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False Science in Sexual Conduct Prosecution

Sexual conduct is a complicated criminal matter. The stakes are high. Illegal sexual behavior cases often carry a harsh punishment of many years in prison. There is the possibility of having to register in the sexual offender registry, which has serious consequences for the offender’s entire life. Most of the time, sexual offenses occur without witnesses and do not occur in public areas. Many accusations are made without witnesses. Evidence presented in the trial often depend on analysis of tissue samples, more or less scientific measurement like hair and fiber comparison or handwriting analysis, as well as the word of the defendant and the alleged victim. Conviction in sexual cases often depends on the testimony of the victim or a minor child in support of the victim. These convictions may be relatively easy to get in sexual cases in front of a sympathetic jury, because even being accused of a sex crime has such a strong popular stigma. The horror of the crime may be enough to sway even a judge on the word of a sympathetic victim, even if very little real evidence is presented in court. Statistics show that there may be as one in four of all reported sexual attacks that will be proven false on real investigation. Defendants in sex crime cases can often be convinced to accept a plea bargain to avoid the high risk of a severe sentence, even with little real evidence against them. The plea bargain may reduce or eliminate jail time, but the consequences of even the reduced sentence can be disastrous in the life of any convicted person. The first line of evidence for the defense in a sexual conduct case is the profession of innocence. The defendant may admit to the physical acts in the case, but disavow the claim that is was sexual assault because the act was consensual. Defendants can present alibies that they were not present at the alleged crime scene, and support the alibi with documents like hotel receipts, or travel documents. Defendants may claim that they were misidentified by the victim. Because of the special nature of prosecution in sexual conduct cases, often the lack of witnesses, the way juries and judges view sexual crimes and, often, the vagueness of the nature of evidence, false science and pseudoscientific theories are often a factor in sexual conduct trials.  False memories elicited in the testimony of witnesses and attempts to “recover memory” using methods like hypnosis have resulted in miscarriage of justice in many sexual abuse cases, according to a recent book published by the British False Memory Society. Many hundreds of people are convinced by (perhaps) well-meaning therapists that their psychological problems are due to repressed memories of sexual abuse. Those so convinced go in search of likely perpetrators and use their recovered memories as evidence in court. Juries and those in the criminal justice system may rely on “common sense” in considering issues relating to memory. The British False Memory Society has filed several thousand case histories, of which 672 are known… Read more {+}

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 {+}

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 {+}