Criminal Law

Criminal Law Questions? Ask a Criminal Lawyer.

Ask a Lawyer,
Get an Answer ASAP!

Criminal Law
This answer was rated:

For JD 1992:

The defendant filed a complaint...
For JD 1992: The defendant filed a complaint against the PD for racial profiling, illegal stop and illegal search. An internal investigation followed. Some months later there was a Hearing for Suppression of Evidence. A couple of months before the hearing the defendant had been requesting the internal investigation report. The prosecution gave various excuses at different times: 1) He needed more time to investigate whether the investigation report was discoverable. 2) He thought he could get the report but personal information would be removed. 3) He thought he could get the report but only the judge could see it. By the time of the Hearing of Suppression of Evidence he still did not have the report. The report could have been a deciding factor in the hearing in favor of the defendant. (The defendant lost) The defendant decided to go for jury trial now and plans to file a motion to compel to get the investigation report. The question is was the defendants due process rights violated since that report was not available athe the Hearing to Suppress? Also the judge appeared to use intimidation to persuade the defendant not to testify. The judge told the defendant that if he did testify the prosecution would cross examine and the defendant would have to answer his questions. Is this also a violation of due process or some other constitutional right?
Show More
Show Less
Ask Your Own Criminal Law Question
Answered in 17 minutes by:
3/2/2012
Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 34,305
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
Verified
The Defendant probably had a right to the report, with the personal information removed, but it is likely that he didn't "preserve the error". To do that he would have had to put on the record what he was trying to get, what he had done to get it, and why he thought it would be relevant and help his case. In addition, he should have sought to have the judge order it produced.

No, what the judge was doing was correct. He should have told the defendant all the bad stuff that could happen if he testified. That was absolutely proper.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago

The defendant did all those things in a letter replying to the DA response to discovery request. but I guess my question is would any of this have an affect on the getting another hearing of the motion to suppress? It sounds like the preserving error is for an appeal after a conviction.

 

On the judge issue. I understand he has to explain all of the negative things but can he say that the defendant has to answer the questions put forth by the prosecution? I thought the defendant could always plead the 5th amendment on any questions he chose.

He could certainly ask for a rehearing on the Motion to Suppress but he needs to understand that putting things in a letter isn't the same thing as addressing them in court and getting a ruling on it.

No, the judge was correct. If the defendant puts himself on the witness stand he can't choose to answer some questions that benefit himself and then refuse to answer those that might hurt based on the 5th, not as a general rule. Sometimes it is possible to take the stand on a limited basis but there is noway he should do it without having a lawyer because it is extremely delicate and twists and turns as the testimony comes out. The chances are about 99% that he would get himself into trouble.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago

Ok. he did not file a motion to compel before the hearing. He will be doing that soon. So in the motion to compel are you saying he will need to explain specifically why this information would be relevant? Would he need to say something like "this information could show that the police officers did not follow proper procedure in their stop and search and it could also show there are inconsistencies in the statements the officers made at the hearing and their testimony in the internal investigation report." Would a statement like that be needed? If he gets that report and what the defendantssays turns out to be true, then would it be worth asking for a rehearing?

 

I appreciate getting corrected on my 5th amendment misunderstanding.

Yes, he needs to be as specific as possible. Don't say "could" say "would". If he is wrong about what it shows then he can just say "hey, that's what I thought it would show". The Appellate Courts look for reasons not to reverse a case.

Yes, if he gets the report and it shows something favorable then he can use it support a rehearing.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago

Could the defendant say " I believe the information would show..." Instead of "the information would show..." I am concerned about the defendant making such a strong statement when in fact he does not know for sure and he will have to sign the motion to compel or is that not a problem?

Yes, he could say that. It really doesn't make a huge difference but that statement is sufficient.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 34,305
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
Verified
Dwayne B. and 87 other Criminal Law Specialists are ready to help you
Ask your own question now
Customer reply replied 5 years ago

The defendant submitted a motion to compel for dispatch records, internal PD investigation report, the phone call record to confirm a call was made to an arresting officer via cell phone giving info about mj use in another case and the persons name who gave that info from dispatch. There is a hearing later this week on this motion.

 

The defendant called the DA to see if he would have any of the requested info before the hearing. The DA says he would have the dispatch audio and the phone record showing a phone call was made from dispatch but no name of the person who made the call. It sounds like it is an in-house PD record. My question is should they be required to give the defendant a record from the phone company and also shouldn't the DA be required to give the defendant the name of the person who made the call? The primary witnesses claimed the info in that phone conversation was what caused them to request the search. What constitutional right or court decision would require the DA to get the person name who made the call and a phone record from the phone company? (The DA said he would have the court make the decision on the internal investigation report.)

