Atlanta DUI lawyer Ben Sessions describes some issues that DUI defense attorneys should consider when they are facing challenging facts.
The Sessions Law Firm, LLC
1447 Peachtree St., Ste. 530
Atlanta, GA 30309
Telephone: (470) 225-7710
Effectively Arguing Constitutional Speedy Trial Violations in Georgia Crimina...Ben Sessions
Georgia criminal defense attorney Ben Sessions discusses how to effectively present and argue motions to dismiss based upon constitutional speedy trial violations in Georgia.
Motions to Suppress v. Motions in LImine - Georgia Criminal Motions PracticeBen Sessions
This is an except from a presentation that I did for the Georgia Public Defenders Standards Council in October 2014. This excerpt addresses the difference in motions to suppress and motions in limine in criminal cases in Georgia.
Atlanta DUI lawyer Ben Sessions describes some issues that DUI defense attorneys should consider when they are facing challenging facts.
The Sessions Law Firm, LLC
1447 Peachtree St., Ste. 530
Atlanta, GA 30309
Telephone: (470) 225-7710
Effectively Arguing Constitutional Speedy Trial Violations in Georgia Crimina...Ben Sessions
Georgia criminal defense attorney Ben Sessions discusses how to effectively present and argue motions to dismiss based upon constitutional speedy trial violations in Georgia.
Motions to Suppress v. Motions in LImine - Georgia Criminal Motions PracticeBen Sessions
This is an except from a presentation that I did for the Georgia Public Defenders Standards Council in October 2014. This excerpt addresses the difference in motions to suppress and motions in limine in criminal cases in Georgia.
Lawweb.in judgment of us district court on motion for a negative inference ba...Law Web
Judgment of US District court on motion for a Negative Inference Based upon Plaintiff’s Alleged Deletion of Emails - See more at: http://www.lawweb.in/2016/04/judgment-of-us-district-court-on-motion.html?#sthash.T5WQGg2Q.dpuf
Demonstraiting bais of conclusion from expert witnesses' testimony is of capi...Adam Glazer
While not quite reaching the death and taxes level of certainty, some issues brought to the
appellate court still produce highly predictable outcomes.
Challenges to foundations laid by expert witnesses are usually addressed adequately through
crossexamination.
Firstdegree
murder convictions, especially those appealed on technical
grounds, generally get affirmed. Illinois State Police lab technicians follow generally accepted
methodologies of firearms identification.
Except when they don’t.
From ExactSource- Rules Regatding Admission of Expert Witness TestimonyChuck Detling
Produced by ExactSource this is an updated analysis of the admissibility of biomechanic and accident reconstruction expert witness testimony in all 50 states.
Lawweb.in judgment of us district court on motion for a negative inference ba...Law Web
Judgment of US District court on motion for a Negative Inference Based upon Plaintiff’s Alleged Deletion of Emails - See more at: http://www.lawweb.in/2016/04/judgment-of-us-district-court-on-motion.html?#sthash.T5WQGg2Q.dpuf
Demonstraiting bais of conclusion from expert witnesses' testimony is of capi...Adam Glazer
While not quite reaching the death and taxes level of certainty, some issues brought to the
appellate court still produce highly predictable outcomes.
Challenges to foundations laid by expert witnesses are usually addressed adequately through
crossexamination.
Firstdegree
murder convictions, especially those appealed on technical
grounds, generally get affirmed. Illinois State Police lab technicians follow generally accepted
methodologies of firearms identification.
Except when they don’t.
From ExactSource- Rules Regatding Admission of Expert Witness TestimonyChuck Detling
Produced by ExactSource this is an updated analysis of the admissibility of biomechanic and accident reconstruction expert witness testimony in all 50 states.
Adaptable knit top: an innovative 9 button design that creates an endless combination of looks and silhouettes for the wearer. Zero-waste, sustainable fabric, extremely versatile for all occasions
In this presentation I outline how gamification can be used to solve the problem of food banks not getting enough money.
It's a rough draft, so if you have any ideas on how to improve the idea, please let me know!
