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Jose David Alcantara, Abogado 1125 Atlantic Ave. Suite 541 Atlantic City, New Jersey 08401 Tel. (609)-782-2494 email: jda84375 @gmail.com SUS DERECHOS EN ALQUILAR CASA O APARTAMENTOS Uno de los mejores sitios informativos para comenzar a entender sus derechos de alquilar un departamento o casa esta situado en el website de New Jersey Legal Services, en Espanol: https://proxy.lsnj.org/rcenter/GetPublicDocument/Sites/LAW/Documents/Publications/Manuals/TenantsRights.pdf Alli le proveen a Usted una gran cantidad de informacion sobre sus derechos en arrendar, cual informacion tambien les ayuda a los proprietarios (Landlords). Aqui les explico ciertos de estos derechos, protegidos por la ley: 1. Inspeccion. Su residencia alquilada tiene que obligatoriamente pasar inspeccion de la ciudad. Sin esto, el proprietario esta alquilando (rentando) ilegalmente. La electricidad, plomeria, calefaccion e otros servicios tiene que llegar al nivel requirido por las leyes. Ud. Tiene derecho a reclamar este documento y lo puedo obtener del Municipio local. 2. Deposito. Su deposito tiene que ser depositado (y Ud. Ver la copia) en un “interest bearing account, “ una cuenta que le da interes. Si no, entonces el proprietario esta en violacion de arrendar legalmente la propriedad. La cantidad de deposito no puede ser mas que 1 ½ de la cantidad de la renta. 3. Reparaciones. Ud. Tiene derecho a reclamar reparaciones para las funciones como la nevera, estufa, electricidad, plomeria con tal que Ud. No causo intencionalmente el problema. Se recomienda que obtenga evidencia de esto y ponerlo todo en escrito. Ud. No necesariamente tiene derecho para reclamar reparaciones para “normal wear and tear” o sea, el desgastar usual o normal de ciertas cosas. Pero, el Landlord es obligado a pintar el apartamente cada tres (3) anos (pero si la pintura esta bien, esto no se tiene que hacer necesariamente). Consulte con un abogado. Informese. 4. Aumento de renta. El proprietario puede alzar la cantidad de renta, pero esto es limitado por la ley, o las leyes de su comunidad. Este aumento es tipicamente limitado a menos de 10%. 5. Nuevo Proprietario. Ud. Tiene derecho a quedarse alli bajo los mismos terminos de antes. El Landlord esta obligado a informarle que este vendiendo o cambiando proprietario. Consulte con un abogado para mas detalles. 6. Inspecciones del proprietario. Ud. Tiene derecho de vivir en paz. El proprietario no puede asomarse a su residencia sin noticia y demandar entrada. Eso es ilegal, incluyendo amenazamientos del Landlord. Obtenga sus pruebas, evidencia, fotos o grabaciones del abuso del Landlord para documentarlo. Estos factores no incluyen todos sus derechos y es solamente lo basico. Cordialmente, Jose David Alcantara, Doctor de Leyes

Jose David Alcantara, Abogado Direccion: 1125 Atlantic Ave. Suite 541 Atlantic City, New Jersey 08401 Telefono : (609) 782-2494 email: jda84375@gmail.com Un divorcio o una separacion es una de las mas dificiles y emocionales experiencias que le puede suceder a una persona. La intencion del matrimonio, en general, es encontrar un medio de felicidad y amor en este mundo tan complicado. La terminacion del matrimonio, asi como su transicion, puede ser deprimente y concluir con una situacion financiera dificil que afecte a las personas para el resto de sus vidas. Las proximas recomendaciones son respuestas a algunas preguntas generales sobre su divorcio. Esta breve introduccion no debe reemplazar el consejo especifico de un abogado sobre su caso en particular. Cada caso es diferente. QUE TIPO DE DIVORCIO SE RECONOCE EN LAS LEYES DE NUEVA JERSEY? La ley es diferente en cada Estado. En Nueva Jersey, existen cuatro formas principales de solicitar un divorcio : Extrema crueldad Separacion de 18 meses Desercion de 12 meses Adulterio Tambien existen otras varias causas para solicitar un divorcio incluyendo, falta de informacion sobre antecedentes criminales, un matrimonio anterior que aun sigue valido, adicion a las drogas, una enfermedad, problemas psicologicos o comportamiento sexual anormal, etc. Cada tipo de divorcio requiere que ciertas condiciones legales existan para que se pueda cumplir el proceso legal que supone el divorcio. Por ejemplo, un divorcio basado en " EXTREMA CRUELDAD " no requiere que la "crueldad" sea " extrema ", sino que basicamente tienen que existir razones legales suficientes para declarar, en el enjuiciamento por parte del juez, que hay motivos para un divorcio. Siendo asi, "extrema crueldad" incluye actos como, abuso verbal, falta de intimidad, actos de violencia, falta de comunicacion, falta de atencion, etc. Legalmente, los juzgados requieren algunos detalles con fechas especificas de los actos u omisiones concretos para determinar exactamente la base de incapacidad para permitir la continuacion del matrimonio. En un caso de SEPARACION, el solicitante tiene que alegar y probar que han estado separados durante mas de 18 meses sin interrupcion, y que durante este tiempo no han tenido ninguna relacion intima. Cualquier acto de regresar a convivir juntos significa que, legalmente, la pareja no podra divorciarse bajo este tipo de divorcio hasta que se separen otra vez durante 18 meses. Bajo la ley, la separacion de 18 meses es prueba evidente de que el matrimonio esta completamente arruinado y entonces no hay necesidad de probar cualquier otra acusacion ( adulterio, extrema crueldad, etc.). En referencia a la DESERCION, el solicitante debe alegar y probar que han estado separados, y sin ninguna relacion intima, durante mas de 12 cmeses. La separacion debe de ser involuntaria al principio y que la desercion continue hasta el dia presente. En referencia al ADULTERIO, hay ciertas clarificaciones necesarias para entender este tipo de divorcio. Hay que evitar confusion en esta parte de la ley. Por ejemplo, no es necesario probar que definitivamente el esposo-a durmio con otra persona. No es necesario tener las fotografias en las que el-ella estaba durante el acto intimo, no es necesario ser tan grafico. Los juzgados han declarado repetitivamente que las pruebas indirectas pero creibles son suficientes para establecer los elementos probatorios requeridos para demostrar el adulterio. Tambien es suficiente prueba, en ciertos casos, si se ha visto al esposo-a aparecer en un hotel a horas sospechosas durante largos periodos de tiempo sin explicacion razonable. Por ejemplo, el ser visto en un hotel con otra persona en circunstancias sospechosas ( no estaba en el trabajo, reunion,etc.), entonces, estos actos serian suficiente, en parte, para probar y obtener un divorcio basado en adulterio. Se debe anotar que en Nueva Jersey, una esposa o esposo que pueda probar que su trauma o danos fisicos se han producido directamente por la relacion matrimonial, podria recibir una compensacion en el juzgado de lo civil por tales danos, con tal que tenga el informe medico y se pueda relacionar la culpa al matrimonio. QUE ES LA ANULACION ? En general, la anulacion es una nulidad del estado matrimonial debido a razones legales que mantienen invalido el contrato matrimonial desde el principio. Una anulacion declarara que el matrimonio nunca fue matrimonio. Ejemplos donde una nulidad esta permitida son: El o ella ya estaba casado o casada, no divorciado o divorciada, cuando se caso con la nueva esposa o esposo. Cuando el o ella no entendia que estaba casandose, debido a la influencia del alcohol o las drogas, limitaciones mentales, etc. Cuando el o ella fue forzado o forzada o amenazado o amenazada a casarse. Cuando el o ella, inmediatamente despues del matrimonio, desaparece sin explicacion y no se le puede encontrar, y ademas, no ha habido todavia ninguna relacion intima entre ambos. Cuando el o ella falta