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the trial dog

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.

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).

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.

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).

Banned!

When dealing with Twitter, Facebook, Instagram, Pinterest, Parler, these apps and computer services are owned and operated by private companies. Although these applications have created a public forum for all sorts of speech, these applications are not operated by the local, state, or federal governments. In fact, these apps are exclusively run by private companies.
Being private companies, these entities can change and alter what types of speech will or will not be tolerated. Contrary to popular sentiment, private companies can limit, restrict, or outright ban certain speech, topics, or speakers.

Justified or Excused? The Basics of “Affirmative Defenses” in Criminal Cases in Florida

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).

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.

Huh? There’s No “Form” Objection???

Many seasoned Florida practitioners are surprised to learn that the often standard, non-specific, “objection to the form of the question” or simply, “objection, form,” is legally insufficient to preserve an evidentiary objection for trial or review, and, therefore, useless.

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