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How to get an accuser’s prior acts or mental illness into evidence

Being accused of a crime is a frightening, life-changing experience. One woman, a witness, who was falsely accused of the murder of her best friend, described it this way, “…a gunman stormed into the room and opened fire. I was kidnapped. The shooter had me leave with them and forced me to a house nearby. They held me against my will. I thought, ‘This is where I’m going to die….”After a number of hours, a SWAT team rescued [her] and she was taken into custody….”The next thing you know, I’m being charged with first-degree murder.” After six days behind bars, the charges were dropped and she was freed. But the woman’s life got worse after her release. She hid from society for a month. “People on social media were very ugly. People called me a murderer, a whore, a crackhead, worthless piece of scum.” When someone is accused of a serious crime and brought to trial, the state becomes the accuser. The prosecutor, employed by the state represents the accuser. In the trial, testimony is taken to support the case for guilt by people who have evidence supporting the conviction, as well as witness who support the innocence of the defendant. In many states, if the defense council has evidence that the prosecutor is biased or that the trial cannot be fair because of a clear bias, a prosecutor can be dismissed by the judge and a new prosecutor assigned. Otherwise, the defense attorney is faced with counteracting the evidence given by witness for the state. Witnesses for the prosecution can be countered as unreliable witnesses and testimony can be discounted on the basis of personal qualities like mental instability, criminal history. According to the Confrontation Clause of the Sixth Amendment to the U.S. Constitution, “in all criminal prosecutions, the accused shall enjoy the right… to be confronted by the witnesses against him.” In open trial, the testimony given by witnesses can be impeached with evidence of bias, if the witness can be proven to gain materially from a conviction. The witnesses testimony can be dismissed with evidence that he or she is not a witness who can be relied upon to make accurate observations. The witness must be confronted with the evidence before his or her testimony is dismissed. If the witness denies the disqualifying evidence, it can still be introduced in cross-examination, but only if the evidence is extrinsic and can be delivered in the form of documents or sworn testimony. Cross-examination of witnesses is an absolute right for accused people in court. There are usually two kinds of cross-examination, Those intended to enter new facts and details. Those intended to raise questions about the credibility of witnesses. A witness’ credibility may be attacked or supported by testimony about the witness’ reputation regarding untruthfulness. Witnesses can defend themselves but only after their truthful character is attacked. In a criminal trial, extrinsic evidence (which consists of external documents that have to be interpreted or which themselves can be questioned) can be brought… Read more {+}

Warrant Requirements and Exceptions in Minnesota

Under the Fourth Amendment, we have the right to be sure that our person, house, vehicle, and other property are protected from unreasonable search and seizure. However, while there are numerous exceptions that are able to bypass this right, the State and its police officers must obtain a valid warrant to perform a lawful search, otherwise the contents discovered on that search are not valid in a court of law. By knowing the requirements of a search warrant in Minnesota was well as some of the acceptable exemptions, you can evaluate if the case against you is indeed within the realms of the Fourth Amendment. Search Warrant Requirements in Minnesota The search warrant can be issued by any court in the jurisdiction of where the person or property is to be searched. The only exception is that probate court cannot issue a warrant for searches. A search warrant can be granted if any of the following were true: The property or items in question were stolen or embezzled, the property or items were used in the process of committing a crime, the possession of the property or items constitutes as a crime, or the property or items were delivered in the act of concealing a crime or preventing them from being discovered. A valid search warrant can only be issued by the court of probable cause. This needs to be supported by an affidavit that names or describes the person, property, or object to be seized and detail needs to be given when describing the place that can be searched. If the court is satisfied with the facts given by the affidavit that probable cause exists, the judge must sign the warrant, naming their judicial office, and then hand it over to an officer that can be inside or outside of the jurisdiction. The warrant will also sport the names of those presenting the affidavit and the grounds for its issuance. The execution of a search warrant can only be done by one or more of the officers mentioned in the warrants directions and by no other person except other officers requested by aid of one of the officers on the search warrant. In standard cases, a search warrant can only be served between the hours of 7:00 a.m. and 8:00 p.m. However, warrants can be served at night, but only with court approval if the facts stated in the affidavit merit a night-time search to prevent the loss, destruction, or removal of the objects of the search. A search warrant is void if not served within 10 days of its issuing. However, once issued, it is easy for officers to renew it when needed. When the officer stated in the warrant conducts a search, they must give you a copy of the warrant and, if property or items are removed, a receipt for them to the owner as well as to the court. When Do Officers Not Need a Warrant? There are four major exemptions to search warrants where… Read more {+}

The Truth about Traumatic Brain Injuries and Violent Behavior

You may have seen headlines about traumatic brain injuries and violent behavior, but now it’s time to delve into the truth. We’ve put together a few facts that you may not know. Let’s start with a few basics. What is a traumatic brain injury? When the medical world talks about traumatic brain injury (TBI for short), they mean harm or damage to the brain that does not degenerate over time and was not present at birth (non-congenital). The harm results from an outside mechanical force that strikes the brain and results in permanent or temporary disability with respect to the person’s cognitive, physical and psycho-social capabilities, often accompanied by diminished or altered consciousness. The definition has not enjoyed a consistent use and often varies by circumstances and by medical specialty. We often hear it as a synonym for head trauma and not always with neurological effect. How do experts define violent behavior? Therapists define violent behavior as the use of physical force to injure another person or destroy property. Is there biological evidence of TBI causing violence? Yes. For example, the amygdala resides in the frontal lobe. The amygdala joins a person’s emotions to his thoughts. Therefore, if the amygdala sustains injury through the TBI, then the patient exhibits poor impulse control and violent behavior. If the temporal lobe has lesions caused by damage from pieces of skull bone piercing the temporal lobe, then the patient has difficulty regulating limbic input. The limbic system is an area of the brain made up of nerves and neural networks that relates to instinct and mood. Injury to this system can result in impulsive and violent behavior. In addition, damage to neurotransmitters can result in an increase in the chemical norepinephrine which can cause loss of impulse control in TBI patients. Other studies showed increased dopamine in TBI patients which leads to aggression and agitation. Still other studies have shown a reduction in serotonin levels in TBI patients which leads to increased impulsive and aggressive behavior. How does medical evidence of TBI work in the courtroom? Stephen J. Morse, professor of law and psychology at the University of Pennsylvania is also a member of the MacArthur Foundation Research Network on Law and Neuroscience, a group that studies in the area where neuroscience meets criminology. He says that neuroscience has added nothing to the study of law because people commit crimes, not brains. It’s not that he disagrees that brain injury can cause lapses in judgment or loosen inhibitions. It’s that the studies so far cannot show whether or how the person tried to control his impulses and whether other factors besides the injury contributed to his impulses. Still, lawyers bring TBI defenses more often into the courtroom each year. Many of these cases center around neuroscientific evidence with respect to defendants who served in combat in Afghanistan and Iraq. In addition, there are now special veterans’ courts, 80 in total. These courts began in recognition that veterans have special health issues related to… Read more {+}

What is a “Diversion Program” and Who Can Use One?

In its most simple definition, a Diversion Program is a rehabilitation program for criminals meant to prevent a conviction and a criminal record. However, the details of where, what kind, and who is eligible are different from state-to-state and county-to-county. Diversion inside the criminal justice system can take many forms. When police officers let a motorist go with a warning instead of a speeding ticket, this is a personal decision to enact diversion, coined “informal diversion”. However, most diversion involves a formal program. Encyclopaedia Britannica outlines some of the more formal types of diversion: Post-Arrest Social Service Programs – An example of this would be a substance abuser who enters a detox program. This approach addresses the root cause of their behavior to prevent it from happening again. Upon completion of these programs, the case will return to the courts for dismissal. If the program isn’t completed or stipulations aren’t met, the case will proceed within the court system. Jail Diversion Programs – This type of program keeps the offender from serving jail time while waiting to appear in court. This type of diversion begins when a police officer writes a summons to appear in court or after an arrest and booking at the police station. This allows the offender to maintain their job or other responsibilities while awaiting their court date. Pre-trial and Post-Conviction Diversion – Some diversion programs begin after an arrest, but before the offender enters a plea in court. However, even after conviction, a judge may opt to sentence an offender to a diversion program instead of incarceration. This takes many forms, such as probation, restitution, and community service. Diversion programs are usually offered to first-time offenders or those who have committed nonviolent crimes. The goal in diversion is to give the offender the opportunity to correct his behavior without gaining a criminal record. It is also less costly to the courts, as rehabilitation is less expensive than prosecuting and incarcerating the offender. Diversion programs are widely used within the juvenile justice system. Youth.gov reports that: “While it is recognized that some youth commit serious offenses and may need to be confined to a secure setting, research has shown that many youths in the juvenile justice system are there for relatively minor offenses, have significant mental health issues, and end up in out-of-home placement or on probation by default. Diversion programs are alternatives to initial or continued formal processing of youth in the juvenile delinquency system.” Their article goes on to say that they believe diversion programs are a more productive way to prevent future crimes than putting juveniles through the court system. They feel formal processing puts a delinquent label on the child and that exposing them to adult correctional facilities harms more than it helps. Different entities offer these programs, such as: Police Departments The Courts The District Attorney’s Office Outside Service Agencies In example, Ramsey County Diversion Programs are available to adults and juveniles.  According to the County Attorney’s office, juveniles who have little or no… Read more {+}

From the United Airlines Passenger to Woodland Hills Brutality, People are Missing the Point

Well, spring is upon us, and that means increased travel, increased outdoors activities, and recovery from cabin fever.  People get outside, drive more, there are more birthdays in spring and school is winding down.  And it’s no coincidence that, at this time of year, police activity increases, and the phones begin to ring more here at the Law Office of Alex DeMarco. Dominating the headlines some weeks ago was the story of a United Airlines Passenger who was injured in the process of being forcibly removed from a flight.   In the fallout from the whole affair, the overwhelming consensus was that this brutality was unjustified and unnecessary.  Yet a small select handful of individuals continued to defend the airline and the officers involved, repeating the familiar ring, “if he’d only complied, this would not be a problem.”   This represents a profound divide in our society, a new partisanship, if you will.  A divide between those who can handle some minor disorder while maintaining freedom, and those who need absolute predictability, even if that means disproportionate violence on every single individual who does not do as they are told. Police Violence, Not Just for Crimes Anymore Dr. David Dao had committed no crime.   By all accounts, he had lawfully purchased a flight like any other traveler.   Announcements were made offering for passengers to “voluntarily” give up their seats for an incentive.  He refused.   He paid for that seat.   He had a right to be there.   Because of United Airlines’ inability to do math and their incentive to simply grab more money, he was ordered to leave.  He refused.  But it was not United Airlines who ultimately forced him to leave.   For any civilian to physically grab, beat,  and eject someone would be a crime.  It would be assault. Enter the immunity of the badge.   He was ultimately removed by members of the “Chicago Department of Aviation”, a division of the Chicago Police Department.   Dr. Dao suffered a bloody head injury, concussion, and missing teeth.  The chaos and disorder of that moment for all on the flight is palpable.  And yet, it was in the name of “order”, a failure to “comply” with commercial demands, that he was ultimately brutalized.  This very high-profile story is but a symptom of a much much larger problem, and that is, we rely on police officers to solve the majority of problems that we used to solve ourselves.  Armed Officers Are in Nearly Every Public School In America An example is school discipline.  For nearly all of our nation’s existence right up through the 1990’s, police officers on duty at school were unheard of.  To this day, there are no police officers in private schools, and yet there doesn’t seem to be more violence, drugs, or criminal issues in those schools where officers never set foot until they are called.  What DOES seem to occur more in public schools with officers present?  Escalation and violence.   Recently, we… Read more {+}