Prior False Allegations & Your Case

/in , , , , , , , , , , , , /by

You are accused with child molestation or rape and your accuser has previously falsely accused another person of these horrific crimes. Can you bring up these prior false accusations in your case? The answer is yes.

State v. Burns Example

The Georgia Supreme Court held in State v. Burns, that a defendant in a sexual-offense prosecution may bring up evidence that the alleged victim has previously made false accusations of sexual misconduct. This evidence is admissible to attack the credibility of the victim and show that the current charges did not occur.

In this case, James Burns was charged with aggravated sexual battery, aggravated sodomy, and incest. It was discovered that the alleged victim had made up a prior rape allegation.

The Rape Shield Statute & Allegations

The Rape Shield Statute of Georgia does not prohibit testimony of previous false allegations by a victim. This is because prior false accusations establish that the victim has a propensity to make false statements regarding sexual misconduct. The Rape Shield Statute in Georgia is designed to prohibit bringing up the victim’s past sexual conduct. But it does not protect the victim in cases where a false allegation was made.

Your Rights for a Defense

A criminal defendant has a Sixth Amendment right to make a full defense. A defendant has the right to bring up prior false allegations where it can be shown that the allegation was indeed false. The Sixth Amendment also grants the defendant the right of confrontation. This includes the right to physically face the person who is testifying against him and the right to conduct a thorough cross-examination. A defendant is guaranteed the opportunity for effective cross-examination.

In addition, the due process clause of the Fourteenth Amendment guarantees a criminal defendant a meaningful opportunity to present a complete defense. The defendant does not have a right to offer any testimony that is either privileged, irrelevant or excluded under the rules of evidence. However, if the defendant has evidence of a prior false allegation of the alleged victim then it is admissible in order to protect the integrity of the trial.

In State v. Burns, the Georgia Supreme Court has made a bright line rule that prior false allegations are admissible, regardless of other rules of evidence.

Call us Today!

If you are charged with child molestation, rape or any other sexual offense in Georgia, it is imperative that you aggressively defend yourself and learn everything you can about the alleged victim. If the alleged victim in your case has ever made up an allegation against any other person, you must use this information to your advantage when confronting your accuser in court. If you are charged with any sexual offense in Georgia, please contact us at 404-581-0999 or mike@peachstatelawyer.com for a free consultation

Violation of Georgia Gang Act

/in , , , , , /by

Are you or is someone you love facing gang related charges in the State of Georgia?  If so, it’s important to know the law and how you will be prosecuted. A good starting place is simply to read what the State must prove in order to charge you with these crimes.

What is the Law?

To prove you violated the Georgia Street Gang Act the State is required to show four things:

  1. The State must prove the existence of a criminal gang.  Georgia defines “criminal street gang” as “any organization, association, or group of three or more persons that engages in criminal gang activity.” “Criminal gang activity” includes the commission or attempted commission of certain offenses, including any crime“that involves violence, possession of a weapon, or use of a weapon;”
  2. you were, in fact, a member of the“criminal gang;”
  3. you committed a predicate act of“criminal gang activity,” examples of a predicate act include Murder, armed robbery, robbery, aggravated assault, aggravated battery, battery, and simple battery, Georgia law makes it unlawful to participate in criminal gang activity through the commission of any of the following offenses: racketeering,stalking, rape, aggravated sodomy, possessing or distributing dangerous instrumentalities such as knives and guns, posting gang-related graffiti, or committing any criminal offense involving violence or the possession or use of a weapon, among other things;
  4. the commission of the predicate act was intended to further the interests of the “criminal gang.” Simply being a gang member and committing the offense is not enough.

Assuming you are guilty beyond a reasonable doubt of the predicate act, the battle lines are twofold.  One, that you are a member of the gang that engages in criminal activity. Two, that the act was to further the interests of the criminal gang. 

What’s My Defense?

In my experience, the second battle line is where we generally focus the majority of our efforts. Most of the evidence presented by the state that your conduct is furthering the interests of the gang comes from expert testimony – law enforcement mainly regurgitate what they are told from their training and unreliable statements of former arrestees.

 The defense is at a disadvantage to combat the state’s expert.  First, the defense needs to hire their own expert to combat what is said, but defense experts on gang activity are often scarce and expensive. Secondly, it is near impossible to get a current or former gang member to come to court to testify as to what the interest of the gang may be.  I cannot imagine a situation where a current gang member is going to testify in open court as to his experience. 

Call Us Today

This being said, we have a team of attorneys that are fully prepared to handle your case, and have done so Atlanta and surrounding counties. If you find that you are being prosecuted for gang activity, please call our office at 404-581-0999 for your free consultation.

by Scott Smith 

Georgia Court Dates

/in , , , , , , , , /by

Months ago, you had one of your worst days ever: you were arrested. The time it took to bond out seemed like an eternity. But you’re finally out of jail, and you swear you’ll never be back. Weeks pass, and it all seems like a bad dream. Until one day you check your mail and find a letter from a superior, state or municipal court. The letter is about your arrest. It says you have to be in court on specific days for arraignment, motions, and calendar call. The letter also says if you don’t appear as instructed, you may be issued a bench warrant. But what do these terms mean?