[Webinar Preview] What Site Search Will Look Like in 2016: 20+ PredictionsUnbxd
A sneak peek at our upcoming webinar focusing on the top site search trends, innovations and predictions for 2016.
Are you ready to learn more about how you can use site search to increase conversions in 2016?
This presentation was made by Steve Milbrath at the Electronic Everything: Litigating Computer Forensic Evidence Issues seminar sponsored by the Business Law Section of the Florida Bar on June 25th at the Florida Bar Annual Convention.
Using the attached information, you will prepare a Case Brief on a.docxdaniahendric
Using the attached information, you will prepare a Case Brief on a recent United States Supreme Court decision regarding a criminal justice topic. You must include the following sections: caption, facts, procedural history, issue, rule of law, holding, and rationale. The Case Brief must be 1–2 pages. Save your work as a Microsoft Word document and submit it to Blackboard. Prior to submitting the assignment, review the Case Brief Grading Rubric to verify that all components of the assignment have been completed.
(Slip Opinion)
OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See
United States
v.
Detroit Timber & Lumber Co.,
200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SALINAS
v
. TEXAS
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS
No. 12–246. Argued April 17, 2013—Decided June 17, 2013
Petitioner, without being placed in custody or receiving
Miranda
warn- ings, voluntarily answered some of a police officer’s questions about a murder, but fell silent when asked whether ballistics testing would match his shotgun to shell casings found at the scene of the crime. At petitioner’s murder trial in Texas state court, and over his objection, the prosecution used his failure to answer the question as evidence of guilt. He was convicted, and both the State Court of Appeals and Court of Criminal Appeals affirmed, rejecting his claim that the pros- ecution’s use of his silence in its case in chief violated the Fifth Amendment.
Held
: The judgment is affirmed.
369 S. W. 3d 176, affirmed.
J
USTICE
A
LITO
, joined by T
HE
C
HIEF
J
USTICE
and J
USTICE
K
ENNEDY
,
concluded that petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege in response to the officer’s question. Pp. 3
−
12.
(a) To prevent the privilege against self-incrimination from shield- ing information not properly within its scope, a witness who “ ‘desires the protection of the privilege . . . must claim it’ ” at the time he relies on it.
Minnesota
v.
Murphy
, 465 U. S. 420, 427. This Court has rec- ognized two exceptions to that requirement. First, a criminal de- fendant need not take the stand and assert the privilege at his own trial.
Griffin
v.
California
, 380 U. S. 609, 613–615. Petitioner’s si- lence falls outside this exception because he had no comparable un- qualified right not to speak during his police interview. Second, a witness’ failure to invoke the privilege against self-incrimination must be excused where governmental coercion makes his forfeiture of the privilege involuntary. See,
e.g.
,
Miranda
v.
Arizona
, 384 U. S. 436, 467
−
468, and n. 37. Petitioner cannot benefit from this principle
2
SALINAS
v.
TEX.
Federal Judge's order of sanctions against Wal-Mart for its failure to preserve videotape in retaliation and discrimination lawsuit in Atlanta, Georgia.
Federal Court Denying Motion by Satish Vuppalapati, Madhavi Vuppalapati and A...mh37o
Federal court denied the motion by Satish Vuppalapati, Madhavi Vuppalapati and Anandhan Jayaraman. Court confirmed that PISL India and PISl PA are one and the same companies.
Running head DISCIPLINARY ASSIGNMENTDISCIPLINARY ASSIGNME.docxtodd271
Running head: DISCIPLINARY ASSIGNMENT
DISCIPLINARY ASSIGNMENT
Prosecutorial Discretion and Retroactive Review
Part one
MEMORANDUM
To: Professor: Judge Scott W. Naus
From: Andrade Olliver II
Date: 5/23/ 2020
Subject: Prosecutorial Discretion and Retroactive Review
The United States judicial system is considered one of the best and most effective court systems in the world. Despite this, the U.S. prosecutors have been faced with series discriminations where they failed or violated various defendants' rights in one way or another. The significant issues in most of the cases include suppression of any favorable evidence to the defendant case, avoiding putting on stand witnesses who may support defendants, use of unreliable and consistent information, and other criminal discoveries that act against defendant constitutional rights (Green & Yaroshefsky, 2016).
