What does the Indictment of Donald Trump Teach us About Connecticiut Criminal Law?

Lady-Justice--e1581224208144-225x300Donald Trump was formally arraigned in a New York City State courthouse for allegations related to falsifying business records. Usually, under New York law, these charges would all be misdemeanors. However, in this case, the District Attorney is bootstrapping the case to a felony level by claiming that the conspiracy to falsify business records was part of a plan to commit an unspecified felony related to election laws.  I am not taking political sides in this blog.   Whether you are a Trump fan or can’t stand Trump, it is important to consider how the criminal law process is employed in this case.

1. The prosecuting authority has total discretion on whether or not to bring criminal charges 

The district attorney – or in Connecticut – the state’s attorney – has total discretion on whether or not to prosecute a particular case.  Every day in America, the police bring cases and facts to the state’s attorney.  The state’s attorney is totally within their prosecutorial discretion to decide not to expend valuable judicial resources into prosecuting a particular case.   For example, the DA prosecuting Donald Trump in New York City – Alvin Bragg, created a “Day One” memo when he took over as district attorney and stated that his office would no longer prosecute non-violent misdemeanors.  That is within his power as he is the prosecuting authority. The prosecuting authority can utilize scarce judicial resources as it seems fit to prosecute the crimes that the prosecuting authority desires to pursue. It can decline to prosecute any crime it does not want to prosecute.  In Connecticut, it is called a “nolle” when the State’s Attorney declines to exercise its discretion and not prosecute a crime.

Interestingly, in the case of Donald Trump’s arrest today, several other prosecuting authorities in New York and Federal jurisdictions declined to prosecute Trump for the hush money payment to Stormy Daniels.  That was within their power.  A good prosecutor follows their oath to seek and serve justice.   Apparently, the Manhattan District Attorney Alvin Bragg campaigned upon the promise that he would lock up Donald Trump.   The 14th Amendment to the Constitution states that everyone is entitled to “equal protection” of the laws.   It could be argued that Alvin Bragg engaged in selective prosecution by stating that he would go after Trump if he got elected.   Selective prosecution is a rarely effective defense to the commission of a crime based upon the theory that the prosecuting authority targeted the subject of the crime solely for reasons constitutionally forbidden.  It would seem that Alvin Bragg’s campaign statements about his promise to bring Trump to justice if he was elected would certainly give Trump’s lawyers the ability to argue selective prosecution. However, this kind of defense is seldom, if ever, successful in defending against criminal prosecution.

2. It is very easy for a prosecutor to get an indictment or an arrest warrant 

They have a famous saying that a prosecutor could indict a “ham sandwich.”  It is well known that when presenting evidence before a grand jury (which is how serious crimes are indicted in New York), the prosecuting authority has complete control of what evidence the grand jury hears.  By having total control of the narrative, the prosecuting authority can get just about anyone indicted.  The standard for an indictment is a finding that “probable cause”  exists that a crime was committed.   In New York, only a majority of the grand jury must vote that a crime has been committed to secure an indictment.

In Connecticut, the prosecution of a crime is either commenced at the time of the commission by a police officer acting on speedy information or through the application for an arrest warrant.   Similarly to a grand jury, when applying for an arrest warrant, a police officer (who is usually the affiant) states facts that they feel establish probable cause that a crime was committed. Probable cause is the lowest evidentiary standard of proof.   While a conviction for a criminal offense requires the state to prove each and every element of the charged crime beyond a reasonable doubt, probable cause only requires some evidence that it is more likely than not that a crime was committed.

In drafting an arrest warrant, the police officer can say whatever he or she wants about you.   The State’s Attorney and Judge review the affidavit to determine if there is probable cause that a crime has been committed based on the facts alleged by the police.   The allegations themselves must be proven at trial by the state.   Even if you are charged with a crime, no matter who you are, you retain the presumption of innocence. It is the state’s burden to prove the case against you beyond a reasonable doubt which is a much higher evidentiary standard than probable cause.

3. It is very common for prosecutors to charge multiple counts for the same criminal offense 

Many people were surprised that Trump was charged with 34 felony charges, each of which can possibly carry a penalty of up to 4 years in jail over the allegations of 3 hush money payments to three separate individuals.  I have seen many situations where clients have faced similar situations in Connecticut. For example, I had a client who violated an order of protection by sending several text messages simultaneously to the protected party.  Instead of charging the client with one felony count of violation of an order of protection, the state’s attorney elected to charge the client with 21 counts of violation of an order of protection with a possible maximum jail exposure of 105 years. In some cases, it seems that prosecutors will stack on multiple charges in this manner for the sheer shock value.

4. It should be noted that the indictment against Trump is very vague about what felony was the object of the conspiracy 

In the case of Donald Trump, the indictment alleges 34  felony counts of falsification of business records to further the commission of another crime.  However, the indictment is silent about the crime alleged to have been committed. The Sixth Amendment to the Constitution affords the accused the right to know the nature of the charges and evidence against them.  The initial indictment does not specify what specific crime was allegedly facilitated by the false business records.  Many have speculated that the crime could have been an attempt to violate federal or state election laws.  This would be problematic as many legal experts have suggested that making a hush payment with your funds could not violate federal election finance laws.  Also, the federal government has investigated the same facts and determined that there was no basis to prosecute Trump for violating federal election laws.   It could be possible that the district attorney intends to claim that Trump’s characterization of the business records as a legal expense constituted an effort to avoid paying state income taxes.  It is disappointing that the indictment does not specify precisely what makes the alleged false business record entries a felony-level offense.

5. The accused has many rights afforded under state and federal law 

As demonstrated by the well-known murder trial of OJ Simpson, having a great lawyer to defend you can make a significant difference in the outcome of the case against you.  Trump has amassed a team of three highly regarded and highly qualified criminal defense lawyers who will be filing motions to attack the case against Trump.  There are many other issues to be raised by the defense, especially the fact that the offenses charged all occurred well beyond the statute of limitations.

If you are charged with a crime, before you do anything or make any statements to the police, seek the services of an experienced criminal defense attorney who can defend your rights.  One huge error that Trump has consistently made is speaking about the allegations against him on social media, TV, and in interviews.  The right to remain silent is one of the most important rights the Constitution affords us.  If I were Trump’s lawyer, I would insist he stops discussing the facts of these pending criminal investigations.  Everything that Trump says can be used against him during the trial. It is crucial to exercise your right to remain silent whenever you encounter police and always insist on speaking to an experienced Connecticut criminal defense attorney before you speak with the police.

The criminal justice system in our nation affords many valuable rights to the accused.  Being accused of a crime does not take away the presumption of innocence.  If you are under investigation for a crime, contact an experienced Connecticut criminal lawyer before you engage with the police or make any statements.
























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