For those of you who have been or are currently charged with a crime you
might be wondering what is the difference between a misdemeanor and a
felony in New York State. The main distinction between the two lies
with the penalty and the length of imprisonment. In New York a crime is
a misdemeanor if it is punishable by no more than a year in the county
jail. While a crime is a felony if it punishable by more than a year in
a state prison.
Some crimes can be either a misdemeanor or a
felony depending on the severity of the offense or some aggravating
characteristic. For example, you could punch someone in the face
causing an injury and be arrested for misdemeanor assault, but if you
hit that same person over the head with a beer bottle causing an injury
you could be arrested for felony assault based on the use of a weapon.
Another example would be larceny. You would be charged with
misdemeanor petit larceny if you steal property and the value of the
property is less than $1000.00. However if you steal property and the
value of the property exceeds $1000.00 you will be charged with felony
grand larceny.
The main similarity between a misdemeanor and a
felony is that both are considered criminal convictions that will stay
on your record indefinitely. As of right now there is no expungement
available in New York State. So you could be convicted of a crime at
the age of 19 and it will still be on your record 50 years later.
Further, a conviction of either crime can prevent you from owning a
firearm or from working at schools or government agencies.
If you
are facing criminal charges, whether it be a misdemeanor or a felony,
you should speak with an experienced attorney. An attorney can explain
the penalties you could face if convicted of either crime.
***From the Law Blog of Danielle Papa
J John Sebastian Attorney at Law is
here to help you through the criminal process. If you have been
accused of a felony or misdemeanor then you need to enlist the services
of a criminal defense lawyer. www.buffalocriminalatttorney.iconosites.com
Tuesday, February 5, 2013
Why Hire a Local Buffalo Criminal Defense Attorney?
Most people will never set foot in a courtroom accused of a
crime. However, for some people infractions of the law occur, no matter
how small, and you find yourself accused of a crime. If this is you,
don’t settle for a public defender that may not have the right
experience to defend you well. Hiring an attorney who has the right
experience in the right location is a must.
Ask yourself these questions when considering which attorney to hire to defend your case:
1. Is my case important to them?
A good lawyer should make you feel comfortable and confident that they are fully invested in your case and that they will do everything in their power to defend you. You should be able to trust them with any and all details of your story with no hesitation.
2. Is this attorney familiar with local laws?
Whether you live in the area where the crime was charged or not, finding an attorney in that area is crucial. Local attorneys know the court system, prosecutors, and laws in the local area and have a much better chance of putting together a successful defense when they are working in their own part of the country.
3. What is their track record related to your charge?
Would you hire a real estate attorney to defend your DWI or a tax lawyer to handle your divorce? Of course not. Find out if the attorney has actual experience with cases that deal with charges similar to yours and how successful they have been.
4. Do they use appropriate language with you?
Having a language barrier can be a huge problem in the attorney/client relationship. You should understand each other clearly and be able to communicate well. Also, don’t settle for an attorney who uses too much “legalese” that is difficult for the average person to understand.
There are many more things to consider when hiring a criminal defense attorney to defend you in court, but these questions are a good start.
J John Sebastian Attorney at Law is an attorney who will pass these questions and more with flying colors. Give his office a call and see for yourself what hiring the right attorney can do to change your life for the better.
www.buffalocriminalattorney.iconosites.com
Ask yourself these questions when considering which attorney to hire to defend your case:
1. Is my case important to them?
A good lawyer should make you feel comfortable and confident that they are fully invested in your case and that they will do everything in their power to defend you. You should be able to trust them with any and all details of your story with no hesitation.
2. Is this attorney familiar with local laws?
Whether you live in the area where the crime was charged or not, finding an attorney in that area is crucial. Local attorneys know the court system, prosecutors, and laws in the local area and have a much better chance of putting together a successful defense when they are working in their own part of the country.
3. What is their track record related to your charge?
Would you hire a real estate attorney to defend your DWI or a tax lawyer to handle your divorce? Of course not. Find out if the attorney has actual experience with cases that deal with charges similar to yours and how successful they have been.
4. Do they use appropriate language with you?
Having a language barrier can be a huge problem in the attorney/client relationship. You should understand each other clearly and be able to communicate well. Also, don’t settle for an attorney who uses too much “legalese” that is difficult for the average person to understand.
There are many more things to consider when hiring a criminal defense attorney to defend you in court, but these questions are a good start.
J John Sebastian Attorney at Law is an attorney who will pass these questions and more with flying colors. Give his office a call and see for yourself what hiring the right attorney can do to change your life for the better.
www.buffalocriminalattorney.iconosites.com
Bail in NYS
After arrest, and during the first arraignment, the court will
consider if Bail is appropriate. New York Criminal Penal Law (CPL) §
510.30 sets out the factors the court should consider when deliberating
Bail, which are:
Although the United States Constitution and the New York Constitution do not create the right to Bail, the right to Bail in New York is statutory. Further, the court must grant Bail or Release on own Recognizance (ROR) when the charge is simply a violation or misdemeanor.
Originally Posted by Michael Huerta***
J John Sebastian Attorney Buffalo NY
http://www.buffalocriminalattorney.iconosites.com/
- Character, reputation, habits and mental condition;
- Employment and financial resources;
- Family ties and the length of his or her residence in the community;
- Criminal record;
- Record or adjudication as a juvenile offender or youthful offender; and
- Record of responding to court appearances.
- The weight of the evidence against the accused in the pending criminal action and the likelihood of conviction; and
- The sentence that may be imposed on conviction.
- Cash bail;
- Insurance company bail bond;
- Secured surety bond;
- Secured appearance bond;
- Partially secured surety bond;
- Partially secured appearance bond;
- Unsecured surety bond; and
- Unsecured appearance bond.
Although the United States Constitution and the New York Constitution do not create the right to Bail, the right to Bail in New York is statutory. Further, the court must grant Bail or Release on own Recognizance (ROR) when the charge is simply a violation or misdemeanor.
Originally Posted by Michael Huerta***
J John Sebastian Attorney Buffalo NY
http://www.buffalocriminalattorney.iconosites.com/
Monday, February 4, 2013
Vehicular Assault under New York Penal Law 120.03 and 120.04
Vehicular assault charges are usually added to felony or
misdemeanor DWI complaints where there has been an injury to someone
other than the driver of the vehicle as a result of an alcohol- or
drug-related accident. For example, in People v. Mojica, 62 A.D.3d 100,
the defendant allegedly “drove a pickup truck through a red traffic
light and struck a marked patrol car driven by a city police officer,
Richard Poluzzi. Officer Poluzzi, who was removed from the scene by
ambulance and transported to St. Francis Hospital, suffered head
injuries and spent one month in an in-patient rehabilitation facility
before returning to work six months after the accident, in January
2007.”
The elements of the basic charge, PL 120.03, are as follows:
§ 120.03 Vehicular assault in the second degree.
A person is guilty of vehicular assault in the second degree when he
or she causes serious physical injury to another person, and either:
(1) operates a motor vehicle in violation of subdivision two, three,
four or four-a of section eleven hundred ninety-two of the vehicle and
traffic law or operates a vessel or public vessel in violation of
paragraph (b), (c), (d) or (e) of subdivision two of section
forty-nine-a of the navigation law, and as a result of such intoxication
or impairment by the use of a drug, or by the combined influence of
drugs or of alcohol and any drug or drugs, operates such motor vehicle,
vessel or public vessel in a manner that causes such serious physical
injury to such other person, or
(2) operates a motor vehicle with a gross vehicle weight rating of
more than eighteen thousand pounds which contains flammable gas,
radioactive materials or explosives in violation of subdivision one of
section eleven hundred ninety-two of the vehicle and traffic law, and
such flammable gas, radioactive materials or explosives is the cause of
such serious physical injury, and as a result of such impairment by the
use of alcohol, operates such motor vehicle in a manner that causes such
serious physical injury to such other person, or
(3) operates a snowmobile in violation of paragraph (b), (c) or (d) of
subdivision one of section 25.24 of the parks, recreation and historic
preservation law or operates an all terrain vehicle as defined in
paragraph (a) of subdivision one of section twenty-two hundred
eighty-one of the vehicle and traffic law and in violation of
subdivision two, three, four, or four-a of section eleven hundred
ninety-two of the vehicle and traffic law, and as a result of such
intoxication or impairment by the use of a drug, or by the combined
influence of drugs or of alcohol and any drug or drugs, operates such
snowmobile or all terrain vehicle in a manner that causes such serious
physical injury to such other person.
If it is established that the person operating such motor vehicle,
vessel, public vessel, snowmobile or all terrain vehicle caused such
serious physical injury while unlawfully intoxicated or impaired by the
use of alcohol or a drug, then there shall be a rebuttable presumption
that, as a result of such intoxication or impairment by the use of
alcohol or a drug, or by the combined influence of drugs or of alcohol
and any drug or drugs, such person operated the motor vehicle, vessel,
public vessel, snowmobile or all terrain vehicle in a manner that caused
such serious physical injury, as required by this section.
Vehicular assault in the second degree is a class E felony.
The enhanced class D felony of Vehicular Assault in the First Degree requires first the commission of second-degree vehicular assault, but also requires the presence of at least one of 6 different “bump-up” circumstances, including (i) committing the crime after “blowing” a .18 or higher (Penal Law 120.04(1)); (ii) committing the crime with knowledge that your driver’s license is suspended (Penal Law 120.04(2)); (iii) committing the offense with a prior DWI on your record (Penal Law 120.04(3)); (iv) causing “serious physical injury” to another person (Penal Law 120.04(4)); (v) committing the offense with a prior homicide on your record (Penal Law 120.04(5)); or (vi) committing the offense with a child 15 years of age or younger as a passenger (Penal Law 120.04(6)).
One of the best strategies for defeating the charge at trial would seemingly be to challenge the DWI element. Other strategies would probably entail challenging whether the injury was severe enough to constitute physical injury under the Penal Law definition.
If you or a loved one has been arrested for DWI or Vehicular Assault, your best bet will always be to consult with an experienced DWI lawyer before proceeding.
buffalocriminalattorney.iconosites.com/
The elements of the basic charge, PL 120.03, are as follows:
§ 120.03 Vehicular assault in the second degree.
A person is guilty of vehicular assault in the second degree when he
or she causes serious physical injury to another person, and either:
(1) operates a motor vehicle in violation of subdivision two, three,
four or four-a of section eleven hundred ninety-two of the vehicle and
traffic law or operates a vessel or public vessel in violation of
paragraph (b), (c), (d) or (e) of subdivision two of section
forty-nine-a of the navigation law, and as a result of such intoxication
or impairment by the use of a drug, or by the combined influence of
drugs or of alcohol and any drug or drugs, operates such motor vehicle,
vessel or public vessel in a manner that causes such serious physical
injury to such other person, or
(2) operates a motor vehicle with a gross vehicle weight rating of
more than eighteen thousand pounds which contains flammable gas,
radioactive materials or explosives in violation of subdivision one of
section eleven hundred ninety-two of the vehicle and traffic law, and
such flammable gas, radioactive materials or explosives is the cause of
such serious physical injury, and as a result of such impairment by the
use of alcohol, operates such motor vehicle in a manner that causes such
serious physical injury to such other person, or
(3) operates a snowmobile in violation of paragraph (b), (c) or (d) of
subdivision one of section 25.24 of the parks, recreation and historic
preservation law or operates an all terrain vehicle as defined in
paragraph (a) of subdivision one of section twenty-two hundred
eighty-one of the vehicle and traffic law and in violation of
subdivision two, three, four, or four-a of section eleven hundred
ninety-two of the vehicle and traffic law, and as a result of such
intoxication or impairment by the use of a drug, or by the combined
influence of drugs or of alcohol and any drug or drugs, operates such
snowmobile or all terrain vehicle in a manner that causes such serious
physical injury to such other person.
If it is established that the person operating such motor vehicle,
vessel, public vessel, snowmobile or all terrain vehicle caused such
serious physical injury while unlawfully intoxicated or impaired by the
use of alcohol or a drug, then there shall be a rebuttable presumption
that, as a result of such intoxication or impairment by the use of
alcohol or a drug, or by the combined influence of drugs or of alcohol
and any drug or drugs, such person operated the motor vehicle, vessel,
public vessel, snowmobile or all terrain vehicle in a manner that caused
such serious physical injury, as required by this section.
Vehicular assault in the second degree is a class E felony.
The enhanced class D felony of Vehicular Assault in the First Degree requires first the commission of second-degree vehicular assault, but also requires the presence of at least one of 6 different “bump-up” circumstances, including (i) committing the crime after “blowing” a .18 or higher (Penal Law 120.04(1)); (ii) committing the crime with knowledge that your driver’s license is suspended (Penal Law 120.04(2)); (iii) committing the offense with a prior DWI on your record (Penal Law 120.04(3)); (iv) causing “serious physical injury” to another person (Penal Law 120.04(4)); (v) committing the offense with a prior homicide on your record (Penal Law 120.04(5)); or (vi) committing the offense with a child 15 years of age or younger as a passenger (Penal Law 120.04(6)).
One of the best strategies for defeating the charge at trial would seemingly be to challenge the DWI element. Other strategies would probably entail challenging whether the injury was severe enough to constitute physical injury under the Penal Law definition.
If you or a loved one has been arrested for DWI or Vehicular Assault, your best bet will always be to consult with an experienced DWI lawyer before proceeding.
buffalocriminalattorney.iconosites.com/
Arrest for a Fake NY State Driver’s License... by Sebastian Law Firm , 2012-11-30 07:11:51
This post will cover the a common type of arrest in New York
City: underage people being caught with a fake ID or New York State
Driver’s license. Many young people in the greater New York City area
carry a fake ID in order to get into bars before they are 21. While
this seems to be a fairly innocuous reason to carry a fake ID, the law
in New York can be quite unexpectedly severe. Consider the base forgery
statute, which criminalizes the possession of any “forged instrument,”
which is defined as a “written instrument which has been falsely made,
completed or altered.”
PL 170.00(7). Criminal possession of a forged instrument in the third degree: “A person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument. Criminal possession of a forged instrument in the third degree is a class A misdemeanor.” PL 170.20.
These provisions work to actually criminalize the possession of a fake or forged driver’s license. However, experience teaches us that that in certain situations, having something like this can actually lead to felony charges. This is because the next level up in the statutory scheme reads as follows:
PL 170.25 Criminal possession of a forged instrument in the second degree. A person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in section 170.10. Criminal possession of a forged instrument in the second degree is a class D felony. And, PL 170.10(3) specifically includes ”A written instrument officially issued or created by a public office, public servant or governmental instrumentality . . .”
Problems may compound if the circumstances under which the arrestee is found in possession of the forged or fake driver’s license are egregious. For example, if a person is found with marijuana and a fake ID, a prosecutor may be more inclined to proceed with serious criminal charges than had the forged driver’s license been the only possible charge.
In any event, should you or a loved one be found facing charges, whether through a processed arrest or through the issuance of a desk appearance ticket, you should immediately consult with an experienced NY criminal defense lawyer.
http://jjohnsebastianattorney.com/
PL 170.00(7). Criminal possession of a forged instrument in the third degree: “A person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument. Criminal possession of a forged instrument in the third degree is a class A misdemeanor.” PL 170.20.
These provisions work to actually criminalize the possession of a fake or forged driver’s license. However, experience teaches us that that in certain situations, having something like this can actually lead to felony charges. This is because the next level up in the statutory scheme reads as follows:
PL 170.25 Criminal possession of a forged instrument in the second degree. A person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in section 170.10. Criminal possession of a forged instrument in the second degree is a class D felony. And, PL 170.10(3) specifically includes ”A written instrument officially issued or created by a public office, public servant or governmental instrumentality . . .”
Problems may compound if the circumstances under which the arrestee is found in possession of the forged or fake driver’s license are egregious. For example, if a person is found with marijuana and a fake ID, a prosecutor may be more inclined to proceed with serious criminal charges than had the forged driver’s license been the only possible charge.
In any event, should you or a loved one be found facing charges, whether through a processed arrest or through the issuance of a desk appearance ticket, you should immediately consult with an experienced NY criminal defense lawyer.
http://jjohnsebastianattorney.com/
Incorporating Pattern Jury Language and Battling Police Embellishment in a DWI Trial By J. John Sebastian
Your client is charged with violating section 1192(3) of the NY
Vehicle and Traffic Law. known in some places as a:DWI refusal" or a
"common Law DWI"; albeit there is no chemical test, and the evidence
will boil down to police observations to prove intoxication.
Assume for purposes of this article that our client has a prior (usually the case in refusals) so there is no offer. Lets assume further that our judge seems unsympathetic to our client's cause and the likelihood of an 1192(1) judgement after a bench trial are slim. So, onward we march to a jury trial of the matter.
1. Consult The NYS Criminal Pattern Jury Instruction(PJI) Manual
The first and most important step in trying this case is to consult the NYS PJI 1192 (3) VTL, specifically let's look at the relevant PJI definition of "intoxication",
A person is in an INTOXICATED condition when such person has consumed alcohol to the extent that he or she is incapable, to a substantial extent, of employing the physical and mental abilities which he or she is expected to possess in order to operate a vehicle as a reasonable and prudent driver.(emphasis added)
2. Incorporate Key Buzzwords Into Your Cross
"Physical and mental abilities... ." are the buzzwords you will be incorporating into your cross of the arresting officer.
Let's assume the usual direct testimony from the arresting officer, wherein he gives all the standard indicia of intoxication: swerving, bloodshot eyes, alcohol on the breath, unsteady on his feet, failed all the FSTs miserably.
Your cross examination follows:
You: Sir you observed Johnny drive past you, Yes?
Cop: Yes
You: You pulled out after him, True?
Cop: Yes
You: You activated your overheads, Correct?
Cop: Yes
You: and Johnny pulled over, Yes?
Cop: Yes
You: So at that point he had the mental ability to recognize you were stopping him,Correct Sir?
Cop; Yes
You: And the physical ability to pull the vehicle over, Yes?
Cop: Yes
You: You approached Johnny's vehicle?
Cop: Yes
You: And requested him to produce license and registration, Correct?
Cop: Yes
You: So he had the mental ability to understand that request, Correct Sir?
Cop: I guess...
You: That's a Yes?
Cop: Yes
You: And he had the physical ability to find produce and hand you those documents, Isn't that true as well??
Cop: well NO, it took him a long time to find them and he kept dropping his license...
What just happened? 'And it was going so well!' you think to yourself. Now what do I do?
Don't despair. What just happened is that our arresting officer just deviated from our script and is heading down the dark and lonely road of embellishing his observations of intoxication.
It is a dark and lonely road because you always follow the cardinal rule of cross; 'never ask a question you don't know the answer to'. In reality, that rule should be 'never ask a question you don't know what the answer to should be'.
3. Negative Impeachment of an Embellishing Police Witness
Continuing our sample cross:
You: So your testimony NOW is that it took 'a long time' for him to find his documents?
Cop: Yes
You: And that he 'kept dropping his license'?
Cop: Yes Sir, he did.
You: I see.
You: Sir, you have training in how to complete the necessary documents pursuant to a DWI arrest correct?
Cop: Yes I do.
You: In fact you were trained at the police academy on how complete the necessary documents Yes?
Cop: Yes
You: Did they train you to be accurate?
Cop: Yes
You Did they train you to be complete?
Cop: Yes,
You: Did they train you to be honest?
Cop: They did.
You: I'm handing you whats been marked State Exhibit A for ID purposes do you recognize it Sir?
Cop: Yes
You: What is it?
Cop: It is the arrest report I prepared for this case.
You: And you completed that over a year and a half ago Yes?
Cop: Yes
You: Contemporaneously with the events of the night in question correct?
Cop:Yes
You: And at the time you prepared it you were trying to be accurate?
Cop: Yes.
You: You were trying to be complete?
Cop: Yes
You: And You were trying to be honest?
Cop: Of course.
You: So that's a Yes?
Cop: Yes
You: Can you please tell the jury where in that arrest report it says that Johnny took a long time to produce his license and registration?
Cop: It doesn't say it anywhere.
You: I see. And would you please indicate where in the arrest report it states he kept dropping his license.
Cop: It does not say that either.
You can repeat this process again with his field notes, the misdemeanor information itself or his grand jury testimony (if the case is a felony) to really pound your point home.
4. Completing The Buzzword Cross
When you go back to your physical and mental capability line of questioning, the officer is not likely to embellish again, but if he does, be grateful, and just repeat your negative impeachment steps
In addition, point out through your cross exam the physical ability to operate at a safe speed, safely park the car, exit the car, stand in the roadway, walk without assistance, and walk while handcuffed behind his back. Of course you will incorporate each physical task into your cross as the facts of the case allow.
Point out through you cross exam the mental ability to follow instructions, comply with orders, give pedigree info, dial a phone, and carry on a conversation. Again look at the facts and take what they give you.
5. Summation
In your summation you will remind the jury that the law is not 'gasoline and alcohol don't mix'.(Initially talked about in voir dire and opening)
The law is whether Johnny had the physical and mental capabilities to safely operate the motor vehicle on the night in question. And then reiterate all of the evidence to support that he did.
If you follow these techniques of incorporating the key buzzwords of the PJI into your case through cross of the arresting officer, and using negative impeachment to battle embellishment, you should be returning NOT GUILTY verdicts on a regular basis with these types of cases.
Article Source:
http://EzineArticles.com/?expert=J._John_SebastianAssume for purposes of this article that our client has a prior (usually the case in refusals) so there is no offer. Lets assume further that our judge seems unsympathetic to our client's cause and the likelihood of an 1192(1) judgement after a bench trial are slim. So, onward we march to a jury trial of the matter.
1. Consult The NYS Criminal Pattern Jury Instruction(PJI) Manual
The first and most important step in trying this case is to consult the NYS PJI 1192 (3) VTL, specifically let's look at the relevant PJI definition of "intoxication",
A person is in an INTOXICATED condition when such person has consumed alcohol to the extent that he or she is incapable, to a substantial extent, of employing the physical and mental abilities which he or she is expected to possess in order to operate a vehicle as a reasonable and prudent driver.(emphasis added)
2. Incorporate Key Buzzwords Into Your Cross
"Physical and mental abilities... ." are the buzzwords you will be incorporating into your cross of the arresting officer.
Let's assume the usual direct testimony from the arresting officer, wherein he gives all the standard indicia of intoxication: swerving, bloodshot eyes, alcohol on the breath, unsteady on his feet, failed all the FSTs miserably.
Your cross examination follows:
You: Sir you observed Johnny drive past you, Yes?
Cop: Yes
You: You pulled out after him, True?
Cop: Yes
You: You activated your overheads, Correct?
Cop: Yes
You: and Johnny pulled over, Yes?
Cop: Yes
You: So at that point he had the mental ability to recognize you were stopping him,Correct Sir?
Cop; Yes
You: And the physical ability to pull the vehicle over, Yes?
Cop: Yes
You: You approached Johnny's vehicle?
Cop: Yes
You: And requested him to produce license and registration, Correct?
Cop: Yes
You: So he had the mental ability to understand that request, Correct Sir?
Cop: I guess...
You: That's a Yes?
Cop: Yes
You: And he had the physical ability to find produce and hand you those documents, Isn't that true as well??
Cop: well NO, it took him a long time to find them and he kept dropping his license...
What just happened? 'And it was going so well!' you think to yourself. Now what do I do?
Don't despair. What just happened is that our arresting officer just deviated from our script and is heading down the dark and lonely road of embellishing his observations of intoxication.
It is a dark and lonely road because you always follow the cardinal rule of cross; 'never ask a question you don't know the answer to'. In reality, that rule should be 'never ask a question you don't know what the answer to should be'.
3. Negative Impeachment of an Embellishing Police Witness
Continuing our sample cross:
You: So your testimony NOW is that it took 'a long time' for him to find his documents?
Cop: Yes
You: And that he 'kept dropping his license'?
Cop: Yes Sir, he did.
You: I see.
You: Sir, you have training in how to complete the necessary documents pursuant to a DWI arrest correct?
Cop: Yes I do.
You: In fact you were trained at the police academy on how complete the necessary documents Yes?
Cop: Yes
You: Did they train you to be accurate?
Cop: Yes
You Did they train you to be complete?
Cop: Yes,
You: Did they train you to be honest?
Cop: They did.
You: I'm handing you whats been marked State Exhibit A for ID purposes do you recognize it Sir?
Cop: Yes
You: What is it?
Cop: It is the arrest report I prepared for this case.
You: And you completed that over a year and a half ago Yes?