en ser sincero a la hora de explicar un dato serio y significante que podria haber afectado la decision de la otra persona de casarse ( antecedentes criminales, diferente religion, diferente raza, homosexualidad, deseo de no tener ninos, etc.). SI NO SE PUEDE ENCONTRAR AL ESPOSO O A LA ESPOSA, TODAVIA SE PUEDE OBTENER EL DIVORCIO? Lo cierto es que si. La ley requiere que el " proceso debido " del esposo no encontrado sea protegido. Esta proteccion al desaparecido consiste en recibir notificacion de la demanda en proceso a traves de carta por correo ordinario, certificada, y por un oficial del juzgado. Despues de agotar todas estas formas de notificacion, entonces, es necesario suplicar al juzgado para obtener servicio sustitorio. Este proceso es un poco problematico y, legalmente, consiste en una publicacion en la prensa local. LA LEY Y LOS MEJORES INTERESES PARA LOS NINOS : Un divorcio es una experiencia dolorosa para los adultos. En los terminos mas sencillos, un divorcio es cuando ambas partes no son capaces de resolver sus diferencias aun despues de obtener un consejero, psicologo, asistencia de la iglesia, etc. Para los ninos el divorcio es peor todavia, porque estan perdiendo una familia unida. Se recomienda que ambas partes resuelvan el divorcio a traves de un acuerdo en lugar de litigar el caso en juicio y dejar que un juez decida el futuro de los dos. Si van a juicio, va a haber gastos adicionales de abogado, expertos, asesores del valor de la casa, estimadores, examenes psicologicos y otros gastos mas. Todos los Estados de los Estados Unidos de America han creado leyes para proteger los mejores intereses de los ninos en un divorcio. Los juzgados ven a los ninos como victimas del divorcio y les dan una atencion especial. Normalmente, las razones para litigar un divorcio son la custodia y visitas de los ninos. Las leyes son diferentes de Estado a Estado. Es importante consultar con un abogado antes de cambiar de un Estado a otro. En Nueva Jersey por ejemplo, la presuncion es de custodia " joint ", o sea, compartida por los padres, segun la Ley NJSA 9:2-4 y 9:17-40. Por lo general, la ley requiere que los dos parientes tengan una decision conjunta en cuanto a la salud, escuela, medicacion, preparacion, etc. de los ninos; a menos que existan algunos factores negativos para quitarles los derechos al padre o a la madre. Los juzgados desean que los dos parientes tengan responsabilidades en la ayuda de los ninos con asistencia emocional, fisica y hasta espiritual. Un divorcio es una experiencia horrible para los ninos y hay que tratarlos con mucha delicadeza para evitar que tengan problemas mas tarde como adultos. El juzgado permitira casi cualquier decision de custodia que sea, en el buen interes de los ninos en la relacion. La custodia podria ser conjunta : 3 dias el y 4 ella; 5 dias ella y el fin de semana el; 6 meses ella y seis meses el; etc.; dependiendo de cada circunstancia. El juzgado puede incluso asignarle el caso a un representante de los ninos, aparte de los parientes, para que independientemente represente los intereses de los ninos. Muchos padres malinterpretan el termino " joint custody ". La intencion general de " joint custody " o custodia conjunta es mantener a cada pariente involucrado en la vida del nino, incluyendo decisiones sobre educacion, el mejor medico, la escuela, la medicina, la ninera, etc. Entonces, es importante ver algo mas que solamente el termino usado en cada divorcio para entender mejor su significado en cada caso, ya que cada caso es diferente. Es posible tambien que el juzgado le brinde custodia solamente a un pariente con visitas limitadas o liberales al otro. Las visitas pueden ser flexibles o estructuradas, segun el caso. En el supuesto de que ninguno de los padres sea capaz de tener la custodia ( los dos estan en la carcel, drogadictos, muertos, etc. ), entonces, los familiares o el juzgado toman posesion legal de los ninos, despues de una investigacion y juicio. DISTRIBUCION EQUITATIVA O IGUALITARIA DE LOS BIENES MATRIMONIALES La Corte, en la mayoria de los Estados, y ademas de la pension alimenticia y sostenimiento o manutencion de los hijos, puede decidir la distribucion de las propiedades que las dos partes adquirieron legalmente durante el matrimonio, segun consta en los estatutos anotados de New Jersey: NJ 2A : 34-23, et. Seq. En casi cada estado existen formas legales que tratan sobre las publicaciones acerca de la distribucion equitativa o igualitaria de los bienes matrimoniales. En cuanto a establecer alguna definicion acerca de que es distribucion equitativa, el Juez Pashman declara sucintamente en el caso de Kikkert v. Kikkert , 88 NJ 4 ( 1981 ) : " El objeto de la distribucion equitativa o igualitaria se diferencia del proposito de la pension alimenticia y manutencion de los hijos. La pension alimenticia y manutencion de los hijos pueden ayudar a mantener los beneficios o ingresos de ambas partes durante cierto tiempo, utilizando los ingresos de una parte para sostener a la otra. Sin embargo, la intencion principal o primaria de las leyes sobre distribucion equitativa de los bienes de la propiedad matrimonial no consiste en compensar por los cambios en la fortuna de cada una de las partes una vez que se han separado, sino cumplir una distribucion justa de lo que las partes, provechosa y legalmente, adquirieron mientras estaban unidos. " A la hora de decidir o aplicar justamente los principios de distribucion equitativa de los bienes matrimoniales, la Corte usualmente examinara, ademas de otros factores o requisitos, los siguientes: A. El estado o situacion economica de las partes en el momento en que las propiedades o bienes seran divididas. B. El tiempo o duracion del matrimonio. C. Los ingresos o propiedades que cada parte trajo o introdujo en el matrimonio. D. El nivel de vida experimentado por las partes durante el matrimonio. E. La condicion mental, fisica y emocional de cada esposo. F. Cualquier acuerdo prenupcial, es decir, antes o en el momento de celebracion del matrimonio. G. La ayuda o asistencia que cada parte del matrimonio hubiera prestado a la otra durante la vida del mismo matrimonio, como educacion, apoyo financiero o de otra clase, etc. H. El valor actual de cada bien, articulo y propiedad. I. El impacto o las consecuencias con respecto a las leyes de impuestos o tasas. J. Las necesidades concretas o particulares del esposo o esposa que tiene, o tendra el cuidado y manutencion del hijo o hijos, especialmente en relacion a la residencia. K. Las deudas y obligaciones de cada esposo. L. La capacidad para ganar dinero que tiene cada parte : educacion, experiencia, edad, estabilidad o inestabilidad en el trabajo, educacion necesaria para prepararse o practicar en un trabajo, etc. Estos factores o requisitos son similares a los que la Corte considera en referencia a los casos que envuelve la cuestion de la pension alimenticia. La distribucion equitativa de los bienes matrimoniales ve al matrimonio como una especie de negocio, entonces, considera, por ejemplo, si la esposa (incluso indirectamente) participo en el desarrollo del dinero o negocio matrimonial, manteniendo en buenas condiciones el trabajo en la casa y cubriendo las necesidades del marido, cuidando a los hijos y por ello perdiendo o dejando a un lado cualquier posibilidad de desarrollar su capacidad laboral fuera de la casa, al mismo tiempo que su capacidad para realizarse como profesional, no estudia una carrera o trabaja fuera de la casa, etc. Cuando decida proceder a un divorcio, tenga cuidado como escoge a su abogado. Pregunte en mas de un lugar. Si un abogado le ofrece alguna " garantia " de como va a resultar su caso, pidale que se lo ponga por escrito, ya que en las leyes sobre divorcio hay pocas garantias permanentes.

