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Enlil
OTD God-King




Registered: 08/16/03
Posts: 65,470
Loc: Uncanny Valley
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Ask an attorney 42
#15908891 - 03/06/12 12:33 PM (11 years, 10 months ago) |
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It occurred to me that many of you may have legal questions or issues that you would like answered, but you don't want to pay an attorney. I have decided to answer whatever legal questions you might have with the following caveats:
1. I am a licensed attorney who practices in many areas of the law including criminal defense, but I am not YOUR attorney. This means that you should not be giving me any confidential information that you wouldn't want to give the whole community and anyone else watching. Keeping it anonymous helps you keep safe and helps me stay within ethical rules.
2. Law varies from state to state. If you give me the state you're from, I will try to give you as much specific information as I can. I can't guarantee the accuracy of anything because there could always be a state in which things are different. Information I offer should be considered general in nature and might not take local law into consideration.
3. I will NOT be using Lexis or Westlaw searches to help you. These services are very expensive, and I can't use them just to give out free advice. I will, if you so request, point you in the right direction so that you can go to a local law library and start searching on your own.
4. This thread is not for debating. If it turns into a debate over who's right and who's wrong, I will simply stop participating.
5. Free legal advice is sometimes not worth what you pay for it.
Guidelines:
1. In the law, we use a lot of jargon. We calls these "terms of art." When I use a term of art in my posts, I will try to put it in quotation marks so that you can look it up for more information if you so desire. Understand, however, that I often use quotation marks normally, so not everything in quotations is a term of art.
2. If you have multiple questions, ask them in multiple paragraphs so I can separate them when answering. I'm not exactly the most skilled at using this editor.
-------------------- Censoring opposing views since 2014. Ask an Attorney Fuck the Amish
Edited by Enlil (01/29/14 10:35 AM)
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 65,470
Loc: Uncanny Valley
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Re: Ask a defense attorney [Re: Amanita86] 9
#19253999 - 12/10/13 05:39 AM (10 years, 1 month ago) |
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Of course not. First, I'm not certain that the guy is a violent criminal at all. While I am sure that he used and sold heroin, I am far less sure that he robbed these women and took their car.
Even assuming that he did actually do it, I wouldn't feel bad. The state has very competent prosecutors who have an entire police force of investigators. My former office had 4 investigators shared by 58 attorneys to handle over 5000 cases a year. If the state can't meet its burden of proof with that kind of advantage, it's certainly not my job to help them.
The system works best when both sides fight their hardest to win. If I ever gave anything less than 100%, I'd be skewing that system even more in favor of the state than it already is. When the cops and prosecutors do their jobs well, I lose every time. My job is to hold them to their burden of proof by keeping the bar as high as possible. Without people like me fighting to keep that bar high, everyone loses. The clients don't get a fair trial, and the community loses because they now live in a world where the cops and prosecutors decide who gets to walk the streets and who sits in jail.
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 65,470
Loc: Uncanny Valley
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Re: Ask an attorney [Re: Enlil] 7
#25679320 - 12/14/18 03:58 PM (5 years, 1 month ago) |
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ANNOUNCEMENT: This isn't a discussion thread. When there's a lot of back and forth, it becomes increasingly difficult for me to answer everyone's questions because they get lost in a sea of opinions and, sometimes, bickering back and forth.
So, I'm just asking nicely...please avoid getting into discussions about these situations. I can only answer questions in this thread once in awhile. I try to answer every question posed since my last time, but some people aren't going to get answers if it gets too convoluted with nonsense.
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 65,470
Loc: Uncanny Valley
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You're discussing the difference between direct and circumstantial evidence. Someone hearing the tree would definitely be direct evidence of the sound.
But what if someone saw the tree on a silent video camera? That's direct evidence that the tree fell, but not direct evidence that the tree made a sound when it fell. That is circumstantial evidence of that. From the evidence that the tree fell, we can INFER that the tree made a sound when it fell.
So, what if we see the tree standing up one day and on the ground the next. Can we reasonably infer that it fell, thus making a sound? I'd say yes. That's circumstantial evidence that it made a sound.
Let's look at murder prosecutions. One element of murder is that you have to prove that someone died. We rarely can do that with direct evidence because most of the time there is no witness to testify that he/she saw the person die. Nonetheless, we can find a witness who can testify that the person is dead. From that, we can INFER that the victim died. This is circumstantial evidence.
You hear a lot about circumstantial evidence, and it usually is discussed as though it's weaker than direct evidence. It can be, but it can also be very strong evidence. DNA evidence is circumstantial, for instance....
That's my lecture for the day. I'm going to have a wet burrito followed by acid reflux.
-------------------- Censoring opposing views since 2014. Ask an Attorney Fuck the Amish
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bodhisatta 
Smurf real estate agent