Remind me which state this is in? I usually don't do case law research on this value question because the databases are so expensive, but you've been an excellent customer so I'll make an exception and see if I can find anything.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago
This is Oklahoma. I appreciate your extra effort.
I didn't find anything specifically on point, but I also ran a search using a free Google legal database based on some hints I got in the paid one. I am going to put a link to the search below and he may want to go through each of those cases to see if they would help.

I think he may want to argue that he needs the identity of the informant, the phone records, and the internal investigation to see if it supports a motion to suppress.

ht tp://scholar.google.com/scholar?as_q=discovery+criminal+case+police+internal+investigation&num=10&btnG=Search+Scholar&as_epq=&as_oq=&as_eq=&as_occt=any&as_sauthors=&as_publication=&as_ylo=&as_yhi=&as_sdtf=&as_sdt=4&as_sdts=37&hl=en

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago
Ok to narrow it down some I would like to know if the DA would be required to get the name of the person who made the call who is also a police officer. The defendant just received the phone record . He has the phone number of the calling party during the time of the arrest. So all the defendant wants to know is who is that person that belongs to that phone number. Shouldn't the DA be required to contact the police department and find out who that person is on the bases of 6th amendment rights of the defendant? Oklahoma discovery law does require the DA to get brady evidence from the PD. I guess the question would be is this name of the informant officer Brady material? It was this call that made the PD decide to search the defendant.
The name of the person is probably not Brady material since Brady material is ONLY that which is exculpatory and it doesn't seem as is the name would be classified as that under these facts. I think it is discoverable, but not as Brady material.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago
What if the conversation by this person was not what the officers said it was and did not give them a reason to search. Wouldn't that be impeachment evidence. My understanding is that impeachment evidence is also Brady material. Right or wrong?
It could be. IF the DA has something that indicates the conversation was reported incorrectly then it would likely be Brady material, although the fact that it could be used to impeach does not automatically make it exculpatory. Brady is extremely difficult to pant a broad stroke with because it is so fact specific.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago

The defendant knows the DA does not want to give him the name of this person. And the arresting officer in the motion to suppress hearing testified that he could not remember the name of the officer that called him. Keep in mind this is fairly small police department. He has the calling officer's phone number but he still claims not to remember his name. The Defendant wants to find out the calling officers name so he can confirm the content of their phone conversation. All the defendant wants to know is did you call the arresting officer date/time and did you discuss case # XXXXX did you mention that the defendant was thought to be under the influence of mj in that case. So how does the defendant go about getting this information from this unknown officer?

Can the DA be forced to get it or will the defendant have to get himself someway? As I mentioned there will be a motion to compel hearing in a few days.

The court could order the DA to get it or he could file the motion to suppress then subpoena the officers to bring all of their records and specifically anything that identifies the person that called. He could then ask the judge to continue the hearing until the other person can be subpoenaed to appear.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago
Ok. The defendant has already had a motion to suppress hearing and the judge did not sustain the motion. But at this motion to compel hearing what is the wording used to convince the judge to have the DA get the name? And it appears to get the unknown person's testimony or statement on the conversation there will have to be some kind of hearing or is there some other way to get his statement under oath?
I'll answer your last question first, you have to have some kind of a hearing in a criminal case to get their sworn testimony.

I'd just tell the judge that in order to evaluate what the police officers were told and whether it justified the warrant that you have to have the name of the officer that filed the report. Denying access to that is a violation of his rights to due process and a violation of the right to confront witnesses against him.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago
Sounds great.. but there was no warrant, the arresting police claimed the defendant gave permission for the search. The defendant say no he did not give permission but he does not want to say that under oath because he will be cross examined and maybe have other problems. The police officers claim they would not have asked the defendant to be searched if they had not gotten the phone call. So could he say to the judge: "In order to evaluate what the police officers were told and whether it justified their suspicion to need to search, the defendant have to have the name of the officer that made the phone call. Denying access to that is a violation of his rights to due process and a violation of the right to confront witnesses against him."
Yes, "Defendant disputes that permission to search was given but regardless, it is necessary to know the identity of the witness to determine whether the request to search was even justified and reasonable."

Also add to the end, "while the person who made the call isn't a direct witness, he is in a roundabout way and therefore the Defendant should be able to confront him under oath."

