Keys to Winning Criminal Trials

Part of being an effective trial lawyer is the ability to cross examine witnesses. Usually there is at least one witness that you need to effectively impeach and demonstrate that they are wrong. And usually there is at least one witness you need to show that they are just not credible or believable. Many times you won’t be able to find physical evidence or other circumstantial evidence that contradicts them. You have to show that there word simply can’t be trusted.

A lot of times you can show a witness is wrong by physical evidence or circumstances that cast doubt on their accuracy. You may be able to show that their positioning makes it impossible for them to have seen what they claim. Or you may be able to show that the lighting was such that they could not have seen what they claim. Eyewitnesses are frequently wrong and a good lawyer searches the situation for physical proof or physical circumstances that prove that they are most likely wrong. A witness like that can be impeached gently. You don’t have to accuse them of being a liar, you just have to show them to be wrong. Sometimes when presented with the proof they will cave in and admit they could be wrong.

Sometimes you need to bring in an eyewitness expert to talk about the psychological phenomenon and the physical situation to demonstrate to the jury how witnesses tend to get things wrong. Witnesses want to be helpful and that bias causes them to exaggerate their certainty and makes them resistant to admitting that they just don’t know what they claimed to have known. These eyewitness experts are usually psychologists who specialize in the social science research of human factors, such as lighting and vision, and the psychological factors that go into witness observations.

More difficult to cross examine is the witness where there is no physical evidence or psychological phenomenon to contradict. They simply are accusing you of doing something and it is their word against yours. They may have a grudge against you, they may just not like you, or they may just be nasty humans. In any event you have to impeach them or you will be convicted.

The first thing to do is figure out what their motive is to lie. But once you do that you still have to attack. One of the best ways to impeach a witness like this is to impeach they with prior inconsistent statements. In many cases a witness will give two or three statements to the police or other agencies. Nowadays most of these statements are tape recorded, either by video or audio or both. A lot of times the initial statement to the police will not be recorded but by the time social services or the detective interviews them they will be recorded.

The first thing you do is to get every statement possible. In a sexual assault case make sure your lawyer gets the medical report from the sexual assault response team. That report always has statements made by the alleged victim and many times they are different than what they tell the detectives later. Later on you can add the preliminary hearing to that list of times they have given a statement.

Second you need to have all of the statements transcribed. Once you have a written transcription of all of the statements you will have the tools to impeach them with inconsistencies in their statements. This is where the lawyer, and the client, should go over the statements several times and compare what they said on each topic. If your alleged victim is not telling the truth I guarantee you things will be different. Sometimes the differences are subtle and sometimes they are huge.

If your lawyer is good they will be able to catch the witness in some unexplainable inconsistencies. Once a witness has been caught and they realize it they lose confidence and will likely show behavior that will cause a jury to wonder why they couldn’t keep the story straight.

You can help your lawyer by reading the various accounts carefully and pointing out the inconsistencies by page and line. Sometimes your lawyer won’t agree that what you have found is significant but your lawyer will appreciate the help.

Police Officer Credibility

PITCHESS AND RELATED MOTIONS
Aggressive Challenge to the Credibility of Officers Involved in the Case

Whether your attorney is trying to get the best “deal” or win your case at trial, casting doubt on the credibility of the cop(s) involved in the case can become important to your defense. Broadly, there are two ways to go about casting doubt on the cops’ credibility. First, you can directly assert that the cop(s) knowingly engaged in deceitful or wrongful behavior contributing to your charge(s) (for example, planting evidence, lying, excessive force, sexual harassment, racist or sexist behavior). Second, you can assert that the cop(s) conducted a “sloppy investigation” (purposeful or through ignorance) contributing to a reasonable doubt. In some cases, you may be asserting some combination of these two.

This article addresses the first broad challenge to the cops’ credibility, which is directly asserting deceitful or wrongful behavior contributing to your charges. For a discussion of utilizing “sloppy investigation” as part of establishing reasonable doubt, read my companion article “Sloppy Investigation: A Defense Lawyer’s Dream.”

Cops directly engaging in deceitful or wrongful conduct contributing to your charges can take various forms. They may plant evidence, they may fabricate evidence such as informant information, what they actually saw or about statements you made to them, they can beat you down and arrest you for resisting, they may act totally racist or sexist towards you and arrest you when you don’t put up with it or they can sexually harass you and arrest you when you rebuff their advances.

