learn what the sentence is likely to be if ever you are convicted and its ramifications, later on, should you be arrested again for a similar crime in the future.

Learning about the typical sentences for specific crimes can be quite difficult. Court rules or statutes don’t usually list these common punishments. However, some states have “determinate sentencing laws”, which provide specific punishments for each crime. Depending on the circumstances involved, the judge may add or subtract a year or two from the punishment. If you are serious about defending yourself in criminal cases, it may be of great assistance to your cause if you will try to learn all about these typical punishments for crimes.

Slander and Libel – The Two Forms of Defamation

Posted on December 3, 2015 in Civil Law

Telling lies is a daily occurrence within any society, and telling lies about someone can be a common occurrence in everyday life. There are times where these circumstances are handled well by just a moment of discussion. Other times, it would lead to hot-headedness and a few exchanges of angry words. Telling false statements can be harsh and be done anytime and anywhere — and these false statements can lead to something as creating serious damage to another person’s reputation.

Under defamation, defined as any statement/s that can damage one’s reputation, are two forms on which the act can be done. Identified as slander and libel as the two said forms, these twos are becoming less distinct. Plus, a lot of people are confused about the difference between the two forms of defamation. So what exactly is the difference between slander and libel?

Slander, the first of the two forms of defamation, is harming someone else’s reputation, either through false or misleading information, in transitory form. Speaking of false words and statements are the most elements that are taken into account. The use of hand gestures, facial expressions, or any body language can also be accounted if it helps deliver the untrue information more to another.

Libel, on the other hand, is the second form of defamation which is telling false remarks about the victim in a “more fixed form”: by publications of untrue remarks on media. This includes newspapers, magazines, books, television, radio, and even social media.

Though both are considered to be acts of defamation, slander tends to be given a “pass,” unless the individual’s reputation is highly regarded or the individual is famous or well-known. Nevertheless, perpetrators cannot be imprisoned, but slander is considered to be civilly wrong.

In the United States of America, there exists a Lawsuit for Defamation due to the victim wanting the recovery of his or her previous reputation. The Defamation Lawsuit’s main goal is to be able to justify and show to the public that the given statements of the perpetrator about or to the victim are false. However, there lies a controversy between this lawsuit and the English Law. Since the Defamation Lawsuit’s goal is to prove that the statement by the perpetrator is false, the English Law allows the defendant to defend himself against the claims of defamation claims that he or she did to the victim, and question or critically analyze if the victim’s claim is considered to be either absolutely or substantially true. With this, the Defamation Lawsuit and the English Law have not only made things complicated, but both the lawsuit and law have questioned the freedom of speech of both individuals as well.

In conclusion, as much as there is a difference between slander and libel, both forms still fall under defamation and may not be so different after all if you look at them in their most basic form. Both have the potential to hurt someone’s reputation and possibly self-esteem. Most of all, these twos have the potential to abuse the freedom of one’s speech.

How to File a Temporary Restraining Order

Posted on July 6, 2015 in Civil Law

In divorce cases, the status of minor children is usually the most sensitive aspect between couples.  There also may be a significant amount of property and financial assets at stake for distribution. Filing a divorce action means that for the statuses of minor children and marital assets need to be determined as of a certain date and the marriage needs to effectively be put on hold so that the legal system can more effectively determine the proper disposition of these issues.

In the case of property and financial assets, locations and values need to be verified and “movement” of these items can impede this valuation. Too much “post-separation movement” while the divorce action is being arbitrated can be potentially confusing for both sides and can be costly especially when attorneys, accountants, and other outside consultants are trying to assess the value of the marital “estate”.  The legal instrument that carries out this cessation of marital activity is the Temporary Restraining Order.

How to file a temporary restraining order? In some states, like California, the Temporary Restraining Order Provision is already summarized at the back of the Petition for Dissolution. In other words, the legal statutes of certain states dictate that certain activities involving financial assets and minor children should be stopped or abated UPON agreement by the couple that a divorce should actually be consummated.

In this case, the Temporary Restraining Order becomes an Automatic Temporary Restraining Order. An Automatic Temporary Restraining Order becomes immediately effective when the petitioner files the divorce action, and upon the service of a summons.  The Temporary Restraining Order remains in effect until the final judgment for dissolution is signed by the court.