Jose David Alcantara 1125 Atlantic Ave. Suite 541 Atlantic City, New Jersey 08401 Voice: (609) 782-2494 email jda84375@gmail.com The immigration field has been under constant change since 1990. The following is a guide to the most common areas of practice and questions that the prospective client and/or petitioner may have. Our fully staffed office routinely handles these types of matters. The most common question to determine is to first clearly ascertain the status of the beneficiary and petitioner, if any. The beneficiary is the person for whom the application benefits, i.e., attempting to receive a change of status whereas the petitioner is the person who has a valid status which may ultimately be the means for implementing the change. Please be advised that fees and forms are subject to change at any time. The initial status of a beneficiary could be: illegal (often characterized as without documentation), in application status, legal, under a particular other visa and requesting an adjustment of status, etc..if a person has no status, then usually it means he or she has no visa. An illegal does not have a visa. You may scroll down to the section you desire, or you may choose to jump directly to that section. Many of these visa requirements constantly change. F1 Student Visas H1-H4 Specialty Employment Exemptions I-130 Petition for Alien Relative I-485 Adjustment of Status J-1 Speciality Student/Interns L-1 International Company Employee Visa N-400 Citizenship Applications O and P Athletes and Entertainers Visas Other areas include: Political Asylum, Refugee Status, Religious Worker Petitions and Department of Labor Specialty Applications. F-1 Visa: Student Visa The requirements for this visa are, among others, the following: a. The alien must be in an "academic" setting and not simply a vocational type of institution. b. The school must be approved. c. The foreign student must be enrolled full time. d. The foreign student must be proficient in the English language or be taking courses so as to become proficient in the English language. e. The foreign student must have sufficient moneys to support him/herself. f. The foreign student must maintain an actual address abroad and have no intention of remaining in the United States upon completion of the academic studies. The forms are the OF-156, the I-20A-B issued by the school, documentation as to financial ability, valid passport, two photos and the application fee if applying to an U.S. Consulate. If the prospective student is already in the U.S. then he/she must submit a change of status application for a nonimmigrant status. H1-H4 Visas: Specialty Employment Exemptions H-1B VISA: This visa category generally applies to alien applicants in the health care industries, university professors, engineers, computer professionals, attorneys, accountants, fashion models or persons with a bachelor of science or higher degree(s). The maximum period for staying is three years with the possibility of an additional extension of three years. The procedure first involves an approval from the Department of Labor (DOL) with the concomitant Labor Condition Application. H-2B: Temporary Service Alien Visa: This visa permits the alien to work within the United States for a reasonable period of time (one year) and can often be extended to a maximum of three years. Again, the Employer must file a DOL certification and alien must not previously have been a recipient of the same certification. These visas are very limited. For example, seasonal employees, such as farmworkers often apply for this visa, as long as the DOL processing application demonstrates that there is no displacement of unemployed American citizens. The application must show that the relevant labor union for the area of employment was contacted. The maximum period of entry is three years with the possibility of three more years. The prospective employer must file a DOL certification (see above) and condition that the same employee or applicant did not have an application or employment. The alien must show that an U.S. unemployed citizen will not be displaced by such employment. The employer first submit the offer of employment or DOL form ETAT 50 and must also contact any relevant union to determine if American workers are available. The form for this visa is I-129 and the H supplement. I -130 Petition for Alien Relative The more salient types of visa are the following. For your information, a synopsis of the more pertinent requirements is indicated for each of these visas. a.The I-130 Visa petition. This petition is requested by way of form I-130. It is a petition for an alien relative: wife, unmarried child under 21 years of age, married child of any age, brother, parents, etc. but not for cousins, adopted relatives, uncles, grandparents, etc. The essential documentation required are: filing fee (which varies from year to year), the marriage certificates (translated and notarized in the event of a spousal petition), the birth certificates, immigration specific style of photographs, fingerprint charts for the beneficiary, alien registration card, proof of citizenship (naturalization documents) or permanent status or the petitioners valid passport and the Biographic section. You must prove that there is a real family relationship with the beneficiary individual. Often, it is recommended that notarized proof of a divorce be submitted. In addition, the petitioner must provide proof that the beneficiary will not become a public ward. Thus, an affidavit showing that the petitioner will become responsible for the expenses of the beneficiary may be necessary. The filing fee changes. is now $535.00 for the I-130 plus the additional filing fees for any other documents. The new law does not permit the marriage of an 'illegal' to a U.S. citizen within the United States, at this time, and hence the 'illegal' must normally be interviewed by the American consulate of his country of nationality. The processing of the entire petition for the non-citizen beneficiary will vary depending on a number of factors. In the case of a spouse, both individuals are required to submit a Form I-751 Joint Petition to Remove the Conditional Basis of Alien's Permanent Resident Status. If both spouses are in the United States then careful observation must be made to submit the initial documents to the regional INS office (not the local) for preliminary approval. Also, careful note should be taken that the status of the petitioner can impact the results of the petition. An U.S. Citizen can petition his/her spouse, unmarried child under 21 years of age, or unmarried child over 21 years of age, or married child of any age; his/her brother if the petitioner is at least 21 years of age; the petitioner's parent(s) is the petitioner is at least 21 years of age. In the event the petitioner is a lawful permanent resident only, then he/she may only file for the spouse or the unmarried child. All applicants should note that the Internal Revenue Service requires certain forms be submitted. I-485: Adjustment of Status The filing fee here is usually $1,140.00 dollars. Form I-485 is the form or petition for a person in the United States who is applying for a change or adjustment of his/her present status to that of a lawful permanent resident of the United States of America. The applicant may file if he/she is: a. Physically within the United States, b. Have an immediately available immigrant visa number, c. Be admissible to the United States of America for status as a permanent resident, d. Adjust status before Oct. 1, 1997 per section 245 of the Immigration Act, e. Pay the additional sum or demonstrate that section 245(i) of the Immigration Act does not require the sum. Immigration law changes quickly and it is important to consult with an attorney directly, including on the issues of filing fees. If your spouse is illegally in the US, he/she may not normally file with you but must have his/her interview in a foreign, non-contiguous to the U.S. soil, nation. J-1 Visa: Specialty Student/Interns The J-1 visa most often applies to foreign students, scholars, experts, medical interns and exchanges visitor type of visas. In general, the requirements of the program designated by the school or training facility must be a program approved by the United States Information Agency (the USIA). The maximum period for this visa is 18 months plus 30 days. The recipient's family members may be permitted to accept limited employment subject to approval by the Immigration and Naturalization Service (INS) and is thus characterized as a J-2 visa. Other requirements for the J-1 include: that the alien maintain proof of an foreign residence, that form IAP 66 be issued and approved by the program sponsor, the foreigner's passport, appropriate photos and visa application OF-156. L-1 Foreign Employee Visa This visa requires that the intention, as in most visas, is that the foreigner intends to remain within the United States for a limited period of time. The L-1 visa most typically applies to managers and executives of multi-national corporations and requires the following proofs: Proof of like employment within the past year, proof of the alien's residence for the year prior to the application, dates and purpose of each entry, requirement that he/she must have lived abroad for one continuous year in the preceding three years prior to the application, proof that the foreign company or subsidiary is related with the USA company, the I-295 certificate of eligibility by the company transferring the alien, form I-797, a letter from the prospective employer with supporting documentation describing the job duties and skills required and the filing fee. N-400 Application for Naturalization The N-400 form is the petition to become an American citizen. The filing fee is $725.00 dollars. The usual requirements are that the applicant must either: a. Have been a lawful permanent resident for a period of five consecutive years prior to the application, or b. Have been a lawful permanent resident for three years, have been married to a citizen of the United States of America for all of those three years and continue to be married to the same citizen; or c. That the applicant is a lawful permanent resident child of a parents who are United States citizens, or d. That the applicant has qualifying military service in the United States Armed Forces. It should be noted that children under the age of 18 become U.S. Citizens immediately upon when their parents become U.S. Citizens. The form to fill out is the N-400 petition which requires: photographs, fingerprints, proof if have served in the U.S. military service, birth certificate of the child if the application involves a child and a filing fee. Make sure you file at the appropriate immigration and naturalization office. The procedure may take a year or longer. The petitioner will be required to pass a minimal English writing/oral test as well as questions regarding some basic history and law about the United States. O and P Visa: Athletes and Entertainers This visa applies with reference to individuals who have excelled in the arts and the sciences and who have received awards and certificates for their contributions to humanity in their field(s). P Visa: This visa typically applies to entertainers and athletes of eminent or olympic quality.