Registered: 04/30/13
Posts: 61,889
Loc: Milky way
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 65,470
Loc: Uncanny Valley
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Saul Goodman routinely does things for which he can be disbarred. You'd have a very hard time finding a lawyer like that, and if you do, you'd be paying him a whole lot of money...
Think of it this way...My license cost me 3 years of school plus over $150k in tuition...how much are you going to have to pay me to risk that license? It's gonna be a hell of a lot...
As far as your second part, you can ask a lawyer about options...but you probably shouldn't tell him that you actually plan on breaking the law in the future. That is the type of thing that he can (and sometimes must) report.
I would guess that there are very, very few lawyers out there that are overtly crooked like saul goodman, but every lawyer faces ethical challenges all of the time. It takes constant dilligence to ensure that you're doing the right thing...many attorneys fail at this, and sometimes in big ways. After awhile without getting caught, some attorneys become completely indifferent to certain ethical duties...you MIGHT be able to find one to fit your needs.
Caution: If you do find such an attorney, I wouldn't trust him too much...If he's willing to compromise ethical duties for money, he's probably also willing to compromise his duties of confidentiality and loyalty to save his own ass.
-------------------- Censoring opposing views since 2014. Ask an Attorney Fuck the Amish
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 65,470
Loc: Uncanny Valley
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*you're
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 65,470
Loc: Uncanny Valley
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You're not on probation, but that doesn't mean that police looking at your record won't think you are. The order should be finalized in the next month or two. Until then, I wouldn't go around being a dick.
-------------------- Censoring opposing views since 2014. Ask an Attorney Fuck the Amish
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Anonymous #138
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I know everyone means well...however...
You should not answer these questions before Enlil does.
They will get buried and you will rob someone of valuable information from a knowledgeable source.
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JohnnieYen
Okay



Registered: 03/15/11
Posts: 3,529
Loc: City Z
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your grow has been compromised. Shut it down or move is what I would do. Don't take any chances. Prison is not worth a bit of weed.
-------------------- [center
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LogicaL Chaos
Ascension Energy & Alien UFOs




Registered: 05/12/07
Posts: 69,297
Loc: The Inexpressible...
Last seen: 54 minutes, 48 seconds
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Re: Ask an attorney [Re: Enlil] 4
#25152496 - 04/20/18 05:14 AM (5 years, 9 months ago) |
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Can i put fake sidewinder missiles on my SUV without getting in trouble with da cops?
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 65,470
Loc: Uncanny Valley
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The criminal justice system needs plea bargains. If 25% of cases went to trial, the system would collapse. Everyone knows it. The judges, the prosecutors, and the defense attorneys. Public defenders are in limited supply, and they have less resources than DAs. Everyone in that system attemps to triage cases to get through them and get the best outcomes they can overall.
Bring in a private attorney to that system. Bring in someone paid by a family and accountable to that family. He/she isn't thinking about the system. He's singlemindedly trying to get the best outcome for his particular client. He couldn't care less if the DA has 100 more serious cases. He wants to discuss this case. He wants extra discovery. He appears to want to go to trial. The DA is now going to spend 10 times the amount of time in pretrial with this one small case when he/she could process 9 other cases in the same time.
A DA in that position is going to be more generous than a DA that knows his/her opposing counsel is just as overwhelmed as he/she is.
As a private attorney, and indeed even as a law student, I have had District Attorneys dismiss criminal cases on the day of trial, hoping we'd take the deal at the last minute. They don't want to go up against a zealot. They have 100 active cases, and they know you have been working on this case for a month preparing for trial. They haven't. They probably sent out subpoenas a week ago and read the file last night. They just don't want to waste their time.
The same happens in civil, to an extent. Most lawyers do not prepare a case for trial. They prepare it for settlement. This is true because most cases settle. Trial is brutal hours, and every lawyer knows it. I've settled more cases the night before, or the day of jury selection than I've tried cases.
Of course, lawyers have other tricks, too. Keeping in mind that the DA is dealing with 100 cases, a private attorney will often meet with the DA with both a carrot and a stick. The threat of trial is the stick, but a lawyer will often come in with information about the client's rehabilitation or work in the community. Perhaps the client has already volunteered to go into a rehab or has worked to improve himself. Or maybe he's gainfully employed, so why would we want to stop him when he's on the way to rehabilitation?
There are many ways to play the game, and a private attorney is more likely to use as many as possible.
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filthyknees
no coincidence


