June 15, 2018 9:30AM

KC The Atreorgan

Law Practice Talks

About Justice Today

How We Contribute to Your Practice

With the right knowledge.
With abundant experience.
With a penchant for winning.

Schedule

9:30-11AM

Filing reports and legal forms

11-1:30AM

client meetings

1:30-3AM

moot court sessions

3-4:30AM

client meetings

4:30-6AM

session planning

Speakers

Eric Carmen

Partner at MMV

Jennifer Grey

Partner at BOL

Kelly Bishop

Partner at PMA

Neal Jones

Partner at LVR

Why Eyewitness Testimony Is Valued In a Court of Law

When a prosecution or defense is looking for a form of evidence that proves their case beyond a reasonable doubt, there will be all manner of formats and categories that are looked over in detail.

 

From scientific evidence with DNA testing, DUI admissions and crime scene samples to intercepted communications, documentation, statements on the record from the defendant and other parties, there is a myriad of subjects that can become admissible in a court of law.

 

What will be held up as one of the most important facets of evidence is that of eyewitness testimony. Considered direct evidence that is beyond circumstantial, this is an element that is heavily relied upon to convince a judge or jury that the events they described actually took place.

 

Here we will detail why this form of evidence is so strongly valued in the legal profession.

Corroborated Against Evidence

 

Eyewitness testimony is rarely made in isolation from other facts of a case. In the event of a murder, a robbery or an assault charge, there will either be a number of eyewitnesses, scientific evidence or other types that can be regarded as circumstantial that fit a narrative of the prosecution or defense.

 

Attorneys will strive to source an eyewitness who has likely given a statement to law enforcement on the scene of the alleged crime in real time. Whether they fit their argument or not, there will be a need to validate or throw into question the legitimacy and standing of this individual.

Human Nature To Believe Testimony

 

There is a strong psychological element at play when we talk about the validity of eyewitness testimony. From the perspective of a psychologist who examines human behavior from a broader point of view, there is an intangible quality to a citizen that takes an oath and proceeds to outline what they saw as it pertains to the case. It is only human nature for members of a jury to believe an eyewitness that can be proven was in a position to see the crime play out before their own eyes.

Problems and Concerns

 

Whilst there is incredible value to an eyewitness to a case as they take the stand to make their official statement, there have been cases where such testimony has led to false convictions and exonerations. Cold cases in hindsight have proven to weigh this testimony too heavily in favor of one side or the other as later DNA evidence would end up contradicting the verdict handed down to the defendant.

 

This becomes a matter for a judge or jury to make an assessment on the eyewitness’s character and credibility.

What An Attorney Can Do For Their Client Following an Arrest

Facing an arrest will be one of the most harrowing experiences an individual can be subjected to. This is a time fraught with anxiety, stress, anger and bewilderment and it is here than a qualified attorney should be sought.

 

Given their background, expertise and experience during this process, it will be their council that a client requires to decide a course of action that will benefit all parties.

 

The lawyer will have a series of options at their disposal as their client is taken through the booking procedure. After careful deliberation, they will have the power to undertake any of the following actions that work in the benefit of their client.

Issue a Bail Bond

 

A bail bond can be filed from an attorney on behalf of their client following an arrest. This allows the individual to be removed from jail or a holding cell in the short-term, but acts as insurance for law enforcement to ensure that the charged party will have to return to face the charges. The amount of bond will be determined in accordance with the nature of the offense, with general misdemeanors only requiring a small amount up to criminal charges that could be substantial (if issued at all).

Source a Criminal Defense Specialist

 

If there is a criminal matter at play where a client is placed in a scenario that is criminal in nature, than a specialist attorney might need to be found. Those professionals in the legal field will have networks and connections that are easier to find than what could be discovered by a citizen who has the stress of facing charges. Usually a lawyer will want to lead the defense off their own accord, but they can reach out to a peer in a time of need.

Arrange a Court Date

 

An arrangement hearing will be necessary if you are charged with a crime, and this is an important notification that your attorney will need to communicate to you as the client. From this point forward, a schedule and plan will need to be formulated to determine a course of action that includes consultations and meetings in between.

Decision To Contest or Accept Charges

 

Whether to head to trial or not is a serious decision that an attorney will consult their client on. This will be dependent on the evidence held by the prosecution of the nature of the charges, as it might pertain to a plea bargain deal where the charges are dropped or downgraded.

Legal Issues Surrounding Marijuana Possession In The United States

Marijuana remains one of the most divisive and discussed drugs in the Western world. That is even before the issue of legality is introduced as different countries adopt contrasting approaches to the substance.

 

From Portugal and Canada on one hand who have embraced a model of legalization to the United States and others that have classified the drug as illegal, there are conflicting perceptions as to the public dangers and benefits that are sourced through these policies.

