« Working the Weekend | Main | Thwarted »

Comments

Abby

How does this not wear you down? It would really wear me down.

scoplaw

Well, it does. You just keep going though. It's really as simple as that. Took me awhile to learn the trick of it though.

Jeff Gamso

You can't always succeed in getting the clients to do what's in their best interest (skill at making bad choices is often how they became clients), but there are things you can do.

Sometimes it's helpful to explain in these cases that "proof" isn't what will convince their friends, it's what will convince 12 very straight citizens who believe police don't lie. It can also be useful (though harder) to explain that even when the evidence against them is contradicted, the jury can still find that they're guilty beyond a reasonable doubt.

You can sometimes bring in another lawyer - especially if it's one they know of (or know) and trust - to help convince them. You can sometimes enlist the family to help. You can (and this is often the most important thing) try to understand just what they want the trial for. Often it's "so I can tell my story," and you can try to work with the judge and prosecutor to ensure that the mechanism of the plea in your jurisdiction will allow that.

And, of course, sometimes you just go to trial.

On rare occasions, you win even those trials.

YLlama

If I had a dollar for every time I had this conversation...

John David Galt

Excuse me if this is a dumb question, but isn't it the jury's job to judge the reasonableness of applying this law to this defendant, which implies they should consider the entire set of circumstances that the accused is trying to bring into court? Isn't a jury's power to do this the reason the Founders gave us the right to trial by jury in the first place?

It seems to me that any judge who limits what the defense can tell a jury, or what the jury can consider, has cheated the defendant of his right to trial by jury.

scoplaw

Jeff - Yes.

Yllama - Yep.

John - Sorta.

The judge can essentially limit testimony to what's relevant to the charges in each case. If you actually have a defense theory which relies on facts that pre or post-date the incident in question, it's usually fair game. Say, a in a battery, a self-defense defense which relies on establishing the defendant's knowledge of prior acts of violence by the alleged victim.

However, some things the judge won't allow, such as a battery defense of - "She's a slut who is now sleeping with another guy, and she owes me money, and she called my 13 year old son bad names the week before I hit her." I mean, you could, theoretically, introduce that under a theory that goes to the truthfulness of the alleged victim, but none of those things are technically defenses (i.e., a legal excuse or exception) to knocking someone's tooth out.

So too, the behavior of the officers, unless it rises to a certain level of wrongdoing, is seldom worth introducing, even if you could. The reason why is that the officers will get a chance to say all the things they actually *did* correctly, and will thus invest the whole situation with the air of a "legitimate arrest." The cops being snarky just isn't enough. Whereas the cops tasing someone usually *is*.

Another common misconception is "being read one's rights." Any number of folk have told me I must get the charges against them dropped because they were not read their rights. "Miranda rights" basically only serve to warn you that you don't have to respond to police questions. So, if the police aren't asking you any questions beyond basic biographical information (name, place of residence, date of birth) they don't have to warn you via reading you your Miranda rights. They are "just arresting" you. Also, even after you are arrested, if you "spontaneously" tell something to the police (i.e., provide information but not in response to questioning) Miranda also does not apply.

Abby

That is so cool, that you explained that! To paraphrase you: Miranda only applies when responding to a question posed. No questioning = no applicability of Miranda. Very interesting! And good to know. Thank you!!

scoplaw

Well, furthermore, for Miranda to apply, you have to be "in custody." The police can randomly walk up to you and ask - "Do you have any illegal drugs on you?" If you're free to leave and say "Yes," you've basically given them enough.

Seriously - my disclaimer on legal advice holds true. Don't take anything you read here as gospel.

The comments to this entry are closed.

My Book

  • Ice Sculpture of Mermaid with Cigar

    Icecoversmall Is now available at Amazon

    You can also read about it