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March 8, 2010
Posted on Author By dmcantor Categories Blog

DUI Attorney Offices Should Look at the Impacts of Melendez vs. Massachusetts on DUI Defense

Any DUI attorney worth his legal fees will know how Melendez vs. Massachusetts impacts DUI defense. The defendant was charged with possessing and trafficking cocaine, evidenced by several bags that the prosecution held as evidence. The defense had 3 certificates of analysis that said the mentioned evidence was cocaine. The defense argued against the inclusion of the evidence, as its validation came through certificates and not a presentable witness who could be cross examined, as a DUI attorney might cross examine an arresting office in a DUI case.

The objections were overruled. The issue was whether the Crawford case applied in the Melendez case and whether the affidavits would be testimonial and whether the defendant had the right to cross examine this testimony under the 6th amendment. The court ruled that affidavits were testimonial statements, and that analysts served as witnesses under the 6th amendment. These analysts could therefore be cross examined by a DUI attorney.

More specifically, the Melendez case does illustrate that there are better ways for a DUI attorney to challenge or verify the results of a scientific test, as the Constitution guarantees only a single way- that of confrontation. A DUI attorney still does not have the right to suspend the Confrontation Clause when a preferable trial strategy is available. In this regard, the court rebuffed the state’s claim that scientific testing is both “neutral” and “reliable.”

As any DUI attorney knows, forensic science is not free from manipulation. It shouldn’t be taken at face value. In the issue of a DUI case, the level of intoxication forms the crux of the trial. This evidence needs to be based on more than police officer testimony, but other factors such as breathalyzer and performance of sobriety tests. A DUI attorney has the duty to question all available evidence in a court of law in the interest of his or her client.

Confrontation is designed to weed out not only fraudulent testimonial evidence, but incompetent evidence as well. The Melendez decision rejects the notion that the documents in question qualified as traditional official or business records. The court decided that by requiring testimonial evidence to substantiate the scientific determinations that “the sky won’t fall.”

A DUI attorney knows how the Melendez case makes it clear that the operator of the state’s chemical test is a necessary witness. However, the court does not make people who routinely work and maintain the lab equipment expert witnesses. The court does not need to hear the testimony of anyone who tested the sample or the testing equipment.

In the case of DUI law, the testimony of the acting police officer is often all a DUI attorney has to work with. When it becomes a matter of one word against the other, a conviction becomes that much more difficult. Police testimony can be called into question if not backed up by empirical evidence such as a Breathalyzer.

A good DUI attorney will know how to use the conclusions of the Melendez case to question key evidence in a DUI trial. Put your rights first by knowing how the court has decided in the past.

March 5, 2010
Posted on Author By dmcantor Categories Blog

A Good Criminal Lawyer Saves You the Hassle of an Ineffective Assistance of Trial Counsel

Any criminal lawyer will tell you that the ineffective assistance of trial counsel is one of the most frequently raised claims in state and federal post conviction petitions. Considering the state of most state funded counseling these days, this is hardly surprising. Many state attorneys refuse to investigate their cases before trial, never meet with their clients before the trial, or fail to file any motions or object to inadmissible evidence during the trial. The circumstances of your case come down to the quality of your criminal lawyer. Choosing one may be the most important legal decision you make.

The American Bar Association released a recent conclusion that indigent defense in this country has reached a state of crisis. Many defenders are forced to handle well over a thousand cases a year, more than 3 times the ABA says a criminal lawyer can adequately handle. In this challenging tax economy, public defenders in many communities simply don’t have the funds to give their clients the adequate defense the Constitution demands.

Added to this burden, the very structure of our state and federal post conviction review systems further contributes to the problem instead of providing a solution. Procedural efforts to review it make it difficult for defendants to challenge the effectiveness of their criminal lawyer. As a result, there is really no way of prosecuting criminal lawyer incompetence, which leads to a system of unaccountability on the part of a community funded criminal lawyer.

Problems with State Post Conviction Review Procedures
Many states require defendants challenging the ineffective assistance of their trail counsel must do so through post conviction review, rather than on direct appeal. Most states limit direct appeal to statements and actions directly reflected by the trial record. Because proving ineffective assistance of trial counsel often depends upon a criminal lawyer and his or her failure to do something, the legal proceedings need to take in more than just the direct appeal.

Defense attorneys are given very short time windows to file such motions (often in as little as 30 days), so the defense they get to represent them is often the same one who is the subject of the motion, which creates a conflict of interest. It is very difficult to make a case in such the limited time period allowed.

Clients also have difficulty making legal claims asserting ineffective assistance of trial counsel because they have no Constitutional right to counsel on post conviction review. A client who must then represent himself during a post conviction review has to blindly deal with filing deadlines, substantiating evidence and prosecuting the case, which is beyond the capabilities of most of the accused.

The value of a quality criminal lawyer
The solution is to be represented by a reputable criminal lawyer from the beginning. While state funded lawyers may fulfill the state’s need to provide legal counsel, it is far from adequate legal counsel. If you need a criminal lawyer, any investment you can make in your case is worth the effort. A good lawyer can create a much more beneficial outcome that will make post conviction review completely irrelevant.

Money for quality legal advice is money that is well spent. When considering your future, get the best criminal lawyer you can afford, even if it means taking out a loan or other investment to fund the means.

March 5, 2010
Posted on Author By dmcantor Categories Blog

When a Sex Abuse Attorney Encounters a “Repressed Memory” Case

One disturbing issue a sex abuse attorney comes routinely in contact with in the court room is the issue of “repressed memory.” Sadly, this pop psychological theory gone mad has put many innocent people behind bars and is still a reality today.

The concept of repressed memories first emerged in the late 1970s and early 1980s. What started as a pop fad spilled into the legal field and became an issue regularly faced by a sex abuse attorney. Repressed memories typically result when a woman seeks counseling, and her counselor helps her “discover” past memories of sexual abuse. She perhaps suffers from a variety of issues, and he suggests that her inability to maintain relationships may be caused by a past sexual abuse, which she then remembers with much do praise from the counselor.

The trouble with “repressed memory” is its actual validity in the legal field when a sex abuse attorney encounters it. The patient receives affirmation and attention from the counselor, therefore grounding the story as evidence for a sex abuse attorney to contend with. The patient is under duress about events that happened decades ago and is naturally upset. Laws set up in the 1980s required counselors to contact the authorities in these instances, who would then build cases that prosecuted perfectly innocent people.

Perfectly normal people needed the help of a sex abuse attorney. Luckily, the myth of “repressed memory” began to be exposed in the 1990s. Many counselors and child psychologists didn’t accept the theory on face value, and prosecutors became nervous at prosecuting them. Still, it occasionally remains an issue today, as a sex abuse attorney will still come across it from time to time.

The case of Dr. Earl Bradley
In February of 2010, a Delaware Grand Jury returned a 160 page indictment of Dr. Early Bradley, including 471 counts of sexual crimes involving 103 children. Bradley sought the legal services of a sex abuse attorney. The police have asked to interview all the children involved. The problem is that many of the parents of these children maintain that their children were emotionally unaffected and that the trial experience would only be traumatic for them.

The prosecutor cites the “repressed memory” issue as a reason to do the interviews, maintaining that the process may uncover other instances of wrongdoing that would prove helpful to the prosecution. Yet the myth of repressed memory is well known to your average sex abuse attorney. Stories based on emotional disturbance in a counseling session have questionable authenticity. While they may prove helpful to a counseling session, they have no place in a court room before a sex abuse attorney.

Truth is in the eye of the beholder
Luckily, more judges and prosecutors are seeing the inherent faultiness of repressed memories, so they are becoming less common, although they still surface from time to time. A sex abuse attorney should always make a point of highlighting the vast amount of doubt created in a repressed memory instance, as it has no place in a court room. Until a higher court decides to make a concrete ruling on repressed memories, they will always come into question. All we can use to protect clients from them is our own common sense, from the judge to the jury.

March 3, 2010
Posted on Author By dmcantor Categories Blog

Every Criminal Defense Lawyer Should Question Forensic Evidence

In February of 2009, the National Academy of Sciences (NAS) released a landmark report on forensic evidence that would have lasting effects on the career of every criminal defense lawyer. The report raised serious questions on the credibility of forensic science that shook the foundations of the legal system all the way to the Supreme Court. Justice Scalia acknowledged: “forensic evidence is not uniquely immune to the risk of manipulation.”

Allegations of forensic evidence being used without backup of substantial evidence are common in the legal field and the experience of a criminal defense lawyer. Forensic evidence frequently finds itself in the court room being taken at face value without anyone bothering to check its credentials. A good criminal defense lawyer will be aware of the inherent problems involved in forensic evidence and make these weaknesses apparent throughout the course of the trial.

Though silent for decades, recent challenges to the validity of forensic evidence have surfaced over the last several years. While most were not strong enough to have the evidence thrown out, a good criminal defense lawyer can at least limit the credibility of the expert testimony and call the evidence into question. The forensic community took these challenges very seriously and requested that Congress authorized NAS to use a team of legal experts including a criminal defense lawyer to study the issue.

The NAS Study
The NAS Study included a team of forensic sciences, a laboratory director, university scientists, medical examiners, a judge, a former prosecutor, a criminal defense lawyer, and a law professor. Meeting for 8 sessions, the committee listened to expert testimony on the issue and came up with its own conclusions.

The NAS studied concluded that forensic science facilities have great variation in “capacity, oversight staffing, certification, and accreditation across federal and state jurisdictions.” It found that educational programs are not up to par with other scientific disciplines, and that many labs do not set standards based on thorough research and testing, or participate in certification and accreditation programs. In order to improve the reliability of forensic evidence to the criminal defense lawyer, the process needs substantiation, the study concluded.

The committee recommended several ways to remedy the inherent weakness of forensic science. The committee recommended the creation of an independent agency to oversee the field. They also suggested separating crime laboratories from law enforcement. Though these are controversial measures, a criminal defense lawyer could argue that it serves to substantiate the evidence.

Lack of standards
The NAS study concluded that the lack of standards in regards to forensic evidence is particularly troublesome and throws serious doubts on such evidence. Much of the forensic evidence was found to lack creditable support, relying primarily heavily on subjunctive evidence.

The importance of questioning forensic evidence
As the issue further evolves, forensic evidence will become more substantiated. The process will be overseen by a independent legal body through a standard sets of procedures that protect its validity.

In its current form, however, forensic evidence presents more legal questions than answers. A criminal defense lawyer must make these doubts part of the case. In an American courtroom, guilt must be beyond the shadow of a doubt. Forensic evidence remains clouded by doubt and deserves to be discredited in a court room. Questioning the validity of forensic evidence by a criminal defense lawyer can have great affects on the outcome of a legal case.

March 1, 2010
Posted on Author By dmcantor Categories Blog

A Child Pornography Lawyer Can Help with Legal Issues and Treatment Plans

If you need the services of a child pornography lawyer, you must first understand that you are not alone, nor are you hopelessly untreatable, explains Arizona criminal lawyer, David M Cantor. Though society stigmatizes sex crimes, not everyone accused of them is the child snatcher in the van. A child pornography lawyer often works with clients who are otherwise successful family men, who often due to life stresses and circumstances, chooses a socially deviant outlet for their stress. The good news is that these people are very treatable and can go back to living healthy, functional lives with the help of a sexual therapy program.

The last decade has seen an escalated media focus on the problems of Internet child exploitation and online sexual predators, creating a public fear and anger towards sexual offenders. This attitude has created a “lock them up and throw away the key” attitude towards those who need the services of a child pornography lawyer, even for those accused of noncontact crimes.

Yet there are many varying ranges of those who would need the services of a child pornography lawyer. Although “snatch and grab” offenders make up the smallest percentage of all perpetrators (less than 3 to 5 %), these are often what people picture when they think of child pornography. Lawyer offices most often deal with more run of the mill offenders, including those who haven’t even hurt or offended anyone such as the case of someone accused of possessing child pornography.

Importance of a Psychosexual Evaluation
When you need the services of a child pornography lawyer, it’s important to be able to present yourself to the court as a treatable case. By undergoing a psychosexual evaluation, you can better present yourself to the judge, prosecution and probation staffers to receive an appropriate sentence disposition. Talk it over with your child pornography lawyer.

It is critical that you be as open and honest as you can with the psychosexual evaluation. You must provide full support and transparency, full documentation about all current and past reported concerns, and interviews with family members. Honesty and cooperation are being gauged as part of the process.

The clients of a child pornography lawyer
Those accused of child molestation or other sex crimes come from all walks of lifestyles. The most common is the regressed or situational child sex offender. These types of offenders pose the best hope for treatment. They come from all races, cultures and social classes. Often, his offending is a poor attempt to cope with social stresses, relationship conflicts or losses.

About 10 to 15% of those who need the services of a child pornography lawyer are the fixated or dedicated type. These offenders are sexually oriented to children. These sort of offenders seek the company of children not only out of sexual interest, but because they socially feel more comfortable among children. This type can be treated through hormone treatments and other sexual treatments that can reduce sexual desire.

Treatment possibilities
Despite the social stigma attached, sexual offenders are not the monsters they are made out to be in the media. Often, these are otherwise normal individuals who can be successfully treated through therapy. If you seek the services of a child pornography lawyer, don’t focus purely on the legal issue. Seek treatment so you can put this whole thing behind you and get back on track to a healthy life again.

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