 

Some understand that there are benefits to regulation and taxing of a drug that is already in wide use across the country. Others believe that criminalization is the best course to act as a deterrent.

 

Whatever perspective marijuana is seen from, there is no doubt that the United States is a country that is evolving and transitioning away from a zero tolerance policy. However, there are ongoing legal challenges and stipulations that must be identified for the sake of citizens, police officers and attorneys alike.

Felony Possession Charges

 

There are certain states where possession alone can be classified as a felony and the penalty can be severe. Consider Tennessee, Florida, Arizona and Oklahoma in particular when it comes to law enforcement’s view on the substance. Arizona in particular is known as taking the most hardline stance against the drug possible whereby citizens caught with marijuana can face a felony charge completely in isolation from circumstantial evidence.

Legal Possession States

 

As of 2018, there are ten states where smoking marijuana is legalized. This includes Washington D.C., Alaska, Colorado, Maine, California, Nevada, Massachusetts, Washington, Oregon and Vermont.

Decriminalization

 

The notion of decriminalization does not make marijuana legal in the purist sense of the word, but it works to end the process of prohibition. As well as those ten states that makes the drug legal in terms of possession, there are others including Minnesota, Mississippi, New Orleans,, Illinois, Delaware, New York, Rhode Island, North Carolina, Maine, Connecticut and Maryland where the penalties are far less severe.

Medical Use

 

For states as territories such as New Jersey, Hawaii, Louisiana, North Dakota, Michigan, Montana and Arkansas, marijuana is open for those that can access a medical certificate. In is in the event that the citizen is suitable for use during a form of debilitating illness.

Ongoing Discussion

 

There is no question that the subject of marijuana will be an ongoing debate for different states to discuss over the course of time. Classifications will change and be debated as social behaviors and perspectives are altered.

Disadvantages of Being Assigned a Court-Appointed Attorney

Each and every US citizen has the right to an attorney. If you have been arrested, charged or facing an offense where a lawyer should be present, then there will be a handful of options that will present themselves in due course.

 

One will be to find and locate a lawyer from the open market. Perhaps you know the individual and enjoy a prior relationship, or you simply sourced a name that has the skillset and experience to handle the case in question.

 

Another option is to take an early plea and ignore an attorney altogether. A radical approach is to defend yourself in a court of law, a scenario that has a minimal degree of success.

 

The resort that will be adopted by most who do not have the means of finding their own attorney is taking on a court-appointed lawyer.

 

Whilst this is not a dire scenario, it still carries certain disadvantages.

Lack of Experience

 

A healthy portion of court-appointed lawyers are those professionals who are looking for experience, either through pro bono cases or via the court system. Specialists that have the background and experience to justify their billing won’t be located on these lists and that added knowledge and awareness can make a significant difference in the final determination.

Insufficiently Resourced

 

A court-appointed lawyer will likely be juggling multiple cases without the help of a well-resourced law firm that can invest in their expertise. They will have to undertake their own research efforts without the technology or paralegal support that the opposition might enjoy.

Summary

 

As a client, you should not judge a book by its cover. Just as you would wish a judge or jury to hear the evidence before making a concluding argument, there is no need to dismiss a court-appointed attorney on the basis that they are yet to earn a stellar reputation or charge hundreds of dollars per hour.

 

However, the end game is all the client will really care about when a case is before the court – a scenario where sentiment cannot and should not come into play. From all the evidence that has been gleaned from various scholars and legal experts, you have a stronger chance of success in a courtroom if you can source an attorney that is a specialist in the field that has been acquired off your own accord.

 

From the initial four options that will be available to a defendant, a court-appointed lawyer should reside only marginally behind a lawyer that you have sourced yourself. It is not ideal, but far removed from the alternatives.

Differences Between Direct and Circumstantial Evidence

Whether you are on the side of the defense or prosecution during a case, there will be two key forms of evidence that will have to be taken into consideration.

 

The first is a direct form, one that points directly to the defendant committing the crime or offense in question. The other is circumstantial, a facet that insinuates and infers guilt without overtly being the case.

 

Now there are moments when the lines between direct and circumstantial evidence can become blurred depending on the case argued by the defense or the prosecution. Whatever is presented before a judge or jury, these instances are discussed and analyzed during a civil or criminal trial to determine an outcome, one that will be guilty or not guilty.

 

So how are we supposed to understand these different classifications? Here we will outline examples that are intended to fit one of two camps: direct or circumstantial evidence.

Direct: Witness Testimony

 

If there is a citizen who can account exactly what happened and who was involved from an unimpeded view, then this could be classified as direct evidence. It will also speak to their credibility and legitimacy as a witness.

Direct: Video or Audio Evidence

 

If a prosecutor or defender has obtained an email, text message, phone call or other type of audio recording that proves their case, this can be classified as direct evidence.

