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I have a question. I have a friend who is currently

Customer Question
I have a question. ...

I have a question.

Lawyer's Assistant: In what state did this occur?

I have a friend who is currently incarcerated in Va

Lawyer's Assistant: Have you talked to a lawyer yet?

He has a lawyer currently but is not agreeing with him about how to handle the case and he is looking to hire someone else.

Submitted: 7 months ago.Category: Criminal Law
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Answered in 1 minute by:
11/19/2017
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 7 months ago
Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 30,961
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Hi,

I'm Zoey.

I've reviewed your post. What is your friend charged with? How long has be been incarcerated? What is the nature of the disagreement and what is your question?

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Customer reply replied 7 months ago
He is currently incarcerated for aggravated malicious wounding and use of a firearm in the city. He originally admitted to the crime but now states that he did not shoot the victim. There was a witness at the scene who identified him as the shooter; however, he states that the witnesse's story changed several times. On the original arrest warrant, the police indicated that the victim stated that my friend shot him. However, the family has spoken with the victim who states he never made a statement to the police and obtained a sworn affidavit from the victim stating that he never made a statement. My friend now feels that the case should be dismissed because the police lied on the original warrant when they stated they obtained a statement from the victim.
Customer reply replied 7 months ago
He was arrested in August, 2017. Denied bond. Case was certified to Circuit Court of Va in September. Trial set for December, 2017.
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 7 months ago

Questions of fact and credibility of witnesses are the province of a jury. This matter has been indicted, meaning a Grand Jury has found a reasonable belief that your friend did commit the crime. Unfortunately, this case is not going to be dismissed.

That said, he will be entitled to a pre-trial hearing on the issue of whether the identification was valid and the police can be cross-examined on the stand about the statement to as to its trutfulness.

He may not get along with his lawyer, and if that's the case and the judge allows him to retain a new one, he can do so, but in my considerable experience as a criminal defense lawyer, unless he wins the hearing I referred to earlier, this case will get to a jury.

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Customer reply replied 7 months ago
Is the pre-trial hearing something that has to be requested? After the preliminary, the only thing that was stated was that the trial was set for a day in December. Also, the police used that statement (that the victim is denying he stated) to obtain search warrants for my friends home and business where they located multiple items that may lead to additional charges; however he has not been charged with anything additional yet. He is also wondering if he can use the affidavit from the victim to state the police falsified documentation to obtain the search warrants and therefore anything that resulted from those search warrants be thrown out?
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 7 months ago

There is typically motion practice involved in criminal defense and all appropriate hearings should have been -- hopefully were asked for. If not, and he's convicted, he'd have grounds for an appeal on the basis of his lawyer's ineffective assistance. Such hearings are generally right before the trial begins, and if they are lost, jury selection would begin almost immediately.

The victim will testify and trial and can be questioned as to what she told the police. The affidavit may be used to impeach the victim if she testifies inconsistently with it. The document would likely be inadmissable, however, it is good for impeachment purposes of against the victim and/or the police if necessary.

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Customer reply replied 7 months ago
Why would it likely be inadmissible?
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 7 months ago

Because it's hearsay.

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