You said "..If in fact the expert's testimony was necessary to establish an element of the offense and that testimony was on appeal or now struck down as incompetent such that the remaining evidence was insufficient to prove the offense as charged, then the defendant would be entitled to acquittal on that charge, and he could not be retried on that charge.."
In this case the prosecution repeatedly claimed in the Motion in Limine that marijuana evidence was needed to prove element three of the crime, that is willful disregard for the safety of others. So couldn't her own testimony be use to prove the point just quoted? And where can I find some statute or case history to back up your statement.
On the docket issue, this was actually filed by the court reporter. It seems a little strange since the entire transcript is already filed and the prosecution made no arguments against what was said about their expert's statements. I will try to get a copy to see what's going on.
I stated: "defense counsel's efforts to counter the testimony with readily available expert's and scientific studies constituted ineffective assistance of counsel and prejudiced the defendant." This should have been "defense counsel's failure to counter . . . ." The prosecutor's own statement could be used to support the point that the expert's testimony was essential or at least extremely important to the prosecution's case on that element, such that the prosecution's argument now that they didn't need it anyway, is just not credible or persuasive. Which specific point do you want case law on? The law on required finding of not guilty where the evidence is insufficient?
You asked:Which specific point do you want case law on? The law on required finding of not guilty where the evidence is insufficient?
Yes, that is correct.
Also will the prosecution have the right to have another written response to the defendant's written response to their response? Just wondering how long this can go back and forth with written responses.
There was no lesser included offense in the instructions.
Did defense counsel discuss with the defendant the possibility of requesting a lesser included offense instruction? I'm just thinking this could be another error of defense counsel. If the jury had the option of convicting on a lesser offense they may have done so. But, an instruction on a lesser included offense has to be requested.Here is a great assembling of OK cases on sufficiency of evidence. w w w. o c d w. com /DANGEROUS URL REMOVED/*qshome=home&st=291&kw=infset&ifn=163&trec=1&lktype=6&pst=
Generally, the standard is whether the evidence, viewed in the light most favorable to the state, was sufficient to convict on the charge as a matter of law. If the evidence was not sufficient the conviction cannot stand.
Note: the site kept blanking out the link. Omit the spaces and it should work. It's the Oklahoma Criminal Defense Weekly site.
Thanks for the information." You asked: Did defense counsel discuss with the defendant the possibility of requesting a lesser included offense instruction?.."
No. There was no discussion with counsel about possibility of lesser included offense.
The defendant was convicted of negligent homicide. Yes he would have wanted the jury to be advised of a lesser charge. The defendant discussed this with one of the previous attorneys. (He had three different attorneys one after another) The lesser charge he discussed with the other attorney was causing serious bodily harm to a byclist on the road and that would have been a traffic violation with $500 fine. The defendant was willing to plead guilty to that offense. The counsel said DA would not go for that. That is when defendant decided to go to trial. However this was not brought up to the attorney that he is now charging with ineffective counsel. But he surely would have been open to a lesser charge.
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