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Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 27181
Experience:  Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
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For JD 1992: Some time ago I communicated with you about a

Resolved Question:

For KD 1992: Some time ago I communicated with you about a case where my son was convicted of possession of Mj pipe and the case is now on appeal. The attorney general has recommended a new trial due to no trial defense counsel. The case has been in the judges possession now for over 7 months. There were two police officers who stopped the defendant the night of the arrest saying he did not stop at a stop sign. They decided to search him and the vehicle. One officer searched the vehicle and found nothing. The other officer searched the defendant and allegedly found a pipe. He was the main one who gave testimony that it was a marijuana pipe and he smelled it and it smelled like marajuana and allegedly the defendant agreed that it was marijuana. The defendant did not testify. Just found out today that the officer that gave that testimony died. What will happen if there is another trial since he was the one with the most damaging testimony?

Submitted: 1 year ago.
Category: Criminal Law
Expert:  Dwayne B. replied 1 year ago.

JD 1992 :

They can offer his prior testimony into evidence by reading from the transcript normally.

JD 1992 :

However, if they reverse based on no trial counsel then I think the testimony from the prior trial would not be admissible since there was no lawyer present to cross examine him and therefore they would have to call the defendant who admitted to it.

Customer:

I don't understand the part "..and therefore they would have to call the defendant who admitted to it." The defendant never testified. He acted as his own counsel. He did not admit to anything. It was simply alleged by the officer. When defendant asked the officer in cross examination if he had any recording of that conversation, the officer said no.








JD 1992 :

I thought you meant that the defendant had said it but just didn't testify at trial.

JD 1992 :

Or rather a co-defendant. they can't actually call the defendant in his own case.

JD 1992 :

realistically they just aren't going to be able to get that into evidence.

Customer:

are you saying the evidence is not admissable and the case would be dismissed because they cant force the defendant to testify?

JD 1992 :

It doesn't necessarily mean the case is dismissed, I can't say one way or another without reviewing all the evidence, but the officer's testimony shouldn't be admissible if the case is reversed because the defendant didn't have a lawyer and they absolutely can't force the defendant to testify.

JD 1992 :

Best wishes. Let me know how it turns out/

Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 27181
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
Dwayne B. and 13 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

There is no way to get the information to the appeal court judges that this officer has died is there? Proposition one was all about the errors that this officer made and this is a reverse and render request.

Expert:  Dwayne B. replied 1 year ago.
No, it's not relevant and you probably don't want them to know he's passed away. They may try to find a way to uphold it if they know it is likely to be dismissed if it is sent back down.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 27181
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
Dwayne B. and 13 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

How rear is it that attorney general agrees with defendant and argues on the defendant's behalf on an appeal (in this case for a new trial) I know you would be guessing but would one percent of the time be in the ball park?

Expert:  Dwayne B. replied 1 year ago.
Extremely, incredibly rare. I would think 1% at the most. I have only heard of it one time before.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 27181
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
Dwayne B. and 13 other Criminal Law Specialists are ready to help you

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