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10/20/10 2:07 PM
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Subadie
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I am not a criminal lawyer, but I deal with the mess you people like to make. For my purposes in a current case, it should be understood that a charging document (assault and battery) is admissible but a police report is not (I dont like what is in the police report). The problem is that they are not putting police report information on the charging document itself. If you are a criminal lawyer, what arguments would you make that the aspects of the charging document that include what is essentially the opinion of the arresting officer, are inadmissible.

Thanks
10/21/10 5:53 PM
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Cookie Monster
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Motion in limine to limit or redact the portions of the charging document which are not based in fact but rather opinion. Rationale is the lack of relevance of opinion testimony (assuming cop not being called as expert in a related capacity?) and the risk of prejudicial effect on the defendant from this opinion.
10/22/10 10:24 AM
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Subadie
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Wow, thats really good advice. Let me look into this and see if it will work. Thanks
10/27/10 4:34 PM
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Cookie Monster
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Work ??

Sometimes I use the cop's flowery passages in charging documents as fodder in a closing argument to flog him with when the flowery parts don't pan out to be what they alledge.


One of my favorite lines of attacking truthfulness/neutrality of the officer (pared down):

"Ladies and gentlemen of the jury, officer Fife came into this court and took an oath to tell the truth. Officer Fife took that EXACT same oath to another judge when he swore to this criminal complaint. However the complaint that officer Fife SWORE was the truth, which he swore was FACT... actually wasn't true. (point out discrepencies in what actually comes out at trial and what the complaint says).

Ladies and gentlement I submit to you that Officer Fife is not a neutral investigator but rather an agent for the State. He came into this case with an agenda and the agenda is to get a conviction. Officer Fife will "swear" to anything that helps him get a conviction. He has shown that real facts don't matter to him; he has made it obvious he doesn't care about the truth. Blah, blah, blah"
10/28/10 8:07 AM
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Subadie
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I dont know yet. I have already turned in a brief and I am hoping for a remand soon to present arguments. I wrote my post, unfortunately, after I had already turned in my brief Some of the relevant cites mentioned in the brief are:


Shepard v. United States, 544 U.S. 13 (2005)

Matter of MILIAN-Dubon, 25 I&N Dec. 197 (BIA 2010)

Underwood v People 447 Mich 695 @ 712 (fn1) (1994)

4 Weinstein & Berger, Evidence, ¶ 803(8)[01]

Advisory Committee Note, FRE 803(8)(C)

Soloman v Shuell, 435 Mich 104, (1990)”


If we get to the Judge, I will certainly style this argument as a "Motion in Limine", which of course sounds a lot better than just describing what I want the Judge to do.

Its not a criminal trial, so there is no jury and I dont think the Judge will be overly influenced by flowery language (or will he ?)
10/28/10 8:09 AM
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Subadie
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Also, if we could just get Barney Fife on the stand too, then I think we will be all set
10/29/10 1:41 PM
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Cookie Monster
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Its not a criminal trial, so there is no jury and I dont think the Judge will be overly influenced by flowery language (or will he ?)


So is it a civil trial?


Well it still demonstrates (or at least helps to) the cop's motivations from the outset.
10/29/10 4:47 PM
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Subadie
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administrative
10/29/10 9:12 PM
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Cookie Monster
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Roger that. Disregard my windy posts. I thought it was a criminal trial. Phone Post
1/23/11 1:09 PM
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Grei
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I had a drug trafficking case a few months ago that I was prosecuting. For some reason the defense attorney publsihed the search warrant to the jury and questioned the officer about its contents. He then admitted it. I was, needless to say, shocked. If there is anything document in a criminal trial that is skewed to the state it would be the search warrant. The thing was, we only had circumstantial evidence of trafficking, but the search warrant had discussed the Confidential Informant buying the meth from the defendant. I asked for a sidebar when it was my turn for redirect and told the judge I thought I had the right to talk about everything in the SW since it had been admitted. The judge took us in chambers and, after asking the defense attorney "what were you thinking?" told me I couldn't discuss what was in the SW at all, even though it was admitted. I don't have any complaints, in hindsight, that could have created an appeal issue (it probably still did), but the point of this post is that a police report or SW is held to such a high level of inadmissability that even if it gets in, it may not really be in.
1/24/11 9:20 AM
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Subadie
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Mine worked too. The Judge ruled in our favor and we have a very happy client.
2/1/11 5:25 PM
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Cookie Monster
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Awesome!

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