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JD 1992
JD 1992, Attorney
Category: Personal Injury Law
Satisfied Customers: 32369
Experience:  Board Certified Specialist in Personal Injury Trial Law, Member of Million Dollar Advocates Forum
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I was convicted of assault with a dangerous weapon, a

Customer Question

Hello,
I was convicted of assault with a dangerous weapon, a plastic dollhouse, 5 years ago in a bench trial. My wife at the time claimed that I struck her in the head causing her to lose consciousness on three occasions during the same incident. On, cross-examination, my lawyer noted the fact that, according to medical record, none of the testing (Eyes, Nose, Ears, Throat, CT-scan, x-rays) was positive.
In fact, she had no visible injury to her head, she received no treatment for an injury to her head, nor did she spend any time recovering from any injury. However, my lawyer did not present any forensic evidence. No forensic evidence was provided during the trial by either side. The attending doctor who examined her after the incident stated that she may have received a glancing blow to the head causing a concussion without any physical manifestation. Yet, he never noted any symptoms of a concussion or placed her on a concussion watch. The Court found that my ex-wife was "more credible" (not "beyond a reasonable doubt" std by the way) that me concerning whether she was struck in the head with the dollhouse.
However, my lawyer later presented exculpatory forensic evidence in the form of affidavits from a Forensic Nurse and a Neurosurgeon who looked at the trial transcript and the medical record and photos and determined that they were not inconsistent with the incident described by my ex and underscored the lack supporting physical injuries. Both concluded that, to a degree of medical certainty, she was not struck in the head with dollhouse or any blunt object without any physical manifestation of such treatment. The Court denied the inclusion of the affidavits post-trial and pre-sentencing on the grounds that experts were not in court to be cross-examined, and had they been available their testimony would not have swayed the verdict and would not provide a sufficient basis for a New Trial. The Appellate court concluded that witness credibility was the purview of the trial court in affirming the verdict.
Question:
My ex and I are involved in a custody and child support trial scheduled for next week. She has claimed abuse and is likely to testify to this on the stand. I was wondering if it makes sense to have her rehash her testimony in the hopes that she will contradict her prior testimony in order to appeal the conviction (on what grounds? what would be the chance of success) and what would be the method to accomplish this (introduction of the affidavits possibly)? Please advise. Many thanks.
Submitted: 9 months ago.
Category: Personal Injury Law
Expert:  JD 1992 replied 9 months 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.

While you can have her "rehash" her testimony unless there is a major change to the testimony the judge is likely going to put any discrepancies down to problems with memory or even possibly to issue regarding the concussion.

However, you may want to consider having the experts come in and testify regarding the attack and the findings by the criminal court. The other side is going to claim "res judicata" but your lawyer may be able to get around that by establishing that they didn't testify at the original trial and that the standard at the original trial is different than it is now, as well as that the issues aren't exactly the same.