Direct: Documentary Evidence

 

Consider a photograph, passport, contract or written document that is signed and dated as direct evidence. Each side of the prosecution and defense will attempt to obtain this form of evidence as it fits the direct category.

Circumstantial: Witness Testimony

 

Yes, in this instance witness testimony can fit either direct or circumstantial evidence depending on the nature of the testimony. Should an individual on the stand only see a portion of the event of an obstructed view where they might have only heard a scream, a shot or a bang from a distance, then that is not a direct perspective. There is also a degree of credibility and reliability from a witness where their own account could be questioned on both sides of the bench.

Circumstantial: Forensics

 

Perhaps the defendant’s DNA was on the scene. From a fingerprint to a strand of hair or an item of clothing that might place the individual on location, there are instances when science plays a role that helps to paint a picture. While this will support one of the arguments during a case, it should only work to support further evidence and not entirely be relied upon.

Can You Be Legally Forced To Testify?

In the legal profession, there will be moments when a witness becomes paramount to a case. No matter whether they will be helpful to the defense or the prosecution, the ability to source either an eyewitness or an general witness that can offer significant circumstantial evidence to support one of the arguments is vital for justice to be upheld.

 

As an extension of this point, there is a need to entice and engage witnesses to attend a court proceeding or a trial and answer these questions from both sides of the court. This is where the capacity to testify becomes all encompassing as it will have a direct impact on the outcome of the case.

 

However, what is there to stop an individual from refusing their duty to testify? Can a judge force you to testify even in a scenario where you do not wish to do so?

 

Here we will examine some of the important legalities that surround this issue.

Issue of the Subpoena

 

A subpoena that is handed down is utilized for one single purpose – to compel an individual to testify. That is the central objective of this practice that is handed down by the judge. It will occur if a witness does not arrive to court voluntarily having been requested to, seeing a subpoena as an official means of acquiring the testimony by legal force.

Exceptions to a Subpoena

 

The subpoena can be overridden in some exceptional circumstances. This includes if the testimony would be self-incriminating for the witness, if the individual is married or has a significant relationship to the defendant, if there is a professional engagement and seen as a conflict of interest, or there is a lack of competence and credibility. Should the defendant be involved in a criminal case, they are protected under the Fifth Amendment.

Penalties Handed Down

 

Those that are given a subpoena are obliged to testify according to a judge and a court of law. Should that individual fail the subpoena having been handed the document and been made aware of the order, then they can find themselves in contempt of court.

 

This carries a significant penalty at it can be at the discretion of the judge in question to hand down a separate sentence for that citizen who has not complied with the order. Varied from a small to a large fine or even imprisonment in some circumstances, it is considered a violation to avoid testifying in court when officials have deemed it paramount that you do so for the sake of an important case.

Writing your resume when you have limited legal experience

No one is born with work experience and it can be incredibly hard to get. When applying for a job everyone is eager to out forward the work they have done prior, but what if you haven’t?

It’s a bit of a catch 22 when it comes to work experience with many companies wanting people to have work experience in order to gain more work experience. You have to start someone so when you have little to no work experience you really need to put your best characteristics forward.

You are more than the work you have completed previously as your other skills and personality are equally important when it comes to working in any form as interactions with employees and clients is an important cog in the business mechanism.

Here are a few tips to help you when you’re looking for your first job in the legal system.

  1. Skills first

Many people put their skills towards the end of their resumes having listed their education and work experience first. However, there is no reason you shouldn’t be putting your skills at the top! The skills you possess are why you should be given the job so putting them right in the eyes of the recruiter is important, especially if you don’t have a lot else to show.

  1. Use the relevant terminology

When going for a job you should have some knowledge, through previous research and interest, about the profession and what it involves. Include a few key words that relate to your role to show that you are not only interested but also have a good understanding of what it entails.

  1. Include relevant experience

Now, understandably, you may not have any work experience but there is a good chance that you have done some volunteer or community work or held a leadership position in sport or at school that would be of value to your employer.

Highlight your achievements so that the potential employer can get a better idea of who you are and the value you could bring to their firm.

  1. Be clear and concise in your goals

Highlight exactly why you want to work for the given firm and emphasise your goals and aspirations within the industry. Show them that you are driven and determined and really hone in on what you will give to the business.

Being passionate about any job is going to give you an edge over other candidates and outlines a desire to learn and develop in the role as well.

A case of what could have been

High Court

Australia is known for a lot of things. But one thing that resonates throughout the world about Australia is it the wildlife and nature. All of that could have come crashing down if the Tasmanian government had its way. Tasmania wanted to build a hydroelectric dam across Gordon River. Governments build dams almost everywhere, but the big hurdle that awaited Tasmania was the fact that the Gordon River was a World Heritage site.