Importantly, you may not be the only person the involved cop(s) has/have done this to. If the prosecutor won’t deal to your satisfaction or your case appears headed for trial and you believe the cop(s) may have engaged in deceitful or wrongful conduct, you and your attorney should consider a Pitchess and related motions to have a Court review the involved officer’s personnel file to see whether others have made similar complaints or there have been disciplinary actions for similar conduct in the past. The presence of such similar complaints or related actions in the officer’s personnel file may not only change the complexion of your case in the eyes of the prosecutor but may well be admissible at trial under, among other bases, Evidence Code § 1101(b) to show the officer’s motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident – in your case.

Depending on whether your issue is officer excessive force, officer statement coercion, an illegal search, false arrest or other misconduct will govern just which motion you will file. Your attorney will either be familiar with these or will research which motion is appropriate. Some of the names you may hear is a Memro motion, a Pierre C. motion, a Pitchess motion or some combination thereof. Each of these motions is governed by the type of law enforcement misconduct you are alleging in your case.

If a judge feels your declaration supports disclosure they will typically review the officer’s personnel file to determine if any information exists that would be disclosable to a defendant. Typically if complaints exist you are not entitled to all of the reports but you are entitled to date, place, nature of the complaint, all witness information, result of the investigation, and any discipline that may have been imposed. However, some judges feel that you’re only initially limited to the name of the prior complainant against the officer and the contact information for that complainant reflected in the file. In such a circumstance, you must have an investigator attempt to contact the prior complainant and interview them about their experience with the officer. Only once that is done will the court entertain a follow-up motion for disclosure of more information. Although this limited route almost ensures your attorney must engage in follow-up motion work, I personally don’t mind it because the more work I do in a case the more work others must do and it is always important to actually interview the prior complainant(s) because they can make powerful witnesses against the cop(s) at trial.

In all, these motions take a lot of effort on the part of your attorney, but in the right case they can be very productive and result in major evidence against a law enforcement officer who typically might carry a lot of power with a jury. Depending on where you are officers can be viewed as unassailable by juries and you need everything you can get to show that they are not telling the truth or they used excessive force and caused you t have the right to respond.

10 Questions You Should Ask Your Lawyer

THESE QUESTIONS ARE DESIGNED TO HELP YOU DETERMINE IF YOUR LAWYER IS DOING WHAT THEY ARE SUPPOSED TO BE DOING TO GATHER INFORMATION AND PREPARE TO ADVISE YOU TO PLEA OR GO TO TRIAL

If you are involved in a criminal case you should monitor your lawyers progress. It is important to see not only if your lawyer is doing their job but also it is important for you to be involved in your case. An informed client makes better decisions about their life and their future! If you find that your lawyer is not doing his/her job, knowing this will help you prod them into action or give you motivation to seek other counsel.

In the early stages of your case it is important to gather information and develop a case strategy. You should ask the following questions:

1. Have you gotten all of the police reports, audio and videotapes of witness statements, and other “discovery” from the district attorney’s office?
2. After insuring that the attorney has reviewed everything ask him how the evidence looks? What is the bad evidence? What are the weak spots in their case? Do we need to do any investigation to clear up or develop evidence that would help?
3. After you have a clear understanding of the case against you ask the attorney what he advises you do? Should I plead? Should I go to trial? Should I go to preliminary hearing? Why?
4. Once you have determined your general goal ask your attorney what his strategy is for attaining that goal. When does he expect to make a deal? Is there anything needed to be done before that date to help make the deal happen?
5. Sometimes the preliminary hearing is a good place to air out the evidence and show the prosecution that their case is weaker than they think. Are we going to do that? Is it better to waive prelim so the record won’t show how bad the facts are for us?
6. Sometimes the deals are better before the prelim and sometimes the deals are better after the prelim. This can be a factor of which judge will preside over the different settlement conferences. Where does your attorney recommend that you plead and why?
7. If you decide to plea, ask your attorney what his goal is for your sentencing. Am I going to have a psychological evaluation? Are you going to need letters from friends and employers? What can I do to help you get ready for sentencing?
8. Ask your lawyer what sentencing alternatives are available. Can I get work furlough? Can I do community service? Do you think the judge would consider a drug rehabilitation program?
9. Once you plead you will be interviewed by the probation officer. Ask your attorney how you should handle the interview with the probation officer. Should you discuss the facts of the case with him? Is there anything about my life that you think I should tell him? What kind of attitude show I have when I interview with him? What should I wear? How are my hair and my general appearance?
10. If you go to a sentencing hearing, ask your attorney what his plan is for the hearing. What is the judge like who is going to sentence me? Are you going to submit a written sentencing memorandum? Are you going to call any witnesses? Why or why not? Who does he want to have present? Does he want me to speak? What should I say?

