Does an Incarcerated Parent Have a Right to Child Visitation?

Yes.  In California an incarcerated parent has a right to reasonable visitation with his or her child. Therefore, visitation between children and their incarcerated parents cannot be denied without finding that the visitation will be unduly detrimental to the child.  According to one Long Beach Criminal Attorney, California law outlines some alternative means by which an incarcerated parent can secure meaningful access to the court to represent his or her visitation rights :
• Deferring the action until the parent’s release from jail.
• Appointing an attorney for the parent.
• Ordering the transfer of parent to court.
• Using depositions instead of personal appearances.
• Propounding written discovery.
• Conducting hearing by telephone or closed circuit television
• Using services of the family court mediator

What Rights Must Be Waived in Order to Plead Guilty?

In the state of California a defendant’s guilty or no-contest plea in a criminal or DUI case is valid only if it is voluntarily and knowingly made. What this means is that before accepting the plea or an admission of charged enhancements, the trial court must expressly advise the defendant and obtain his or her waiver of the basic constitutional rights to trial by jury, to confront and cross-examine witnesses, and against self-incrimination. The record must show explicit advisements and waivers of these constitutional rights.  The law provides no specific formula for advising a defendant of his or her constitutional rights. According to one Kern County DUI Attorney resource, all that is required is that the record must show by direct evidence, in light of the totality of circumstances, that the defendant was fully aware of these rights. However, it is best for the court to ensure that there is an adequate record for appeal and to protect the validity of a defendant’s guilty plea by making its advisements, defendant’s understanding of his or her rights, and waivers as complete and explicit as possible.

A Judge hearing the case may rely on a defendant’s validly executed waiver form as a proper substitute for a personal admonition.  If the court, in questioning the defendant and defense counsel, has reason to believe the defendant does not fully comprehend his or her rights, the court must conduct further inquiry of the defendant to ensure a knowing and intelligent waiver of the defendant’s rights.  Otherwise, the court need only determine whether the defendant has read and understood the contents of the form, and discussed them with defense counsel.

A mere on the record admission by the defendant does not implicate the Boykin-Tahl requirements, says a local Kern County DUI source.  When the defendant pleads not guilty and stipulates to one or more, but not all, of the evidentiary facts necessary for a conviction of the charged offense, the concerns that prompt the requirements of advice and waiver are not present.  The advisements and waivers are required, however, when the defendant submits a “slow plea,” i.e., an agreed-on disposition of the case that does not require the defendant to admit guilt but results in a finding of guilt.

Can We Trust Prosecutors to See That “Justice” is Done?

In this country prosecutors have a higher duty than defense attorneys.  They are charged with the duty to see that a criminal defendant’s rights are protected and to ultimately see that justice is done.  But how does this work out in everyday practice.  No one can deny that the criminal justice system and those engaged in the adversarial process is somewhat of a competitive enterprise.  In Court pride and a sense of winning takes control and the duties that are inherent in the job of a prosecutor may fall by the wayside.  There no doubt needs to be checks and balances for assistant district attorneys to insure that they live up to their legal obligations.