LegalMatch: Criminal Law

Exposing The Law Behind Indecent Exposure

When I think of indecent exposure, I think of that “Let’s go streaking” scene in the movie Old School where Will Ferrell and his rag-tag gang of fraternity brothers go running through the school quad stark naked.  Or I think of the famous nipplegate event when Janet Jackson's "accidental" wardrobe malfunction showed a little too much on live television during her superbowl performance with Justin Timberlake.  Or the man in nothing but a trench coat flashing girls on their way to school. 

Although those are some of the more famous examples, indecent exposure can encompass a range of inappropriate public activities, always involving exposing a private part in a public forum.  Unlike most laws, which are complex and difficult (even for a lawyer), indecent exposure laws are relatively straightforward and clear.  Indecent exposure is typically classified as a lesser sex crime and punished as a misdemeanor. However, indecent exposure may be charged as a felony if the offender has previous convictions on his or her record and the charge can quickly change to sexual assault if there happens to be any physical contact in the encounter.

Any confusion comes from how much of a private part needs to be exposed for it to be indecent and what is and is not public for purposes of the law.  But in case some people are still unclear, a recent case in Sioux Falls, South Dakota should help clarify.  The Supreme Court of South Dakota recently ruled 5-0 that attempting to have sex with a mannequin in a YMCA closet does NOT constitute indecent exposure.  The local teenager was caught by a building security guard with his pants partially down engaging in sexual gestures with the naked mannequin.  The ultimate issue before the court was whether the teenager had exposed his genitals intentionally to arouse himself or someone else.  The court thought that although his behavior was lewd and inappropriate, it did not fall under the indecent exposure statute, mainly because he had closed the door and turned off the lights to the room, acts which indicate that he meant the encounter to be private rather than public in nature. 

When asked why he did what he did, he told the police that he has not seen his girlfriend in a long time.  It seems that absence does make the heart grow fonder!

A recent LegalMatch study revealed good news when it comes to indecent exposure-there are few people being charged with this crime.  This is a good trend because aside from being totally inappropriate, it is public and very likely to be reported and charged.  In the case of the mannequin, although the teenager was not found guilty, the fact that he now has a highly publicized and embarrassing story about him will hopefully teach him a lesson!

By: Violet Petran

Judges Can Google Your Evidence, So Make Sure It’s Good

Want to attack the credibility of a piece of evidence in court? That’s certainly your right, but you better make sure that your argument can’t be defeated with a 30-second Google search.  

A federal judge in New York was presiding over a hearing involving a convicted bank robber who had just recently been released from prison on parole. The hearing was to determine if he had violated the terms of his parole by…wait for it…robbing another bank. Among many other pieces of evidence, perhaps the most damning was a yellow rain hat. In the security camera footage of the robbery, the robber was wearing the yellow hat. An identical yellow hat was found at the defendant’s residence (there was no discussion of early eyewitness reports that the man in the yellow hat was accompanied by an unusually-curious monkey).

The defendant’s attorney claimed that most yellow rain hats look roughly the same, so it shouldn’t be a big surprise that the defendant and the robber happened to own the same hat. The judge, acting on a hunch, did a Google search for yellow rain hats. He found that there were a wide variety of such hats available for purchase, and there was enough variety in their appearance that it would be difficult to mistake one for another. Based on this, the judge concluded that the chances that the robber and the defendant just happened to coincidentally own the same hat were quite slim. He ended up sending the defendant back to prison for violating the terms of his supervised release.

The defendant appealed, arguing that this was a violation of the federal rules of evidence, and therefore the evidence from Google shouldn’t have been used.

A federal appeals court just released its opinion on the matter, and held that the judge did nothing wrong by using a search engine to confirm a common-sense intuition.

This makes perfect sense, from both a practical and legal standpoint. First of all, the appeals court was quick to note that the alleged robber was not actually on trial – he was released from prison on certain conditions. One of those conditions, presumably, was that he could not commit any crimes. If he did, it meant a return to prison to serve out the remainder of his sentence. Therefore, the burden of proof on the prosecution is much lower than usual, in these cases. The prosecution only needs to show that it’s more likely than not that the defendant committed the crime, at which point he will be sent back to prison (to serve the remainder of the sentence for the crime of which he was originally convicted).

In these cases, the Federal Rules of Evidence are applies much more liberally. Essentially, in such hearings, any reasonable inferences based on objectively-verifiable facts can be made. Even in trials, when the Rules of Evidence are in full force, a judge can take “judicial notice” of a fact if it is considered common knowledge. Judicial notice simply means acknowledging as true a certain relevant fact, without requiring either party to prove that the fact is true. For example, if a case, for whatever reason, hinged on the question of whether or not the sky is blue, a judge could probably just take judicial notice of the fact that, yes, the sky is blue. Obviously, requiring the parties to present evidence proving a fact which everyone already knows to be true would be a huge waste of time.