WAR INJURIES AND THE LAW

It is a cold fact that up to a third of the men and women in our nation’s prisons are veterans. It is also a cold fact that California leads the nation in recidivism, men and women caught up in the revolving door of incarceration. Our prisons have become little more that graduate programs in crime and this is unacceptable. However, with regard to combat veterans who are caught up in the criminal justice system, there is a new tool: Penal Code Section 1170.9.

No one doubts that combat veterans serving in Iraq and Afghanistan, touched by the horrors of war and returning home, are forever changed. Some will cope, but a large percentage are suffering from post-traumatic stress disorder, or related psychological problems. In addition, there are still thousands of Vietnam and Desert Storm veterans who are struggling with combat-related issues. Regrettably, many of them are, and will, come into contact with law enforcement. Our society put them in harm’s way, and it shares responsibility for their damage in our service. Parades, flag-waving and patriotic slogans are great, but we owe them far more than that. They have earned a level of consideration that is commensurate with their sacrifice. This is not giving special treatment; it is recognizing how special their service has been.

Penal Code Section 1170.9, signed into law in 2007, recognizes that sacrifice and accepts that responsibility. It is the first, but not the only, Alternative Sentencing Program in the nation for War on Terror Veterans suffering from post traumatic stress disorder (PTSD). Depending on the nature of the offense, and wherever possible, Penal Code Section 1170.9 gives judges the discretion to apply what some refer to as “problem-solving justice” in framing remedies. Punishment where appropriate, but not for punishment’s sake, and avoid unnecessary harm if possible.

This section is still so new that very few defense attorneys, prosecutors, and judges are aware of its existence. In essence, the Section provides that once a combat veteran is convicted, and is otherwise eligible for probation, and certain requirements are met, the judge has an option other than sentencing the combat veteran to prison or jail. Once a clear connection is established between the offense and a diagnosis of post-traumatic stress disorder, substance abuse, or psychological problems stemming from service in a combat theater in the United States military, the judge may order the defendant into a local, state, federal, or private nonprofit treatment program. Of course, the veteran has to agree to this alternative. If the veteran successfully completes the program, the court may dismiss the charges. Having an experienced criminal attorney is the only way to ensure a fighting chance of keeping the freedoms a veteran has fought for.

In California, there are a many such private programs, as well as some that exist within the Veterans Administration and Counties. Some the better known ones are Veterans Village in San Diego (which already has a court referred defendant), U.S. Vets in Long Beach, New Directions in Los Angeles, and Swords to Plowshares in the Bay Area. These are residential facilities that deal with the victims of post traumatic stress injuries are a vital asset for the courts and for the recovery of our veterans to a productive life. Prison is no remedy.

Currently the debate regarding this code section centers on the nature of offenses that will be considered for alternative sentencing. Although the only requirement concerning the offense is that the defendant be eligible for probation, there may be some offenses that will not be considered by District Attorneys or Judges. Violent felonies, for one, are difficult choices. The bottom line is that the judge will have the discretion to determine, on a case by case basis, which offenses to accept.

Education is the key to any new approach. Our entire criminal justice system needs to recognize and understand this new code section and accept that we share a significant responsibility for the welfare of our combat veterans. Already, there are some jurisdictions, such as Orange County, that recognize this need and are developing new approaches, such as a Veterans’ Courts to address the growing problem. A stand-alone Veterans’ Court, like Drug Courts, is presently being proposed by the United States Senate and other states are doing so as well. Clearly, this is an issue which grows with importance with every year this nation is at war, and for the generations that will follow.

Clearly this dialogue cannot begin too soon. The clock is ticking, and every day another combat veteran is overwhelmed by the damage he or she has suffered in our service. The dialogue between all elements of the criminal justice system and veterans’ services should begin immediately, and it is incumbent upon members of law enforcement, prosecutors, defense attorneys, the judiciary and probation departments to make an aggressive beginning. Does anyone doubt that we owe our combat veterans anything less?

