Natty Shafer Law

Utah lawyer for criminal and immigration cases

Category Archives: Criminal Law


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Answer All of Your Lawyer’s Questions Thoroughly

Regardless of the reason you hire a lawyer, you want to answer his or her questions thoroughly. Whether you are hiring a divorce attorney, someone to take care of your will and trust, or a Utah criminal and immigration lawyer like me, every question has a purpose. You want your lawyer to do the best job possible because you’re paying good money for legal services.

Many of the questions your lawyer asks may seem simple or unnecessary. One of the most common complaints people have about their lawyer is that they don’t communicate enough about the status of the case. And yet clients are often reluctant to give out personal information like cell phone numbers or email addresses. From a lawyer’s perspective, it’s frustrating to call a house during business hours, leave a message with a child, and then never hear back from you. Lawyers tend to work long hours, but we have no idea when you’re going to be home so make sure your lawyer knows the best way and best time to get a hold of you.

There’s also the subject of embarrassing or damaging information. No matter how unflattering, it’s important for your lawyer to know everything about your case. Answer questions as honestly as you can. Your lawyer is sworn to keep your information confidential, but they can only prepare for stuff they know about.

Alternatively, you could have a great piece of information that would really help your case if your lawyer only knew about it. In my experience working as an attorney in Utah, clients frequently have no idea which facts will help or hurt their case. There have been times when I’ve talked to a client several times before a key piece of information comes out because the client mistakenly believes it will hurt the case. Since most lawyers charge by the hour, you are wasting money if you don’t give the information up front.


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The Police Benefit from Lying Too

Many criminal cases come down to the word of a police officer versus the word of the accused. Frequently, in cases such as drug possession and traffic offenses, an officer’s testimony is the only evidence. When the judge or jury must decide who to believe, they almost always side with the officer. Utah juries seem to be particularly trusting of the Utah police. After all, they reason, the officer has no reason to lie, while the accused is trying to avoid punishment. That logic would be sound if it the assumptions were true, but police have incentives to lie, just like everyone else.

If you think about your own job or social circle, you’ll realize that people lie for many different reasons. It doesn’t take much encouragement to make certain people lie. You likely know someone who lies just to avoid looking dumb or to sound more interesting. Imagine if that person could lie to receive promotions, pay raises, or other accolades. Then imagine that nearly everyone would believe that person, regardless of how improbable the story, simply by virtue of holding a particular job title. A courtroom and a solemn oath is unlikely to keep that dishonest person from committing perjury.

Just like everyone else, the Utah police lie for many different reasons. This point was driven home a couple weeks ago when a Utah judge ruled a Utah Highway Patrol officer was not credible. Lisa Steed, the UHP officer, was even awarded the title of “UHP Trooper of the Year” in 2009 so even highly decorated officers can perjure themselves. In hindsight, it’s not clear why Officer Steed felt compelled to lie. Her stories were often improbable and far-fetched, and yet judges and juries believed her.

A jury must make some determination as to who is lying and who is telling the truth. If an officer’s testimony is the only evidence or the primary evidence against the accused, juries absolutely need to view the officer’s testimony skeptically. And if an officer testifies that a defendant did something improbable or contrary to common sense, a jury should find the defendant “not guilty.”


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Undocumented Immigrants Can Be Denied Firearms

Yesterday, the Court of Appeals for the Tenth Circuit upheld a federal law that makes it illegal for undocumented immigrants to own firearms. The Tenth Circuit includes Utah, but the case, United States v. Huitron-Guizar, arose out of Wyoming when Emmanuel Huitron-Guizar was arrested for owning three firearms. To challenge the constitutionality of the congressional law, Mr. Huitron-Guizar relied on language in District of Columbia v. Heller, which seemed to suggest that owning a firearm is an “individual right.”

The Tenth Circuit didn’t say whether a permanent resident or other immigrants can be denied firearms. The Supreme Court generally allows Congress to distinguish between citizens and non-citizens or to distinguish between undocumented aliens and legal aliens. As the Tenth Circuit noted, Congress has the power under the Constitution to determine rules for citizenship and to govern immigrants who seek citizenship.

What most interests me about this case, however, is that Mr. Huitron-Guizar has lived in the United States since he was three years old. He is now 24 years old, and he has lived in Wyoming for the greater part of 21 years. Now he is waiting deportation to Mexico, where he likely does not remember living. The particular firearms he owned would not have been illegal for him to possess if he had been a citizen.


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You Can and Should Refuse Consent to the Police

Anytime the police ask you if they can look around your car/house/body, they aren’t being polite. They need your consent and you don’t have to give it. Every police officer has a personal style to the question, but their goal is to make it seem like they are just politely asking permission to do something they could do anyway. However, you have the right to refuse, but once you consent to a search, you have given up your constitutional right to be free of unreasonable searches.