Case Law I: Brandy V. Maryland, 373 U.S. 83 (1963)
According to the jury, Charles Boblit and John Brady were found to be guilty of murder. However, Brandy went further to admit in the participation of robbery but did not kill anyone in the process. Later, after both sentenced for murder, it came to Brandy's attention that despite Boblit's confession to the murder, the prosecutor still went ahead to indict both of them to the same sentence. Due to this, the Maryland Court approved considering reviewing the extent of punishment that Brandy should have been charged earlier (Clafton, 2020).
With this, the case against Brandy the prosecution can be directly accused of violation of the Fourteenth Amendment, which describes the due process of any case on trial. The suppression of evidence indicted Brandy of a crime he did not commit, but it disqualified him from a fair trial.
Case Law II: Giglio v. United States, 405 U.S. 150 (1972)
The court sentenced John Giglio guilty of forgery and passing fake money orders. It was during his appeal in the U.S. Court of Appeal where it was discovered that the prosecutor failed to avail the information of offering immunity to key a witness to the Giglio trial. Despite the discovery of this new evidence, Giglio was denied the retrial on the basis that the court could not find any final influence decision rested upon by the court (Green & Yaroshefsky, 2016). Though the retrial was denied, Giglio retrial should have been accepted on the grounds of the witness's credibility. Therefore, the testimony against Giglio could have been clouded by the judgment of crucial witnesses trying to save himself.
At the time of the trial, Giglio's cross-examination on witness could have been a great significance on his side and maybe swinging the entire case direction. Also, if the entire conviction was based on the witness testimony, it was right for Giglio to have retrial judging on the availability of the new evidence.
Case Law III: United States v. Agurs, 427 U.S. 97 (1976)
In the case, United States V. Agurs, Agurs (prostitute) was found guilty of killing Sewell (c.
Evidence Code 1101b allows conduct of uncharged acts to be admitted as evidence. This article provides case law and how California Court of Appeal decisions address what requirements must be met to allow the admission of uncharged conduct to be admitted. Courtesy of Darren Chaker
The following is a memorandum that I wrote for the Office of the New York State Attorney General regarding a pending Environmental Protection Bureau case.
I have received permission to use this memorandum as a writing sample. The parties’ names have been changed to protect confidentiality.
Electronic Document Retention And Legal HoldsJohn Jablonski
Overview of the duty to preserve records, the Seven Steps of a legal hold business process and basic evidence for the admissibility of electronic evidence (aka ESI)
Similar to Ben. Winning the Unwinnable - GACDL Spring (20)
1. The Sessions Law Firm, LLC
1447 Peachtree St., Ste. 530
Atlanta, GA 30309
Telephone: (470) 225-7710
Georgia Association of Criminal Defense Lawyers
Spring 2016
Winning the
Unwinnable DUI Case
Ben Sessions
@Ben_Sessions
SessionsCriminalDefense.com
2. The Customary Rules
❖ File your standard motions.
❖ Review discovery.
❖ Maybe argue a motion to suppress or exclude.
❖ Motion is denied.
❖ Trial or plea.
3. What are the common tactics that work?
❖ There are no "common tactics" that consistently work.
❖ It is the uncommon that works. (No, I'm not talking
about wearing tennis shoes to court or fighting over
what table in the courtroom you get to sit at.)
17. Basics of the constitutional speedy analysis
The analysis has two stages. First, the court must determine whether the interval from the
accused's arrest, indictment, or other formal accusation to the trial is sufficiently long to be
considered “presumptively prejudicial.”If not, the speedy trial claim fails at the threshold. If,
however, the delay has passed the point of presumptive prejudice, the court must proceed to
the second step of the Barker-Doggett analysis, which requires the application of a delicate,
context-sensitive, four-factor balancing test to determine whether the accused has been
deprived of the right to a speedy trial.
Ruffin v. State, 284 Ga. 52, 55, 663 S.E.2d 189, 195 (2008) (citations omitted).
