False Legal Loopholes
Bad Advice That Can Jeopardize Your Freedom
Motions, Loopholes and Technicalities
Post Conviction Relief
Arrest, Bail, Arraignment
4 Dead Giveaways of Bad Legal Advice
Before we being - keep these 4 principles in mind when reading internet legal opinions. It will save you tremendous stress and confusion to remember that the only person who can give you accurate legal advice is an attorney who knows ALL of the specific facts of your criminal matter.
1) It Was Not Written By a Lawyer
This may surprise you, but a lot of non-lawyers write their opinions about the law on the internet. While a very small number of lawyers may make dubious claims on the internet, you can be certain you are reading bad legal advice if it was not written by a lawyer (that includes "former lawyers.") Look up the author of the article on their state bar website - you can see disciplinary history if they were once a lawyer. If there is no name attached to the article - trust none of it.
2) They Try to Sell You Something
Websites with bad advice will try and sell you items such as: "Criminal Court Script, and "Conditional Acceptance" packets. Do not buy these. No self-respecting lawyer would sell you something so ridiculous. Again, it is highly improbable that these materials are even written by a lawyer - if they are, I would not trust the documents unless they have been vetted by an association such as the National Association of Criminal Defense Lawyers, or the American Bar Association. In an ironic twist, you can usually find a disclaimer on their pages that they are "not offering you legal advice," and that their products, "do not contain legal advice." Telling somebody what to say in court is the very definition of legal advice. (See the American Bar Association's Definition)
3) They Will Appeal to Your Sense of Morality and Justice
Bad legal advice will encourage you to be a martyr for how the system ought to be. They will make arguments that you will be "on the right side of history," and "this is the only way to fight a corrupt system." Don't be a fool and do something that will lead to a long prison sentence.
I know our legal system is broken - that is why I am a criminal defense attorney. The advice I will give to you is the best way to fight a corrupt system - and I am doing everything in my power to keep you out of jail. There is no "secret system that lawyers don't know."
4) No Citations to Relevant Legal Authority
A common red flag is that the legal authority they cite to references actions taken in another state or jurisdiction. Many times there are no legal citations at all. Sometimes the authority they do cite to is very old (outdate caselaw) or not applicable (such as the "Magna Carta," or "The Articles of Confederation").
EXAMPLES OF BAD CRIMINAL LAW ADVICE
1.) "Comply Now, Contest Later."
Pushing aside the racist implication of this article (that Black men die at the hands of police because they did something wrong), nobody should ever follow this advice. The advice is called, "Comply Now, Contest Later." - That is that you should comply with officer requests politely, and contest the stop in court, later. It was written by a lawyer, and it breaks my heart because it is such bad advice. At traffic stops, police will request to search your vehicle. You should NEVER consent to a search - otherwise you lose the ability to contest that search later. Do not do anything that could be considererd passive-consent, such as opening the door for the police, or handing them your keys. You have a right to refuse to answer questions without a lawyer present. That right cannot be used against you in court - they cannot say "he refused to talk to us without a lawyer." Never give up your rights to appease a police officer, it can only hurt a future case against you.
2.) Don't "Contract" with the Court.
Refusing to Enter a Plea - Entering a Plea of Innocence
Some websites might tell you that you can refuse to enter a plea. They are wrong. The argument goes something like this: The court cannot exercise jurisdiction over you unless you allow them to by entering a plea. These websites advise you to enter a plea of innocence and go on the record challenging the court's authority over you.
In California, these are the 6 available pleas that you may enter at arraignment.
No Contest (Nolo Contender)
Previous Judgement or Acquital of Charged Offense
Once in Jeopardy
Not Guilty by Reason of Insanity
You will notice there is no "innocent" plea. You are presumed innocent by the court until you are proven guilty. For this reason there can be no "innocent," plea because the court has no power to compel you to assert your innocence - to do so would remove the presumption of innocence - and that is something the court cannot do.
If you refuse to enter one of the 6 pleas (in the State of California), the court will enter a not guilty plea for you, and set future dates - and may possibly throw you in jail (either on a contempt charge or they may rescind your bail). Worse, you now have a reputation for being "that defendant." Your courthouse is a small community and judges talk. The argument you have just made is that you are a "sovereign citizen," and the court does not have jurisdiction over you. Judges and prosecutors laugh at these arguments and they will not help your defense. In fact, they may hurt your ability to defend yourself because some judges have a short temper for these types of defendants and they may rescind your bail and remand you to jail just to prove that they absolutely have jurisdiction.