This is a common theme of my blog, but even my close friends have a difficult time remembering this. This past weekend, the subject of police searches came up, and I had to remind my friends that they can tell an officer that they don’t want them to snooping around their car.

Some people are afraid of being rude, but it’s easy to politely but firmly tell an officer, “no.” To get you in the right mindset, think of the request to search your car/house/body as a rude request. For example, if a new friend came over to your house and said to you, “Do you mind if I look around your medicine cabinet? I just want to know what kind of person you are.” No matter how politely the friend said it, most of us would be flabbergasted. That’s really how you should think of any request to search you. They are asking to snoop around our private effects, and it’s within our rights to refuse. Regardless of whether the police will find anything illegal, I don’t like strangers rummaging through my personal belongings.


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People Forgetful after Physical Activity

Another problem with eyewitness testimony was highlighted with a recent study that showed police officers are more forgetful after a chase or an altercation. A CNN story about the study says that the officers had a briefing on three armed robberies and then shown six photographs of suspects. Then:

The group was split into pairs where one officer rigorously assaulted a punching bag until he was visibly tired, the other did not. They were then taken to a trailer set up to represent a realistic “home” environment complete with a “target” individual who had access to multiple weapons strategically placed around the room.

Each officer went through a scenario where there was a brief but angry verbal confrontation with that person. Shortly after the scenario was over, officers were given three memory tests. They were asked to recall details of their initial briefing, the encounter – and then shown the lineup photographs.

Researchers found the group that physically exerted themselves remembered less information from the original briefing and the encounter with the target individual. In fact, more than 90% of the officers in the non-exertion group could recall at least one detail about the target. Barely a third of the officers who were involved in the physical activity remembered seeing the target person at all.

Although the study was conducted on just police officers, there is no reason to believe that the results would have been any different if they had been conducted on the general public. The participants in the study were screened to ensure that they were physically fit, and, as police officers, they are regularly asked to remember crucial details, often after physical exertion. Only a third of trained officers were able to remember any details at all about the person they encountered, so laypeople are going to have a more difficult time. Winded witnesses simply cannot be trusted to adequately identify suspects. And yet juries continue to give undue credibility on eyewitness identification.


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Your Defense Lawyer Should Be a Pragmatist

Utah defense lawyers frequently meet people on the worst days of their lives. A prospective client wants to hear good news, and we really want to give it. However, despite the temptation, I try not to get a client’s hopes up. It would be easy to tell them that if they just hire me everything will come out perfectly, but I don’t think that’s fair.

Unfortunately, the Utah criminal justice system is stacked against defendants. The punishments for crimes continue to skyrocket, with the average sentence for most crimes being two to four times what they were back in the 60s, and everything is illegal now. Judges throughout Utah frequently forsake their duty to be neutral and consistently favor the prosecution; prosecutors forsake their duty to seek justice and focus on winning at all cost; and Utah jurors tend to think a defendant is guilty just by virtue of the fact he is on trial, without hearing the evidence.

Which is not to say that beating a criminal charge is impossible to do in the state of Utah. The truth is, I think I’m a great lawyer. I love going to trial, and love being more prepared for my case than the prosecution. Defense lawyers that promise you the moon may not have the time or energy to devote to your case, but I never take more cases than I can handle. If you hire a defense lawyer who promises you too much, she’s probably promising her other clients too much as well and won’t have the time to devote to your case. You want a lawyer who will be realistic in his time management.

You also want a lawyer who remembers that the job of a defense lawyer is to get the best outcome possible for your case. While that could be working towards getting you a “not guilty” verdict in a trial, it could also involve accepting a plea offer that avoids jail time. You want a lawyer who will realistically appraise your case and give you honest advice. Some lawyers let their emotions get the best of them and they become focused on beating the prosecution instead of doing what is best for their client. A level-headed, compassionate lawyer is going to get you the best possible outcome for your criminal case.

I am a compassionate, pragmatic lawyer. For a level-headed criminal lawyer in the state of Utah, contact me today.


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Proper Etiquette When You’re Under Arrest

The Atlantic Wire has a good article called Proper Etiquette for When You’re Under Arrest. My friend and fellow attorney Dietrich Epperson is quoted in the piece. The article highlights one of the few times someone may plan on getting arrested. When engaging in protests, arrests are fairly common even for people who haven’t done anything illegal.

It’s worth reading the whole article, but the first two points it makes are particularly important: be polite, respectful, and professional with the police, even if they’re being jerks to you, but don’t say anything that you don’t have to. These points may seem at odds, but they really aren’t. You can politely tell the police that you aren’t going to answer their questions. In Utah, you’re required to give your name and some identification. The article also recommends that you supply your address and your social security number if the police ask for it, but beyond that, you really want to have an attorney present for any and all questioning.


