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Enlil
OTD God-King




Registered: 08/16/03
Posts: 67,521
Loc: Uncanny Valley
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Quote:
luvdemshrooms said: Well, I hear what you are saying, but... a few years back I had the misfortune to be on a grand jury in the county where I reside. I can assure you that people were prosecuted for just that, although if I can't recall if each instance of that being prosecuted was a part of a larger parcel of offenses. I want to say there were at least a couple instances of it being the sole charge, but memories fade.
I agree with your summation of it most likely being prosecutors being prosecutors.
Funny thing is the local head prosecutor has somewhat of a rep for being a coke head. I have no first hand knowledge of it though.
One of the "cases" he handled during my grand jury time was a mentally slow individual who had 2 - 3 seedlings in Dixie cups. Half dead seedlings. He told us he was prosecuting this person to help them. I wanted to laugh and cry at the same time.
The grand jury was a very distasteful experience that I hope to never repeat.
I don't know what state you're in, but some states (and the federal system) require that a grand jury bring charges. Other states allow charges to be brought by a DA alone. In states where a DA has to indict (have the grand jury bring charges), he will often just give the GJ the facts that support the charges being brought. You won't always know much more than that. He has to go to the GJ for anything he does, so he tries to make it as quick and efficient as he can. As you know, the defense is not allowed to bring evidence. It's almost certain that you got less than half of the story.
This is why it is often said that "A DA can get a Grand Jury to indict a ham sandwich."
Also, keep in mind that testimony in the grand jury can be a great source of impeachment material for the defense. It is quite common to cross-examine someone about inconsistencies between the two testimonies. Prosecutors try to minimize this by having as little testimony as possible in the GJ...not to mention, the more comprehensive the DA is with the GJ, the more of a preview of the case the defense has.
Edited by Enlil (03/10/12 07:50 AM)
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luvdemshrooms
Two inch dick..but it spins!?


Registered: 11/29/01
Posts: 34,247
Loc: Lost In Space
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Re: Ask a defense attorney [Re: Enlil]
#15928555 - 03/10/12 07:45 AM (12 years, 2 months ago) |
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Yeah. It was pretty clear that not only were we getting half the story, the half we were getting often wasn't even a well told half.
The ham sandwich line is one I've used here before.
I've made a couple posts on my grand jury experience if you'd care to use the search to find them. It was a depressing experience.
-------------------- You cannot legislate the poor into prosperity by legislating the wealthy out of prosperity. What one person receives without working for another person must work for without receiving. The government cannot give to anybody anything that the government does not first take from somebody else. When half of the people get the idea that they do not have to work because the other half is going to take care of them and when the other half gets the idea that it does no good to work because somebody else is going to get what they work for that my dear friend is the beginning of the end of any nation. You cannot multiply wealth by dividing it. ~ Adrian Rogers
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 67,521
Loc: Uncanny Valley
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Quote:
luvdemshrooms said: Yeah. It was pretty clear that not only were we getting half the story, the half we were getting often wasn't even a well told half.
The ham sandwich line is one I've used here before.
I've made a couple posts on my grand jury experience if you'd care to use the search to find them. It was a depressing experience.
This is why many states don't bother with Grand Juries. The federal system doesn't have a choice because it's in the constitution. Most states that have GJs do so because the state constitution requires it. One state I work in has mandatory GJ indictment for felonies and no requirement for misdemeanors. Even there, clients often waive indictment if they are going to take a plea anyway...since it's much quicker to get the case over with instead of waiting for an inevitable indictment.
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Stonehenge
Alt Center