HOW CAN YOU AFFORD A LAWYER IN THIS ECONOMY?

THE TOUGHEST TIMES IN THIS COUNTRY IN DECADES

These are the toughest economic times in this country in a long time. Now this may not be an interesting subject for you to read but you need to understand it because it affects you directly. Families are having a much harder time accessing enough money to hire good lawyers. You have probably seen in the news all the big companies who are going under because of the collapse of our economy. When General Motors, Chrysler, and Ford are on the verge of going under you know this country is in trouble. And it is not just in the automobile industry, it is everywhere! People in this country are losing their jobs left and right.

To summarize how it happened, it began with the collapse of real estate. For many years regular folks have bought houses. As the real estate values increased the value of their homes increased. People who bought a house for 75,000 or maybe 100,000 years ago suddenly had a house that expanded up to where it was worth 300,000, or even more. Lenders would lend these people money based on the increased value of their homes and the amount they owed rose steeply. Those with not great credit could get loans from lenders just based on their equity(the value of the house over what is owed.)

All these lenders then sold their loans to companies on Wall Street who packaged them up as “securities” and sold them to investors. Then the values of real estate started to drop. And the values kept dropping and dropping and dropping. In California values had grown way high and the drop was steep. Regular people who had loans on their equity suddenly owed more than their house was worth. The Wall Street companies who had sold these mortgages as securities began to collapse. The stock market shot down to where the impact was worse than the great depression of 1929. Companies started going under. People lost their jobs and could no longer afford their mortgages. And here we are.

Your family, which used to be able to afford to get a loan on their house to help pay for your defense could no longer do it. Lenders haven’t loosened up yet and the equities in the houses are still low. Even on the smaller cases, families are having a harder time because they need the money and they think that they might as well let the public defender handle the case. The public defender caseloads are growing higher and higher and their staffs are not growing to accommodate the increased caseloads.

If you are charged with a serious crime you really need to hire a good lawyer. Now you need to make you choice more carefully because you cant afford to make a mistake. Many times we see people hire some lawyer, their family pays a lot of money, and they end up realizing that the lawyer is just not that good. It used to be that the family could afford to bypass that mistake and hire another lawyer. Now chances are they can just afford hiring a lawyer one time. You don’t want to end up realizing your life and freedom are on the line and you have to get rid of your bad lawyer and go back to the overworked public defender or panel attorney.

Make sure you and your family hire an experienced criminal attorney or a firm who is reputable and capable of providing you the best defense. Look at their credentials, their results, and interview them carefully so you can hear for yourself, if they know what they are doing. In fact you should interview more than one lawyer so you can see the difference for yourself. You can tell by listening carefully to them if they know what they are doing. Don’t be fooled by someone who promises a lot because they may not be able to deliver. And you don’t want to be on trial’s doorstep when you find out your lawyer is not worth a damn!

Also see if the attorney or the firm has a serious financing plan. If you are going to finance a larger amount the family is going to have to back it up with a good long term job, their retirement account, or their property. They will have to put a significant amount down but that is better than having to pay the entire fee up front. They will also have to pay interest on the payments. In a smaller case the family will have to have a good long term job, decent credit, and agree to be responsible for the payments plus interest, through a debit or credit card.

More carefully, this is a huge decision and it could literally mean the difference in many many years in prison. With the firearm enhancements, gang enhancements, and strikes you could end up spending so much time in prison that you will be very old if you ever get out. Remember, however, giving up is not an option!!

When a DUI Becomes a Murder!

Imagine going out with friends to a bar after working, drinking and enjoying life with your buddies, waking up in the hospital and finding out you are being charged with Murder! You were involved in an accident driving 80 miles an hour on the wrong way on the freeway and you hit a vehicle killing 2 persons and seriously injuring 2 more. You had no intent to hurt anyone. You don’t even remember the night after a few hours into the evening. You have couple of prior DUIs but you thought they were just bad luck and nothing other than your buddies were doing.

It hits home the very real fact that alcohol and drugs are powerful intoxicants that can cause regular folks to engage in dangerous and deadly behavior. You don’t have to be a bad person to be charged with a DUI murder, you just have to have engaged in deadly driving conduct, under the influence, and have prior knowledge of the deadliness of driving while intoxicated.Cases like these are why having an experienced criminal attorney defending your freedom is important.

