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Premier Defense
    Premier Defense

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      Premier Defense Law — The mechanics of criminal defense, explained without jargon

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      Pleas & Sentencing

      Appeal Waivers and the Claims They Do Not Reach

      A defendant may give up the right to appeal as part of a bargain, and the courts of appeals enforce that promise. The exceptions are narrow, they are not uniform across the circuits, and several of them exist because a waiver cannot immunize the process that produced it.

      6 min readFederal law

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      Asset Forfeiture

      Standing to Contest a Forfeiture

      A claimant must show a colorable ownership or possessory interest in the property to satisfy Article III, and bare assertion is not enough. The statute defines an owner to include a leasehold, lien, mortgage, recorded security interest or valid assignment, and to exclude a nominee who exercises no dominion or control, a general unsecured creditor and an unexplained bailee. A motion to strike puts the burden of establishing standing on the claimant by a preponderance.

      7 min readFederal law

      Immigration Consequences

      Limiting What the Record of Conviction Will Show

      A later adjudicator deciding what an offense involved may consult the charging instrument, a written plea agreement, the transcript of a plea colloquy, the judgment, and in a tried case the jury instructions and verdict form. Police reports, arrest affidavits and presentence narratives sit outside that set. A stipulated factual basis that incorporates an investigative document moves it inside, which is the single most common way a narrow plea record is lost.

      7 min readFederal and state

      Forensic Evidence

      Fingerprint Comparison and the ACE-V Method

      A latent print comparison runs through analysis, comparison, evaluation and verification. Sufficiency at the analysis stage is the examiner's judgment and is not fixed by any national minimum point count. An automated search returns ranked candidates rather than conclusions. Verification may or may not be blind. Black box testing measures the accuracy of conclusions without examining how they were reached, and a reported error rate describes study participants, not a single comparison.

      8 min readFederal and state

      Search & Seizure

      Exigent Circumstances and What Counts as One

      A warrantless entry into a home is presumed unreasonable, and exigency is the exception offered when there was no time to apply for a warrant. Courts recognize emergency aid, pursuit of a fleeing suspect, imminent destruction of evidence and prevention of escape. Each is judged on the totality of the circumstances, officers may not manufacture the urgency by threatening unlawful action, and a warrant available by reliable electronic means narrows the claim that there was no time.

      7 min readFederal law

      Immigration Consequences

      What a criminal case does to a non-citizen's status, and what can still be done about it.

      All articles

      Domestic Violence Findings and Protective Order Violations

      One limb of this ground is satisfied by a judicial determination that a civil protection order was violated. No conviction is required, no criminal charge is required, and the finding can be entered in a family case while the criminal docket is quiet.

      7 min readFederal and state

      Search & Seizure

      When the government may look, and what happens when it looked without authority.

      All articles
      Search & Seizure

      What Makes an Investigative Stop Lawful

      An investigative stop is a seizure, and a seizure requires reasonable suspicion: specific and articulable facts, together with rational inferences from them, that criminal activity may be afoot. The showing is judged on the totality of the circumstances rather than fact by fact, so conduct that is innocent standing alone may combine into suspicion. A bare hunch, presence in a particular neighborhood, and a generalized profile do not supply it.

      7 min readFederal law

      Search & Seizure

      Inventory Searches and the Standardized Policy Requirement

      An inventory is an administrative caretaking measure that requires neither a warrant nor probable cause. In exchange, it must be conducted according to standardized criteria that limit officer discretion, including criteria governing whether closed containers are opened. The decision to impound the vehicle must itself rest on standardized policy. A search carried out for investigative purposes, or one that departs from the policy in the record, is not an inventory.

      7 min readFederal law

      Search & Seizure

      Searching a Vehicle and Its Containers

      Under the automobile exception, officers may search a readily mobile vehicle without a warrant whenever they have probable cause to believe it holds evidence or contraband. Probable cause both authorizes the search and fixes its scope: officers may look anywhere in the vehicle, including a locked trunk and containers belonging to a passenger, in which the object sought could be concealed. Probable cause attaching to one container does not open the rest of the car.

      7 min readFederal law

      Forensic Evidence

      The science offered against a defendant, and how far it has actually been validated.

      All articles
      Two brass cylinders side by side on a lit stage beneath twin microscope objectives in a darkened room
      The comparison microscope places two surfaces in a single field of view so their markings can be aligned.

      Grand Jury & Charging

      How a case becomes a charge, and what a target may do while it is being built.

