When representing a client for shoplifting, don’t take the case lightly; it may seem minor, but it can have major implications. It’s important to get all the facts out during your client interview. Here’s a list of 10 questions to make sure you cover all the bases.
“Shoplifting” is technically a theft offense (see Pen C §484) committed within a commercial establishment, such as a retail store. Generally, if the value of the item taken exceeds $950, then the offense is grand theft; otherwise, the offense is petty theft. Pen C §§487-488.
Sometimes shoplifting is charged as a burglary on the theory that the defendant formed the intent to steal before entering the store. See Pen C §459. In those cases, in addition to the value of the item taken, the “intent to steal” and when the defendant formed that intent are key issues.
In many cases, a store won’t allege a theft unless the defendant actually left (or attempted to leave) the premises, as opposed to simply walking past the “checkout aisles.”
When you’re interviewing a client charged with shoplifting, you need not only the basic information on his or her arrest and the item allegedly stolen, but you should also get specific details by asking the following 10 questions:
- Was there any distraction that occupied the client’s attention such that he or she simply forgot to pay for the item in leaving the store’s premises; and if so, what was that distraction, and is there evidence of it?
- Did anyone else, such as a friend, spouse, or child of the client, accompany the client in and out of the store?
- Where within the store did the alleged theft take place (e.g., in a store dressing room, a restroom, or a main store aisle)?
- How was the item allegedly removed from the store (e.g., hand-carried with the item visible; placed in a backpack, pocket, purse, or bag and not visible; or in a store-provided shopping cart or basket with the item visible)?
- Did the client leave the store while running or walking?
- Did the client have any money while in the store, and if so, how much?
- How did the store personnel apprehend the client, what did the client say on being apprehended, and what took place thereafter (e.g., was the client held in an office and prevented from leaving; was there an interrogation and if so, by whom; and was the interrogation recorded)?
- Was the client injured in the process of being apprehended by store personnel or anyone else?
- Were any of the events, including the alleged theft and apprehension of the client, recorded on store video surveillance equipment?
- Had the client been in the store on previous occasions?
If there’s strong evidence of culpability, look for the possibility of a “civil compromise” (Pen C §§1377-1379) in resolving the charges. If that’s not possible and it’s within the limits of prosecutorial discretion and in the interests of justice, investigate whether the prosecutor can reduce the charges (e.g., from a felony to a misdemeanor), or whether the offense is subject to a program of diversion or deferral of judgment.
For help with shoplifting cases and many other basic criminal matters, turn to CEB’s California Basic Practice Handbook, chapter 6—a must have book for new practitioners. On civil compromises, check out CEB’s “crim law bible,” California Criminal Law Procedure and Practice §25.5.
Related CEB blog posts:
- Lineup Your Defense
- Are Miranda Exceptions Now on Your Radar?
- 18 Questions to Spot the Issues in a Criminal Case
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