In other states that do not provide for Automatic Temporary Restraining Orders, a separate filing needs to be made in conjunction with the filing for the petition for divorce. In some cases, parties often have incur the additional expense of filing for an ex parte or emergency Temporary Restraining Order especially where there is some fear that a party or parties will be damaged by the actions of the other party during the hearing process.

The important thing to remember is that whether a Temporary Restraining Order is automatic or not, it can still be subject to changes after the initial Temporary Restraining Order has been agreed upon and approved by the court.

The following prohibitions and restrictions can be included in a Temporary Restraining Order:

Financial Assets

• Loans may not be taken out with community property as security or collateral. In other words, pledging this property as security for debt by either party is not allowed even if the title or possession of the property is not transferred to the prospective lender,
• Joint bank and investment accounts may not be closed and the amounts transferred to the separate account of one of the parties,
• Items and cash cannot be removed from a safe deposit box or safe and transferred under the control of one of the parties,

–   Assets cannot be destroyed and they cannot be hidden from the   spouse, and

–   Other parties may not be added as co-owners of existing property.

Financial instruments

• The cash from a life insurance policy may not be taken out and the proceeds deposited into a separate account,

• Beneficiaries from life insurance policies cannot be changed,
• The spouse cannot be removed from health insurance policies even if they are not living together,
• The spouse cannot be removed from automobile insurance policies if the couple is not living together, and
• Beneficiaries named in retirement accounts cannot be changed.

Status of minor children

• Children cannot be removed from health, dental and vision insurance policies even if they are not living with the policyholder, and
• The movement of children to other states or countries may be restricted.

Some “movement” of assets may be allowed while waiting for the final decree of divorce.  These include:

• Payment of attorneys retained for the divorce action,
• Spending marital assets in, “the usual course of business”, subject to court determination as to the validity of such spending, and
• Certain changes to wills and similar documents.

It should be noted that the divorce courts in the United States have wide discretion in which items can be included in a Temporary Restraining Order. The details involved can be confusing and perplexing especially in cases where many items are subject to the Temporary Restraining Order. Always keep in mind that Temporary Restraining Orders are legal protections for the protection of both parties, and violating the terms by either can lead to serious legal consequences therefore it is always advisable to seek an attorney’s advice in this area.

Steps to Follow on How to File a Temporary Restraining Order

Each state in the United States has different rules, deadlines, and documentation for filing a Temporary Restraining Order.  But there are some generalized steps at the minimum that need to be done even in states where an automatic Temporary Restraining Order applies at the beginning of the divorce filing process.  These steps assume that a qualified attorney in family law will be available in more complex cases.

1. Before filing for a Temporary Restraining Order, assemble the necessary supporting documents such as, wills, agreements, worksheets, titles to real and personal property, and any evidence supporting ownership and access to, safe deposit boxes, investment accounts, bank accounts, insurance policies. If minor children are involved, the Temporary Restraining Order should also include which actions cannot be carried out by each party, especially regarding movement of children across state lines, and amendment of passports, and other government documents.
2. Determine what items that you want to be included in the Temporary Restraining Order.
3. Execute a formal restraining order. Each state will have a different form and documentation requirements.  Generally, the Temporary Restraining Order will be filed together with the divorce complaint.  The order will contain all the transactions and actions that CANNOT be made before the final divorce decree is granted.  Note that the order can be changed subsequent to initial filing with consent by both parties.
4. Have an officer of the court serve the Temporary Restraining Order if separate from the original divorce action. The officer will usually be a member of the law enforcement authorities, such as a sheriff or a marshal.  Keep a copy of the notice of service for future reference.
5. In some states, a Temporary Restraining Order is in force for a limited time. Any extension will need to be filed with a separate document. Some jurisdictions will require a formal hearing to enforce an extension of a Temporary Restraining Order.
6. When one of the parties would like to contest a Temporary Restraining Order, they must file a formal request with the court. A hearing will then take place to hear both sides of the divorce action.
7. After the Temporary Restraining Order is served and a court hearing is mandated, all supporting documentation should be brought to the court and presented as exhibits.