If a simple fact such as the existence of multiple designs of yellow hat can be proven with a simple Internet search, judges should be able to do this.

Obviously, I believe that we’ll have to be careful in allowing judges to use the Internet to confirm or disconfirm certain facts. If there’s any reasonable dispute about a relevant fact, the parties should be required to present evidence to prove or disprove it. 

Courts are often not quick to adopt new technology, so it’s encouraging to see a judge making such a common-sense use of technology that’s available to everyone else. Given how busy the judicial system already is, courts should be looking at every possible way to save time and money.

Can the Balloon Boy Get His Record Expunged?

This past October was one of the most interesting displays of bad parenting yet as Richard and Mayumi Heene falsely reported that their six year old son was floating high above Colorado in a homemade helium balloon. The parents have been sentenced to 90 and 20 days in jail and four years probation, during which time they may not profit off the balloon incident. To these publicity-seeking parents, the harshest punishment is their inability to profit off of their stupidity and in this case, the punishment certainly fits the crime.

Aside from the obvious parenting issues here, the main criminal charge was filing a false police report that resulted in public money being spent to chase an empty balloon. Part of the problem in cases like this is not as much the money spent in pursuit of a false report as it is the personnel that is responding to the call and thus not responding to a legitimate plea for help.

This past fall, a homeland security officer was removed from his job for falsifying a police report relating to his “stolen car.” Aside from the legal repercussions, there are heavy financial consequences, jail time, and personal embarrassment as in the case of the balloon boy. I think that abusing the police and law enforcement system should be punished heavily to discourage others from doing the same activities.

A recent LegalMatch survey revealed a positive trend- little inquiries relating to defense of false police reports. So hopefully the balloon boy incident will remain a one-time thing and set an example for reality show-seeking parents that there are limits and they should not involve children and breaking the law!

So what’s next for these reality-seeking parents? It is no surprise that most people would prefer not to have a criminal record. In order for the Heene parents to clear their record (if it's even possible) the next step for them would be to try to expunge their records. Briefly, expungement is not a right and usually is up to the discretion of the judge, which basically means that even if they complete the terms of their punishment, they are not guaranteed that the charges will disappear from their record-- ever.

But maybe the possibility of expungement will work whether or not it is granted. On the one hand, the ability to have a clean slate may inspire people to keep it clean and stay out of trouble. On the other hand, the presence of past charges on a record may make people particularly vigilant of their actions and ensure compliance with the law.

Canadians Are Choosy As to Who Gets In.

A very real side-effect of the increased security cooperation between Canada and the United States has proven to be a bane to a lot of would be travelers to the great white north. It seems Canadian border agents now have instantaneous access to US criminal record databases and call pull your entire criminal record. Crimes we may classify as misdemeanors may be regarded as felonies by our cousins to the north. such as DUI/DWI convictions. You can read more about this in our companion blog, LegalMatch: Immigration Law and also get more info on criminal record expungement and immigration issues at LegalMatch.com

That was 20 Years Ago...!

I’ve heard it many times.  “I was only 18 when I…broke into this car, got into a bar fight, stole money from this yogurt stand I used to work at.”  Now at 38 you are wondering why you are having difficulty finding employment, obtaining a professional license or even renting an apartment.  It could be because of a crime committed some 20 years before.

So what to do?  You may be able to petition the Court to seal your records or have your conviction expunged.  Record Sealing allows retention of your records with limited access usually for law enforcement or sentencing purposes.  Expungement typically requires that the court records be destroyed as well as police or other records deriving from the arrest or conviction.  Both options will result in a clean record when a background check is conducted, but to make sure that nobody will ever see your criminal record you should look into expungement if it is available to you.  Once your record is expunged, it is as if the arrest and/or conviction never took place.

Procedures for Record Sealing or Expungement vary from state to state.  Typically there is a waiting period after you are released from probation before you can start this process. Check with your courthouse.  Generally, the following must be complied with:

• A Petition must be filed with the Court and appropriate fees paid.
• Sentence in question must have been served.
• There are no new charges.
• Petitioner must prove that probation has been fulfilled.

Remember: most felonies, sex offenses and motor vehicle violations are not eligible for expungement or record sealing.  To find out what offenses are eligible you will either want to research via the internet or a law library or you can hire an attorney to assist you in this process.

Juvenile Record Sealing and Expungement may also be available if the crime was committed when you were a minor.  The requirements listed above will be similar but forms and fees may be different.  Contact your courthouse for exact procedures.

If you have been convicted of a crime and have completed your sentence and fulfilled terms of your probation you should look into record sealing and/or expungement.  Don’t wait until it becomes a problem for you to find a new job or apply for a professional license.

By Lisa Zanassi