Registered: 03/08/13
Posts: 6,283
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Re: Ask an attorney [Re: Doc9151] 4
#27238214 - 03/05/21 06:45 AM (2 years, 10 months ago) |
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Wow I had no idea so many of you are attorneys .
-------------------- But if you're in a hurry, and really got to go If you're in a hurry, might have to find out slow That it's one thing to try and another to fly You get there quicker just a step at a time It's one thing to bark, another to bite The show ain't over till you pack up at night
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Mr.PhilCybin
Master Baiter


Registered: 06/13/11
Posts: 11,642
Loc: Gnarnia
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Re: Ask a defense attorney [Re: naum] 3
#15913461 - 03/07/12 11:05 AM (11 years, 10 months ago) |
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I don't have any questions right now, but I wanted to thank you for doing this.
-------------------- I'm stupid, Falcon91Wolvrn03 is smart. I'm ugly, Falcon91Wolvrn03 is beautiful. I'm a loser, Falcon91Wolvrn03 is a winner. Someday, I hope to be like Falcon91Wolvrn03 but secretly know I never will.
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 65,470
Loc: Uncanny Valley
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Re: Ask a defense attorney [Re: Diploid] 3
#16632894 - 08/02/12 09:39 AM (11 years, 5 months ago) |
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For every element of a crime, there are two components....The guilty act (actus reus) and a mental state (mens rea). Both need to be present for every element in order to be convicted. Let me give a simple example.
For the crime of simple possession, the elements are:
1. Exercising dominion and control over 2. A scheduled substance
Both of those have to be proven, but there's more to the picture. For each element, the accused must also meet a particular state of mind...in this case, the mens rea for both elements is knowledge. He has to KNOW that he has dominion and control, and he has to KNOW what the controlled substance is.
So, if he has a bag of coke in his pocket but thinks it's baby powder...the second element isn't there because he lacks the requisite mens rea for that element.
There are several levels of mens rea possible for an element...they are:
1. Strict liability - Doesn't matter what state of mind he had 2. Negligence - Failure to take reasonable care 3. Recklessness - Consciously disregarding a substantial risk 4. Knowing - Has actual knowledge 5. Intent - Intends the prohibited result
These are listed in ascending order.
With that background, lets look at statutory rape. It varies from state to state, and some states have an age difference provision, but the basic elements are:
1. Coitus, 2. Accomplished on a minor,
The mens rea for each are typically:
1. Coitus - Intent...Must intend to engage in coitus. 2. Accomplished on a minor - Strict liability...Doesn't matter if you knew the victim was a minor...OR - Negligence...A reasonable person would have known it was a minor...OR - Recklessness...You had facts that pointed to her being a minor which you disregarded...OR - Knowledge...You actually KNEW she was a minor
So, under the facts of your hypo, it's gonna depend on what the mens rea requirement is for the second element. If it's knowlege, you're probably fine...if it's strict liability, you're fucked...anything in between...it could go either way.
A good portion of states are strict liability, and that seems to be the direction that we're headed. I'm sure it won't be too long before every state is strict liability.
-------------------- Censoring opposing views since 2014. Ask an Attorney Fuck the Amish
Edited by Enlil (08/02/12 09:44 AM)
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Diploid
Cuban