Arraignments

Then and Now

Let’s start with arraignment. Arraignment is a word from British common law adapted into the U.S. Criminal Justice System. Literacy was at an all-time low during the olden days of England. Arraignment was created by their judicial system to tell illiterate defendants their pending charges. Prosecutors would do this by reading defendants’ charges to them in open court, since they couldn’t read the law themselves. Defendants would then be given the opportunity to enter a plea of guilty or not guilty.

Similarly, modern arraignment is the court date at which defendants enter a plea of guilty or not guilty. Should you choose Peachstate Lawyer as your legal representation, we will file the appropriate paperwork to ensure you do not have to be in court for arraignment. That paperwork is called a “waiver” of formal arraignment. The waiver we file enables you to enter a plea of not guilty without having to go in front of a judge. The waiver also preserves your attorney’s right to file motions in your case and receive discovery (i.e. evidence) from the state about your case.

Motions

That brings us to the next most important court date in your case: motions. Depending on the county, you may or may not have to be in court for motions. But rest assured that Peachstate Lawyer will file appropriate motions in your case. Motions are important pre-trial steps to contest the state’s evidence against you. Sometimes motions can get a case thrown out all-together. So, it is very important that you have legal defense, like us, who know which motions to file, and ultimately argue, on your behalf.

Calendar Call

Finally, the last court date referenced in the judicial notice you received is for calendar call. My rule of thumb is to instruct all of my clients to be present at calendar call. Most counties in Georgia issue bench warrants for those who do not appear as instructed. And while that is something our firm can take care of, it is in your best interest to avoid having a bench warrant issued for you. (After all, you swore you’d never go back to jail after bonding out months ago.)

Calendar Call is the date at which your attorney tells the Judge how you plan to resolve your case. Even though you initially entered a plea of not guilty, you may decide to resolve you case by guilty plea if don’t want to have a jury trial & your attorney secured a plea offer that you want to accept. Alternatively, your attorney may also announce ready for trial and your case will be added to the Judge’s next trial calendar.

If you’ve received judicial notice in the mail and do not know what to do next, contact our office today for a free consultation.

by Sarah Armstrong

Atlanta DUI Lawyer

/in , , , , , , , , , , , , , , , /by

by Mary Agramonte

If you or a loved one has been charged with an Atlanta DUI, picking the right criminal defense attorney can be challenging. You need to look to the credentials, success rate, and reputation of the attorney in the field. Even if you believe you are guilty of the DUI, it is still important to contact an attorney experienced in complex area of DUI law as having a knowledgeable DUI attorney can be the difference in saving and losing your driver’s license. There are some DUIs that if you plead guilty, your license is suspended without a limited permit. The license repercussions of a DUI conviction are one of many reasons to contact a DUI attorney.

Call our firm to speak with experienced DUI attorneys on how to best defend your case. Experienced Atlanta lawyers in our firm are available any time, including nights and weekends, to provide you with the best possible outcome and advice. We can be contacted 24/7 at 404-581-0999 and provide free consultations.

Our firm consists of six highly trained Atlanta and Fulton County attorneys. We have an office near the Municipal Court of Atlanta – and have successfully defended against hundreds of Atlanta DUIs. W. Scott Smith has 18 years of DUI under his belt. He is active The National College of DUI Defense, Georgia Association for Criminal Defense Lawyers, The Lawyer Club of Atlanta, the Cobb County Bar Association and the Sandy Springs Bar Association.

The address of the Atlanta Municipal Court is 150 Garnett Street. This court handles all cases where defendants are charged with traffic misdemeanors and local ordinances within the City of Atlanta in Fulton County. Atlanta has its own police department, and so if you are arrested for a DUI in Fulton County by an Atlanta Police Officer, your case will begin in the Atlanta Municipal Court. Additionally, if you are pulled over and arrested by a Trooper with the Georgia State Patrol within the City of Atlanta, your case will also begin in the Atlanta Municipal Court. DUI Court is currently held by Judge Bey at 1pm and 3pm daily. If you’ve been arrested and are in custody, Atlanta Muncipal Court Judges hold bond hearings Sunday through Friday, daily. The Atlanta Municipal Court does not always hold bond hearings Saturdays, so if you were arrested late Friday night or early Saturday morning you may not see a Judge until Sunday.

If you have been arrested with a DUI in Atlanta or in Fulton County, our lawyers are ready to fight to avoid a DUI conviction. We are a group of knowledgeable attorneys prepared to defend against your Atlanta DUI in order to best protect your freedom and your license. If you have been charged with Driving under the Influence and your case is in the Atlanta Municipal Court, call a law firm with the experience necessary to achieve the most favorable result for you.  We are available 24/7 to speak with you about your Atlanta DUI at 404-581-0999.