Becoming more popular prosecutions these days are what is know in the law as Watson Murders. These cases involve drug or alcohol related vehicular accidents that are charged as 2nd degree murder rather than gross vehicular manslaughter. The critical element that distinguishes the Watson brand of second degree murder from gross vehicular manslaughter is implied malice. The malice, found in murder is implied from the circumstances of the driving and the mental state of the driver as opposed to gross negligence which is found in gross vehicular manslaughter.

Gross negligence is defined in the law as “so slight a degree of care as to raise a presumption of conscious indifference to the consequences.” The “implied malice” element of second degree murder is when a person, “knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life.”

This means that if you drink and drive and get into a vehicular accident you could be charged with murder if the circumstances are such that a prosecutor thinks that implied malice may be involved. The maximum for one count of gross vehicular manslaughter with alcohol is 10 years, the sentence for 2d degree implied malice murder is 15 to life.

The mental state of the defendant is usually the most important issue in a vehicular accident prosecution for murder. The prosecution must show that the accused acted deliberately with a conscious disregard to human life, knowing that those acts were dangerous to human life.

Many times this involves drivers with previous convictions for driving under the influence. Knowledge of the danger doesn’t have to be from prior convictions but prior convictions provide documented knowledge that the driver understood the consequences of driving while intoxicated. In fact, courts routinely admonish someone pleading to DUI that they acknowledge the danger. Part of the admonition is the statement that you know if you drive while under the influence of alcohol or drugs and someone is killed that you can be charged with murder. These are called Watson acknowledgments.

The programs that a convicted DUI offender goes through can also provide the knowledge. People convicted of DUI attend programs that specifically instruct in detail repeatedly of the possibilities of death and destruction that comes from driving under the influence of intoxicants.

The actual factors that will provide sufficient evidence for implied malice in vehicular cases are:

1. Blood alcohol level above the .08 legal limit;
2. A pre-drinking intent to drive;
3. Knowledge of the hazard of driving while intoxicated
4. Highly dangerous driving.

Whenever you have a vehicular death charge and intoxication is involved you have a much harder time proving that the accident wasn’t your fault. Accident reconstruction experts, who normally help tremendously may not be much assistance with a high blood alcohol. That doesn’t mean it shouldn’t be analyzed, or you shouldn’t try, it just means practically that a high blood alcohol is a tough fact to get around if you want to debate causation.

If you are charged with a Watson Murder you need to get out of denial and help your counsel defend you properly. If the evidence is strong enough you need to consider attempting to plea bargain. You do not want to be convicted of something involving a “life tail” in this state and in this political climate. You may have a better chance of parole having been convicted of a driving incident, rather than an intentional killing, but don’t count on it. Prison is a tough place and you can’t guarantee that you will not have incidents that cause problems with your good time credits.

Major Criminal Case to Decide if Juveniles Strikes are Strikes

Interesting things are happening in the appellate courts regarding 3 strikes and the record of juveniles. It had been well established in California that juvenile strikes count as strikes in adult offenses. You can imaginge the impact of this! Juvenile cases are handled(generally) less aggressively than adult cases and criminal records are built up quickly. There is no right to a jury trial and cases are settled more with an eye towards rehabilitating the juvenile and trying to get them on the right track in life. The consequence is that they frequently end up with offense that are technically strikes.

A bright lawyer has brought a case(People v Nguyen) citing the lack of jury trial and the fact that the juvenile court acts as parens patriae. That is a Latin phrase that means that the court stands in the place of the parent and rehabilitates the juvenile in a way that the parent should. It is for that reason that juvenile courts are less adversarial, why certain rules of evidence don’t apply, and why juveniles are not entitled through the constitution to a jury trial. That concept is inconsistent with applying strikes.

How the Supreme Court of California will decide is unkown. But regardles of how they decide this will impacts thousands and thousands of cases. And, it will ultimately be heard as an issue in the United States Supreme Court.

Compelling Discovery Before the Prelim in Riverside County

Riverside County can be a difficult place to be charged with a crime and get adequate justice. A recent article in the Los Angeles Daily Journal reported that a grand jury faulted the Riverside County District Attorney for causing major backlogs in the courts. We submit that these problems have caused a real problem with adequate justice for anyone charged with a crime. Riverside County causes major headaches for criminal defense lawyers and major injustice and costs for those accused. One of the problems is getting adequate discovery before the preliminary hearing so that you can properly prepare your case. A standard refrain from the prosecution is that you are not entitled to discovery prior to the preliminary hearing. This results in a culture of non disclosure that stretches from the district attorney’s office to the law enforcement agencies.