Cop: Yes
You: Contemporaneously with the events of the night in question correct?
Cop:Yes
You: And at the time you prepared it you were trying to be accurate?
Cop: Yes.
You: You were trying to be complete?
Cop: Yes
You: And You were trying to be honest?
Cop: Of course.
You: So that's a Yes?
Cop: Yes
You: Can you please tell the jury where in that arrest report it says that Johnny took a long time to produce his license and registration?
Cop: It doesn't say it anywhere.
You: I see. And would you please indicate where in the arrest report it states he kept dropping his license.
Cop: It does not say that either.
You can repeat this process again with his field notes, the misdemeanor information itself or his grand jury testimony (if the case is a felony) to really pound your point home.
4. Completing The Buzzword Cross
When you go back to your physical and mental capability line of questioning, the officer is not likely to embellish again, but if he does, be grateful, and just repeat your negative impeachment steps
In addition, point out through your cross exam the physical ability to operate at a safe speed, safely park the car, exit the car, stand in the roadway, walk without assistance, and walk while handcuffed behind his back. Of course you will incorporate each physical task into your cross as the facts of the case allow.
Point out through you cross exam the mental ability to follow instructions, comply with orders, give pedigree info, dial a phone, and carry on a conversation. Again look at the facts and take what they give you.
5. Summation
In your summation you will remind the jury that the law is not 'gasoline and alcohol don't mix'.(Initially talked about in voir dire and opening)
The law is whether Johnny had the physical and mental capabilities to safely operate the motor vehicle on the night in question. And then reiterate all of the evidence to support that he did.
If you follow these techniques of incorporating the key buzzwords of the PJI into your case through cross of the arresting officer, and using negative impeachment to battle embellishment, you should be returning NOT GUILTY verdicts on a regular basis with these types of cases.
Article Source: http://EzineArticles.com/7480272
Thursday, January 3, 2013
Two Important Techniques For a Defense Opening in a Criminal Trial
By J. John Sebastian There are two important steps to delivering a powerful opening statement as defense counsel in a criminal jury trial. The first is to declare your client's innocence. The second is to show the jury the prosecutor is NOT a witness and is simply telling a story.I. Declaring your client's Innocence
It seems like it would be common sense for an attorney to tell the jury, somewhere in the opening statement, that his or her client is "not guilty" of the charges. However, this step is often overlooked, even by experienced advocates.
Many attorneys will dance around this issue and never come right out and tell the jury "my client is NOT GUILTY!" Instead they will talk about reasonable doubt and all of the weaknesses in the State's case, but never tell the jury what the defense's position is in the case.
Instead consider this approach:
"Ladies and gentlemen of the jury, it is very important that you understand what our position is in this case. It is very important that you understand our position right from the very beginning of this trial... and our position in this case is that Bobby is NOT GUILTY... he is innocent, he did not do what the State is accusing him of!!"
The jury needs to know, right from the outset, that your client's position in the case is that he is not guilty and has requested a jury trial because of that.
II. The Prosecutor is "not a witness... "
Certainly, the prosecution will lay out its version of the evidence in the opening. Of course if the jury were to accept that version of the facts without further inquiry the verdict would overwhelmingly be guilty. However, there is a technique you can use here to attack the prosecutors opening and neutralize its effect on the jury.
Consider saying something like this:
"I would like to complement the prosecutor on a very well organized opening statement.
And as I was listening to the prosecutor, I said to myself... 'well If the case is really that straight forward and the prosecutor says Bobby is guilty and he has all the evidence, why don't we just end it here and vote a verdict right now?'
But, then I remembered one very important FACT:... The prosecutor, in THIS CASE IS NOT A WITNESS!!... he wasn't on Main and State on the date they allege the incident took place...
"He only has a story that he has been TOLD!!!... And how many times ladies and gentlemen have you been told a story that turns out to be untrue?
How many times have you opened a newspaper or read a story online, and found out later the story was FALSE?"
I submit to you it is a daily occurrence!!!"
"That's right members of the jury the prosecutor is not a witness in this case!!!"
These two techniques will neutralize a prosecutor's powerful opening, catch the jury's collective attention, and pave the way for you to lay out the defense version of the case in the balance of your opening statement.
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