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Dave Kennett
Dave Kennett, Lawyer
Category: Criminal Law
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Experience:  25 years experience practicing attorney
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My husband was arrested and the statement I made was given

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My husband was arrested and the statement I made was given after 24+hours of no sleep and after he did commit domestic violence. Due to my upbringing and the emotional state I was in, When the police officer made a comment to the effect that our room "looked like it was set up for that kind of sex" I was extremely embarassed and the things we did together made me feel dirty becuase of what the officer said. We had had rough sex (S+M) but it was consensual but It came off wrong and tied with the DV that followed that same night and when I couldn't think straight anymore and the detective was putting words in my mouth, Several sexual charges were pressed. I told the Det. I wasn't raped. He said I should go to the Rape center anyway to get it out of the way. So, half dead to the world because of how tired I was I went. A few days later I tried to call the detective to drop the charges but he told me I couldn't I told him my statement wasn't correct. At which point he started threatening me with class A misdemeanor, and "hostile witness". The thought of being arrested and taken away from my children was enough to intimidate me to silence. My husband needs drug counseling and DV classes. But he didn't rape me. The charges are in essence out of my hands but can I plead this case to the judge in a letter and have the charges dropped despite the prosecutions statements that I couldn't drop the charges? My husband is in jail for other charges related to this incident not against me so it isn't like he's been sitting there for nothing. But I need to know what can be done to ensure that justice for the defendent is reached and that justice for the vicitm is upheld as I didn't intend the statement to not be accurate and shouldn't be punished for the problems with my statement caused by the interviewers. If I can write a letter to anyone, who and what should it say?
Submitted: 3 years ago.
Category: Criminal Law
Expert:  Dave Kennett replied 3 years ago.
-Could you explain your situation a little more?
Is your husband being represented by an attorney?
Customer: replied 3 years ago.

My original statement mixes up details I don't even recall as I was incoherent due to lack of sleep and upset over what had happened. It confuses the consensual sex with the Domestic Violence matter later that day. Also, when my husband was arrested I was at a neighbors' house and that's where he got arrested. I told the police I needed to go back to the house to check on my sleeping children and they took me back there to check on them. When we got there, the officer kept me from checking on them, saying he would do it and that is how he got his foot in the door to search. He also went through backpacks in the room which had nothing to do with anything related to the incident.

 

My husband has a State Defendor but hasn't been able to discuss the case very much with him.

 

 

Expert:  Dave Kennett replied 3 years ago.

Dear JACUSTOMER _ Writing a letter to the judge will do neither you nor your husband any good. A judge is not permitted to listen to or read any information on the evidence in a case prior to trial and would not dismiss any of the charges, I understand what you are saying and I understand the situation but the only way you can help your husband is if, in fact, this gets to the point where they actually want to try the charge of rape, Generally that type of charge in these situations are dropped in exchange for a plea to the lesser charges already existing. If for some reason the prosecutor decides not to drop the charge then you can testify on behalf of your husband at the trial,

All of the facts and what was said to the cop etc. are probably not going to matter in the long run since cases like this almost never come to trial, The typical situation is that his attorney will work out a reasonable deal with the prosecutor and your husband will plead to the reduced charges. I would suggest that you try to talk to his attorney at some point and make him or her aware of the situation and tell his attorney what you have told me. That's who needs to know the facts, not the judge or any other third party.

Customer: replied 3 years ago.

Yeah, I told the attorney. I just feel like the new information isn't being taken seriously enough. We can't afford a "real" attorney and my understanding is: State Defendors and Prosecutors are in on some cases. Kind of a scratch my back and I'll scratch yours...?? This made headlines and it would be a huge win for the prosecutor. What should I expect the Defendor to be doing for my husband? If it goes to trial, while I want the truth to be known, since I gave the original statement and the revised statement they could push for a false statement charge for me. It seems like I would be punished for trying to ensure the truth is given.

 

If writing the judge asking for charges to be dropped would be of no help, what about a presentencing letter?

