As I was walking to the criminal courthouse in Gallatin , Tennessee for a motion hearing , I noticed a new sign for a lawyer on the corner . The sign advertised General Sessions Lawyer .  What is a General Sessions lawyer ? Under Tennessee rules of specialization , Tennessee does not recognize such certification. Then , I understood .

See , the sign is hoping to attract those accused of a crime or DUI in Sumner County , Tennessee. A poor soul might walk into his office going to the General Sessions Court . To understand what a General Sessions lawyer is one must understand Tennessee’s court system .

Criminal offenses in Tennessee are heard in three trial courts . They are Juvenile court , General Sessions court , and Criminal or Circuit court . A General Sessions Court has jurisdiction of misdemeanors and can only hear preliminary hearings on felony cases . You are not entitled to a trial by jury in General Sessions.

 

Most criminal  cases start in General Sessions Court  in Tennessee . Some lawyers don’t want to venture out of General sessions Court . . Should you hire a General Sessions lawyer ? Probably not

Here’s why :

  • Are they a Dump Truck Lawyer ? By that , I mean a lawyer that is just going to settle your case with whatever the Assistant District Attorney is offering . Tomorrow , I will post on what is a dump truck lawyer .
  • You might not get the best plea bargain offer because the D.A. knows they won’t take one to trial.
  • Do they give a damn about you or your case or do they just want a quick attorney’s fee ?
  • Do they try cases or just go to the back room and then tell you I can’t help you after their promises ?
  • Do they know the basic defenses of a criminal case ?
  • Have they ever had pretrial hearing ?
  • Have they taken any specialized continuing legal education classes on DUI or criminal law ?
  • Are they a  member of any criminal defense lawyers groups ? If they won’t pay $175.00 for dues to stay up to date on the law do they deserve your hard earned money to defend you from going to jail ?

You owe it to yourself to educate yourself on getting the best  criminal defense lawyer in Sumner County , Tennessee for your case .

Hiring a General Sessions lawyer is like hiring a doctor who is only going to take your temperature and give you an aspirin . They don’t have the cure or will they even try .

 

Adam Liptak  who writes the Sidebar column for the New York Times reported on the case of Robert Rosario . Mr. Rosario was convicted of murder based upon the testimony of two witnesses who picked him out of a lineup. One problem existed . Mr Rosario claims to have been in Florida on the day the murder happened . Mr Rosario has appealed to the U.S. Supreme Court on claims of ineffective assistance of counsel . The Supreme Court is scheduled to decide next week if they are going to accept the case. The critical issue is what is expected of criminal defense lawyers in the performance of their representation.

Mr.Rosario’s case hinged on eyewitnesses testimony verses the alibi defense . Mr Rosario had two alibi witnesses appear at trial . However the prosecution convinced the jury they were not credible .The jury convicted Mr. Rosario based on the identification evidence.

Since the Innocence Project has been in existence , it has been determined that eyewitness identification is the most common cause of wrongful convictions. In fact , the first 200 DNA exonerations involved 158 convictions by eyewitness identification .

Here is what one Federal Court thought about eyewitness identification ;

As a federal appeals court put it in 1992, “Eyewitness evidence, uncorroborated by a fingerprint, gun, confession or co-conspirator testimony, is a thin thread to shackle a man.” It is also, the court said, “precisely the sort of evidence that an alibi defense refutes best.”

It appears there were at least seven other witnesses that could confirm Mr.Rosario was in Florida , but the lawyer did not interview or call them to the stand . In eyewitness identification , there should  be some requirement of corroboration such as a co-defendant statement or some type of physical evidence.

In Tennessee , an accused is allowed to introduce expert testimony in the unreliability of eyewitness testimony at trial .

 

 

An arrest warrant is a written order which is made on behalf of the State of Tennessee and is based upon a affidavit of complaint issued pursuant to a statute which commands a police officer to arrest that person and bring them before a magistrate .  This is one way to start a criminal case in Tennessee .

There are some formal requirements of the arrest warrant.

  • The warrant must be signed by the magistrate .
  • It must contain the name of the defendant .
  • It must indicate the county in which the warrant was issued .
  • The warrant must describe the offense charged in the affidavit of complaint .

