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The Dangers of Eyewitness Testimony in Georgia

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A number of cases have been overturned in recent years due to newly discovered DNA evidence. Many of those convictions were based on false eyewitness identifications. Most of the eyewitnesses did not lie, they just “misremembered.” That is the danger of this sort of testimony because the witness may be genuinely unaware of the inaccuracies in their testimony.

One underlying issue with eyewitness testimony is a misunderstanding of how memory works. The act of remembering is more akin to putting puzzle pieces together rather than retrieving a video recording. A memory can be distorted over time or from misinformation provided by third parties. For these reasons, it is critical to document one’s memory as close in time to the actual event as possible. If you have eyewitnesses that you believe can be beneficial to your case, then you should always get them to write down as many details as possible while the memory is fresh before time and outside influences can distort that memory. For police purposes, the identification process should be videotaped if possible, and the witness should be told that the suspect may or may not be in the lineup.

There are a multitude of issues that could result in a false identification. Recognizing those issues in your criminal case is something that may require a second set of eyes. Feel free to call our office for a free consultation at 404-581-0999.

The Commerce Clause to the United States Constitution and Criminal Law

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I am interrupting my review of sentencing law to write about the “Commerce Clause” of the United States Constitution. Recently, I listened to an excellent podcast on the Commerce Clause. I encourage you to listen to is here.

The commerce clause is the legal fiction used to grant the federal government virtual unfettered jurisdiction in matters traditionally reserved to the states. The producers of the podcast at More Perfect note that the Commerce Clause was used effectively during the civil rights era to bring freedom to the oppressed. What they did not have time to develop is that the commerce clause has since been used to lock up a disproportionate number of African Americans. Until relatively recently, crime was largely a matter for states. Today, the federal government has gone beyond its traditional role to prosecute street-level, hand-to-hand drug sales, local fraud, and a host of other crimes that do not have a meaningful impact on interstate commerce.

Since the federal government got involved in the prosecution of what was typically thought of as local crime, the number of persons incarcerated in federal prisons has risen drastically. For instance, from 1980 to 2015, persons incarcerated in federal prison increased from 22,037 to 185,917, a 743% increase. Federal incarceration for drug offenses during the same period is even more severe with a 1826% increase. This prison growth occurred while the U.S. population increased by less than 50%. And, with over 10,000 attorneys, DOJ is the world’s largest “law firm!”

So, while most Americans were pleased to see the federal government use the commerce clause to desegregate the south, today it is frequently used as a means of inserting the federal government into local criminal matters. You will have to read my recent blog on mandatory minimum sentences to appreciate the impact of the federal government being involved in low-level and local crimes.

Serious Injury by Vehicle and Vehicular Homicide in Georgia

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You have been charged in Georgia with Vehicular Homicide or Serious Injury by Vehicle.  There is no way to describe in detail everything that needs to be done in order to reach a successful outcome for a client charged with Vehicular Homicide or Serious Injury by Vehicle in Georgia.  As with every type of Georgia criminal defense case, each case is unique, and there will never be a one size fits all recommendation on how to proceed.

Vehicular Homicide in Georgia provides:

“(a) Any person who, without malice aforethought, causes the death of another person through the violation of subsection (a) of Code Section 40-6-163, Code Section 40-6-390 or 40-6-391, or subsection (a) of Code Section 40-6-395 commits the offense of homicide by vehicle in the first degree and, upon conviction thereof, shall be punished by imprisonment for not less than three years nor more than 15 years.

(b) Any driver of a motor vehicle who, without malice aforethought, causes an accident which causes the death of another person and leaves the scene of the accident in violation of subsection (b) of Code Section 40-6-270 commits the offense of homicide by vehicle in the first degree and, upon conviction thereof, shall be punished by imprisonment for not less than three years nor more than 15 years.

(c) Any person who causes the death of another person, without an intention to do so, by violating any provision of this title other than subsection (a) of Code Section 40-6-163, subsection (b) of Code Section 40-6-270, Code Section 40-6-390 or 40-6-391, or subsection (a) of Code Section 40-6-395 commits the offense of homicide by vehicle in the second degree when such violation is the cause of said death and, upon conviction thereof, shall be punished as provided in Code Section 17-10-3.

