Kennesaw Criminal Defense Lawyer
By most accounts, the crime rate is increasing in the Peach State. That rising crime rate pressures politicians to “do something” about it. Therefore, tougher laws and more aggressive police tactics are on the horizon. As a result, many people face harsh punishment simply because they were at the wrong place at the wrong time.
Like most other people, Andrew Schwartz, a tough Kennesaw criminal defense lawyer, believes in fair punishment for guilty defendants. He doesn’t believe in harsh punishments for people who are probably guilty. These ideas often create procedural or substantive defenses. Aggressive law enforcement tactics often lead to procedural errors. Then, when these cases go to trial, prosecutors press the most aggressive charges possible, even if the evidence doesn’t support them.
Procedural Defenses
Search and seizure issues, Fifth Amendment violations, and lineup issues are the most common procedural defenses in criminal cases.
Under the Constitution, officers must have valid search warrants before they search property and seize contraband. Most officers don’t want to deal with the additional paperwork, which includes composing an affidavit and submitting that affidavit to a judge. Instead, they rely on a narrow search warrant exception, such as:
- Owner Consent: Officers don’t need warrants if owners voluntarily consent to searches. Officers often subtly coerce owners into consenting. For example, Officer Mike might threaten to get a warrant if the dwelling owner doesn’t consent to a search.
- Plain View: Officers also don’t need warrants if the drugs or other contraband are in plain view. This exception is only valid if the stop was legal. Furthermore, if the contraband was partially in plain view (e.g. a pistol’s handle visible from under a seat). The search might be illegal.
- Weapons Pat Down: This exception, like the plain view exception, only applies if officers had reasonable suspicion, which is an evidence-based hunch. If the defendant doesn’t “look right,” that’s a hunch, not an evidence-based hunch.
The Fifth Amendment gives defendants the right to remain silent. Officers must inform defendants of this right before they begin custodial interrogation, not after they make an arrest. Furthermore, the officer must read these rights in a language the defendant easily understands.
The Fifth Amendment also gives defendants the right not to appear in lineups. A defective lineup could be a standalone procedural defense. Cross-racial identification is a good example. If a person of one ethnicity sees eight or ten people of a different ethnicity who are about the same age, weight, and height, all eight or ten of them look the same. That’s not racial bias. That’s science.
Substantive Defenses
Prosecutors must establish guilt beyond any reasonable doubt. For example, if the state charges Aaron with hit-and-run, the charges probably won’t hold up in court unless a credible witness got a good look at the driver at or near the scene of the accident.
Witness credibility issues include bias and forgetfulness. Some witnesses have personal relationships with police officers or other people in the case. Additionally, most people forget about 90 percent of what they see and hear within forty-eight hours. Therefore, recollection is an issue, especially as more time passes and the witness tells the same story multiple times.
Reach Out to a Diligent Cobb County Lawyer
An arrest isn’t the same thing as a conviction. For a free consultation with an experienced Kennesaw criminal defense lawyer, contact Andrew L. Schwartz, P.C. We routinely handle matters in Fulton County and nearby jurisdictions.
