Abstractly, almost anyone understands the point, but when your life or liberty are at stake – -testifying goes from an uncomfortable idea to being flat terrifying. Think public speaking being considered scarer than death. Now turn that public speaking fear “up to 11,” and you have testifying to save yourself or clear your name.
In Florida, a defendant may challenge the charging document via a (c)(4) motion to dismiss. Florida Rule of Criminal Procedure 3.190(c)(4) defines the nature of the motion.[i] The motion is like a summary judgment in civil court but does not carry the same authority as… Read More »That Does Not Sound Like A Crime: How to Strategically Use a Motion to Dismiss
The established test to determine whether consent was voluntary (versus involuntary and, therefore, acquiescence to police authority) is for the court to consider the “totality of the circumstances.” Analyzing the actions of the accused from the reasonable person standard, the trial courts are to look at three factors to determine whether the consent to search was voluntary: (1) the time and place of the encounter, (2) the number of officers present, and (3) the officers’ words and actions; a court analyzes these factors from the perspective of a reasonable person, untrained in the law, deciding whether he or she is free to end the encounter.[
Inevitably, discovery disputes arise in these criminal cases. These types of errors are too numerous to list, but usually take the form of an updated report that is inadvertently not produced to the defense or a new witness is added or substituted into a witness list at the last minute or a witness offers new testimony at trial that was not part of their report or deposition testimony. When a discovery violation is alleged, it is the duty of the trial court to conduct a hearing to determine “whether the state’s violation was trivial or substantial, and most importantly, what effect, if any did the violation have on the ability of the defendant to prepare properly for trial.” The violation and hearing on the matter is a referred to as a Richardson hearing.
Corpus delicti is a legal rule which refers to the proposition that the prosecution must prove all the elements of an offense (and, thus a crime) before the accused’s out-of-court statements can be introduced as evidence to demonstrate that the accused was the perpetrator. This principle is widely accepted in criminal prosecutions. The purpose of the rule is to ensure that crazy people are not convicted of crimes simply because they made some admission that they committed the crime without further proof.
Nowadays, estate planning must necessarily include a digital estate plan too. It is estimated that 60% of people will die without a will or any type of estate plan. Additionally, most people will end up taking their passwords and usernames to their grave. While this might be acceptable if the person was a spy and keeping state secrets safe, it is a nightmare scenario for the next of kin, partner, spouse, or personal representative trying to windup and close your estate so that they can take care of your heirs and beneficiaries. Keep in mind, once you are gone you cannot text them to tell them that the list is in a file on a “c” drive of your laptop or the list is written down a piece of paper in the junk drawer by the Keurig.
Although based in the language of the Fourth Amendment, the exclusionary rule remedy grew out of an understanding of fairness and purpose. If the government could prosecute someone with illegally obtained evidence, then what exactly was the purpose of the Fourth Amendment? And how was that fair? What did the Fourth Amendment protect if it could not be enforced on its face? Obviously, the government could not/should not get a windfall by circumventing the requirements of the Fourth Amendment…thus, the exclusionary rule remedy.
A “pocket warrant” is common street vernacular for a PCPR. The request is not a warrant at all. Usually, a “pocket warrant” or PCPR refers to an electronic notation in the LEO’s computer database that the authorities want to arrest a person and have reason to believe that that person has committed a felony offense. Unfortunately, the “pocket warrant” or PCPR is not a warrant and does not carry the force of law.
An “affirmative defense” is a defense which admits the cause of action, but avoids liability, in whole or in part, by alleging an excuse, justification, or other matter negating or limiting liability. In layman’s terms, “I did it, but my act is justified or excused.” If the defense is accepted by the jury, then the verdict must be “not guilty” because the entire criminal act is excused or justified (and, therefore, legally negated). If the defense is not accepted, the accused has admitted to all the elements of the offense (and usually convicted him or herself).
By design, it is the jury’s solemn responsibility to doubt everything and make the government satisfy the constitution’s extreme requirements. In this regard, a trial should be an exceedingly difficult proposition for the government regardless of its evidence.