Jose David Alcantara 1125 Atlantic Ave. Suite 541 Atlantic City, New Jersey 08401 Tel. (609) 782-2494 email: AlcantaraJD@mail.com What are the grounds for divorce in New Jersey? You can file for divorce in New Jersey based on any of the following reasons (grounds): Irreconcilable differences – When there has been a breakdown of the marriage based on a failure to get along for a period of 6 months or more and there is no reasonable belief of reconciliation. Adultery - when your spouse cheats on you. Abandonment - when your spouse left your house for 12 months or more. Extreme cruelty - when your spouse treated you in a way that endangered your life or health or made it unbearable for you to live with him/her (such as physical or mental cruelty). ( Note: If you are filing for divorce based on this, you have to wait at least three months after the last incident of cruelty. If you are including this ground in your counter-claim to your spouse’s divorce petition, you do not have to wait those three months; you can include this ground even if the last cruel incident happened yesterday.) Separation – when you and your spouse don’t live together anymore in the same house for a term of at least 18 consecutive months or more and there is no reasonable belief of reconciliation between you both. Addiction to drugs or habitual drunkenness for a period of 12 or more consecutive months after marriage and prior to filing for divorce. Institutionalization for mental illness for a period of 24 or more consecutive months after marriage and prior to filing for divorce. Imprisonment - Your spouse was sentenced to go to jail for 18 or more consecutive months after marriage. If you file for divorce after your spouse has been released from jail, you also have to show that you and your spouse have not lived together after s/he was released from jail. If your spouse commits “deviant sexual conduct” on you without your consent. ( Note: This term is not well-defined in New Jersey law - if you are unsure if you meet this ground, please talk to an attorney for advice.) 1 1 N.J. Stat. § 2A:34-2 What types of alimony are there and how long can alimony last? There are four types of alimony that a judge can grant: 1) open durational alimony; 2) rehabilitative alimony; 3) limited duration alimony; or 4) reimbursement alimony. 1 To read the definitions of each type of alimony, go to our Selected New Jersey Statutes page. For any marriage that lasts less than 20 years , alimony can only be ordered for the number of years that the marriage or civil union lasted unless there are “exceptional circumstances.” Exceptional circumstances which may require an adjustment to the length (duration) of alimony include: the ages of the parties at the time of the marriage and at the time of the alimony award; how dependent one spouse was on the other during the marriage and how long that dependency lasted; whether a spouse has a chronic illness or unusual health circumstance; whether a spouse has given up a career or a career opportunity or otherwise supported the career of the other spouse; whether a spouse has received a disproportionate share of equitable distribution; the impact of the marriage on either party’s ability to become self-supporting, including but not limited to either party’s responsibility as primary caretaker of a child; tax considerations of either party; and any other factors or circumstances that the court deems equitable, relevant and material. 2 In determining the length of the a limited durational alimony award, the judge must consider the length of time it would reasonably take for the recipient to improve his or her earning capacity to a level where limited duration alimony is no longer appropriate. 2 1 N.J. Stat. § 2A:34-23​(b) 2 N.J. Stat. § 2A:34-23​(c) What factors will a judge consider when deciding if I can get alimony? When deciding whether or not to issue alimony, the judge must consider the following factors: the actual need for alimony and the ability of the paying spouse to pay; the length of the marriage; the age, physical health, and emotional health of both parties; the standard of living established in the marriage and how likely it is that each party can continue to have a reasonably comparable standard of living; the earning capacities, educational levels, vocational skills, and employability of both parties; how long you have been absent from the job market; each party’s parental responsibilities for the children; the time and expense necessary to get sufficient education or training to allow you to find appropriate employment and how available such training and employment is; any opportunities that you may have to get money or property (assets) in the future; the history of the financial or non-financial contributions to the marriage by each party, which includes contributions to the care and education of the children and the interruption of your personal career or educational opportunities; the division (“equitable distribution”) of property that was ordered in the divorce and any payouts from the equitable distribution, directly or indirectly, out of current income; the income available to either party through the investment of any assets held by that party; the tax treatment and consequences to both parties of any alimony award; the nature, amount, and length of temporary (pendente lite) support paid, if any; and any other factors that the judge believes are relevant. 1 1 N.J. Stat. § 2A:34-23​(b) What are the basic steps for filing for divorce? While divorce laws vary by state, here are the basic steps: First, you must meet the residency requirements of the state. Second, you must have “grounds” (a legally acceptable reason) to end your marriage. Third, you must file divorce papers and have copies sent to your spouse. Fourth, if your spouse disagrees with anything in the divorce papers, then s/he will have the opportunity to file papers telling his/her side, which is known as “contesting the divorce.” If s/he contests it, then you will have a series of court appearances to sort the issues out. If your spouse does not disagree with anything, then s/he should sign the papers and send them back to you and/or the court. If your spouse agrees with everything and signs the papers, this is called an “uncontested divorce.” Also, if a certain period of time passes and your spouse does not sign the papers or file any papers of his/her own, you may be able to proceed with the divorce as an uncontested divorce anyway. (Speak to a lawyer in your state about how long you have to wait to see if your spouse answers before you can continue with the divorce). Fifth, if there is property that you need divided or if you need financial support from your spouse, then you will have to work that out either in an out-of-court settlement or in a series of court hearings. Custody may also be decided as part of your divorce. If I get a lawyer, can the judge order my spouse to pay my attorney fees? The judge has the authority to order that the either party pay the attorney fees of the other party in any claim for divorce, dissolution of civil union, termination of domestic partnership, nullity, support, alimony, custody, parenting time, equitable distribution, separate maintenance, enforcement of agreements between spouses, domestic partners, or civil union partners and claims relating to family type matters. The judge can make this order while the case is pending (known as pendente lite) or at the end of the case. The judge will have to determine if an award of attorney fees is appropriate in each situation. When determining the amount of the fee award, the judge will consider the following factors: the financial circumstances of the parties; the ability of the parties to pay their own lawyer’s fees or to contribute to the fees of the other party; the reasonableness and good faith of the positions put forth by each party during trial and before trial; how much the fees are for each party; any fees previously awarded; the amount of fees previously paid to the lawyers by each party; the results obtained by each party in the case; the degree to which fees were incurred to enforce existing orders or to compel discovery; and any other factor that relates to the fairness of an award of attorney’s fees. 1 1 NJ Court R. 5:3-5(c) Child Support How will the judge calculate child support? If I have joint custody, is either parent responsible for child support? How long will child support last? What can I do if the other parent is not paying the ordered child support? How will the judge calculate child support? How much child support is ordered will depend on both parents’ income and the needs of the child. 1 To decide how much child support to order, the judge will follow the New Jersey child support guidelines, which account for: basic expenses: housing, food, clothing, transportation, entertainment, health, and similar expenses; and additional expenses: child care, health insurance, and other expenses approved by the judge. 2 However, there are circumstances that could make the judge stray from the guidelines or adjust the result provided by those guidelines. 