3.) Submitting an Affidavit Prior to Arraignment
"Forcing the Judge to Accept Your Innocence."
An affidavit is a sworn statement. I've seen websites that advise you to write an affidavit of your innocence and send it to the judge before your arraignment. These websites argue that by doing so, you force the court to classify your appearance at an arraignment as a "special appearance" - and if the judge says they received your affidavit, they must accept it as true, and if they did not return your affidavit, they must accept it as true. This is garbage advice.
Making written statements will only hurt your ability to defend yourself. First, the judge will say they don't care about your affidavit, and ask you to enter a plea. Second, the district attorney will go looking for that affidavit and it will almost certainly be used against you to impeach your credibility at trial. Even a dim-witted district attorney is capable of twisting your words to make you look dishonest.
"Pursuade the DA to not file charges"
There are ways to pursuade a DA to not file charges against you, however writing an affidavit before your arraignment is not one of them. First, if poorly written (as in it includes some of the arguments on this page), it could be used to raise your bail or make you a flight risk in the eyes of the court - and land you in jail pre-trial. Second, it could provide the DA with substantial information they did not know about your involvement in the crime. Third, if you just say you're innocent, the DA won't even care to read it.
If you want to pursuade the DA to not file charges against you, you need to call a San Diego criminal lawyer to do that for you. Attorneys are advocates - and criminal defense attorneys know how to advocate for you in the legal system more than any other type of attorney or average citizen.
4.) Sovereign Citizen Aguments
A One-Way Ticket to Jail
I have never seen, nor read about a person who has successfully evaded criminal charges by using "sovereign citizen," arguments. NEVER. Ask Wesley Snipes how well his sovereign citizen arguments played in court. You cannot defend yourself from criminal charges by refusing to contract with the state and claim you are an independent or "sovereign" citizen.
The sovereign citizen argument is almost too discredited to risk repeating - thus giving it any legitimacy, but it's important to know why it's a poor legal argument.
"Sovereign Citizens," claim that the United States was sold out from underneath the American people before World War II (some say as far back as the creation of the federal reserve). While I generally tend to agree with the premise that American politicians are paid for by the highest corporate bidder, this history is irrelevant to the legal process.
Sovereign citizens go on to claim that because the United States was sold out, the courts do not have any inherent jurisdiction over a person - that they must "trick" people into giving them jurisdiction. According to these "sovereign citizens," the way the court "tricks" you into giving them this jurisdiction is by tricking you into acknolwedging their authority over you - either by "convincing" you to enter a not guilty plea, or denying allegations made against you.
If you want to assert that the court does not have jurisdiction you can challenge the issue of jurisdiction at any time, but it's a zero-sum game. You would be changing the venue, and the only way to successfully challenge jurisdiction is to assert that another court has proper jurisdiction. While it is true that the court must demonsrate jurisdiction - nearly every judge in this country is happy to make you wait in jail while they prove it.
There is no pot-of-gold at the end of this rainbow. Following "sovereign citizen," arguments will not keep you out of jail, and they will not get you out of jail on appeal, and they will certainly not get you any money in a civil court for false imprisonment.
I am proud to be a Criminal defense attorney. I continually read about criminal law, and novel applications of law at trial so that my clients have every possible advantage available to them. I am always happy to discuss legal principals with clients and the community because I believe that a well informed populace is the best defense against tyranny. If you disagree with me on this article, I have added a comments section so that you can let me (and the internet) know your opinion.
I know many great criminal defense attorneys who consistently achieve successful results for their clients without using any of the above-mentioned tactics. I do not know a single attorney, or citizen, who have successfully employed any of the above tactics.
How to Recognize Bad Legal Advice on the Internet
Bad legal advice is everywhere on the internet. Innocent people are arrested too often. I am a criminal defense lawyer because I like that it is my job to hold the government accountable for their actions. I take a great amount of pride in making sure that my clients are afforded every right and protection under the law. I want my clients to be fully informed about their rights and so I get upset when I read some terrible legal advice on the internet because if a person follows this bad advice, it will only hurt their case and increase their liklihood of going to jail.
If I ever meet a single attorney that recommends this advice - and they can prove to me that it can be used to do anything other than hurt your case - I will refer every potential client I meet to their practice. That fact is, the following is just terrible advice.