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Posts: 14,850
Loc: S.E.
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Re: Ask a defense attorney [Re: Enlil]
#15929661 - 03/10/12 02:38 PM (12 years, 2 months ago) |
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Where i am we have both gj's and charges without a gj. The da can issue an "information" to directly charge the person. What usually happens is the da will information on most petty crimes and those he has a solid case. Those he has a weaker case but does not want to drop it outright since there may be pressure from victims and perhaps the public to go forward with, he will present to the gj. This is often the case with situations in which there are political ramifications. Or he may want to go forward but there could be pressure not to do so.
For example, there may be clear evidence to support the charge but it was a grandma at a demonstration who refused to leave private property and was charged perhaps with failure to obey a lawful order. By going through the gj he does not send the message that this will be overlooked in the future and keeps on the good side of cops who want this prosecuted. If the gj says no, he has done all he could.
-------------------- “A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.” (attributed to Alexis de Tocqueville political philosopher Circa 1835) Trade list http://www.shroomery.org/forums/showflat.php/Number/18047755
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 67,521
Loc: Uncanny Valley
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Re: Ask a defense attorney [Re: Stonehenge]
#15936484 - 03/12/12 06:21 AM (12 years, 2 months ago) |
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Quote:
Stonehenge said: Where i am we have both gj's and charges without a gj. The da can issue an "information" to directly charge the person. What usually happens is the da will information on most petty crimes and those he has a solid case. Those he has a weaker case but does not want to drop it outright since there may be pressure from victims and perhaps the public to go forward with, he will present to the gj. This is often the case with situations in which there are political ramifications. Or he may want to go forward but there could be pressure not to do so.
For example, there may be clear evidence to support the charge but it was a grandma at a demonstration who refused to leave private property and was charged perhaps with failure to obey a lawful order. By going through the gj he does not send the message that this will be overlooked in the future and keeps on the good side of cops who want this prosecuted. If the gj says no, he has done all he could.
I promise you that a prosecutor has no worries about "keeping on the good side of cops." In states where the GJ is optional, a prosecutor will often go to the GJ because he doesn't want to be the one who is blamed for the decision..that's true...but that's mostly about public opinion.
Another reason that a prosecutor goes to the GJ instead of filing an information is that a case brought by indictment is not as vulnerable to an appeal challenging probable cause to charge. An information is reviewed using a higher standard than an indictment.
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Stonehenge
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Re: Ask a defense attorney [Re: Enlil]
#15937120 - 03/12/12 10:48 AM (12 years, 2 months ago) |
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Enlil, you are the expert. I'm just giving my 2 cents in the form of examples where i've heard of similar cases locally.
>I promise you that a prosecutor has no worries about "keeping on the good side of cops." In states where the GJ is optional, a prosecutor will often go to the GJ because he doesn't want to be the one who is blamed for the decision..that's true...but that's mostly about public opinion.
Yeah, thats what i meant. Its the da who is most concerned about public opinion since its an elective position. From the scuttlebut i've heard, cops want to keep on the good side of prosecutors from a professional prospective so they can get convictions which look good for the cop. Prosecutors too want a high conviction rate though if they drop a case it does not hurt their conviction rate whereas the cop sees an arrest with no conviction. DA watches prosecutions vs convictions, cops watch arrests vs convictions. Cops do the leg work for the da's office although they have their own investigators too. Just saying they work together and locally at least, prosecutors seem to care about keeping the cops happy.
>Another reason that a prosecutor goes to the GJ instead of filing an information is that a case brought by indictment is not as vulnerable to an appeal challenging probable cause to charge. An information is reviewed using a higher standard than an indictment.
Yeah, and i've heard of malicious prosecution lawsuits being brought though its rare for them to succeed. Going the gj route avoids not only that but also accusations of political and other bias. If the da goes after a politician, it will almost always wind up in front of the gj.
-------------------- “A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.” (attributed to Alexis de Tocqueville political philosopher Circa 1835) Trade list http://www.shroomery.org/forums/showflat.php/Number/18047755
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johnm214