18. Where do we lose?
[W]ith respect to the Barker v. Wingo analysis, it should be recognized that delayed assertion
of the right to a speedy trial and lack of prejudice are the two factors that most often weigh
heavily against defendants and which then support the overall conclusion that speedy trial
rights have not been violated.
Phan v. State, 287 Ga. 697, 700, 699 S.E.2d 9, 12 (2010) adopted, (Ga. Super. June 17,
2011)
19. Assertion of the right: how do we do it?
It would also allow a court to weigh the frequency and force of the objections as opposed to attaching significant weight to a
purely pro forma objection.
Barker v. Wingo, 407 U.S. 514, 528-29, 92 S. Ct. 2182, 2191, 33 L. Ed. 2d 101 (1972) (citations omitted).
* YELL AT ME IF I DON’T DISCUSS IMPORTANT STRATEGIC CONSIDERATIONS FOR CASES BEING BOUND
OVER TO A STATE/SUPERIOR COURT.
20. Establishing prejudice in the constitutional speedy context
Prejudice, of course, should be assessed in the light of the interests of defendants which the
speedy trial right was designed to protect. This Court has identified three such interests: (i)
to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the
most serious is the last, because the inability of a defendant adequately to prepare his
case skews the fairness of the entire system. If witnesses die or disappear during a
delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable
to recall accurately events of the distant past. Loss of memory, however, is not always
reflected in the record because what has been forgotten can rarely be shown.
Barker v. Wingo, 407 U.S. 514, 532, 92 S. Ct. 2182, 2193, 33 L. Ed. 2d 101 (1972)
(citation omitted).
23. Specific issues relating to prejudice: pre-trial incarceration
However, we disagree with the trial court's determination that there was no evidence of prejudice for the period
of time that Leopold subsequently served in jail after his release. The record shows that Leopold was later
arrested for an unrelated probation violation, and as a result, was held in the DeKalb County jail from
December 18, 2008 until the start of his trial. Leopold argues that the delay in this case caused him to lose the
possibility of serving this sentence concurrently with the nine months he served on his sentence for the
probation violation. This Court has previously recognized that with respect to a defendant incarcerated on
other charges, a delay in bringing such a person to trial may be prejudicial because the defendant may
forego the opportunity to receive a sentence that is at least partially concurrent with the one he is serving.
Johnson, 313 Ga.App. at 904(2)(d), 723 S.E.2d 100 (citing Smith v. Hooey, 393 U.S. 374, 378, 89
S.Ct. 575, 21 L.Ed.2d 607 (1969)). Thus, the trial court erred in failing to consider this factor. However,
our Supreme Court has consistently held that “when a defendant is already incarcerated for unrelated offenses,
there is minimal possibility of oppressive pretrial incarceration.” See Williams, 279 Ga. at 109(1)(d), 610 S.E.
2d 32 (citing cases).
Leopold v. State, No. A15A0783, 2015 WL 5238136, at *5 (Ga. Ct. App. Sept. 8, 2015) (emphasis added).
24. And with respect to the impairment of his defense, Leopold argues that had Blackford not testified at trial, the testimony of
two defense witnesses as to allegedly exculpatory statements made by Blackford would have been uncontroverted.
However, Leopold provides no citation to authority to support his argument that the State's inability to locate and present
testimony from Blackford in order to make its case is the type of prejudice the Barker factors are designed to address, and
we find none. The record confirms that Leopold was able to present evidence in support of his defense, he does not argue
that the delay prevented him from obtaining any evidence or testimony, and his only contention is that the delay
strengthened the State's case, to his detriment. See Robinson v. State, 287 Ga. 265, 269(1)(d), 695 S.E.2d 201 (2010)
(prejudice factor does not weigh in the defendants' favor where “no witnesses have died or disappeared; there is no
evidence that witnesses have lost their memories; and the defense strategy remained unchanged”). Cf. Johnson, 313
Ga.App. at 905(2)(d)(iii), 723 S.E.2d 100 (if a witness that could supply material evidence for the defense dies or
disappears during the delay, prejudice may be established). Moreover, the State's need to locate a missing witness whose
testimony is required for trial is one of the specific reasons recognized by the United States Supreme Court that may justify
a delayed trial. See Barker, 407 U.S. at 531, 92 S.Ct. 2182 (“[A] valid reason, such as a missing witness, should serve to
justify appropriate delay.”).
