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Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 32339
Experience:  Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
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These are the arguments: Defendant lawyer-We can't go

Customer Question

These are the arguments: Defendant lawyer-We can't go further to establish our side of the case Judge- the Plaintiff has not established even a prima facie. Who wins? (This was for a restraining order)
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Dwayne B. replied 1 year ago.
Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts.I'm not sure if I understand what you're asking, but if the judge finds that the Plaintiff didn't establish a prima facie case of the elements for a TRO then the defendant would win and the TRO would be denied.
Customer: replied 1 year ago.
The TRO was had by my cousin, the plaintiff. It went to trial and my cousin won with the first judge. The first judge told the defendant that the defendant lost because key evidence was lacking. So the defendant went home and photo-shopped 3 pages of evidence. and then appealed. The defendant and defendants lawyer told the court huge lies. For example, the defendant's lawyer said that the plaintiff (my cousin) appealed the case since the plaintiff is a mentally sick, revengeful loser. The plaintiffs lawyer did not object because he needed the wealthy defendants lawyer property, to be used as free office space And the judge said my cousin could not tell the judge the truth, because only lawyers are allowed to speak, and the lawyers actually lied in court to the judge's face..But the court papers document that in fact,the defendant was appealing because the defendant lost the first case.The judge said the plaintiff did not establish a prima facia case. Who won, or was this dismissed?
Expert:  Dwayne B. replied 1 year ago.
I can't tell from that, at least as to the appeal.If the judge in the appeal said that the plaintiff didn't establish a prima facie case then the plaintiff lost because a prima facie case is the most basic case. If a plaintiff can't even establish that then there is no need for the defendant to even put on any evidence because the plaintiff must establish a prima facie case to even get past the initial stage.
Customer: replied 1 year ago.
The court says that if a prima facie case is not established, and the defendant says the defendant cannot prove anything and the police officer witnesses could not show up to assist the defendant, then the case is dismissed.The Supreme court states this case should never have gone on if none of the witnesses came.
Customer: replied 1 year ago.
Sorry a typo-I mean in line 2 "the police officer witnesses could not show up to assist the PLAINTIFF"
Expert:  Dwayne B. replied 1 year ago.
A case can be established by the party, it doesn't require additional witnesses.
Customer: replied 1 year ago.
What do you mean " A case can be established by the party, it doesn't require additional witnesses". What if you were accused of a civil crime, and the only person who witnessed that you were innocent was a police officer. If the police officer cannot show up, then the officer cannot give his testimony via a written summary.That is a rule of court.That means that you could be convicted, simply if the preponderance of evidence determines this. So, in this case, witnesses would be crucial in proving innocence. If there were no witnesses, how could you prove your innocence and thus your case?
Expert:  Dwayne B. replied 1 year ago.
You can prove your innocence solely on your testimony if the court believes you. No other witnesses are required. Of course, it is always better to have witnesses but it certainly isn't absolutely required under the law.
Customer: replied 1 year ago.
You said "You can prove your innocence solely on your testimony if the court believes you"
In actuality, you should have said "MAYBE THERE IS A CHANCE THAT YOU CAN PROVE YOUR INNOCENCE IF AND ONLY IF THE COURT BELIEVES YOU ABOVE ALL OTHERS'
If you were charged with a civil crime, all the court simply needs is simply a preponderance of evidence-and this may not be truthful evidence. If your spiteful ex and her lying big family and friends testify against you with false ,unified testimony, the preponderance is not on your side. You NEED the police officer who actually witnesses your innocence.Without this crucial witness, it is merely a he said-she said,, but the other side outnumbers lone you and the preponderance of evidence is on their side and against you.So you would probably lose, although you are innocent. Maybe that is why the Supreme Court views witnesses as crucial.
Expert:  Dwayne B. replied 1 year ago.
I disagree with a couple of things about that statement. First, there is no such thing as a "civil crime". It is either a civil case or a criminal case. Second, there are many, many cases won solely on the basis of a single witness. There are many criminal cases won where the defense doesn't put on any witnesses at all, they just cross examine the witnesses put on the stand by the prosecution. I can think of at least six criminal jury trials that I did myself where we chose to offer no evidence. I can think of a number of civil cases where the only witness we called was the party involved and still won the case. As I said earlier, if you have more witnesses then of course it offers an advantage because you have the option of calling them but it isn't always necessary. A lot has to do with the facts of the case, with the lawyer you have, with the party and how well they present themselves, etc.
Customer: replied 1 year ago.
I apologize for my semantics. I should have said civil case.
You said " there are many, many cases won solely on the basis of a single witness"
However, many cases are also lost with a single witness
You Said" I can think of at least six criminal jury trials that I did myself where we chose to offer no evidence."
And that may be because the person was guilty , so it would benefit the client not to testify, and the witnesses may have had prior histories-so not helpful. A plea bargain or praying for an innocence verdict is the best in this case.
YOU SAID ". I can think of a number of civil cases where the only witness we called was the party involved and still won the case."
There may be some, or more likely a few. Can you give examples?
Expert:  Dwayne B. replied 1 year ago.
Sure, on family law cases when we were seeking injunctions in one form or another the only witness that would be called was the party seeking them. In another case, there was a building dispute where a storage shed was built incorrectly and the only person who was called was the owner who had asked for the shed to be built.In several car wreck cases the only witness called was the person involved in the wreck. The medical records were proven up by medical affidavits.In a case where a car struck a cow on the roadway I only called the driver.There are a number of others, but I was an extremely active trial lawyer before I started consulting full time and had over a hundred jury trials and hundreds of bench trials and likely over a thousand hearings.
Customer: replied 1 year ago.
Is a jury trial preferable to a bench trial?
Expert:  Dwayne B. replied 1 year ago.
That's a matter of personal preference. I almost always preferred jury trials but most lawyers don't. They say they do but they really don't simply because they rarely do them. If you have any inclination that the trial judge is prejudiced against you then a jury trial is the way to go.
Customer: replied 1 year ago.
I agree with you.It seems to me juries seek the sincere truth more, and potentially don't rush haphazardly
Expert:  Dwayne B. replied 1 year ago.
I agree, juries tend not to let personalities come into play and look at the facts.
Customer: replied 1 year ago.
You said in 6 criminal trials you chose not to offer any evidence.Why?
Expert:  Dwayne B. replied 1 year ago.
It was probably more than that but at least 6. Usually it was because I thought that they hadn't proven their case and there was too big of a chance that if I did offer evidence or put on witnesses then they might have said something that would have allowed them to prove the case. It's a calculated risk.

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