You are entitled to discovery before the preliminary hearing. If a DA resist your request and the information is important you should have your lawyer bring a motion. The following are actual excerpts from a motion brought in Riverside County to get medical records of an alleged victim that the DA’s office refused to provide. The motion was successful. It was filed, a hearing was set, and the DA decided to provide the information. These are parts of the Points and Authorities only.

THE PROSECUTION IS REQUIRED TO DISCLOSE INFORMATION TO THE DEFENDANT IN POSSESSION OF THE PROSECUTING ATTORNEY OR IF THE PROSECUTING ATTORNEY KNOWS IT TO BE IN THE POSSESSION OF THE INVESTIGATIVE AGENCIES

Under the reciprocal discovery scheme of Proposition 115, the prosecuting
attorney “shall disclose to the defendant or his attorneys…material and information, if it is in possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies.” (Pen. Code section 1054.1) Any favorable evidence known to the other investigative agencies acting on the government’s behalf is imputed to the prosecution. (In re Brown (1998) 17 Cal.4th 873, 879, [72 Cal.Rptr.2d 698].) “The individual prosecutor is presumed to have knowledge of all information gathered in connection with the government’s investigation. Thus, the prosecution is responsible not only for evidence in its own files but also for information possessed by others acting on the government’s behalf that were gathered in connection with the investigation.” (In re Steele (2004) 32 Cal.4th 682, 697, [10 cal.rptr.3d 536].)

DEFENSE IS ENTITLED TO STATEMENTS AND REPORTS
THAT ARE RELEVANT AND FAVORABLE TO THE DEFENDANT

Under the Proposition 115 reciprocal discovery scheme the prosecutor is required to disclose to the defense any relevant reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at trial. The Federal Constitution requires the disclosure of statements or reports of experts the prosecutor does not intent to call at trial, if those statements or reports provide substantial material evidence favorable to the defendant. (In re Brown (1998) 17 Cal.4th 873 [72 Cal.Rptr.2d 698].)
The prosecutor is also required to disclose any evidence that would tend to exonerate the defendant, minimize probable sentence, or that constitutes information the defense might use to impeach or contradict prosecution witnesses. (People v. Brady (1963) 373 U.S. 83 [83 S. Ct. 1194, 10 L. Ed. 2d 215].) Brady discovery includes information that relates to the existence of evidence tending to suggest that someone other than the defendant committed the crime charged against the defendant.
“A prosecutor has a duty to search for and disclose exculpatory evidence if the evidence is possessed by a person or agency that has been used by the prosecutor or the investigative agency to assist the prosecution or the investigative agency in its work.” (Barnett v. Superior Court (Butte) (2006) 146 Cal.App.4th 344, 365, [54 Cal.Rptr.3d 283, 299].)

DEFENSE COUNSEL IS ENTITLED TO THE REQUESTED
MATERIAL PRIOR TO THE PRELIMINARY HEARING
Defense can bring a motion to compel discovery before the preliminary hearing of materials and information that go to an affirmative defense, evidence that might negate an element of the crime, and evidence relevant to the impeachment of a prosecution witness. Proposition 115 codified the defendant’s preexisting right to present such evidence at the preliminary hearing and the defendant has a substantial right to obtain evidence on these issues through discovery before the preliminary hearing. (Holman v. Superior Court (1981) 29 Cal.App.3d 1302, 1310, [246 Cal.Rptr. 775].)
defense might use to impeach or contradict a witness for the People falls under “Brady” discovery. The exam performed on Doe by the Children’s Justice Center may contain such information. If Doe testifies at the preliminary hearing to certain facts regarding any alleged sexual abuse, any alleged injuries, or any fact related to the examination itself or results there from, defense will seek to impeach her using the medical report as a basis. Also, it is necessary the defense have access to this report prior to the preliminary hearing as it is important information to gauge in light of the evidence. The results of the medial examination will better guide the defense in determining possible defenses and case strategies.

