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criminal defense

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Failure to do your job.

No other type of law practice comes close to what is required and expected of the criminal defense attorney. It is no wonder very few attorneys actually practice this type of law. It is even less surprising that only a select few from that small number actual know what they are doing and provide truly exceptional representation.

Over the past 40 years, the responsibilities and obligations of the defense attorney have grown. Many attorneys struggle to keep up with the changing requirements and fail their clients. In the end, the defendant cannot outrun bad lawyering, and that sucks. Contrary to popular belief, an accused is not entitled to competent counsel but to an attorney who does not make mistakes that affect the outcome of the case.

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My Defense Attorney Made a Mistake. Now What?

Merriam-Webster dictionary defines a “mistake” as “to be wrong” or “a wrong action or statement proceeding from faulty judgment, inadequate knowledge, or inattention.”[i] If your attorney makes a mistake that affects your case’s outcome, you may have a claim for “ineffective assistance of counsel.” Attorneys are human; they make mistakes.

Like the other parts of the Bill of Rights, the Sixth Amendment guarantees certain fundamental rights. It guarantees most of the basic constitutional criminal rights to Americans, including the right to a speedy and public trial, the right to be indicted where the offense occurred, the right to an impartial jury, the right to be informed of the nature of the offense, the right to confront and cross-examine the witnesses against him, and the right to have the assistance of counsel. Sixth Amendment (1791).

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Decisions, Decisions

In any representation, the defendant makes various decisions, and the attorney makes other decisions. These decisions are clearly defined. The decisions made by the attorney are called “legal decisions.” On the other hand, the defendant makes certain fundamental decisions.

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Minimum Mandatory Penalties are Excessively Awful

The inequities caused by these minimum mandatories have resulted in massive ethnic and racial disparities in sentencing. It has also resulted in first-time offenders being walloped by a gigantic, inflexible sentence that almost certainly results in an unjust result.

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Can’t Make the Sick Chicken Better

There is also a human element to a criminal defense. The accused is a person. Usually, the accused has family and friends that care about him/her regardless of what the allegations might be. A good criminal defense attorney recognizes this and tries to nurture a relationship with the client and his/her family in order to better serve the client. While it might not be in the book definition of criminal defense, it is my book regarding criminal defense that people need to be treated right and that starts with honesty and integrity in discussions about the case and treating people with dignity and respect they deserve for being human (regardless of what they are accused of or may or may not have done).

Once More Unto the Breach: A Basic Understanding of Direct Criminal Appeals

An appeal is not a “do-over, “re-do,” or some second chance looked at over a video monitor. It is not a chance to push the reset button and start over. An appeal is not a “reweighing” of the evidence or a special request for a new trial because the convicted person was not satisfied with the outcome of the trial. That is not how it works, unfortunately.

Corpus Delicti: What Do I Need to Know?

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.

You don’t say … or maybe you did. A brief explanation of witness impeachment by prior inconsistent statement.

The ability to impeach a witness is a trial skill that is perfected over time. It should not be undertaken lightly because a butchered impeachment of a key witness at trial can spectacularly backfire and unintentionally bolster the credibility of the witness. Although the principles of impeachment can be easily learned through studying caselaw, impeachment is better understood in practice and requires years to master. Watching an attorney perform a skillful impeachment is like watching a master craftsman carve a magnificent statute out of a single block of granite. It is akin to an artform. As with many trial skills, the more trial experience an attorney has, the better the attorney usually is at impeaching a witness. In this regard, there are no substitutes for trial experience and trial preparation.