3 The judge, for example, may consider: other dependents of either party; other support obligations; government benefits paid to or for the children; 4 and shared parenting obligations. 5 The New Jersey Department of Human Services offers a child support calculator, which you can find here . 1 N.J. Rules of Practice App. 9-A 2 N.J. Rules of Practice App. 9-A(8) 3 N.J. Rules of Practice App. 9-A(3) 4 N.J. Rules of Practice App. 9-A(10) 5 N.J. Rules of Practice App. 9-A(4) If I have joint custody, is either parent responsible for child support? The New Jersey child support guidelines use a different formula when there’s a shared parenting plan as opposed to when one parent has sole custody. It makes a distinction between the: parent of primary residence, with whom the child spends more than 50% of his/her time each year; and the other parent, known as the parent of alternate residence. The guidelines then consider the income and expenses of both parents and the expenses of the parent of alternate residence when s/he is in charge of the child. After calculations and adjustments, either parent could be ordered to pay child support based on the needs of the child and the higher income of one of the parents. 1 1 N.J. Rules of Practice App. 9-A(14) How long will child support last? The obligation to pay child support ends when the child: turns 19 years of age, unless the custodial parent requests, and the judge grants, an extension based on: the severe mental or physical incapacity of the child; or the fact that the child is studying full-time in high school or a post-secondary education program. In this case, support will end on or before the child’s 23 rd birthday; marries; dies; enters the military service; or is under the custody of the state. 1 1 N.J. Stat. § 2A:17-56.67 What can I do if the other parent is not paying the ordered child support? New Jersey’s child support enforcement program could help enforce the order without you having to go to court. You can read more about how the different government agencies work together to enforce child support orders on the New Jersey state government website. The other option you have is to file in court, hopefully with the help of an attorney, to help you enforce your child support order. A judge could enforce the child support order by doing any of the following to the non-paying parent: withholding: current or future income; unemployment benefits; money owed to him/her; or trust funds; denying, suspending, or revoking driving, professional, occupational, recreational or sporting licenses; and ordering the arrest of the parent who is not following with order. 1 1 N.J. Stat. § 2A:17-56.8 What is custody? Custody is the legal responsibility for the care and control of your minor child under 18. There are two types of custody: legal and physical. Although it is not clearly defined in New Jersey statutes, legal custody usually refers to the right to make major decisions about your child. Some types of decisions generally included in the right of legal custody are: where your child goes to school; whether your child gets surgery; and what kind of religious training your child receives. Physical custody refers to who your child lives with on a day-to-day basis. It is the physical care and supervision of your child. 1 1 N.J. Stat. § 2A:34-54 What custody options are there? New Jersey’s public policy is that children have frequent and continuing contact with both parents. 1 Based on the best interest of the child, a judge can order any of the following: joint legal custody , which is when both parents will make major decisions regarding the child’s health, education, and general welfare. 2 This can be ordered even if only one parent has physical custody. Joint legal custody usually involves the parents talking with each other and making decisions jointly. Since cases of domestic violence involve control, fear, and an imbalance of power, joint custody usually is not a good option; joint physical custody , which is when the child lives with each parent for a period of time but it doesn’t necessarily mean that each parent has equal time; 3 sole legal custody , which is when only one parent is able to make major decisions for the child; sole physical custody , which is when the child primarily lives with one parent. The other parent will likely still have scheduled parenting time; 4 or any other custody arrangement the judge believes is in the best interest of the child. 5 ​ 1 N.J. Stat. § 9:2-4 2 N.J. Stat. § 9:2-4(a)(2) 3 N.J. Stat. § 9:2-4(a)(1) 4 N.J. Stat. § 9:2-4(b) 5 N.J. Stat. § 9:2-4(c) What is mediation? Mediation is a process by which parents attempt to reach an agreement relating to custody and visitation of their child. Mediation involves the help of a trained professional (a “mediator”) who guides the discussion process between the parents and tries to come to a compromise that both parents are happy with. The mediator cannot force you to agree to something that you don’t want. What is the Parent's Education Program? In New Jersey, when you file for divorce and there are issues of custody, visitation or support of your child, a judge may make you attend the “Parent’s Education Program.” This program addresses issues about how separation or divorce will affect you and your child. The program also encourages you to work together with the other parent to raise your child. 1 If you have been a victim of domestic violence, it is very important that you let the judge know, because this program may not be appropriate for you. You will not have to complete the program if you have a temporary or permanent restraining order against the other parent. However, even if you don’t have a current restraining order, the court may excuse a party from attending the program if the court finds good cause to do so. 2 1 N.J. Stat. § 2A: 34-12.3 2 N.J. Stat. § 2A:34-12.5(d) & (e) New Jersey Restraining Orders What is the legal definition of domestic violence in New Jersey? This section defines domestic violence for the purposes of getting a restraining order. Domestic violence is when an adult (or an emancipated minor ) who has the relationship to you that is described here commits one of the following crimes against you: homicide; assault; terroristic threats; kidnapping; criminal restraint; false imprisonment; sexual assault; criminal sexual contact; lewdness; criminal mischief; burglary; criminal trespass; harassment; cyberharassment ; stalking; criminal coercion; robbery; contempt of a domestic violence order , which constitutes a crime or disorderly persons offense (see section “b” of the statute); or any other crime involving risk of death or serious bodily injury. 1 Note: An emancipated minor is someone who is under 18 but who has been married, has entered military service, has a child, is pregnant or has been emancipated by a court. 2 If you are a victim of sexual assault and do not have a relationship with the abuser, you may be eligible for a sexual assault restraining order . 1 N.J. Stat. § 2C:25-19(a) 2 N.J. Stat. § 2C:25-19(e) What types of restraining orders are there? How long do they last? In New Jersey, there are two types of restraining orders: Temporary restraining order (TRO) When you file a complaint for a restraining order, you can ask for a temporary ex parte restraining order (TRO) to be issued immediately. A judge can grant you a TRO if s/he finds that it is necessary to protect your life, health, or well-being. The order will last until the hearing for a final restraining order, which is generally scheduled within 10 days . 1 (An “ex parte” TRO means that the judge will make this decision based only on the information you provide, without the abuser being in court and without prior notice to him/her.) If you cannot be physically present in court , a judge can issue a TRO upon: your sworn testimony or complaint; or upon the sworn testimony or complaint of a person who represents you if you are physically or mentally incapable of filing personally. The judge must believe, however, that there are sufficiently urgent (exigent) circumstances to excuse your failure to appear personally in court. 2 Note: If you need immediate protection when the courts are closed (regular courthouse hours are usually M - F, 8:30 am to 3:30 pm), you can: file at the municipal court (if it is open); or call your local police department or 911. 3 Generally, there is an “on call” municipal court judge who can issue you a TRO and schedule the court date for the final restraining order hearing. If a municipal judge denies you the TRO, you can re-file your petition in the Family Part of the Chancery Division of the Superior Court when the court reopens based on the same incident. 3 Final restraining order After a hearing in which you both have an opportunity to tell your side of the story through testimony, evidence, and witnesses, a judge can grant you a final restraining order. A final restraining order has no end date and can last forever – or until one of one of the parties files a legal motion in court asking the judge to end or modify (change) the order and the judge agrees. 4 1 N.J. Stat. §§ 2C:25-28(a),(f); 2C:25-29(a) 2 N.J. Stat. § 2C:25-28(h) 3 N.J. Stat. § 2C:25-28(f),(i) 4 N.J. Stat. § 2C:25-29(d) In which county can I file for a restraining order? You can file a petition in the county: where you live; where you are temporarily living if you’ve left home to avoid further abuse; where the abuser lives; or where the abuse occurred. 