Registered: 05/31/07
Posts: 17,582
Loc: Americas
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Re: Ask a defense attorney [Re: Enlil]
#16540890 - 07/16/12 06:02 PM (11 years, 9 months ago) |
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Quote:
Enlil said:
That's true of the federal possession laws as well, at least with Schedule 1 and 2 drugs, but I've never heard of a prosecution for it. I'm sure it has happened, but that had to be a prosecutor with a chip on his shoulder and/or a personal vendetta.
Wow, could you or anyone else cite a law like this? Seems entirely unreasonable, as the defendant has the burden of proving his drug was legal per license/prescription anyways if its scheduled (aren't the statutes generally written so that the license/prescription is only an affirmative defense?).
This is absurd, you have to keep a ziplock bag they give you the drugs in on your person? I guess if I get a prescription I should ask for two vessels, one for storage and one to take with me, as I wouldn't take everything with me in case of theft or police being pricks.
Enlil, if you're interested and have the time, I'd be pleased to know of any mistakes or suggestions regarding the frequently asked questions at the top of this forum I wrote. I tried to mainly use actual decisions, but it can be hard to make sure everything stated is actually good law still (or maybe was even somewhat false at the time of the decision). I've read a number of cases where judges make broad proncouncements that are obviously unjustified. Seems they sometimes make pronouncements that are entirely unjustified (and shouldn't have any reason to think they were justified making given the case not raising the collateral issues at all).
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Enlil
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Registered: 08/16/03
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Re: Ask a defense attorney [Re: johnm214]
#16541670 - 07/16/12 08:58 PM (11 years, 9 months ago) |
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Here is New York's statute...many states are similar:
"§ 3345. Possession of controlled substances by ultimate users original container. Except for the purpose of current use by the person or animal for whom such substance was prescribed or dispensed, it shall be unlawful for an ultimate user of controlled substances to possess such substance outside of the original container in which it was dispensed. Violation of this provision shall be an offense punishable by a fine of not more than fifty dollars."
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Humility
Working on it



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Re: Ask a defense attorney [Re: Enlil]
#16542610 - 07/16/12 11:26 PM (11 years, 9 months ago) |
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I have a pending court case involving a sworn officer's statement that's filled with lies, two of which I can factually prove though there were many other lies within the story the officer told:
Lie #1 - Officer claims my father made a statement that my father can and will testify in court that he did not make. This statement is not relevant to my charges but the officer claims my father made negative comments regarding me in an effort to defame my character
Lie#2 - Officer claims in his report that I am a "repeat violent convicted offender with a history of committing similar acts such as this" and I have absolutely zero record in my history. Nothing has been expunged, no juvenile record, no nothing except moving violations.
The primary charge is resisting arrest and I have a jury trial. What is my chance of having the officer's credibility, testimony and sworn statements throttled with evidence of two flagrant inaccuracies, one of which are present in the State's own databases?
Further, in my state resisting arrest requires two features -
That an individual "flee from an officer, delay or obstruct an officer from conducting a detention or arrest" and that that action happen "intentionally".
One officer *requested* "Hey buddy, would you like to roll your window down for me a bit" to which I responded that I did mind; he went away and retrieved his superior officer (in the car with him), that second officer requested it in a demanding tone "I want you to lower that window!" and when I attempted to clarify if the second officer was requesting or demanding/ordering he interrupted me and then said (order) "Put that motherfucking window down right now!" at which point I began to do that, then he drew his service weapon on me pointed at my head and screamed at me "DON'T MOVE!!! If you move I'll shoot you in your fucking head/blow your fucking head off." Officer claims he saw a gun. There is no proof that I've ever owned a gun in my life, and I'll testify that I have never owned a gun in my life though I did have a costume prop inside of my car that was not defaced at all (orange tip still present) and it is fully legal in my state to have a fully loaded rifle in the car without any registration, license or CCW as long as it's not concealed.
This officer then repeatedly ordered me to roll my window down (move my hands in an area he couldn't see them), to which I told him that I didn't feel comfortable moving because he just told me he'd kill me if I moved.
Traffic stop ended with officer 3 reaching in through my driver's side window (it was down enough for me to pass documents to them, communicate with them and for them to stick their entire arm in through my window), unlocking my door and then opening my door from outside. The rest of the traffic stop was text-book as I stepped out of the car immediately when commanded and went with them completely voluntarily.
In your experience, you think I'll be able to get 1 juror out of 12 to call bullshit on this? I don't see 12 jurors finding me guilty of resisting arrest based on the facts of the case, let alone the two factual inaccuracies?
Should I be filing pre-trial motions to have the case/testimony thrown out or do those two lies/inaccuracies not matter until trial?
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Edited by Humility (07/16/12 11:29 PM)
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Humility
Working on it