There must be some evidence that is probable cause  to believe a crime occurred. It can be based on hearsay evidence . The issuance of a warrant does not require proof beyond a reasonable doubt.

The Criminal Court Clerk in Nashville , Tennessee provides Internet access of warrants issued in Davidson County . Click here for the link to the clerk’s office for access to review your warrant .

It appears the exclusionary rule days may be numbered in Tennessee .The Tennessee House Judiciary Committee recommended a bill that would guarantee that evidence seized after the execution of a search warrant issued pursuant to Tennessee Code Annotated 40-6-101 or  under Rule 41 of The Tennessee Rules of Criminal Procedure would not be subject to suppression on account of a "good faith mistake or technical violation made by a law enforcement officer , court official , or the issuing magistrate . " The attorney general has found the bill constitutional . However , their opinion is not binding on the courts .

 

Under the exclusionary rule rule , evidence obtained in violation of the Fourth , Fifth , and Sixth amendment may not be introduced at trial to prove a defendant’s guilt . The purpose of the exclusionary rule is to deter constitutional violations .

If the bill passes , it will be sad day in Tennessee for constitutional freedoms . Some members of the legislature speak about Tennessee ‘s Constitution and the need to strictly follow it . Yet , they intend to strike down years of Tennessee case law which holds that the Tennessee Constitution gives Tennesseans more rights than the U.S. Constitution .

The Tennessee State Senate passed a bill ( SB 567/HB 685) that would authorize a magistrate to order any defendant who is arrested for stalking or a domestic violence charge to carry or wear a GPS device. The device would notify the alleged victim if the defendant is at or near a location the defendant has been ordered to stay away from .

Currently , Tennessee law has in place conditions of release on bond . Those bond conditions have been on the books for years. It appears those measures have been adequate to protect an alleged victim until the court decides the case . In Davidson County , Tennessee , the cost of GPS monitoring is $10.00 per day . Now , it appears the state of Tennessee wants to put everyone accused of a crime on GPS or sometime of electronic surveillance. Gang members , those accused of DUI , and now  those accused of domestic violence  are subject to the GPS device .

Big brother now has an eye in the sky and they want to look at everyone . Forget about the process of getting a warrant , the presumption of innocence , and the cost to the defendant . Heaven forbid they are innocent of the charges .

What’s next GPS on all those that have an an order of protection against them ?

The New York Times had a piece in the editorial section on recidivism’s high cost to the taxpayers. Correction costs has risen to 52 billion dollars annually.It’s the fastest growing budget item other than medicare.

According to the Pew Charitable Trusts Center on the States , 43 % of prisoners nationally return to prison within three years of release. The study looked at prisoner release data and found the highest states and the lowest states recidivism rates . The lowest recidivism rate was in Oregon.In the 1990’s , the Oregon State Legislature enacted a rating system that allows probation officers and parole officers to use a wide range of sanctions for offenders that did not present a danger to society. A person can violate probation or parole on simple things like a failed drug test or missing a appointment with a parole or probation officer .

Judges and prosecutors take a hard stance on some probation violations and send the offender to prison for a small infraction. Maybe it’s time Tennessee looks at solutions to problems in the field of corrections rather than increasing sentences and putting people in prison instead of trying to cure the root cause.The jail population in 2010 reported over 1.4 million people were in jail in America.

My goal for this blog is to provide information about DUI cases and criminal cases in Tennessee . I am starting a new category today on DUI FAQ.

What is the legal limit of alcohol under Tennessee’s DUI Laws ?

Tennessee Code Annotated 55-10-401 (a) (2) provides it is unlawful for any person to drive or be in physical control of a motor vehicle while the alcohol concentration in the person’s blood or breath is eight-hundredths of one percent (.08 %) or more.

I hope everyone had a great Easter weekend . Now , it’s Monday and back to work . Today , I am pleased to have my first guest post by Pennsylvania DUI lawyer Justin McShane . I met Attorney McShane in 2009 at an intense DUI seminar on blood and breath alcohol forensic issues . Justin has become a superstar on the national stage teaching lawyers across the country on the truth about forensic science . Justin was kind to provide today’s post. Here it is.

 

When you are charged with a DUI or criminal offense, it is perfectly ok to be selfish. In fact, you must be in order to survive it. You must become educated. You cannot simply hope or wish that it will all go away. You need to find the best option to maximize your chances of surviving this trying time in your life.