1 However, if you left your home and want to keep your new address confidential, filing in the county to where you have fled would alert the abuser to the fact that you are living in that county. 1 N.J. Stat. § 2C:25-28(a) What protections can I get in a temporary ex parte restraining order (TRO)? A temporary ex parte order can: forbid the defendant from returning to the scene of the domestic violence (except with a police officer to pick up personal belongings at a specific time/date); forbid the defendant from possessing any firearm or certain other weapons (unless s/he is a law enforcement officer or in the military - then s/he can possess firearms while on duty); order the police to search for and take any weapon (and firearms permit) at any location where the judge has reasonable cause to believe the weapon is located; give you possession of any animal owned or kept by you, the defendant, or a child who lives in either household; and/or order anything else the judge believes is appropriate, which often includes: giving you temporary custody of your children; and giving you exclusive possession of the home that you share with the abuser regardless of whose name is on the lease or whether or not the home is jointly owned. 1 If the judge orders that the abuser cannot have firearms, then the judge must require that a law enforcement officer accompany the abuser (or go without the abuser if necessary) to any place where any firearm or other weapon is located and take possession of them. If the restraining order prohibits the abuser from going to the place where firearms or other weapons belonging to the abuser are located, the law enforcement officer will go without the abuser and seize (take) them. 2 1 N.J. Stat. § 2C:25-28(j), (k) 2 N.J. Stat. § 2C:25-28(j) What protections can I get in a final (permanent) restraining order? A final restraining order can order the abuser to : not commit domestic violence against you and not to threaten to harm, harass, or stalk you or anyone else named in the restraining order; stay away from the home, property, school, work or any other place that is named in the restraining order of you and your family or household members; pay (in full or in part) the rent or mortgage on your home if the judge decides that the abuser has a duty to support you or your children; not make any contact that is likely to annoy or alarm you, including contact in person, by telephone, in writing, or through a third person with you or your family members, employers, other workers, etc; pay you for reasonable losses resulting from the abuse (some examples of this are loss of earnings or support, the cost of injuries, moving or travel expenses, the replacement or repair of property damaged or taken by the abuser, attorney and counseling fees, compensation for pain and suffering, etc.); be prohibited from purchasing, owning or possessing a firearm or other weapons, and order the search for and seizure of any firearm or other weapons at any place where the judge has reasonable cause to believe a weapon is located; attend domestic violence counseling; undergo a psychiatric evaluation; and report to the court to monitor that the abuser is following the terms. 1 A final restraining order can also give you the following: sole possession of the home where you both live (in other words, remove the abuser from the home). The judge can order this even if the home is owned or leased only by the abuser, not you. If, however, it is not possible for you to stay in the home, the judge can order the abuser to pay your rent for a new place if the abuser has a duty to support you; temporary custody and decide how often the abuser can see your minor children, specify the time and place of parenting time, and require supervision or the participation of a third party. Note: If the abuser is granted parenting time and then threatens the safety and well-being of your children in some way, you can apply for an emergency hearing and the judge will consider suspending the abuser’s parenting time; temporary possession of personal property such as a car, checkbook, health insurance documentation, identification, a key, and other personal items; (these items can be given either to you or the abuser); emergency financial support from the abuser, including support for your minor children; an order that a law enforcement officer must accompany you or the abuser to your home or shared workplace to supervise the removal of personal items; possession of any animal owned or kept by you, the defendant, or a child who lives in either household; and any other appropriate relief you request for you or your dependent children. 1 Whether a judge orders any or all of the above depends on the facts of your case. If the judge orders that the abuser cannot have firearms, then the judge must require that a law enforcement officer accompany the abuser (or go without the abuser if necessary) to any place where any firearm or other weapon is located and take possession of them. If the restraining order prohibits the abuser from going to the place where firearms or other weapons belonging to the abuser are located, the law enforcement officer will go without the abuser and seize (take) them. 1 1 N.J. Stat. § 2C:25-29(b) If the abuser lives in a different state, can I still get an order against him/her? When you and the abuser live in different states, the judge may not have “personal jurisdiction” (power) over an out-of-state abuser. This means that the court may not be able to grant an order against him/her. There are a few ways that a court can have personal jurisdiction over an out-of-state abuser: The abuser has a substantial connection to your state. Perhaps the abuser regularly travels to your state to visit you, for business, to see extended family, or the abuser lived in your state and recently fled. One of the acts of abuse “happened” in your state. Perhaps the abuser sends you threatening texts or harassing phone calls from another state but you read the messages or answer the calls while you are in your state. The judge could decide that the abuse “happened” to you while you were in your state. It may also be possible that the abuser was in your state when s/he abused you s/he but has since left the state. If you file your petition and the abuser gets served with the court petition while s/he is in your state , this is another way for the court to get jurisdiction. However, even if none of the above apply to your situation, it doesn’t necessarily mean that you can’t get an order. If you file, you may be granted an order on consent or the judge may find other circumstances that allow the order to be granted. Note: If the judge in your state refuses to issue an order, you can file for an order in the courthouse in the state where the abuser lives. However, remember that you will likely need to file the petition in person and attend various court dates, which could be difficult if the abuser’s state is far away. OTHER ISSUES: Pendente Lite, Alimony, Medical Insurance , Life Insurance, Other relatives visitation Educational Expenses, Vacations

Information About Criminal Matters Jose David Alcantara 1125 Atlantic Ave. Suite 541 Atlantic City, New Jersey 08401 Tel. 609-782-2494 email: Jda84375@gmail.com Criminal charges, even if you are found not guilty or the charges are dismissed or otherwise disposed of, can have the most profound impact on other matters of an individual's life. The charges can affect your employment prospects, your privilege to carry and possess certain licenses (hunting, police employment, casinos, driver's license, etc). In addition, one can also lose a reputation, friendship's and family relations as well as incur bankruptcy. The info here is not final advice. You should obtain a qualified attorney. Certain common sense suggestions are in order before and after obtaining an attorney to represent your freedom. Among these are the following: 1. Trust, cooperate and inform your attorney. Tell the attorney of your choice all the details regarding the arrest, summons or charges. These facts will not only include the exact details of the actual arrest and charges but also information regarding any prior charges or incidents, names and addresses of character and reputation witnesses, prior employment, education, social security number, legal status, prior medical history, employment history, military service, residences, need for an interpreter, financial ability (bail), the existence of any evidence, etc. 2. Keep your attorney informed as to your address change. 3. Do not discuss the case with anyone. 4. Make a proper appearance. Remember that you are constantly being judged on your appearance, clothing, speech. 5. Have patience. Concluding any criminal matter is a long and drawn out process which may take weeks or months depending on the seriousness of the offense. 