Defending Gang Allegations

Sentencing enhancements are allegations that are added to the charging document in order to increase a defendant’s maximum potential sentence as a result of his/her prior record, use of some form of weapon in the current offense, or the fact that serious or great bodily injury resulted from the criminal conduct. While obviously serious, these allegations are usually resolved during the investigation, disposition, or litigation of the underlying facts of the case. In contrast, the “gang enhancement” outlined California Penal Code Section 186.22(a)-(j) seeks to add substantial additional prison/jail time under the argument that the current crime was committed to further “gang” activity. This calls into question the defendant’s prior life history and can seriously complicate the defense of even the simplest of felony charges.

The California gang statute has often been referred to as “bulletproof” by defense attorneys that do not have the required experience and/or insight into how to challenge this difficult issue. As a result, some attorneys “throw in the towel” almost immediately into any case wherein they see the gang enhancement alleged. In reality, it is only a small number of cases wherein the use of the gang statute is not vulnerable to some form of challenge. These are cases wherein the prosecution has a legitimate gang with a longstanding prior history; an actual gang member that has a long history of claiming and/or acting on behalf of that gang; and an underlying crime that clearly was committed to benefit that gang. Until the prosecution limits their use of this statute to just those cases and stops trying to incorrectly leverage larger sentences through the misuse of this statute in all other cases, an experienced defense attorney can successfully challenge the use of this statute against their client.

There are three general ways to challenge the use of the gang statute against a particular defendant. The first focuses specifically on the application of this statute to a specific defendant based upon his prior criminal history and/or actual gang history. The second relates to the prosecution’s use of the “gang expert” in order to improperly fill in factual holes in their case with “expert predictions” regarding gang behavior. And the third focuses specifically on conflicts or inconsistencies between past and current testimony of the particular “gang expert”.

Defendant Specific Challenge

This form of attack focuses specifically on the application of the gang statute to a particular defendant. Where the prosecution has alleged that the defendant is a gang member, the defense seeks to portray the defendant as undocumented, an associate or acquaintance of some members of the particular gang, or someone who has long ago given up actual gang involvement. Under any of these arguments, the particular defendant would not be a proper target for the gang statute.

Undocumented Gang History
The defendant has no prior documented prior history of gang involvement and while may have been around actual gang members at the time of the offense, he was not involved for the benefit of the gang. An example of this would be the situation wherein an undocumented defendant is at a party or gathering with other defendants who may be documented gang members. While there some form of altercation breaks out as a result of something that had absolutely nothing to do with the gang. But because some of the parties on either side of the altercation may have been gang members, it is charged as a gang offense.

Focus: Complete lack of gang documentation history. Underlying offense can be attributed to some facts/purpose that was not specifically intended to benefit a particular gang.

Gang Associate
The defendant knows or occasionally hangs out with persons who are known documented gang members. However, he is not an actual documented gang member and his involvement in the charged offense was not intended for the benefit of a particular gang. An example of this would be the situation wherein a defendant with no prior gang history gets arrested with two other documented gang members during the commission of some form of robbery or burglary. In this instance, the defendant would be little more than an occasional associate and the actual underlying crime was one of opportunity intended to result in the acquisition of stolen money or property and not simply the furtherance of some specific gang. More often than not, the prosecution pays far too little attention to the distinction between a simple gang associate versus a truly hardened and documented gang member.

Focus: No true gang documentation history. Instead, a short or uneventful history of being around gang members occasionally while living in a particular neighborhood. Underlying offense can be attributed to some facts/purpose that was not specifically intended to benefit a particular gang.

Retired Gang Member
The defendant was once long ago documented or active in a particular gang. However, he has not been documented as active for a long time and was simply involved in an incident that may have involved other gang currently active gang members. Using the same party example as discussed above, a long ago retired gang member becomes involved with other current gang members in a serious altercation that arose as a result of some issue at the party that had nothing to do with gang activity (i.e. a woman). In this instance, the defense must focus the attack on the fact that once documented as a gang member, it is nearly impossible to be removed from that classification.

Focus: No true gang documentation history for a long period of time prior to the current allegations. Underlying offense can be attributed to some facts/purpose that was not specifically intended to benefit a particular gang.