Expert:  Dave Kennett replied 3 years ago.
I assure you that prosecutors and public defenders are not friends in the courtroom so that is simply a myth. Of course you can write a presentencing letter when the time comes but not berfore the trial or the case is settled. His attorney can't really use your information unless the prosecutor wants to continue with the rape charges. Then he will certainly talk it over with you.
Customer: replied 3 years ago.
During the heat of it all, I filled out a protective order with one of the victim advocates. It contained some of the same info as the statement because I was afraid if it differed, I would get in trouble. I have two children listed on that and when I last went to court, I wanted the PO be dropped down to skeletal: No threats etc... My state lawyer advised against it as my husband is still facing the criminal charges, So as of know it still stands with the exception of allowing We have two children and when their state appointed attorney found out this, he began questioning my ability to keep my children safe. He brought up "juvenile court". What can be done by me and my husband once my husband is sentenced to make sure that my family and the kids' attorney is satisfied?
Expert:  Dave Kennett replied 3 years ago.
I'm not certain what this has to do with your original question about writing to the judge to explain the situation but I see no reason why a conviction of your husband would affect your ability to care for your children. If your husband goes to jail then he would be out of the picture and you would have the kids. That is an entirely different question from what can be done to get the rape charges dropped.
Customer: replied 3 years ago.

If the case goes to trial am I better off sticking with my intention to invoke spousal privilege or testifying??

 

They could ask if my husband caused pain during intercourse which of course could be answered yes and they could ask if I was tied up during intercourse, the answer would be yes. And although it was consensual, I know this could be used against my husband...possibly regardless if I say it was consensual because of my original statement. Would spousal privlege be the best defense for my husband and protection for me to avoid an acussation of perjury?

 

Also, If a policeman took notes of what I told him while still at my house and I didn't testify, would his testimony be admissable? is it hearsay?

Expert:  Dave Kennett replied 3 years ago.
If you do not testify then I can't see how anyone could prove rape. You are really getting ahead of yourself in all of this since his attorney will be the one to plan the trial strategy so you will need to confer with him as to the best route to take. His attorney will be in control of the defense in the trial and will have to make the ultimate decision as to how the evidence is presented or not presented. Sometimes saying nothing is far better than getting tricked into saying something you don't mean or that is taken out of context.
Dave Kennett, Lawyer
Category: Criminal Law
Satisfied Customers: 27687
Experience: 25 years experience practicing attorney
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Customer: replied 3 years ago.

Yeah, I wish I had been able to think straight to begin with to avoid all this. So, even if I went to SANE/NUSANE (the rape center) can that be offered as evidence if I don't take the stand?

 

And despite the context of the letter and having signed it, that alone doesn't prove rape? and can they even use my statements to ANYONE if I don't take the stand?

 

And If I let them take pictures of the Domestic Violence (bruises) can those still be used if I'm not on the stand? Keep in mind, I'm not saying he didn't do it and despite how much I love him, I acknowledge what he did was wrong. Its just so I know what to expect.

 

Thank you for your patience, I appreciate your answers.

Expert:  Dave Kennett replied 3 years ago.
Once again, the rules of evidence are very complicated and his attorney will have to make the decision as to whether he objects to the presentation of the various reports and pictures etc. If you take the stand then they can use all of that to impeach your testimony so at this point it would seem that it would be better to claim the privilege and not expose yourself to the cross examination. As a case proceeds the strategy sometimes changes depending on the discovery and what rulings the judge makes as far as admissibility of evidence. Right now all of this is speculation so you will need to follow the advice of his attorney as the case moves along.
Customer: replied 3 years ago.
what heppens if
Customer: replied 3 years ago.
Can I tell the police the original statement is wrong? I already told the dectective but can't I give a new statement that states the first statement was wrong?? I already gave the defense the revised one but I need to get this corrrected so that my husband isn't facing the sexually related charges and It doesn't seem to matter unless it goes to trial.
Expert:  Dave Kennett replied 3 years ago.
I thought I made it clear that you should not talk to anyone except your husband's attorney. The more you say the worse it will be. Talking to the police is the absolute worst thing anyone can do and every defense attorney in America will tell you the same thing. I know you feel like you need to do something but in reality the more you try to do the worse the situation will be. It is best if you just keep quiet and only discuss this with your husband's attorney. I really don't know how else to say it but talking about the crime is not a wise move. Everything you say will be used against you and nothing you say will help either you or your husband.

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