6. Arrive on time at any court hearing. The attorney's fees in criminal matters are paid on a per hourly basis and often involves a deposit. The amount of the deposit depends on the seriousness of the offense, the importance of the offense to the accused as well as how many hours are put into the matter. Besides the summons or charges, the first document your attorney receives is the police report or "discovery," which details, to some extent, the investigator or arresting officers version of the occurrences leading to the charges being filed. This report is helpful to the accused in that it must be properly filed, sufficiently detailed and provides the first glimpse as to the nature of the charges against the accused. If the facts leading to these charges are insufficient, the charges themselves can be dismissed by way of a motion to dismiss for insufficiency, or a probable cause motion, or a motion to dismiss the indictment or a host of other motions such as perhaps the charges were brought in an erroneous jurisdiction or venue. If the matter becomes indictable, i.e., transferred to a higher court, then there will be a waiting period to ascertain the validity of this new status to the charges. If the charges are not worthy of being indictable, then they may be downgraded back to the municipal court as a lesser offense. There thus are several methods by which erroneous charges may be dismissed or otherwise resolved, depending on the court's discretion: a. motions for probable cause, suppression, misidentification, improper grand jury determinations, loss of discovery, etc. b. plea agreements. c. Programs such as pre-trial intervention (avoidance of jail through a probationary type of program wherein you agree to maintain employment, undergo urine exams, report any address changes, not become involved in any other criminal activity, etc.), community justice, mediation, etc. d. Probation e. merging the charges f. mutual dismissal of the charges by way of a Fifth Amendment (right to remain silent). g. voluntary dismissal by the alleged victim. If the accused fails to appear in court for any one hearing, whether it be the arraignment (first appearance to declare his/her innocence) or whether it be at a pre-trial conference (hearing to determine any issues that may need to be resolved to protect the interests of the State or the defense), then a bench warrant will be issued. A bench warrant is an Order for the arrest of a person for failure to respect the court and for failure to appear. The bench warrant will later require an explanation for the failure to appear and the court will most likely impose the requirement of a reasonable or appropriate bail amount commensurate to the crime charge so as to assure the return of the accused to court. Probable Cause and Probable Cause Hearings in Criminal Cases To make a valid arrest or get an arrest warrant from a judge, the police must have probable cause. This is a different standard from the reasonable suspicion standard required to make an initial stop. Determining how much evidence is necessary to justify a finding of probable cause depends on the specific facts of the situation. A police officer needs more evidence than the level required for the reasonable suspicion standard, but they do not need to have enough evidence to prove that the suspect is guilty beyond a reasonable doubt. No percentage has been assigned to probable cause. Some judges seem to believe that the standard is less demanding than the preponderance of the evidence standard used in civil cases. Since that standard involves a greater than 50 percent probability, probable cause may not be what most people would consider “probable.” Determining Probable Cause Probable cause requires objective facts, not subjective beliefs. A police officer must have more than a subjective hunch to make an arrest or get an arrest warrant. They need to have objective evidence that indicates the suspect’s responsibility for the crime. Even if a police officer believes that they have probable cause, a judge may not necessarily agree. They will review the information in the affidavit for the warrant and make a final decision. You should be aware that being guilty of a crime and having probable cause for an arrest are two different things. Probable cause may exist even if the defendant is not guilty. Probable Cause Hearings This term can refer to either of two types of hearings. Generally, a probable cause hearing happens together with the defendant’s first court appearance after their arrest. The judge will determine whether probable cause supported the arrest. If it did not, law enforcement will not be able to continue holding the defendant in custody if they have not been released on bail or on their own recognizance. The other type of probable cause hearing happens after the prosecution has filed charges and involves the judge considering testimony on whether the defendant more likely than not committed the crime. If probable cause exists, the case will move forward toward trial. If the police get a warrant before making an arrest, the warrant will satisfy the Fourth Amendment requirement of probable cause. However, since officers generally do not get a warrant before making an arrest, a judge often will need to determine whether probable cause exists soon after a suspect is taken into custody. The judge may make a finding of probable cause if they are persuaded by a written statement from the police or prosecution regarding the facts of the case. Consequences of Arrest Without Probable Cause 1. 1 Exclusion of evidence seized during the illegal arrest 2. 2 Removal of the arrest from the record 3. 3 Possibly a civil lawsuit for damages (usually only when an arrestee was physically hurt) Timing for Probable Cause Hearings Prompt action can be important for probable cause hearings. States may require a hearing within 24 hours after an arrest, but the U.S. Supreme Court has ruled that 48 hours is close enough for constitutional purposes. Even if the hearing occurs within the required period, a constitutional violation still may arise if law enforcement delayed the hearing for improper reasons, such as looking for evidence to support probable cause. Failing to meet the deadline likely will justify the suspect’s release unless law enforcement can show that there is an extraordinary reason warranting an exception. The Rights of Defendants The rights of criminal defendants are protected by the Fourth, Fifth, and Sixth amendments to the Constitution. Although these protections are intended to shield individuals from abuses by the government, the government also has an obligation to safeguard its citizens against criminal activity. The Supreme Court has had to address both concerns. The Fourth Amendment The Fourth Amendment is a guarantee against unreasonable searches and seizures and requires that a search warrant be granted only with probable cause. If the police exceed their authority and conduct an illegal search, the evidence gathered may not be admissible in court under what is called the exclusionary rule. While initially applied only to federal cases, the rule has been extended to state courts since 1961. In recent years, the Supreme Court has attempted to limit the exclusionary rule amid complaints that a blanket exclusion of all evidence, used even when the police error was a minor one, was letting guilty defendants go free. Under chief justices Warren Burger and William Rehnquist, the Court has adopted the good faith exception to the Fourth Amendment. This exception uses loopholes in the exclusionary rule, such as when the police believed they had a valid search warrant but it turned out to be based on outdated information. The good faith exception has been applied even to searches without warrants for which the police could show their intention was legal. Warrantless searches are based on a broad interpretation of what constitutes probable cause and a reasonable search. The overall trend has been to weaken the guarantee of personal security in favor of controlling criminal behavior. The Fifth Amendment The Fifth Amendment is probably one of the most misunderstood safeguards of personal liberty. In the American legal process, the burden of proof lies with the prosecution; the defendant is innocent until proven guilty and has the right to remain silent. Prosecutors can never ask the accused if he or she committed a crime. Too often, we see through news coverage of actual trials or dramatizations on film or TV someone who is obviously guilty "plead the Fifth." The problem is that such a statement has, for many, come to suggest that the speaker is guilty — the exact opposite of the amendment's intent. To ensure that a person is not made a witness against himself or herself, the Supreme Court has issued several landmark rulings. Escobedo v. Illinois (1964) stated that a person has the right to have an attorney present when questioned by the police. In Miranda v. Arizona (1966), the Court required the police to inform a suspect of his or her constitutional rights. This statement by the police is now known as the Miranda warning. The Sixth Amendment The Sixth Amendment deals with the rights of the accused in criminal cases. Although a jury trial is assumed to be a fundamental civil liberty, it was not until 1968 that the Supreme Court ruled that this right is one the states are obligated to recognize in