Expert Testimony Challenge

Unlike the defendant specific challenge discussed above, this challenge focuses on whether the prosecution intends to properly use gang expert testimony. Or instead, they intend to misuse such testimony to fill in factual gaps in their case with “expert predictions” on gang activity. Here, the argument focuses on the fact that “gang experts”, unlike most true scientists or doctors, are offering testimony that has no basis in some form of true science, psychology, or sociology. Instead, “gang experts” are usually cops who are seeking to offer expert testimony that would allow them to speak to far more issues than normally admissible. The only properly admissible purpose for such testimony is the situation wherein the testimony is intended to help the judge or jury understand significance of evidence and put it in context of gang behavior/custom. This form of testimony is completely improper where the “gang expert” seeks to fill in factual gaps or leap to conclusions that suggest he/she can accurately predict individual gang member behavior at any given time simply based upon his training and experience.

Expert Specific Challenge

This challenge focuses specifically on a particular “gang expert’s” opinion and how it conflicts with prior testimony he/she has given on same or similar issues in the past. More often than not, experienced attorneys are well acquainted with the prior history and opinions of particular “gang experts” that are regularly used by the prosecution. And when defense attorneys have done their homework on a particular expert, he/she may well find prior cases wherein this particular expert has said or done something that conflicts with their current opinion or the current position they are taking as to the defendant. Or even better, they may be aware that a particular “gang expert” will say or do anything in order to protect “his/her” case.

In closing, there is no such thing as a case wherein some form of challenge cannot be levied on behalf of a particular defendant. However, the success of any challenge will be limited to the experience and/or background of your particular defense attorney. It for this reason that careful selection of an attorney with the proper experience/background is essential when facing the serious penalties created by the California gang statute.

Bruising Can Tell A Story | Domesitic Violence Charge

Domestic Violence

A lot of times when accusations are made that the defendant committed a violent act against another, the alleged victim claims that various bruises and other marks on the body were caused by the defendant. Usually they claim that these bruises are evidence of a beating or some criminal restraint of them so they couldn’t escape or get away from the defendant. You see these accusations a lot where women are accusing men, and that’s why an experienced criminal attorney is needed.

The problem is that bruises look bad. In fact they look worse than they really are many times. Bruising is a fact of life in physical activity and many times women bruise very easily. Many times a mad female alleged victim will allege that every mark on her body was caused by a defendant unlawfully. And, many times these allegations are exaggerated, false, and the result of a wild sexual encounter before things degenerate into anger and accusation. Many times these marks are the result of a woman going “crazy” during an alcohol induced domestic argument: self inflicted by flailing around or caused when the defendant attempts to restrain and calm her down. That is not always the case but if you as the defendant are the victim of false or exaggerated accusations it merits carefully exploration by an expert. Oftentimes the bruises tell a story that is different than what the alleged victim says happened.

Attorneys experienced in violent crimes have seen how frequent false and overblown accusations can surface in encounters between men and women. A trained attorney who has experience with pathology and the study of body marks can see the subtle signs that demonstrate a false accusation. These body marks when studied closely can tell a story. Their color can tell us when they happened(or didn’t happen!,) their shape or lines within them or along the edges can tell what kind of instrument caused them. Was it caused by a thumb, fingers, an elbow, a fist, a table edge, a counter top, a door frame, or some other important fact to know that will corroborate the version of the defendant.

And, was it even caused when the alleged victim says it was. As an example, in one case, of alleged attempted rape by a mad ex boyfriend, the body of the alleged victim was covered with over 50 bruises. These marks enraged the deputy district attorney and they wanted to put the defendant away for a long as possible. The defendant said that the alleged victim was lying and that she not only bruised easily and often, but had gone out on a binge for days before the alleged incident.

An expert was able to conclude, from some medication records, that she did have a blood condition that caused her to bruise easily. More importantly the colors of many of the bruises had different colors indicating that various groups of the bruises occurred on different days. Some were as old as 4 or 5 days before the defendant allegedly attempted to rape her and beat her. Ultimately, the deputy district attorney understood, and the defendant was given a felony reducible to a misdemeanor and a year in local custody. There were aspects of his case that warranted punishment but not on the most serious charges.

In another recent case an attorney had a situation where an alleged victim claimed the defendant had hit her in the eye with his fist. The marks were “ugly” and were part of some other very serious charges. She claimed that photographs taken of the eye happened on a particular date. The attorney noticed that the “black eye” was very yellow and consulted a trained pathologist who concluded that the eye injuries were probably several days older than possible under the date frame that the alleged victim claimed.