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It’s Uncomfortable to Exercise Your Rights

Yesterday, a law school friend of mine sparked a facebook discussion about talking to the police. He linked to a Maine case where the defendant got herself into trouble by admitting to the officer that she had had a martini several hours previously. (It’s not necessary to read the case to understand this post, but you can reference the case here.)

The defendant was stopped at a routine DUI checkpoint, and the only evidence that she could be intoxicated was her statement and the officer’s estimation that she was speeding upon her approach to the checkpoint. Her speech was normal and she didn’t smell like alcohol, but the officer decided to put her through additional screenings to check for intoxication. It’s important to note, she said that she had engaged in a completely legal activity—drinking a single martini several hours before driving.

On the facebook discussion, the consensus among the non-lawyers was that it would be impossible not to talk to an officer in that situation. Telling the officer you aren’t going to answer him would raise his suspicions, or it would be socially awkward as you quietly ignore the questions. It’s unfortunate, but the courts haven’t left us many options for dealing with police. Lying to police can lead to new criminal charges, and telling the truth has its own problems. Answering questions gives officers information to further conduct their investigations, and once you start start answering questions, as far as courts are concerned, you are engaging in a “voluntary” conversation, which prolongs the traffic stop just a bit longer. The law has left us with this bizarre situation where we either quietly ignore officers’ questions or tell them point-blank that we are not going to answer. Counter-intuitively, officers cannot use our silence as evidence of anything.

Even though it happened in Maine, I have little doubt that a Utah court would also rule that an officer has probable cause to conduct a DUI screening based an admission that the driver had a drink several hours before. It’s uncomfortable and socially awkward, but when you encounter police officers, it’s best not to answer their questions.


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Strip Searches: or How Being Arrested Can Still Get Worse

On Monday, the Supreme Court ruled that police departments can now strip search literally everyone they arrest, regardless of the seriousness of the crime. The case, Florence vs. Board of Chosen Freeholders of Burlington County, was brought by Albert Florence after he was strip-searched at a New Jersey jail when the police computer erroneously showed that he had an outstanding warrant. (He had actually paid his fine several years before the officer pulled him over for a traffic offense.) The Court ruled that Mr. Florence can’t sue the government for subjecting him to a strip search.

Lest anyone get the wrong idea that a strip search isn’t that bad—that it’s just momentarily unpleasant—I should point-out how awful it is to be strip searched. The strip search takes several minutes while the guards carefully examine any place that a weapon, drugs, or other contraband could be stored. This includes inside a woman’s vagina, behind a man’s testicles, and everyone’s anus. Mr. Florence had to go through this twice, as he was moved from a first jail to a second, and he also had to endure a delousing at the first jail.

Generally, I’m of the opinion that certain Supreme Court members are deferential to police departments because they can’t picture themselves ever being subjected to the procedures they approve. But in this case, anyone can be incorrectly arrested, because that’s exactly what happened to Mr. Florence.


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Why You Shouldn’t Talk to the Police, Part 5: Reasonable Inferences Make You Look Guilty

Part 1: They Take Your Comments Out of Context
Part 2: There’s No Reward for Admitting Guilt Early
Part 3: You Create More Witnesses for the Prosecution
Part 4: Everything Is Illegal Now

When the police question you, they’re going to carefully note what they have told you and what they haven’t. Any new facts you mention will be used as evidence that you have firsthand knowledge of the crime, but psychologically speaking, it’s nearly impossible to remember exactly what the police have told you. For the same reason that eyewitness testimony is suspect, people employ gap-filling when they encounter new information. They make reasonable inferences based on what they know or have been told and extrapolate further.

For example, let’s say the police tell a suspect during a murder investigation that neighbors heard shouting and some sort of scuffle and then a series of loud bangs. Many people would interpret those loud bangs in their mind as gunshots, but the police haven’t mentioned anything about a weapon, a gunshot, or bullets. As soon as the suspect mentions gunshots, the police will use that as evidence that the suspect had firsthand knowledge of the murder. In court, the police officer and prosecutor can make a convincing display for the jury. A talented prosecutor will build tension in the courtroom leading up to this moment. She will ask the police officer, “Is there anything about the defendant’s statement that confused you or interested you?” The officer will answer matter-of-factly, “I never said anything about a shooting or a gun. I said we were investigating a murder.”

It’s nearly impossible to keep straight what the police have told you, and this holds true even if the police are investigating you for a petty misdemeanor instead of murder. Intelligent people are possibly more susceptible to gap-filling because the more intelligent a person is, the more inferences they will draw. All of this can be avoided if you simply refuse to talk to the police without your lawyer present.