all but the most minor criminal proceedings. The states remain free to set the minimum number of people that constitute a jury, and many do not require a unanimous jury vote for conviction. In Gideon v. Wainright (1963), the Supreme Court held that the right to counsel provided for in the Sixth Amendment extends to the states. The government, at any level, must provide legal assistance to defendants who cannot afford their own lawyer. Criminal defendants have several constitutional rights. Perhaps the most essential protection is the requirement that the prosecution prove guilt beyond a reasonable doubt. But defendants have other rights, too, including the rights to: · remain silent · confront witnesses · have a public trial · have a jury trial · have a speedy trial · be represented by an attorney · receive adequate representation · not be tried twice for the same offense (" double jeopardy "). Here we explore some of the other hallmarks of basic criminal procedure. (For more, see What does the Bill of Rights do? ) Right to Remain Silent The Fifth Amendment to the U.S. Constitution provides that a defendant cannot "be compelled in any criminal case to be a witness against himself." In short, the defendant cannot be forced to speak. If the defendant chooses to remain silent, the prosecutor cannot call the defendant as a witness, nor can a judge or defense attorney force the defendant to testify. (Defendants in civil cases may, however, be forced to testify as a witness in a civil case. And for information on the right to remain silent outside the trial context, see The Privilege Against Self-Incrimination .) Right to Confront Witnesses The "confrontation clause" of the Sixth Amendment gives defendants the right to "be confronted by the witnesses against" them. This gives defendants the right to cross-examine witnesses—that is, the right to require the witnesses to come to court, "look the defendant in the eye," and subject themselves to questioning by the defense. The Sixth Amendment forbids prosecutors from proving a defendant's guilt with oral or written hearsay statements from non-testifying witnesses, unless a judge concludes that the hearsay is non-testimonial. In general, statements made during ongoing emergencies (such as a call to a 911 operator reporting a crime in progress) are not testimonial. On the other hand, statements made to police officers seeking information about a past crime are testimonial. (See In Child Abuse Case, Supreme Court Narrows Right to Confront Witnesses .) Special Confrontation Rules for Child Sexual Assault Cases In recent years, legislators have been concerned about defendants who escape punishment for sexually molesting young children because the children were afraid to testify in the defendant's presence. To address this problem, many states have enacted special rules that authorize judges—in certain situations—to allow children to testify via closed-circuit television. The defendant can see the child on a television monitor, but the child cannot see the defendant. The defense attorney can be personally present where the child is testifying and cross-examine the child. Right to a Public Trial The Sixth Amendment guarantees public trials in criminal cases . This is an important right, because the presence in courtrooms of a defendant's family and friends, ordinary citizens, and the press can help ensure that the government observes important rights associated with trials. In a few situations—normally involving children—the court will close the court to the public. For example, judges can bar the public from attending cases when defendants are charged with sexual assaults against children. Also, the judge may exclude witnesses from the courtroom in order to prevent a witness from influencing the subsequent testimony of another. Right to a Jury Trial The Sixth Amendment gives a person accused of a crime the right to be tried by a jury, except for petty offenses carrying a sentence of six months or less of jail time. This right has traditionally been interpreted to mean a 12-person jury. However, a jury can constitutionally consist of as few as six persons. (For more information, see The Right to Trial by Jury .) A unanimous verdict is required to convict a defendant. A lack of unanimity is called a "hung jury," and the defendant will go free unless the prosecutor decides to retry the case. Potential jurors must be selected randomly from the community, and the actual jury must be selected by a process that allows the judge and lawyers to screen out biased jurors. In addition, a lawyer may eliminate several potential jurors simply because he feels that these people would not be sympathetic to his side—but these decisions (called "peremptory challenges") may not be based on the juror's personal characteristics such as race, sex, religion, or national origin. (See Jury Selection .) Right to a Speedy Trial The Sixth Amendment gives defendants a right to a "speedy trial." However, it does not specify exact time limits. Thus, judges often have to decide on a case-by-case basis whether a defendant's trial has been so delayed that the case should be thrown out. In making this decision, judges look at the length of the delay, the reason for the delay, and whether the delay has prejudiced (harmed) the defendant's position. Every jurisdiction has enacted statutes that set time limits for moving cases from the filing of the initial charge to trial. While these statutes are very strict in their wording, most defendants cannot get their convictions reversed on the ground that these statutes were violated. (For more, see The Right to a Speedy Tria l.) Right to Be Represented by an Attorney The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense." If a defendant cannot afford an attorney (is "indigent"), a judge must appoint an attorney at government expense before sentencing the defendant to imprisonment. (For more detail, see Are lawyers available for defendants who can't afford to pay for one? ) Judges routinely appoint attorneys for indigents in nearly all cases in which a jail sentence is possible. Right to Adequate Representation The U.S. Supreme Court has ruled that both indigent defendants who are represented by appointed counsel and defendants who hire their own attorneys are entitled to adequate representation—that is, to have a lawyer who does a reasonably good job at defending the defendant. Defendants are entitled to adequate representation not only at trial but also during plea bargains . However, adequate representation is by no means perfect representation. Here are examples of claims that defendants have made to get their guilty verdicts thrown out but that appellate courts have rejected. (Note that the rulings depend on the particular facts at hand, meaning that these kinds of claims might, under different circumstances, actually establish ineffective assistance of counsel.) · The attorney failed to call favorable witnesses at trial. · The lawyer didn't object to the judge's mistaken instructions to jurors concerning the burden of proof. · The lawyer repeatedly advised the defendant, who claimed innocence, to plead guilty. · The attorney used cocaine during the time the representation took place. · The attorney represented the defendant while being suspended from the practice of law for failure to pay state bar dues. On the other hand, circumstances can be sufficiently shocking to justify throwing out a guilty verdict based on an attorney's incompetence. Judges have reversed guilty verdicts where: · The attorney put a law-student intern in charge of the defense and left the courtroom while the case was going on. · During closing arguments, the attorney acknowledged that the defendant was guilty of a lesser crime without first securing the defendant's approval of this tactic. · During voir dire (questioning of the jury), the attorney failed to challenge two potential jurors who said they would be bothered by the defendant's failure to testify. Right Not to Be Placed in Double Jeopardy Among the clauses of the Fifth Amendment is this well-known provision: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." This provision, known as the double jeopardy clause, protects defendants from being put on trial more than once for the same offense. (For much more on double jeopardy, including what it means for sentencing, see The Prohibition Against Double Jeopardy .) One important exception to the rule against double jeopardy is that defendants can properly be charged for the same conduct by different sovereigns. For example, a defendant may face charges in both federal and state court for the same conduct if some aspects of that conduct violated federal laws while other elements ran afoul of the laws of the state. Furthermore, the double jeopardy clause forbids more than one criminal prosecution growing out of the same conduct. So, for example, a defendant can be brought once to criminal court (by the government) and once to civil court (by someone who's been harmed) for the same offense.

There is no perfect justice, just as there is no absolute in ethics. But there is perfect injustice, and we know it when we see it. 

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