Rules of procedure questions.....

This is a discussion on Rules of procedure questions..... within the Criminal Law & Criminal Procedure forums, part of the Legal Questions & Answers Forum category; Greetings everyone, I have signed up to this forum because I am interested in learning about criminal law and procedure. My first question...suppose a defendant cannot take the stand for ...

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  1. #1
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    Rules of procedure questions.....

    Greetings everyone, I have signed up to this forum because I am interested in learning about criminal law and procedure.
    My first question...suppose a defendant cannot take the stand for risk of impeachment.How can the defense present defendants side of story to create reasonable doubt?Can he merely state what the defendant told him, or would that be considered hearsay?
    My next question would be..During cross of prosecutions witness, can defense suggest alternative scenarios of why defendant was where he was, when observed by Pros witness? And by this I mean in his manner of questioning witness.And also during opening or closing statements, is defense somehow allowed to suggest alternative scenarios to the jury? Defense has no other eyewitness, (other than hostile) and no other evidence. How can they create reasonable doubt? There has to be a way,right?
    I look forward to hearing your thoughts and ideas!

    Last edited by stryyddaarr; 02-03-2012 at 05:06 AM. Reason: spellcheck

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    For your first question, the defense will need to present witnesses to state what they actually saw about the defendant. They can also cross examine opposing sides witnesses to create reasonable doubt.


    As for your other questions, it may depend on the exact form of questioning as well as the judge presiding over the case. Generally you should be able to hint at the fact that there could be alternative explanations during your line of questioning. You can also bring this up in opening/closing statements.


    If defense has no witnesses, and the defendant is not willing to testify, it would generally be difficult to win the case unless the prosecution has very little evidence.
    Legal Disclaimer: Answers to questions on this forum are for informational and educational purposes only and do not constitute Legal Advice. No attorney-client relationship is established through this forum.

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    Thank you for your reply!Actually there is a real life situation behind my questions.A person I care about,and that I'm 100% certian is innocent,has gotten himself in a jam.So until he can retain counsel, I am trying to help him with his questions and anxiety.He has a criminal record with felony convictions that is old, but it will still prevent him from taking the stand.Without going into alot of details right now, here's the deal.He was ask to come in for questioning by Detectives.He had been observed in close proximity to the scene of a crime.He was on the property,but never entered the building in which the crime took place.As he left the property he noticed another vehical parked there.After driving nearly a mile he was practically ran off the road by that vehical.A angry man jumped out and began yelling at him, telling him that he had a picture of his license plate,and calling him a thief.He then called 911 and told dispatch to send the police,and that he had caught a burglar.My friend got scared and drove off.
    He was later contacted by police who wanted him to come in for questioning.After researchng, we figured that they were "fishing" and that no good could come from it.So he took advice to not be questioned without counsel.He had hoped it would just go away,as these matters usually do,but last week he received summons to appear on burglary and criminal mischief(damage,deface,destroy)charges.Their case is circumstantial with no forensic evidence. He never entered the building, never took anything off of the property,never destroyed anything, and his reason for being there had no intent to commit any crime whatsoever.
    Now he is second guessing his decision to not talk with police, because he has no way to explain his reason for being there.
    Anyone have any ideas of what could be done in this situation?

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    He needs to retain a private criminal defense attorney or a public defender so he can fight these charges. I don't understand why his old felony convictions would prevent him from taking the stand. Prosecution cannot always introduce such evidence during trial but this is all information he needs to discuss with his attorney. He probably made a good decision by not talking to police without a lawyer.
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    Thanks again for your reply! My friend said to thank you too.He seems to feel alot better about things now.He has been worried to the point of being ill because of this.Although he can't really afford a attorney, he says he can't afford not to have one.There is no price on freedom! He'll probably have to get a equity loan,or sell some of his toys.......thanks again

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    Legal gave you good advice. If in doubt, ALWAYS demand, not ask (there is a difference legally) for an attorney. This forces the police to halt all questioning IF YOU ARE IN CUSTODY (under arrest). The remainder of your post has to do with the law of evidence which is very complicated although I will post an outline of the Rules as time permits.

    Now, I am often stopped by the police for wandering around property and peeking in windows (I am an independent insurance investigator). If it is of any help, I was driving along Rt. 9W in Newburgh, NY a Month ago after doing a job in the area. A police cruiser is following me for a long time.

    I am doing the speed limit and abiding by all traffic laws. Then, I see his lights go on. I slow down and pull over. Then I see two other police cruisers pull over and surround my vehicle. Knowing the law and carrying a 9mm, I put my hands on the dashboard while several officers look in all the windows (searching for Plain View probable cause).

    I opened the driver's window. Obviously, I never told them I had a licensed concealed weapon. These guys were young and I did not want to make them nervous. At 64 I am too old to get thrown on the ground and handcuffed while they make a decision lol.

    Well, I was advised that a person in an apartment building that I was checking out called the police and said I identified myself as the local town fire inspector (actually I did lol). I argued with the officers and finally won the argument, showing ID and the purpose for my statement (the occupant stood a foot taller than me and was mean as hell). I had to show some authority in self defense lol.

    The officers admonished me then let me go. Long story but thought I would post it because lots of folks get stopped by the police. RULE of THUMB - never make an admission. If arrested i.e. in custody demand an attorney.

    The legal term to ask the officer is "Officer, am I free to leave?" If not, you are legally in custody (under arrest) and have the right to an attorney (not automatic, you must demand an attorney) and the officer must cease any questioning.

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    Related incident of interest: On or about 3 weeks ago I am heading back from Philly to home via the Delaware National Recreation Area in PA. I get stopped by a Federal officer for speeding.

    He asks for my driver's license. I open my wallet and give him my driver's license. He immediately asks "are you carrying your pistol today?" I immediately remark: "What the hell are you talking about?" (no admission). He says "I saw your carry permit when you opened your wallet".

    Knowning he had me dead to rights, I admitted that I am licensed to carry (in several states including NY and PA). I proceeded to tell him that I am an insurance invistigator. He reluctantly handed my license back to me and admonished me for speeding (professional courtesy) - no ticket.

    Then, he asked me again: "Are you carrying your weapon today?". Knowing Federal Law, I replied "No Sir, not today". LOL.

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    Quote Originally Posted by Cahoonzie View Post
    Then, he asked me again: "Are you carrying your weapon today?". Knowing Federal Law, I replied "No Sir, not today". LOL.
    Out of curiousity, what do you mean by that, by saying "knowing federal law".


 

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