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In the history of criminal law, embezzlement used to be a crime where defendants easily got away from conviction because of a loophole in the law. Lack of proof for the element of a “trespassory taking” made it difficult for the prosecution to pursue the embezzlement charge. For this reason, legislators decided to resolve the issue by amending the law.

Embezzlement Definition

Embezzlement is the fraudulent act of stealing personal property of an employer, private company or government by a person who was entrusted with it. Oftentimes, the phrase “misappropriation of money” is used to describe this crime. Transferring the stolen property to a third party will not affect the charge of embezzlement.

Elements of Embezzlement

As mentioned above, criminal law has been amended to eliminate the problem of the lack of “trespassory taking.” Now, the law only requires proof that the defendant possessed the property, e.g. goods or funds, as a result of his position or authorization granted to him to exercise substantial control over the property. Lastly, it should involve an intentional act on the part of the embezzler.

To assess whether the defendant had substantial authority over the stolen property, courts typically look at factors such as the defendant’s position in the company, description of his tasks and the company’s practices.

Embezzlement Cases

There are different types of acts of embezzlement. The most common case is where the defendant acquires small amounts of money over a period of time. In other cases, the embezzlers fraudulently take a significant amount of property in the form of goods or funds in one single act.

There are also cases where employees intentionally report a smaller amount of income to the company, then take out the difference for themselves. Stealing money through manipulation of accounting reports is also a form of embezzlement.

In a New Hampshire fraud case a couple of years ago, a 52-year old woman was sentenced for stealing more than $300,000 from a tennis club where she used to work as a volunteer. She acquired the amount by getting cash or issuing checks to herself over a period of ten years. The New Hampshire criminal court charged her with three felony counts of theft and issued a sentence of imprisonment.

Tax Issues

Funds that have been acquired through an act of embezzlement have to be declared to the IRS. Failure to do such could result to charges of tax evasion. If the embezzler decides to return the funds, he could be entitled to deduct the amount from his taxes.

Embezzlement Penalties

Typically, embezzlement penalties depend on the amount stolen and the level of trust granted to the defendant. Possible penalties include imprisonment up to ten years, fines, probation, restitution and community service.

Role of Embezzlement Lawyers

Courts consider many factors before imposing a sentence. Embezzlement lawyers usually present circumstances to the court that will justify an alternative to imprisonment. Alternative sentencing could be possible in cases where convicted embezzler only acquired a small amount and there was no prior history of theft, larceny or embezzlement on his records.

Preventive Measures

To safeguard their property from possible fraudulent actions of employees, companies have introduced the use of cash registers to make sure that they will receive exactly the amount of gross sales made on a particular day. Further, various tasks are often given to different employees so as to create a checks-and-balances system within the working stations even in the absence of the owners.

What can you expect the length of your Jury trial to be in New Hampshire?

Jury trials will often last longer than bench trials; not only is there the time spent on choosing the jury members and conduction voir dire, but instead of presenting the evidence to a judge (who is familiar with the law and the ramifications of the evidence), the evidence will be presented to people without legal experience, requiring more explanation.

In a jury trial, the attorneys must spend more time justifying why the evidence is important, what makes it admissible (accuracy of testing equipment, training of person conducting the testing, chain of custody), how they came to obtain the evidence (reasonable suspicion), and other factors that a judge would already be well versed in.

Another reason jury trials are so much longer than their bench trial counterparts is because closing arguments are virtually unnecessary in a bench trial (the judge already knows the law and how to interpret it), but are uniquely invaluable to the jury.

Opening and closing arguments set the stage for the jury, allowing both the prosecution to summarize his case and make one final plea for your conviction while simultaneously allowing your experienced DWI attorney to paint the best possible picture of you, your case, and why you should be found not guilty.

Finally, rather than just one man or woman making the decision about your guilt or innocence, six to twelve men and women have to discuss the case and try to come to unanimous agreement.

Advantages and Disadvantages of a Jury Trial when facing Drunk Driving Charges

If the evidence against you includes blood alcohol concentration levels above 0.08 percent, you are virtually always better off having your case heard by a jury.