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Re: Ask a defense attorney [Re: Humility]
#16542632 - 07/16/12 11:31 PM (11 years, 9 months ago) |
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Also, my state is a unanimous state. No split jury decisions permitted for conviction.
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Enlil
OTD God-King




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Re: Ask a defense attorney [Re: Humility]
#16543405 - 07/17/12 04:49 AM (11 years, 9 months ago) |
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Neither of those inaccurate statements are really relevant to your charges. They certainly aren't admissible in court. The question here is whether they could be used to hurt the cop's credibility enough to cast doubt on his testimony in court...
Statement 1 doesn't hurt you in any way because it is simply the cop relaying a witness statement about completely unrelated bullshit. More importantly, however, is the weakness of your proof that this statement is false. One one hand, you have a cop saying that your father said something. On the other hand, you have your father claiming months later that he never said it. Your father has a clear reason to lie and has had time to forget...The cop, on the other hand, is a paid public servant with, unfortunately, some built in credibility and a statement written contemporaneously to the events. Your proof that the statement is false is marginal.
Statement 2 doesn't hurt you either because it is inadmissible in court, but your proof that it is false is about as solid as it gets.
How you proceed, and the advice I give you, depends heavily on how you are handling this matter. If you are proceeding pro se, you're gonna need a lot more information than if you have a lawyer.
In any case, here are some general thoughts:
1. There is no pre-trial motion to be made about this. These things reflect on the credibility of the witness. Only the "trier of fact" can make determinations about credibility. In most criminal cases, that is the jury, but in bench trials, that is the judge AT TRIAL...such determinations don't happen on paper.
2. Statement 2 is something I would normally stay clear of at trial because it reflects poorly on your character and would not be admissible against you unless you introduced it. Here, I'd probably take a different tactic. I would explore the statement with the cop on the stand. Ask where he got his information...when he got his information...Was it in his mind when he approached the car? Is it possible that this false information placed the cop on higher alert than usual? Is it possible that the officer reacted differently based on this false information? This shit lays the groundwork for your defense...Also, go into the timeframe for writing the report. Was it at the moment of detention? Was it hours later? Did he fact check the statment before writing them? Did he sign it under oath without fact checking? Was he as truthful in that statement as he is here today on the stand?
3. This kind of shit is much more common than most people know. I have seen so many resisting charges based solely on a cop being butthurt by the way someone acted. You have a very good chance of acquittal based on what you've posted here, but you should be very calm, direct, and candid on the stand...The more the jury sees you as being like them, the more likely they are to acquit.
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Diploid
Cuban



Registered: 01/09/03
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Re: Ask a defense attorney [Re: Enlil]
#16543612 - 07/17/12 08:29 AM (11 years, 9 months ago) |
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Here's something that's been bugging me.
I have a friend who worked at a pharmacy and got caught pinching pain pills. He was also stealing general merchandise and cash.
He got arrested and when the cops started to question him, he followed the Golden Rule: he asked for a lawyer and refused to answer.
But then the cops lied to him. They told him that if he gave them a full written confession, they would only charge him with the drug charge and he'd probably get off with probation and a withhold if he completes probation.
They also told him that if did DIDN'T confess and insisted on talking to a lawyer, they would charge with multiple charges, one for each case of stolen drugs, merchandise theft, and cash theft.
So in summary, the cops told him that if he confessed, there's be a single charge and likely no jail. If he insisted on a lawyer, there would be dozens of charges.
He signed a confession for fear of the consequences if he demanded a lawyer.
Does he have any recourse or are the cops allowed to do this?
-------------------- 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
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Registered: 08/16/03
Posts: 67,521
Loc: Uncanny Valley
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Re: Ask a defense attorney [Re: Diploid]
#16543638 - 07/17/12 08:39 AM (11 years, 9 months ago) |
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That is arguably a coerced confession...When he mentions the lawyer, the questioning is supposed to stop right there.
I would say that he has a very, very good shot at having the confession suppressed. It's one thing to tell a suspect that he is facing more charges if he doesn't confess. It is another thing altogether to tell him that he is facing more charges if he invokes his miranda rights...
I don't know how much it will help him, of course. If they have a case without the confession, then it really won't matter much if he gets the confession suppressed.
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LySergic D
Drink all day and rock all night