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago
Can the defendant get by with saying "Defendant disputes that permission to search was given..." without testifying under oath? Will the judge want him to testify after making that comment?
He can say it in argument and it is not testifying. He couldn't say it in the trial necessarily, but he can in argument. He could also say "Defendant anticipates that at trial the issue of whether permission was given for the search may be raised...". That is non-committal enough.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago

Great information. I am going to try and put all the pieces together. "The Defendant anticipates that at trial the issue of whether permission was given for the search may be raised. Therefore, it is necessary to know the identity of the officer who made the call to determine whether the request to search was even justified and reasonable,in other words, is the unidentified officer and the arresting officers saying the same thing.

While the person who made the call isn't a direct witness, he is in a roundabout way and therefore the Defendant should be able to confront him under oath."

That's good.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago
Thank you. You are a great help.
Good luck!
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago
The DA came up with a "possible" name for the person who made the call. The person who he believes made the call is now working at another police station in this same State. The last name is XXXXX XXXXX as one Sgt who investigated the accident case and who took pictures of the person who passed and also talked to their family members in the hospital. The defendant is wondering if this is the same person. The defendant has requested the DA to find out for sure who the person is and also said he wants the person to testify under oath at a hearing about the nature of the conversation or at minimum send a statement under oath explaining the phone conversation. What do you think of this?
There is no way to force him to "send a statement under oath" and it isn't admissible even if he sends it. I think he should subpoena the person to appear at any hearing they have.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago

Sounds like you are saying the defendant, being pro se, should subpeona the person and not wait for the DA to do it once he finds out the correct name and address. To do that I am guessing he would have to get the Judge's approval and signature on a subpoena. Is that correct?

You need to check the local rules on a subpoena. In every state I've been involved in a case (and that is quite a few states)the subpoenas are issued through the clerk's office. I'm reasonably certain that is the way it is in OK too, but you need to check with the clerk to be sure.

He definitely shouldn't rely on the DA to subpoena them.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago

Ok. Thanks. The defendant was thinking about a jury trial (If it goes that far) at first but after more consideration he is thinking about trial by the judge because there are four points to be proved for a conviction and he is convinced that two of those points the DA will not be able to prove. He feels the judge will be more focused on these points than a jury. The two points are knowingly/intentionally possessing and for the purpose of inhaling mj. He made a statement to the arresting officer when asked why do you have that mj pipe in your pocket "I did not know it was there" This is on the probable cause affadavit and the one officer's statement that performed the search. (and he truly did not know.)

One of the other required items is using it for inhaling mj. They cannot prove that point. He was not intoxicated, no blood test, no dna or fingerprint evidence. Do you think these would be convincing arguments to go for? and what do you think about the reason for going with a judge instead of jury? The judge does seem be thoughtful and fair.

I am always hesitant about going to a judge rather than a jury, but that is a personal prejudice and depends on the judge themselves. It has been my opinion that most judges lean over backwards to rule in favor of the police and the DA.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago
What about the problem with the jury maybe not grasping the whole concept. The defendant is thinking the jury will think if he has the pipe in his pocket he is guilty even though the instructions tell them there are four things to look at.From your experience even in a situation like this you think the jury trial is better?
Yes, although there are a couple of judges I wouldn't hesitate to try a case to, in most cases a jury is a better choice.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago
Thank you. I really appreciate your help.
Good luck.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago

There was a question I don't think was answered in previous posts that is the following:

The two of the four points that defendant does not think DA can prove are 1)knowingly/intentionally possessing the pipe and 2)for the purpose of inhaling mj. He made a statement to the arresting officer when asked why do you have that mj pipe in your pocket "I did not know it was there" This is on the probable cause affadavit and the one officer's statement that performed the search. (and he truly did not know.)

One of the other required items is using it for inhaling mj. They cannot prove that point. He was not intoxicated, no blood test, no dna or fingerprint evidence. Do you think these would be convincing points to focus on and argue if this case goes to trial ?

Sure. A judge or jury can make logical conclusions based on the evidence and someone is going to testify that 1) he had the pipe on him and 2) that kind of pipe is typically used for marijuana (or it smelled like MJ, etc). That will be sufficient evidence to convict him IF the jury wants to do it.

Criminal cases are won and lost based on "reasonable doubt" and he absolutely needs to understand that before he takes it to trial.

A tip: If you can find a Wal Mart or something else that sells those type of pipes and have someone go in and take a picture of it on the shelf, then but it and bring it to court, that is great evidence that people use it for other purposes and therefore the jury shouldn't "presume" drug use.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago
I am not clear on your conclusion of whether the reasons are valid or not as far as the jury or judge is concerned. You said "Sure" but the rest of the statement was showing reasons why the jury could still convict. It sounds like you are saying the jury or judge will not consider all 4 things required for a conviction. In your experience do you think the points the defendant raised would be good enough to be found not guilty? The pipe did check positive for thc.
I think the defendant's chances would be good if he had a good lawyer. I think if his fingerprints weren't on the pipe or they didn't test the pipe for prints that makes it better. I'm just not sure he could win it without a lawyer. Possible? Certainly.

The judge and jury will consider all 4 things but just understand that they can make conclusions based on the evidence. They can conclude since it was found on him that he intentionally possessed it. Otherwise, no one would ever be convicted if it wasn't in their hand.

The jury selection is going to be incredibly important in this one because he has to get people who understand reasonable doubt and agree to stand firm on making the DA prove the case. If he didn't get that book I recommended he needs to.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago
He did get the book you suggested. I have read it also and it is very helpful. Thanks for clearing things up.
Good. If he will use those tips and then always remember that the prosecution's job is to build a brick wall that is solid (beyond a reasonable doubt) and his job is to poke holes in it using reasonable doubt as to any of the elements they must prove.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago

Is an analysis (thc findings on alleged mj pipe ) by a state lab valid in a trial if the person who signed off on the test does not appear? In other words can someone else who works at the lab who neither performed the test nor signed off on it testify of the results in court?

The prosecution tries to do it a lot but you should make a hearsay and a violation of the confrontation clause objection anyway. The cases are gradually heading in the direction where they won't allow someone else to testify who did not perform the test since you can't cross examine to determine whether or not the test was performed correctly.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Ask Your Own Criminal Law Question
Customer reply replied 5 years ago

Can this objection be made somehow before trial date or just on the trial date when the information is submitted for evidence?

You could make it ahead of time, file a Motion to Exclude Witness.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 34,305
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
Verified
Dwayne B. and 87 other Criminal Law Specialists are ready to help you
Ask your own question now
Customer reply replied 5 years ago
Thank you.
No problem.

Don't forget to hit the ACCEPT button.

Thank you for allowing me to assist you. As you know, we work on the honor system here and cannot always provide you answers that you like. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 34,305
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
Verified
Dwayne B. and 87 other Criminal Law Specialists are ready to help you
Ask your own question now
Customer reply replied 5 years ago
I clicked the accept button but a note came up and said I had already accepted this and if I clicked accept again I would have to pay more money. I am suppose to be on the plan for unlimited questions for $50.00/mo. That is why I did not complete the accept.
Customer reply replied 4 years ago

I received answer over a year ago and the status on this series of questions is still saying "waiting for expert" Can someone correct this. I received the answer over a year ago.

Ask Dwayne B. Your Own Question
Dwayne B.
Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 34,305
34,305 Satisfied Customers
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.

Dwayne B. is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Your Expert advise has provided insight on a difficult situation. Thank you so much for the prompt response. I will definitely recommend your website to my friends.

NormaPensacola, FL

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

< Previous | Next >

Meet the Experts:

Ely

Ely

Counselor at Law

3,194 satisfied customers

Private practice with focus on family, criminal, PI, consumer protection, and business consultation.

P. Simmons

P. Simmons

Lawyer

2,063 satisfied customers

16 yrs. of experience including criminal law.

RobertJDFL

RobertJDFL

Lawyer

1,862 satisfied customers

Experienced in multiple areas of the law.

LawTalk

LawTalk

Lawyer

1,815 satisfied customers

30 years legal experience

Nate

Nate

Lawyer

1,736 satisfied customers

Over 10 years of criminal defense practice.

Marsha411JD

Marsha411JD

Lawyer

1,631 satisfied customers

Licensed attorney with 29 yrs. exp. in criminal law

AttorneyTom

AttorneyTom

Lawyer

1,242 satisfied customers

Attorney

< Previous | Next >

Related Criminal Law Questions
Sure - my bf lost his criminal trial on Wed and was
Sure - my bf lost his criminal trial on Wed and was convicted of two felony charges. At the end, the judge remanded him to custody for knowing/willful violation of his probation terms (for a civil dvr… read more
LegalKnowledge
LegalKnowledge
Juris Doctor
28,141 satisfied customers
I have a criminal investigation over my head, but I have no
I have a criminal investigation over my head, but I have no idea what or where. The only reason I no is cause I ran my fingerprints for employment and they wont hire me till I get it settles, but I ha… read more
Zoey, JD
Zoey, JD
Doctoral Degree
181 satisfied customers
Can an investigative technician 2 investigate me even if
Can an investigative technician 2 investigate me even if they are not inveatigating me … read more
INFOLAWYER
INFOLAWYER
Partner
Doctoral Degree
56,287 satisfied customers
Can probable cause be challenged on appeal if it wasn't
Can probable cause be challenged on appeal if it wasn't raised in the trial court and a plea of no contest was entered 2 years ago? I was stopped for a marked lanes violation and the cop claimed I dri… read more
Zoey, JD
Zoey, JD
Doctoral Degree
181 satisfied customers
In Massachusetts. A police report filed for Criminal
In Massachusetts. A police report filed for Criminal Harassment (c265, s43A) contained firearms license status, and "he purchased 20 guns in the year leading up to this dispute." No malice, no threats… read more
James Daloisio
James Daloisio
Attorney
Doctoral Degree
80 satisfied customers
In criminal court, I understand that when an accused has
In criminal court, I understand that when an accused has Clemency from the State Board of X that it can not be held against the accused.So what about in civil court?… read more
Ray
Ray
Lawyer
Doctoral Degree
30,865 satisfied customers
Criminal felony case in Indiana. Initial investigation
Criminal felony case in Indiana. Initial investigation started 3/2011, arrest and charges filed 6/2014, here it is 11/2017 and matter set for trial 1/2018. Were there violations of a speedy trial or s… read more
Zoey, JD
Zoey, JD
Doctoral Degree
181 satisfied customers
Person pulled over in dui traffic stop - no probable cause -
person pulled over in dui traffic stop - no probable cause - while pulled over sheriff saw he had active warrant out of state so he is in custody for his out of state warrants—BUT no charges are fille… read more
Barrister
Barrister
Attorney/Landlord/Realtor
Doctoral Degree
35,316 satisfied customers
I live in Michigan. Can I file a criminal complaint for
I live in Michigan. Can I file a criminal complaint for usury? I was charged 60% interest on a 20k personal loan from a private individual. During a court hearing in which the plaintive was sueing me … read more
Thelawman2
Thelawman2
Doctoral Degree
1,291 satisfied customers
California. Plaintiff in cross complaint can be investigated
California. Plaintiff in cross complaint can be investigated for vandalism according to opinion by special prosecutions section. Plaintiff tampered with locks owned by defendant and details his tamper… read more
WiseOwl58
WiseOwl58
JD Honors Graduate
3,712 satisfied customers
I have a question about procedure in criminal court in
I have a question about procedure in criminal court in Texas; specifically if there is any way to request a pretrial hearing prior to indicment of a felony … read more
Ray
Ray
Lawyer
Doctoral Degree
30,865 satisfied customers
Is it not uncommon for criminal court judges or their
Is it not uncommon for criminal court judges or their court's administration (e.g. bailiffs) to manipulate the only clock on the wall in the courtroom (e.g. set it purposely ahead of or behind the act… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
I had a criminal court hearing and was sentenced, but was
I had a criminal court hearing and was sentenced, but was never sworn in can this be thrown out… read more
Nisha Jones, Esq.
Nisha Jones, Esq.
Juris Doctorate
1,779 satisfied customers
I received a letter from the usps criminal investigation
Hi. I received a letter from the usps criminal investigation service center stating that an item that may contain controlled substances was mailed to me. I have no idea what this is and everything is … read more
Zoey, JD
Zoey, JD
Doctoral Degree
181 satisfied customers
If a person files a criminal complaint (based on written
if a person files a criminal complaint (based on written evidence which supports the facts of the complaint), can they be sued for defamation per se?In this situation, the accused person published (on… read more
Expert James
Expert James
Doctoral Degree
11,699 satisfied customers
My question is: Once a Criminal investigation filed by the
Hello my question is: Once a Criminal investigation filed by the state prosecutor against a police department for a wrongful death, can it be retried? And if not, are there any loopholes or justificat… read more
Zoey, JD
Zoey, JD
Doctoral Degree
181 satisfied customers
Is the filing of a criminal complaint defamation if the
Is the filing of a criminal complaint defamation if the prosecutor decides not to press charges against the person who was named in the criminal complaint? Also considering that the criminal complaint… read more
Zoey, JD
Zoey, JD
Doctoral Degree
181 satisfied customers
Is the smell of marijuana in a vehicle probable cause for a
Is the smell of marijuana in a vehicle probable cause for a search in the state of Massachusetts?… read more
Zoey, JD
Zoey, JD
Doctoral Degree
181 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x