It will be much easier for your experienced DWI attorney to convince a jury that there is question as to the accuracy of the breath analysis equipment, the training of the tester, or the accuracy of the machinery used.

Juries are also more willing to listen to arguments about chain of custody issues.

If you are a defendant who would rouse the sympathies of a jury, your attorney may encourage you to have a jury trial.

Regardless of the instructions received by the jury, they are human, and it is human nature to be favorable toward someone who elicits your sympathy.

It is also true that we humans tend to be harder on people whose appearances do not match our expectations, so your attorney may feel a bench trial may be more beneficial to you.

Bench trials can be significantly less expensive.

As well, a bench trial may be the better option if you have a strong case for suppressing evidence or dropping charges based on a violation of your rights, since the judge is well-versed in the legal issues potentially surrounding your case.

Your DWI Lawyer and Jury Selection

Once you have decided to proceed to a jury trial, the first part of your trial is spent choosing the jurors.

New Hampshire has specific guidelines about who can serve on a jury.

The minimum requirements to be a juror include:

The juror must be at least 18 years old

The juror must be a United States citizen

The juror must understand, read, write, and speak English

The juror cannot be mentally or physically handicapped to such an extent that it would prevent them from effectively serving

No one who has been convicted of a felony can serve as a juror in New Hampshire

Once a year, the clerk of the court compiles a list of names of prospective jurors and provides the list to the court.

Jurors are drawn from both the department of motor vehicle records and the town and county voter registration records.

Once a juror has served, they are exempt from serving again for three years.

Prospective jurors are required to disclose the following information:

Whether or not they expect to have any benefit from the disposition of the case

Whether or not they are related to anyone involved in the prosecution or defense

Whether or not they have advised or assisted either side

Whether or not they have already formed an opinion about the case

Whether or not they are employed by or employ anyone involved in the case

Whether or not they are prejudiced in any way regarding the case

Whether or not they employ any of the attorneys involved in the case

Your New Hampshire Lawyer seeking Voir Dire

Voir dire is French for “to see, to speak,” but literally means seeking the truth.  It is the interview process by which your attorney and the prosecutor will eliminate jurors.

Both your attorney and the prosecuting attorney will be allowed to dismiss prospective jurors whom they feel would be most detrimental to their side of the case.

Twelve-panel juries are the norm, but six-panel juries are used for crimes which carry a maximum sentence of less than one year in prison.

Before voir dire, your attorney will be given a copy of the juror’s questionnaire, which each juror is required to fill out when called for duty.

Your attorney will be trying to determine if each juror has any extreme prejudice against drunk driving.

Your attorney will tell the juror a small amount about your case, probing all the time for any indication that the juror would not be able to make a fair and just decision, but has preconceived notions about your particular crime (or race, or gender, etc).

New Hampshire statute allows for the attorneys to question the prospective jurors for a “reasonable” amount of time.

The judge will also examine the jurors, as well as give instructions and information about the case and the proceedings to the jury pool.

The questions the attorneys ask must be carefully constructed to elicit information without attempting to “plant a seed” in the juror’s mind about the trial or the expected outcome of the case.

Your attorney will be looking for a specific type of juror that he or she wants, and certain ones that he or she will definitely want to exclude.

For example, if a prospective juror was an active member of M.A.D.D. or had lost a relative to a drunk-driving accident, your attorney would probably move to eliminate that juror from the jury pool.

In addition, if the juror is friends with anyone involved in the prosecution, or has other relationships that would pose an ethical dilemma to the decision-making process, your attorney will remove the juror “for cause.”

Peremptory Challenge in your DWI defense

In addition to being able to eliminate any juror for cause, both the prosecutor and the defense attorney can eliminate a limited number of jurors with a peremptory challenge.  This simply means that they do not have to have a reason for not wanting the juror; they just don’t..

Your experienced DWI attorney will have a strongly-developed sense about potential jurors and these peremptory challenges may be based more on instinct and gut feeling than on actual evidence of prejudice.

In all but murder cases, New Hampshire limits the number of peremptory challenges to three.

The state is allowed an equal number of peremptory challenges per each defendant, which, in DWI cases, is typically one person.