Registered: 10/20/11
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Re: Ask a defense attorney [Re: Enlil]
#16543691 - 07/17/12 09:08 AM (11 years, 9 months ago) |
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Hey i got a question for you Enill. When i was arrested at my house recently the detectives also seized my vehicle. When i was arrested, they also DROVE my vehicle away. Is that legal? What if they got in a wreck with my car? I personally think it should have been towed away not driven away. Hell, my insurance doesn't cover them it covers me.
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Broken heart don't feel so bad You ain't got half of what you thought you had Rock you baby to and fro Not too fast and not too slow
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Enlil
OTD God-King




Registered: 08/16/03
Posts: 67,521
Loc: Uncanny Valley
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Re: Ask a defense attorney [Re: LySergic D]
#16543712 - 07/17/12 09:12 AM (11 years, 9 months ago) |
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It was legal for them to transport it by driving. It can be damaged during tow just as easily as it can be damaged by driving...
And they would be liable for damages...not you or your insurance.
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Diploid
Cuban



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Re: Ask a defense attorney [Re: Enlil]
#16543787 - 07/17/12 09:38 AM (11 years, 9 months ago) |
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They should at least fill it up before returning it, eh?
-------------------- 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
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Registered: 08/16/03
Posts: 67,521
Loc: Uncanny Valley
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Re: Ask a defense attorney [Re: Diploid] 3
#16543798 - 07/17/12 09:44 AM (11 years, 9 months ago) |
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They don't have to fill it up. They have three options under the law. It is commonly called the "Gas, Grass, or Ass doctrine."
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SpecialEd
+ one

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Re: Ask a defense attorney [Re: Enlil]
#16544398 - 07/17/12 12:27 PM (11 years, 9 months ago) |
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Quote:
Enlil said: They don't have to fill it up. They have three options under the law. It is commonly called the "Gas, Grass, or Ass doctrine."
funniest thing i've seen awhile lol.
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Humility
Working on it



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Re: Ask a defense attorney [Re: SpecialEd]
#16545189 - 07/17/12 03:16 PM (11 years, 9 months ago) |
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Gotta disagree with you on statement 1 Enlil. If an officer says someone said something and that person comes to trial and says "I never said anything like that" that can't do ANYTHING but hurt the cop's credibility.
I also can't see how you'd steer clear of item 2. It's a clear factual inaccuracy at best, a blatent lie at worst.
I'm appreciative of your help though man. I'm gonna tell the PD I want the cop grilled HARD on those two factual inaccuracies. How many completely bullshit comments can you make in a one-page report that can be PROVEN as FALSE before your credibility is bullshit?
I guess we're going to find out.
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Enlil
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Registered: 08/16/03
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Re: Ask a defense attorney [Re: Humility]
#16545228 - 07/17/12 03:23 PM (11 years, 9 months ago) |
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Cross examination doesn't work like that...you can't just call witnesses to prove that something he said is false...The false statement has to be material to the case...you're not gonna be able to get your father to testify on that alone...unless he is being called for something else, it's not gonna happen...
Don't be surprised if your PD doesn't see if your way. Remember, the client doesn't get to choose tactics...that is the lawyer's job. This is true even if you are paying the lawyer's salary.
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