The role of the criminal defense attorney is a difficult one. Oftentimes, people take a look at criminal defense attorneys and especially ones who specialize in DUI defense and like to point the finger wagging it at us and ask, “How could you do that (meaning those who are accused of a crime or DUI)?”

And you know what, that is the key question that you should ask any prospective attorney. It takes guts to be a criminal defense attorney and especially if you specialize in DUI defense.

The answer will help you distinguish between someone you should trust with the most important event that is going on in you and your family’s life.

If they have a “canned” answer, then that is likely to be the type of defense that you are going to get. If you get a very thought-out and thoughtful one, then you should look further.

When you look further, I suggest that you look at the person’s education. One way that you can tell whether or not a criminal defense attorney specializing in DUI defense is up the par is to determine what sort of education they have. This doesn’t just mean his or her brick-and-mortar type of education, but rather that attorney’s extracurricular and post-graduate education in the wall. In fact, it is the education that the lawyer seeks and completes after passing the bar that will enable him or her to be truly effective on your behalf. Remember, it is relatively very easy to become a licensed attorney, but the true education of a trial attorney comes after he or she passes the bar. Therefore it is essential for you to look well past the simple fact that someone is a licensed attorney and to take a look at all of the experienced an attorney has accumulated. This means not only in terms of Continuing Legal Education (CLE’s), but also in the courtroom and in actual trial. When was the last time the attorney went to trial? How many CLE’s has she or he completed? Were the CLE’s national or local ones? Is it more than the bare minimum required? Does he or she teach at CLE’s? If so, what topics and to whom? Does he or she organize CLE’s? Has he or she kept their CLE’s and their learning to one specific area or is he or she a generalist?

An attorney who does not continue to learn and does not further his or her education is not worth very much. The same is true with a generalist. I suggest that you want a specialist.

Be sure to ask and demand to see the qualifications of your attorney. Not all attorneys are the same. Therefore, it is up to you and to you alone to be selfish and to become an educated consumer of attorneys. One of the smartest things that you can do is insist on a resume of your attorney. An attorney, who doesn’t have a resume of some sort, in terms the extracurricular education that he or she has received, is probably someone that you should steer away from.

Knowledge is evolutionary and at the end of the day it is only the most current attorneys who continue to learn and who continue to keep up on the ever expanding knowledge base in DUI who will help you maximize your chances of getting an acceptable result at the end of the day.

Another key consideration to think about is whether or not that person is willing to apply that knowledge to your particular case. This brings us back to that great question that started this post: “how could you do that (meaning those who are accused of a crime or DUI)?” It is indeed true that knowledge without guts to apply it is a worthless characteristic. Therefore, you are looking for the attorney who has a the reputation, the knowledge, and the experience to maximize your chances of obtaining an acceptable result.

At the end of your litigation, this requires not only someone who has the knowledge, who has the education, and who has the experience to truly make a difference, but also, most importantly has to be willing to put it “all on the line” for YOU in YOUR case. To be a warhorse and not just a show horse. You have to be selfish in this regard. After all, this is about maintaining your life and your lifestyle.

In conclusion, the meaningful defense of a motorist among us who has been accused of a DUI offense requires specialized training, knowledge, experience and guts. These characteristics mean the difference that you must look for an attorney.

Continue Reading My First Guest Post

            

The image represents computer code. Today ‘s post deals with  forensic issues in child pornography cases or sexual exploitation of a minor under Tennessee state law. Once law enforcement seizes one’s computer ,the police send it for a forensic review to search it’s memory and files.

What can a forensic computer investigation recover ?

  • hidden files ;
  • damaged or corrupted files ;
  • password protected files ; some encrypted files ;
  • email and web correspondence
  • evidence of web browsing ;
  • Internet chat data ;
  • Or anything else that is present on the computer or media .

Once your computer is seized and searched what should you do if charged with a sex crime ? Hire your own expert .

 

 

Sometimes people miss their court date in Tennessee . One question that comes up is what can I do about it and am I in trouble . Missing your court date can trigger an additional charge of  Failure to Appear . I recently wrote an article on the issue . You can click here  to the read the article . If you missed your court date please contact your lawyer immediately or hire one to take care of the problem before it gets out of hand .