If there are only six people on the jury, the peremptory challenges are limited to two.

Once those challenges are exhausted, the court is responsible for ensuring the remaining jurors are capable of serving without prejudice.

What happens when the New Hampshire court finds out about Misstatement of Jurors in your Trial

If a juror willfully misleads the court, they can be dismissed.

If it was not willful it may not have much significance, but it will be an avenue your attorney will be able to explore for a mistrial.

This post contains excerpts from The DWI Book, the definitive guide to protecting your rights in the face of New Hampshire’s tough DWI/DUI laws

The Jury at your DWI hearing

This article is part 1 or 2 that will walk you through the experience and significant aspects of a jury trials in the state of New Hampshire.  Check back on Thursday for Part two of NH Jury Trials Explained.

There are two main types of trials: bench trials, which occur before a judge alone, and jury trials, which occur before a jury of six or twelve people who hear all of the testimony and determine your guilt or innocence.

Depending on the type of DWI you have been charged with, you may or may not have your trial before a jury.

Right to a Jury Trial in New Hampshire

Any person charged with a crime, including misdemeanor DWI charges, has the right to have a trial by a jury of their peers.

If you choose not to have a jury and just have a judge decide your case, you have to waive your right to a jury trial.

Traffic violations are not considered to be crimes in New Hampshire, and as such, are not eligible for a trial by jury.

In some districts of New Hampshire, if you are being tried for your first DWI offense and it is a misdemeanor A charge, your trial may be a bench trial only, called a de novo trial.

However, if the judge finds you guilty, you can immediately appeal that decision to the superior court for a jury trial.

Let your DWI Attorney advise you on having a Bench Trial Versus Jury Trial

Your DWI attorney will be able to advise you on whether or not you are better off waiving your right to a jury trial.

Your attorney will most likely be familiar with the judge; he or she may have had experience with both jury and bench trials before that judge and have a true sense of the judge’s fair-mindedness and stance on DWI.

Another reason your attorney might encourage you to waive your right to a jury trial is if there were extenuating circumstances involved in your case, like a serious accident, injury or death.

Because the jury is likely to be more emotional with their decision, your case might play out more fairly with a judge making the decision.

Jury trials require more steps than bench trials, because the judge must instruct the jury about the law and how to make a decision.

Selecting the jury can take time, as both the prosecution and the defense have a say in the jurors being chosen.

During the trial, the attorneys on both sides may have to spend more time presenting and explaining evidence because the jury does not have the same legal background that a judge has.

This means extra hours and potentially extra charges you will be paying your attorney, particularly if you are paying your attorney by the hour – but the outcome may well be worth it depending on the circumstances of your case.

Another additional cost may be due to more pressure to have expert witnesses to try to explain to a jury why the evidence that appears to be against you should not be relied upon.

This type of testimony may not be required in a bench trial.

Your attorney will be able to advise you about your decision; ultimately, though, the decision is yours to make, as it is your constitutional right.

People at the Trial While you are facing your Drunk Driving Penalties in New Hampshire

Most trials are open to the public, but other than the occasional law student observing the court, most of the people in the courtroom will be somehow connected to the case.

There will be the judge and eventually the jury, once they are impaneled. There is also a bailiff present.

The bailiff is the person who says, “All rise” when the judge comes in to the room or leaves the room.

He is there to maintain security and order and to bring witnesses in to the room when it is their turn to testify.

There will also be a stenographer – the person who transcribes everything that is said during the proceedings.

The prosecutor will be present and may have assistants or clerks with him or her.  Your attorney will be there, of course, and may have assistants as well.

You will be there, and so will the witnesses for both the prosecution and the defense, although they may not be in the actual courtroom once the trial starts, because it can potentially damage their testimony to hear other witness’ testimony.

In New Hampshire, sequestration of witnesses is at the discretion of the court and not always guaranteed, but your attorney should request it anyway, because it may become something that you can argue on appeal (concerning the testimony of witnesses) if the outcome is undesirable.

This post contains excerpts from The DWI Book, the definitive guide to protecting your rights in the face of New Hampshire’s tough DWI/DUI laws