Leopold v. State, No. A15A0783, 2015 WL 5238136, at *5 (Ga. Ct. App. Sept. 8, 2015) (citation omitted).
Specific issues relating to prejudice: inability to produce
witnesses - THINK STRATEGICALLY ABOUT THIS ISSUE
25. Regarding anxiety and concern, the trial court found that Takyi suffered unusual and extreme anxiety
and emotional pain due to her uncertain immigration status, such that she was “frightened that at any
time her unresolved immigration status could force her to leave the U.S.” The trial court heard
testimony from Takyi and her attorneys about the actions they took regarding her pending citizenship
application and the emotional impact the attorneys understood the situation to have on Takyi.
Takyi, 314 Ga.App. at 448(1), 724 S.E.2d 459. On remand, the trial court, explicitly disregarding
hearsay and relying exclusively on the uncontradicted testimony of Takyi and her attorneys, found that
Takyi suffered an unusual amount of stress and anxiety due to the delayed resolution of her case.
Because it ignored the hearsay identified in the prior appeal to reach its decision, the trial court
properly exercised its discretion in weighing the final factor slightly in Takyi's favor.
State v. Takyi, 322 Ga. App. 832, 838-39, 747 S.E.2d 24, 30 (2013)
Specific issues relating to prejudice: anxiety and concern
suffered by the Defendant
26. Harper Challenges
The Harper rule requires that the Court in a
criminal case determine “whether a given scientific
principle or technique is a phenomenon that may be
verified with such certainty that it is competent
evidence in a court of law....” Id. at 525. Otherwise
stated, the Court must determine whether the
scientific principle or technique “has reached a
scientific stage of verifiable certainty” or “‘rests upon
the laws of nature.’” Id. (citations omitted).
“[E]vidence based on a scientific principle or
technique is admissible only if the science
underlying the evidence is a phenomenon that may
be verified with such certainty that it is competent
evidence in a court of law.” Parker v. State, 307
Ga.App. 61, 704 S.E.2d 438 (2010).
27. Harper Challenges
❖ Opinion of toxicologist as
to impairment by drugs
❖ Lack of convergence
❖ Rhomberg / Romberg Test
❖ HGN for drugs
29. “It was therefore incumbent upon the State to
secure the necessary witnesses to meet its burden
of proof that the initial encounter was lawful.”
Burrell v. State, 261 Ga. App. 677, 583 S.E.2d
521, 522 (2003)
Burrell / Custody Issues
30. Source Code
Indeed, the mere possibility that alcohol can remain present in the
mouth due to the existence of a surgical implant and retainer does
not amount to evidence of facts pointing to the actual existence of
excess alcohol in the mouth at the time of Cronkite’s breath test that
should have produced an error message from the Intoxilyzer 5000
that was not produced. Nor did Cronkite point to any other evidence
of facts supporting the existence of a possible error in his specific
breath test results such as discrepancies in the operation of the
Intoxilyzer 5000 machine itself.
Cronkite v. State, 293 Ga. 476 (2013).
31. O.C.G.A. 24-7-707 states:
“In criminal proceedings, the opinions of experts
on any question of science, skill, trade, or like
questions shall always be admissible; and such
opinions may be given on the facts as proved by
other witnesses.”
Compare, O.C.G.A. 24-7-702.
Rule 707 Challenge
32. The issue of refusal of fields constituting a
violation of Miranda is relatively well
settled, but the whether the refusal of field
sobriety tests constitutes an impermissible
comment upon a search remains open.
Refusal of field sobriety tests
33. The Sessions Law Firm, LLC
1447 Peachtree St., Ste. 530
Atlanta, GA 30309
Telephone: (470) 225-7710
Got a question?
Follow me @Ben_Sessions and send me tweet
Thank you!
Ben Sessions
@Ben_Sessions
SessionsCriminalDefense.com