      All articles

      The Indictment and the Elements It Must Allege

      Rule 7 asks for a plain, concise and definite written statement of the essential facts constituting the offense charged. That modest sentence carries two constitutional functions and sets the boundary the proof at trial may not cross.

      6 min readFederal law

      Pleas & Sentencing

      The negotiation that resolves most cases, and the arithmetic that follows it.

      All articles
      Pleas & Sentencing

      Cooperation Agreements and the Motion They Depend On

      Federal cooperation is structured around a motion the government alone may file. Guideline section 5K1.1 permits a departure on a government motion stating that the defendant provided substantial assistance, and a separate statute permits a sentence below a mandatory minimum on a similar motion. Rule 35(b) allows a reduction after sentencing for assistance rendered later. Courts review a refusal to move only for unconstitutional motive or, where the agreement so provides, for bad faith.

      6 min readFederal law

      Pleas & Sentencing

      The Guideline Calculation, Step by Step

      Section 1B1.1 prescribes an ordered method: select the offense guideline, determine the base offense level and apply specific offense characteristics, apply Chapter Three adjustments for victim, role and obstruction, repeat for multiple counts and group them, apply acceptance of responsibility, determine the criminal history category, and read the range from the sentencing table. Section 1B1.3 defines the relevant conduct counted, and disputed facts are resolved on a preponderance standard.

      6 min readFederal law

      Pleas & Sentencing

      The Factual Basis and What It Must Establish

      Rule 11(b)(3) requires a court to determine that there is a factual basis for a plea before entering judgment. The basis must cover each element of the offense, and the court may draw on the defendant's own statement, a proffer by the government, the presentence report, or any reliable source in the record. The requirement is not satisfied by an admission of guilt in the abstract. The recitation then shapes the presentence report, the guideline calculation and any later collateral proceeding.

      6 min readFederal law

      Asset Forfeiture

      Taking property connected to an offense, and contesting the taking.

      All articles
      A pickup truck parked beside an open barn door in early morning light, its tailgate down and a coiled rope resting on the bed.
      Whether a vehicle lent to someone else survives a forfeiture turns on what its owner knew and when.

      Post-Conviction

      Attacking a judgment after the appeal is over.

      All articles

      Newly Discovered Evidence and the Motion That Carries It

      Evidence that surfaces after a verdict has a short list of places to go. Each route has its own deadline and its own threshold, and the one that fits depends less on how compelling the evidence is than on when and how it came to light.

      7 min readFederal law

      Juvenile Proceedings

      A separate court with its own vocabulary, its own record, and its own consequences.

      All articles
      Juvenile Proceedings

      A Delinquency Case Compared With a Criminal Prosecution

      A delinquency case is brought by petition rather than indictment, decided by a judge in most states rather than a jury, and resolved by a disposition rather than a sentence. Proof beyond a reasonable doubt applies, but the purposes clause of the juvenile code shapes what the court may order afterward. An adjudication is not a conviction, yet it carries consequences that survive the case.

      6 min readState law

      Juvenile Proceedings

      Searches at School and the Lower Standard Applied

      A search by school authorities must be justified at its inception and reasonable in scope, measured against the student's age and sex and the nature of the suspected infraction. Statutes in several states codify the standard, declare lockers school property, and bar strip searches outright. Courts remain divided over the standard that governs a school resource officer, and the division tracks whose investigation the search served.

      6 min readState law

      Juvenile Proceedings

      Questioning a Minor and the Warnings Required

      A child's age is part of the objective custody analysis when it was known or apparent, so a setting that would not confine an adult can be custodial for a minor. Warnings must be delivered in comprehensible terms. California, Washington and North Carolina go further and condition any admissible waiver on consultation with counsel or the presence of a parent, and each attaches a different remedy for a violation.

      6 min readState law

      Competency & Capacity

      When a defendant's mental state changes what the court may do, and when it does not.

      All articles
      A secure door with a small reinforced window at the end of a pale corridor, a wall-mounted intercom panel beside it
      The verdict says not guilty, and this is where the person goes next.

      Extradition & Detainers

      Moving a person between jurisdictions, and the deadlines that attach when someone else wants them.

      All articles

      International Extradition and the Treaty Requirement

      Extradition to a foreign country runs on a treaty rather than on a constitutional duty. A judge decides whether the case may proceed, and the Secretary of State decides whether it will, and neither decision is an ordinary appealable order.

      6 min readTreaty and international