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Felony Sentencings & Probation Violation Hearings

THE ONE THING A JUDGE SHOULD NEVER SAY During a felony sentencing or probation violation hearing (PVH), judges may warn defendants that a violation of probation can have serious ramifications, but the court should never promise, announce or otherwise imply that the court will send the defendant to prison if he/she violates conditions of their […]

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Impeaching Prior Inconsistent Statements

As most trial judges know, many attorneys do not know how to properly impeach a witness using a deposition or other prior inconsistent statement. This training update is intended to serve as a set of general principles and guidelines for trial attorneys to learn and follow. The process of impeaching a witness can be accurately […]

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Using Transcripts of Audio Recordings During Trial

5 Basic Rules Every Judge & Attorney Should Know 1. General rule:  Transcripts of audio recordings played during trial may be provided to the jury to help them understand what is said in the recording. The decision to furnish jurors with copies of a transcript to assist them in listening to the audio recording is subject […]

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Criminal Motions for Judgment of Acquittal

Motions for judgment of acquittal are made in almost all criminal cases. There are 10 basic facts that apply to all motions for acquittal and one special rule for circumstantial evidence cases that judges must follow. Failure to apply the correct analysis could result in reversal. 1 Defense motion at close of evidence: At the […]

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Alford Pleas

In North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970), the United States Supreme Court held that it was constitutional for a court to accept a defendant’s guilty plea, even though the defendant maintained his innocence, where the state demonstrated “a strong factual basis for the plea” and the defendant clearly expressed his […]

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Cross-Examination

Here are ten rules for cross-examination every attorney should know: Consider whether to cross-examine at all. Has the witness testified to anything that injures your case? Keep it short and simple. Use short, simple, leading questions with four to six words (if possible). Convoluted questions may lead the jury to conclude you are trying to […]

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Fines and Restitution

If a defendant’s sentence includes both a fine and restitution and the defendant makes one or more payments to court administration, the district court may not apply the defendant’s payments to the restitution obligation before the fine unless the district court previously issued an order that so specified. Since the early 1980s, state court administration […]

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Admissibility of Electronic Evidence: A New Evidentiary Frontier

Websites, social networks, email, text messaging, computer-generated or stored documents — these new communications technologies challenge evidentiary rules grounded in a more tangible former reality. Authentication of such evidence is perhaps the most difficult challenge as courts seek to determine its admissibility. Due to the enormous growth in electronic correspondence, electronic writings (also known as e-evidence) have […]

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Deprivation of Lawful Jail Credit

Courts must be careful when sentencing defendants to prison lest they inadvertently deprive a defendant of lawful jail credit by failing to state the number of jail credit days or by stating the number of jail credit days but directing the prison to “verify” jail credit.  When the Department of Corrections is asked to determine […]

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Motor Vehicle Stops: A Four-Step Analysis Every Attorney Should Know

Whenever a motion to suppress challenges the legality of a motor vehicle stop, a four-step constitutional analysis is in order.  This starts by determining whether the facts of your case implicate the 4th Amendment to the United States Constitution. Regardless whether the person before the court is a criminal defendant seeking suppression of evidence or a […]

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