Wednesday, November 11, 2009

Polygraph, use of non-permissible evidence

While the use of polygraph results are not permitted as evidence in the State of New York, I have found myself on many occassions turning to these non-permissible forms of evidence as the basis of my case.

The Court in Frye held that polygraph exams were not admissible as evidence, some counties have carved out few excpetions. The Queens County Court in The People v. Kenney held that so long as a proper foundation is laid as to the accuracy of the device such evidence may be permitted...

For the most part however, defense attorneys may rely on a wholly diffrent principle in using such results. If there is exculpatory evidence, in the form of a lie detector, and it is presented to the people they MUST follow up in this evidence and it MUST be used in gauging the strength of their case... in many instances this alone may suffice to arrive at dismissals.

In a recent Robbery case in Queens my office used exactly this principle in submitting lie detector results coupled with witness statements to the DA and were able to secure a dismissal for multiple defendants.

Friday, November 6, 2009

Justice, Truth & recidivism

More and more so it has become clear that truth has no place in the criminal justice system. Defendants are regularly asked during their allocution, by judges, if they have been forced into a plea. All defendants are expected to answer NO, and if they do not then their allocutions are found to be insufficient and their plea is found unacceptable.

The power of the State to hold a Defendants person, coupled with the lax policy on the part of the District Attorneys office on most arraignments... as violations are handed out like bottled water, and pleads to the top charge, without any further punishment, places most defendants in a position that would be unreasonable for them to accept responsibility, even if innocent. An innocent man may be intimidated by facing jail time into an admission, all out of fear of facing the system. This is also greatly due to the unreasonable understanding most defendants may have of sentencing, and the charges. This, largely, is due to Defense attorneys lack of time and effort in ensuring that their clients are fully informed, as well as to the fact that in general our access to clients pre-arraignment tends to be severely limited.

The vast majority of individuals that are brought into the system are as a result of the fact that they are in an area that has a higher police presence, and as a result will continue to have greater police contact, and will continue to be offered lesser offenses at arraignments... till a point where there are various charges, and an individual now faces much more serious sentencing due to a more extensive record.

While many have argued a racial disparity in sentencing and in individuals incarcerated I would hold that the disparity is economic, and a catch 22. Living in lower economic neighborhoods leads to greater police contact and greater contact with the criminal justice system, the greater level of policing in such neighborhoods is due to increased activism due to fear on the part of the citizens living in poorer, higher crime locales... which in turn leads to the cycle described above.

While arguably our criminal justice system is designed to allow ten guilty men to go free so long as the innocent man does as well, the initial phases of our system ensure that all but a minute percentage of cases are disposed of before trial, and in these circumstances the overwhelming situation is one of entering a plea, as opposed to one of a dismissal.

Those in lower economic neighborhoods, as a result, are statistically more inclined to have longer criminal records. Individuals in such a situation tend to use a public defender, as given their circumstances they can not afford a provate attorney, and as a result they are not able to be given the same level of service due to the public defender offices generally being overworked, again due to the above described cycle.

While there can be no question that the current state of prisons would clearly show a racial disparity, i would argue that this disparity will be in a constant flux with the socio-economic evolution of who the lower economic class may be at any given point in time, and will always be reflective of such.

Wednesday, November 4, 2009

International Criminal Court

While the International arena is in its greatest need of enforcement there is one single agency that could potentially serve as the central hub for such enforcement, and create a greater sense of stability... and more importantly a sense of responsibility and fear from prosecution amongst world leaders, The International Criminal Court.

While the ICJ, International Court of Justice the United Nations version of a Civil court was met with some turbulence at first, it has essentially become an established and accepted controlling, and deciding, agent of international law.

The International Criminal Court has likeweise met with some turbulence since its inception, but a few years ago, and to a great degree is defanged by easily escaped jurisdiction, it has never been more obvious that there is a ninherent need for such an organization.

As we are faced with genocide in various parts of the world, and political leaders that are harder and harder to tell apart from criminals... The strengthening of such an organization into a viable entity of international force could potentially be the most direct path toward accomplishing one of mankinds most ambitious goals, that of world peace. WHile this peace would be an uneasy balance due to fear of prosecution, it is clear that as a society we have absolutely no issue with separating away those whom break our laws, equally i would argue that those committing the greatest of violations should face the greatest of responsibilities for their actions.

I firmly believe that the Internatinal Criminal Court is a necessary entity, one that holds an infinite potential... yet currently fails to live up to even a small portion of this potential.

Monday, November 2, 2009

First offense...

There is no other time that an attorney is needed most, than on an individuals first contact with the criminal justice system.

For most people facing their first arrest, or their loved ones first arrest, the complexities of legal procedure are more than enough to more than intimidating.

While some charges may seem minor, there can be severe collateral consequences that can result. For example, public urination in NY is not a particularly serious charge, and while many individuals fail to seek counsel because of that fact. There are some serious ramifications that could result, such as the loss of professional licenses, or their suspension.

Immigrants that are seelking citizenship are in similar situations, where upon a plea of guilty to any charge they must wait 5 years before filing for citizenship.

Regardless of the charge, always consult with an attorney to see what collateral consequences may exist for you!

Sunday, November 1, 2009

Preparation is key! preparing for the inevitable... health care proxies.

It goes without question that at some point in our lives we will all be stricken by illness, and that on one eve we will fall into our death beds. However, while many individuals prepare to some degree by having life insurance, and perhaps a will, these are all instruments to ensure that others are protected in our absence.

There is a general tendency to protect our loved ones, while siimultaneously a lack of attention paid to our own wishes in our final days.

A health care proxy is a form which may be filled, designating an individual which may make decisions for you if you are in a position where you can not make medical decisions for yourself. while to many this may seem like a minor issue, and the assumption that at a given moment a specific loved one will take charge and ensure that our wishes are properly followed... this may not always be the case, and the abundance of opinions and relatives may lead to great conflict during this already stressful time.

I generally suggest ALL individuals fill out such a health care proxy and maintain multiple copies, as well as give multiple copies to the individual named as proxy, and those around us.

In New York such a form may be downloaded from online at this site: