Hello, i'm the victim in a felony vandalism case where the defendant is on video and audio . I did not go to court yesterday which was the arraignment, I was told by another party that was there the defendant was offered 3 choices of what to do and her lawyer might be contacting me. my questions are, is it legal for them to contact me outside of court? and can i legally counter their offer by asking for more money to agree to settle the case without pushing into trial? (I don't want this to be taken as extortion to settle)
It is not uncommon for the defense attorney to contact the victim to try to agree to a restitution amount. You would not go to court at arraignment--only for trial and if there was to be a restitution hearing. Make sure you have backup information to document the sum you will be requesting.
Unless you are represented by counsel, it is perfectly legal and ethical for an attorney to contact you. You do not have to speak with the attorney or their investigator if you do not want to do so. The defendant may be ordered to pay restitution if convicted. Restitution is the amount of your damages. For example, if the defendant vandalized a fence by spray painting it, you would be able to recover the amount it cost to have that section re-painted. Unless you have a civil case against the defendant, you don't have a case to settle.
DISCLAIMER: This material is for information purposes only and is not legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this information does not create an attorney-client relationship.
If you have a lawyer, then the defense attorney cannot contact you. If not, they can contact you. You have no power to "settle" a criminal case. The only person with the power to dismiss a case is the prosecutor. I would be very wary of asking for money to not testify, as this is illegal. Contact the DA and speak with him or her about what your restitution amount is rather than doing so with defense counsel.
It is perfectly legal for the defendant's lawyer to contact you outside of court. If there was a vandalism you are entitled to recover your damages, nothing more. I would be extremely careful about how you phrase your counter offer. You would be best served by hiring your own lawyer to represent you which victims do in some cases. That way you could protect your rights but also not say anything that might come back to harm you.
Once the case has been reported to the police and charges filed by the DA the victim in a criminal case has limited abilities to influence the outcome. There is something called the victim's bill of rights which defines your rights in the process. Among your rights is that the DA has to inform you of the status of the case and listen to your input about how the case should be resolved. Notice though that the DA only has to listen to what you want, they do not have to do what you. Different DA's offices treat this requirement very differently. Some DA's might put a lot of weight in your opinion, others may put none. Hiring a lawyer to represent you as the victim would also help you protect your rights under the Victim's Bill of Rights.
The answers to these questions are intended for informational purposes. The attorney-client privilege does not attach and will not attach unless a written contact is entered into with Ms. Daly's firm. CIRCULAR 230 DISCLOSURE: If the above relates to a tax matter then, pursuant to Treasury Department Rules, we must advise you of the following: The advice contained in this communication was not intended or written to be used and cannot be used for the purpose of avoiding penalties that may be imposed by the Internal Revenue Service. Under the applicable Rules, a taxpayer may rely on our advice to avoid penalties only if the advice is reflected in a more formal tax opinion that conforms to IRS standards
It's perfectly legal to be contacted by a defense attorney. Unless you have your own attorney. The district attorney, though, is not your attorney.
As for asking for more money, that you cannot do. If your damages are $1, that's all you can ask for. You cannot get "pain & suffering" damages in criminal. Restitution in criminal court is limited to actual amount of loss.
You also have no control in "pushing the case to trial". The da may agree to a civil compromise, but doesn't have to. Even if you don't agree to an amount in exchange for not pushing trial, if da and defense attorney agrees to a settlement. That's ok too
Any information provided through Avvo.com in response to a question is not, and cannot be considered a formation of any Attorney-Client relationship. Questioner understands that the nature of this system allows only for a cursory review of case information, and more detailed information should not be divulged in this public forum. As such, Questioner is recommended to contact an Attorney in order to discuss the full details of their case and a more specific advisement of potential rights and liabilities.
It is perfectly legal for a defense attorney to contact you if you are not represented by counsel. They are trying to negotiate a settlement for purposes of restitution.
It is legal for them to contact you, unless you have notified them that you are represented by a private attorney for the purposes of negotiating the restitution amount. If I were your attorney I would advise you to keep careful records of the damages and expenses which reasonably resulted from the crime. If you feel like you are starting to ask for more than you actually spent or have lost then it is time to either contact an attorney or reduce your request. You will not get in trouble for extortion, the court proceeding has already begun and you are not threatening anything illegal.
As other lawyers on this thread have said, It is legal unless you are represented by an attorney and the defendant's attorney knows that. But, I'm surprised the District Attorney hasn't contacted you. Usually, they will tell victims and witnesses not to discuss the case with the defense.
The response above is not intended as legal advice. This response does not create an attorney-client relationship. Legal questions can only be fully answered through consultation with an attorney to whom you give full and accurate details. Anything you post here is not confidential and is not protected by the attorney-client relationship. It is highly recommended that you seek advice from a criminal defense attorney licensed in your jurisdiction by setting up a confidential meeting.
One thing to add to what the other lawyers have said: It's possible that the defendant's attorney is trying to resolve the case by way of a civil compromise under Penal Code section 1377 & 1378. He would first have to get the case reduced to a misdemeanor. You can only get your actual damages and it is legal for the attorney to contact you.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline