Post: #26

(08-19-2018 11:43 PM)CleanSlate Wrote:  Another question.

Man goes on a date with a girl (or meets her at a nightclub or whatever), they hit it off, and go home together. Both are a little drunk.

They have sex. The man, worried about false rape accusations, secretly records the encounter without her prior consent -- both video and audio -- despite this being against the law.

Sometime later, maybe a week or so, the girl falsely accuses the man of raping her.

The man, freaked out of course, calls you and spills the beans on what happened. He puts you on retainer and he gives you video and audio evidence.

The girl hires a prosecutor, who is determined to take this all the way to a criminal trial.

Would you be confident that you can win a case like this, despite him illegally recording the encounter?

In my state, it is not against the law to record a conversation or meeting to which you're a party, so I'm not sure how it works when you need the other person's consent. Regardless, though, I would think in this case that you could still use the recording because it is critical to the man's defense. It rebuts the woman's false accusation and shows she is a liar. I just don't see how that could be inadmissible or get the guy in trouble. So I'd feel pretty confident about winning.

Post: #27

To those who think I created this thread for less than legitimate reasons, or that I'm not who I claim to be, I'll just say this. I spent a long time on this site reading and lurking before ever I ever joined. I read a lot of comments that brought up legal issues that I deal with in my profession, so I thought it would be beneficial to the forum to share my insight and experience. I enjoy my work and I like talking to others about it. When I tell people what I do, they get interested, they ask questions. So I just wanted to create a place where others can get information that they might find helpful in their own lives.

Post: #28

(08-19-2018 07:09 PM)Yeti Wrote:  Cool thread.

My question: how accurate are police reports? Do cops generally write down the truth as they see it, or do they tend to fuck things up when making the official report? It seems like a police report isn't going to be very accurate, when you take into account the average cop's level of education (critical thinking, writing skills/organization skills, memory of what happened) combined with how frantic crime scenes can be.

You have to look at police reports carefully. Some are accurate, but a lot aren't and those can be gold mines of ammunition for cross exam. The cop might get the timeline wrong, or the evidence doesn't match up to what was actually found, or it's a wrong address. A lot of dumb mistakes.

Post: #29

Wiretapping is illegal but recording conversation/video without a person's consent is fine (at least in Canada) and can be used in court as long as you are yourself a party in the recording. There have been cases in Canada when men have successfully used recordings done without consent to win child custody cases for example. As Payback said, I don't see why this would be inadmissible for a sexual assault accusation.

It's indeed wise to keep at least voice records of hook ups these days. You never know in this era of #metoo.

Post: #30

(08-20-2018 08:06 AM)Payback Wrote:  You have to look at police reports carefully. Some are accurate, but a lot aren't and those can be gold mines of ammunition for cross exam. The cop might get the timeline wrong, or the evidence doesn't match up to what was actually found, or it's a wrong address. A lot of dumb mistakes.

This one makes me interested of how often do you win a case on a technicality like these in comparison to winning because the evidence actually clears the person?

Post: #31

(08-19-2018 07:14 PM)John Michael Kane Wrote:  Has there ever been a situation in your practice where talking to the police actually made things better for the suspect/person of interest? All of the legal advice I've seen seems to suggest it is never good to talk to the police, even if you aren't guilty of anything. Your thoughts?

As I and others mentioned it’s usually not a good idea to talk to police. But every rule has exceptions. A self-defense incident, for example. Whether it’s using lethal or non-lethal force, if you have to defend yourself from an attacker it may be best to remain on the scene (and you should always remain on the scene in this kind of situation), and when police arrive explain what happened. If you clam up and say I’m not talking it’s just going to raise suspicions. It could mean the difference between spending the night in jail and going home.

Really if it’s a self defense situation, you pretty much have to tell your side of the story at some point. But it has to be a legitimate act of self defense. You have to be able to articulate a reasonable fear of death or bodily harm.

Post: #32

(08-20-2018 01:44 PM)JimBobsCooters Wrote:  

(08-20-2018 08:06 AM)Payback Wrote:  You have to look at police reports carefully. Some are accurate, but a lot aren't and those can be gold mines of ammunition for cross exam. The cop might get the timeline wrong, or the evidence doesn't match up to what was actually found, or it's a wrong address. A lot of dumb mistakes.

This one makes me interested of how often do you win a case on a technicality like these in comparison to winning because the evidence actually clears the person?

It’s not a technicality it’s simply showing the witness is not credible or believable.

A technicality would be having the evidence thrown out because of an illegal search.

Different legal standards apply and in the latter case it would be the judge not a jury who makes that decision. It’s usually not a case of the evidence clearing the defendant. It’s usually the government not being able to prove it and meet their burden. Plenty of jurors who vote to acquit will say afterward, “I think the guy might have done it, but they couldn’t prove it.”

Post: #33

(08-19-2018 02:33 PM)Payback Wrote:  not many people can just write a check for $50,000 which is probably what you're looking at. So then you have to be a bill collector as well, and that's a pain in the ass.

My experience in hiring lawyers (for civil, not criminal matters)is that for anything more involved than a few hundred dollars,maybe even $1K, is that the lawyer will require a "retainer" of what the lawyer expects will cover his legal fees to handle the case. In the above example, that's $50K in advance, preferably a wire transfer. Then you will get monthly bills drawing down your balance.
I would expect this to be even more the case when someone is facing criminal charges as well as possible fines, restitution or a civil lawsuit for damages caused by the criminal actions.

Post: #34

Retainers depend on the lawyer. They are hardly used in my practice or a senior litigator's practice that I did my articles with.

I only seek a retainer if theres a legitimate question about a clients ability to pay. Bill after each major phase and you should be fine. For major events like a multi day trial it also has a lot of value. But up until trials I avoid them.

One of the big issue with upfront retainers is you will likely have clients walk away. Its an added psychological block. When I do a consultation very rarely does it not result in a client. Other lawyers I know have much more marginal retention rates.

If a potential client gives me a reason to suspect their may be an issue with payment...then of course I'll want a retainer. (Obvious signs it would be necessary are things like low income job, file or consultation suggests financial issues, previous lawyers on the case, nominal corporation which has no assets, etc.)

If you go to a big firm you can expect a retainer. They have to have a very standardized method of handling matters. Solo practices its less likely. You can also expect a retainer for any matter that involves a trial which will be costly. (Not necessarily in small claims where the matter might only require 1 or 2 days time but in larger matters its necessary)

Post: #35

Let’s talk about drunk driving charges. Commonly referred to as DUI, DWI, or sometimes OUI.

People often ask: should you blow (submit to the breathalyzer machine)? Generally I’d say no, unless you’re absolutely positively sure you will pass. But if you were that sure you probably wouldn’t be asked in the first place.

Refusal to submit is a double-edged sword. You deprive the government of potentially incriminating evidence, but also are risking losing your drivers license because now you’re in violation of the implied consent statute. Every state in America has a law that says by driving on the roads, you have given implied consent to take a test at law enforcement request to determine the level of alcohol in your blood. Refuse this test and you lose your license.

In most states refusal is treated simply as a civil penalty, with only consequence being loss of license. Depending on the state, it could be a few months to a year. Some states, I believe, (this is not how it is where I practice but I hear from other lawyers) refusal can be a separate criminal offense and carry its own jail time.

Sometimes, though, you won’t even be given an opportunity to refuse. Some jurisdictions just go straight to the blood draw. Blood is considered more reliable than breath (sometimes it isn’t), and since sticking a needle in your arm is a search, police can simply get a warrant and take your blood that way. They don’t even need your consent.

So they can draw your blood without even asking you. You can get arrested for DUI and while being transported to the station they can fax in the warrant, have a magistrate sign it and send it back in 30 or so minutes, then have a nurse waiting when you get there, needle in hand.

Post: #36

(08-24-2018 10:12 PM)Payback Wrote:  Let’s talk about drunk driving charges. Commonly referred to as DUI, DWI, or sometimes OUI.

People often ask: should you blow (submit to the breathalyzer machine)? Generally I’d say no, unless you’re absolutely positively sure you will pass. But if you were that sure you probably wouldn’t be asked in the first place.

Refusal to submit is a double-edged sword. You deprive the government of potentially incriminating evidence, but also are risking losing your drivers license because now you’re in violation of the implied consent statute. Every state in America has a law that says by driving on the roads, you have given implied consent to take a test at law enforcement request to determine the level of alcohol in your blood. Refuse this test and you lose your license.

In most states refusal is treated simply as a civil penalty, with only consequence being loss of license. Depending on the state, it could be a few months to a year. Some states, I believe, (this is not how it is where I practice but I hear from other lawyers) refusal can be a separate criminal offense and carry its own jail time.

Sometimes, though, you won’t even be given an opportunity to refuse. Some jurisdictions just go straight to the blood draw. Blood is considered more reliable than breath (sometimes it isn’t), and since sticking a needle in your arm is a search, police can simply get a warrant and take your blood that way. They don’t even need your consent.

So they can draw your blood without even asking you. You can get arrested for DUI and while being transported to the station they can fax in the warrant, have a magistrate sign it and send it back in 30 or so minutes, then have a nurse waiting when you get there, needle in hand.

As someone who has went through the entire DUI process, I can say that I wish I had never blown into the breathalyzer. Not only did I get charged with the DUI, but I also had my license taken away from me for a very long time because of that state's laws.

Even my lawyer said that breathing through the breathalyzer can be bad. But all of this ultimately depends on the state's laws.

Post: #37

(08-25-2018 02:34 AM)Crash_Bandicoot Wrote:  As someone who has went through the entire DUI process, I can say that I wish I had never blown into the breathalyzer. Not only did I get charged with the DUI, but I also had my license taken away from me for a very long time because of that state's laws.

Even my lawyer said that breathing through the breathalyzer can be bad. But all of this ultimately depends on the state's laws.

If you refuse and still get convicted, you're probably going to be eligible for a restricted license so you can still drive for work or school. And many courts now have moved away from the traditional time & geography restrictions to just making you put an interlock device on your car for the suspension period. Long as you've got the interlock installed you can drive wherever, whenever.

But it's a serious problem for commercial drivers or people who drive a company vehicle for work. The interlock is simply not an option. In these cases both the DUI and the refusal have to be challenged, if the client wants any shot of keeping their license (and job). CDL holders have a lot to lose on a dui. These are tough cases.

Post: #38

What’s the best way to kill someone and not get caught/ go down? I heard it was running someone over then if you get caught you say it was an accident so it’s man slaughter..

Post: #39

So, I'm carrying this over from the 'female cop goes into wrong apartment and shoots occupant dead' thread, specifically, this post: /thread-70513...pid1850096

So, if law enforcement are generally accorded 48 hours to fully and properly recollect the sequence of events of an incident, is anything like that afforded the average citizen? Obviously, I think they will try to push you to making a statement as quickly as possible, but is there precedent where you can say, 'I need 48 hours, in the meantime talk to my lawyer'?

Post: #40

DELETE

Post: #41

(09-11-2018 03:47 PM)ed pluribus unum Wrote:  So, I'm carrying this over from the 'female cop goes into wrong apartment and shoots occupant dead' thread, specifically, this post: /thread-70513...pid1850096

So, if law enforcement are generally accorded 48 hours to fully and properly recollect the sequence of events of an incident, is anything like that afforded the average citizen? Obviously, I think they will try to push you to making a statement as quickly as possible, but is there precedent where you can say, 'I need 48 hours, in the meantime talk to my lawyer'?

In the US "You have the right to remain silent". Typically referred to as Miranda warning falls under the purview of the 5th Amendment to the US Constitution which protects US citizens from the obligation to incriminate themselves.



Many people talk themselves into a charge by mistakenly believing that all cops and DA's care about guilt or innocence

Post: #42

If you grab a girl for a dance, is that battery? Where are the lines drawn for innocent social behavior, vs. obvious criminal acts?

Post: #43

Let's say I'm walking down the street, and to make it interesting I have done something criminal. Cop pulls up, start asking questions.

Someone I know uses the line "my lawyer has advised me not to answer any questions without him present."

Basically, the idea is if they want to talk, arrest me, and they can talk to my lawyer.

Is that line bad, other than pissing off the cop? I'd rather get arrested and deal with it at that point then say damn near anything besides name and address.

Post: #44

I’m kind of curious what are the chances you’ll walk free while being charged for a major crime?

I assume you must have a general feeling when someone is guilty of innocent. What are the chances a guilty person (for a major crime like assault murder etc) goes to prison? What are the chances an innocent person does?


Also how much does a better/more expensive lawyer help? I know your a solo practitioner but between you and a big firm that costs 5-10x more how much does that increase your odds?

Post: #45

Are topless pics of a 16 year old girl illegal?

Post: #46

(08-20-2018 12:11 AM)Tex Wrote:  

(08-19-2018 02:03 PM)Days of Broken Arrows Wrote:  This seems like a good way for a newbie with no rep points to get us all to admit to committing crimes under the guise of being "helpful." This post has set off my suspicion radar.

I agree. In a forum full of lawyers, it seem strange that the one to make an AMA thread about his legal practice is the guy with no reps and almost no posts.

Actually we lost quite a few lawyers (especially criminal based) on the forum some time ago. The last one left isn't known by many to be a lawyer and only posts in one thread. Hank Moody is the only prominent one left and he does real estate or something like that.

I welcome this new guy and hope he can help contribute on some things that we need here.

If he gets enough reps and post count to qualify for the private subforum, he should probably create a private version of this thread there to help out. He could easily get up to 50 reps around here if he puts even a little effort into doing so.

Also, OP, make sure you check with Roosh first before taking on paid clients from the forum to make sure you do not violate his rules on self promotion. If I recall correctly he just needs to approve you and then you are okay for it, but he has his own criterion on that and it is not exactly listed out fully. Someone correct me if I am wrong about that.

Post: #47

(09-16-2018 09:36 PM)godfather dust Wrote:  Let's say I'm walking down the street, and to make it interesting I have done something criminal. Cop pulls up, start asking questions.

Someone I know uses the line "my lawyer has advised me not to answer any questions without him present."

Basically, the idea is if they want to talk, arrest me, and they can talk to my lawyer.

Is that line bad, other than pissing off the cop? I'd rather get arrested and deal with it at that point then say damn near anything besides name and address.

It is extremely bad. Generally, no adverse inference can be drawn against you for exercising your right to silence. What you are saying here is that you may or may not wish to exercise your right to silence subject to your lawyer's advice. Now, depending on the circumstances of the case, a prosecutor may be able to get this answer into evidence. If indeed you then decide to remain silent (subject to legal advice, or for any over reason) an adverse inference will almost certainly be drawn against you.

Bottom line: You have a right to silence. Use it. Don't apologise for using it. Don't complicate it.

Note: In some jurisdictions, the right to silence is watered down if you actually have a lawyer present. For this reason, I would never actually get a lawyer in during the initial arrest process, I would simply remain silent, and let them charge me. Fact is, if they have evidence, they will charge me anyway. That's what I would do. However, there are many possible factual scenarios where this may not be appropriate, especially as each jurisdiction may have its own peculiar legislation whereby the right to slice is watered down.

That's what worries me about this thread. Any criminal lawyer worth his salt would not possibly give this kind of anonymous advice to people he doesn't know without being fully briefed on the facts, and knowing the law of the state, territory or province in question.

OP is playing a very dangerous game here. Well meaning incompetence is the most charitable characterisation I can ascribe to his motives for this thread.