Registered: 01/09/03
Posts: 19,274
Loc: Rabbit Hole
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Re: Ask a defense attorney [Re: Enlil] 3
#16632936 - 08/02/12 09:48 AM (11 years, 5 months ago) |
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Wow, thanks again. As usual a comprehensive and definitive answer. You keep this up and you're going to change my mind about lawyers.
-------------------- Republican Values: 1) You can't get married to your spouse who is the same sex as you. 2) You can't have an abortion no matter how much you don't want a child. 3) You can't have a certain plant in your possession or you'll get locked up with a rapist and a murderer. 4) We need a smaller, less-intrusive government.
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Diploid
Cuban



Registered: 01/09/03
Posts: 19,274
Loc: Rabbit Hole
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Re: Ask a defense attorney [Re: LySergic D] 3
#16727769 - 08/19/12 04:38 PM (11 years, 5 months ago) |
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Damn LySergic D,
I'm so sorry to hear this. And for something natural that grows out of cow shit all by itself. What a fucked up, neurotic society we live in man. In a few hundred years, kids in history class will read about this shit like we read about forced gladiatorial games to the death and slaves being fed live to hungry lions.
PM me if there's anything I can do to help. Maybe send you some $ while you're there to help pass the time.
People don't understand why I so deeply despise my government and the religious shits who drive the legalization of morality. This is why. This makes me so angry... so insanely angry.
God dammit.
-------------------- Republican Values: 1) You can't get married to your spouse who is the same sex as you. 2) You can't have an abortion no matter how much you don't want a child. 3) You can't have a certain plant in your possession or you'll get locked up with a rapist and a murderer. 4) We need a smaller, less-intrusive government.
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 65,470
Loc: Uncanny Valley
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Quote:
Celestial Traveler said: That'd be cool if you met cellmates there and formed an acapella band and went out and recorded platinum albums after you got out 
In my professional opinion, this is not only the most likely outcome...it is a virtual certainty.
-------------------- Censoring opposing views since 2014. Ask an Attorney Fuck the Amish
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Diploid
Cuban



Registered: 01/09/03
Posts: 19,274
Loc: Rabbit Hole
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Re: Ask a defense attorney [Re: Crystal G] 3
#17988487 - 03/21/13 08:29 AM (10 years, 10 months ago) |
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You aren't the first person to try to cheat a breathalyzer, but any machine susceptible to fooling wouldn't last long on the market.
Breathalyzers are smart enough to detect cheating. They measure both the pressure and the RMV (Respiratory Minute Volume) to ensure the minimum threshold for an accurate result is reached. If you try to hold back from blowing too hard to fake out the machine, it will simply indicate an invalid test and you'll be asked to repeat the test until you blow hard enough for an accurate measurement.
I've read all kinds of nonsense on the internet from people who swear they can beat the machine, but they're all lying or delusional. Everything from putting a penny under your tongue, to breath mints and gum, to inhaling instead of blowing, even drinking piss before the test. None of it will work. The machine contains check valves to ensure air flows only one way, and the sensor is very accurate and very selective. It's actually relatively simple and reliable technology long ago perfected.
The best way to blow a negative is to not drive drunk and put other people's loved ones at risk. Drunk drivers are a big reason why drugs are still illegal. If we can't even use alcohol responsibly, it's no wonder the general public won't trust us with anything stronger.
-------------------- Republican Values: 1) You can't get married to your spouse who is the same sex as you. 2) You can't have an abortion no matter how much you don't want a child. 3) You can't have a certain plant in your possession or you'll get locked up with a rapist and a murderer. 4) We need a smaller, less-intrusive government.
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 65,470
Loc: Uncanny Valley
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Re: Ask a defense attorney [Re: vandago] 3
#19051958 - 10/29/13 01:17 PM (10 years, 2 months ago) |
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If he told her that aliens had flown over and done a weed scan on her car, so he knows she's got weed, it wouldn't matter. The license being suspended is irrelevant to the weed. The cop can lie and tell her that her license is suspended if he wants. He can threaten to tow the vehicle. None of that changes the fact that she willingly gave her weed to the cop.
If it were a consent search situation, one MIGHT be able to make an argument that the consent was coerced, but even that would be a weak argument. Here, there was no search. She ratted herself out and handed over the evidence.
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