What the Tasmanian Government didn’t expect was the Federal Government to take such interest in the case and oppose a project that usually has the backing of both the administrative and federal governments. But the Federal government argued that such a travesty could greatly alter the geo-political landscape of the country and will open up the opportunity for corporates to seize natural habitats for corporate gain. Although the hydroelectric plant could have greatly increased the power reserves of the country along with water reserves; the federal government could not let precedence to occur where natural habitats where destroyed for the gain of governments and people.

court

The case was taken to the Australian High Court, and the federal government had an ace up their sleeve. Australia is obligated by the World Heritage Convention to protect sites of such importance from human and corporate activity that greatly dangered the site. But on the other hand, Tasmania argued the benefits of building a dam that can greatly benefit the people. The high court was divided over the facts of the case; with one side arguing over the benefits for the human population while the other side was arguing about the preservation of natural habitats and world heritage sites.

The votes swung in favour of the federal government after the inception of the World Heritage Properties Convention of 1983. The federal government won the case by 4 votes to 3; making it one of the most prolific high profile cases to ever get down to 1 vote difference. The case which was won in 1983 set a legal precedent that has greatly preserved the Australian wilderness let alone the world heritage site. It was a sheer act of nobility that needs to be lauded. If the federal government never took Tasmania to court then we could be witnessing an entirely different type of Australia now; one that might be economically rich but poor in terms of nature and no one would want that scenario.

Crazy Australian Laws Part II

law

We are sure our previous article peaked your interest when it comes to crazy laws in Australia, and we have stepped things up. We actually found a ton of crazy laws, but we are only putting forward 10 in total. We have covered five already, and we ourselves can’t contain the excitement. Without further ado, here is our finale for the crazy law series.

1. Enlightening

How many people does it take to change a light bulb in Australia? Well, only one but that one person needs to be a certified electrician. Talk about buzz kill, but we are all in for letting the authorities take care of the hard issues in life but seriously why does this law even exist?

2. The Dark Arts

Dark arts

So you’re a certified tarot card reader who is looking to make a quick buck; sorry to crash your party but Australia is not the place for you. There is a law that says that tarot card reading is against the law as it is apparently a form of witchcraft. For a nation that is considerably more advanced than many developing nations, such a notion is archaic.

3. Who are you?

If you ever wanted to stake out someone or sneak around somewhere or even pull a prank on someone by wearing a disguise? Then make sure to have a license stating that you are allowed to have a disguise; because in Australia it is against the law to own a disguise without a license. So in theory, you can’t run around dressed up as a clown like your American counterparts but let’s be honest are you really missing out on much?

4. What the pee?

Say you really need to pee and you end up at a bunk to find all the urinals are in use. Then you can pee on the rear left tyre of your truck in such a circumstance. We have so many questions as to why a law even exists in the first place. We are wondering who put forth this law and whether people debated on which tyre to pee on? We are in absolutely fits at the possibility of a minister or a head of state signing off on this law.

5. Na Na Na Na Na Na Na Na. NO

It is against the law to dress up as the much loved Batman and Joker duo for any occasion. Clearly, Australia is team Superman.

Crazy Australian Laws Part I

law

Australia is a country that needs to be experienced to be understood. And that is the mantra for things that are quintessentially Australian. Australia has some of the weirdest laws, and we have found you some of the craziest laws you will ever find. We have split our finds into two articles. Read both parts to have a joy ride like no other, at least when it comes to the Australian legal system.

1. 50kg of what?

We get it, being in 50 kilos of cocaine is definitely against the law, but Australia has stepped things up when it comes to weird laws. In Western Australia, an individual is breaking the law if he or she possesses 50 kilos and more of potatoes. I mean we totally understand that one person should not have the right to eat that much mash or fries.

2. Fashion Police

The fashion police in other countries are usually a part of the media unless we are talking about a totalitarian government. But Australia’s fashion police is the police itself. Believe it or not but you cannot wear hot pink pants after midday on Sunday. We are totally in favour of this law because the hot pink hot pants are a crime against fashion but actually having a law against them is taking things too far.

3. Stop horsing around

Bars and pubs are required to take care of the horses of their customers. So in essence, a pub will be in hot water if they don’t have a service that takes care of horses while the customers indulge inside. I cannot begin to imagine the scenes at a posh bar when a customer arrives in a horse. If you have come across such instances; do let us know.

4. Bad Taste in Music

music

There is an actual law that makes it illegal to listen to a profane song in the presence of others. While researching, we had actually hoped that the law was more specific to all bad songs; we were particularly thinking of JB, but I suppose we’ll have to keep dreaming.

5. Wait, What?

There is a law that is paradoxical in nature; it basically states that being drunk in a pub is against the law. I mean where else would you be drunk? On the roads? We are as confused as you when it comes to this law in particular.

That’s a wrap; hope you have enjoyed this article and we hope that we tickled some of your funny bones. Check out our other article as well.

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