(d) Any person who, after being declared a habitual violator as determined under Code Section 40-5-58 and while such person’s license is in revocation, causes the death of another person, without malice aforethought, by operation of a motor vehicle, commits the offense of homicide by vehicle in the first degree and, upon conviction thereof, shall be punished by imprisonment for not less than five years nor more than 20 years, and adjudication of guilt or imposition of such sentence for a person so convicted may be suspended, probated, deferred, or withheld but only after such person shall have served at least one year in the penitentiary.”

The Georgia charge of Serious Injury by Vehicle provides “Whoever, without malice, shall cause bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, by seriously disfiguring his body or a member thereof, or by causing organic brain damage which renders the body or any member thereof useless through the violation of Code Section 40-6-390 or 40-6-391 shall be guilty of the crime of serious injury by vehicle. A person convicted under this Code section shall be guilty of a felony and shall be punished by imprisonment for not less than one year nor more than 15 years.”

What do you do if you have been charged in Georgia with Vehicular Homicide or Serious Injury by Vehicle?  The answer is going to depend on several factors.  Lets assume for this discussion the accident occurred more than one week prior to you reading this post and less than six months.  The accident happened in Georgia and you already gave a statement to law enforcement as to your recollection.

First, you want to retain a Georgia lawyer that is qualified to handle vehicular homicide cases.  The lawyer’s job will be to recreate the accident scene, assist you with your time line, assist in preserving your recollection and assisting in the investigation from the defense’s perspective.  The most important role will be in collecting and preserving evidence for the investigation.  Examples include: preserving phone records, marks on the highway, weather conditions from the accident day, videos from near the scene and credit card receipts.  Further, the serious injury Georgia lawyer will be a good sounding board for questions and expectations.  The Georgia vehicular homicide attorney will likely put the client on a to-do list involving things to help prepare the case.  The vehicular homicide or serious injury attorney will facilitate hiring an investigator and experts.  The attorney will also want to walk through the scene with the client as soon as possible.

As with anyone facing vehicular homicide charges or serious injury by vehicle charges, one of your immediate concerns will be bond.  If you cannot post a bond on a vehicular homicide case you are going to have no ability to earn money which is very much needed in order to prepare your case.  Further, the cases generally take slightly longer before formal charges are brought as there is almost always an accident reconstruction done by the city, county or State of Georgia that takes time to complete.  The case will not be indicted or accused until the final police accident report is approved.  You will want to be released on a nominal bond with as little conditions as possible.  The consideration for bond are the same as general criminal cases.  They include, likelihood to appear in court when summoned, danger to the community to commit a new felony offense, likelihood of harassing or intimidating witnesses, and your ties to the community.  In some vehicular homicide cases I have handled Judges have required special conditions in order to be released.  They include no driving, no alcohol and a treatment program.

Additionally, in the majority of cases, the injured party themselves or their family in a vehicular homicide case will need to be contacted.  If the fault is clear and the remorse is genuine, you will want to make the injured party or parties aware of your apology.  This step was an integral part of several vehicular homicide cases I successfully defended.  One reason is the prosecutor has a duty to consider the injured victim(s) input on desired outcome.  This is a very sensitive time and you must handle the communication in an appropriate manner.

Lastly, you will want to stop talking about the case to friends, family, law enforcement.  You will want to not post items to social media as your account will be monitored by someone from law enforcement or the victim’s family.  Any statements you make can potentially be used against you.  In rare cases, where you already made a statement to law enforcement, but left out exculpatory (items tending to prove innocence) information, you will want to supplement your statement to law enforcement.  This statement will be made through your attorney after properly being vetted for accuracy and potential harm to your case.

If you or a loved one is facing a Vehicular Homicide or Serious Injury by Vehicle charge, it is important you have an experienced criminal defense attorney with the experience and skill necessary to fight this case. Call us today for a FREE CONSULTATION at 404-581-0999.

Bond Revocation Hearings in Georgia Criminal Cases

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Bond is a constant balancing act between protecting society from alleged wrongdoers and preventing excessive incarceration before having one’s guilt proven beyond a reasonable doubt. The main purpose of bond is to ensure that the accused returns to court.

However, judges frequently include special conditions in a bond order. Sometimes, the defendant is ordered not to have any contact with the alleged victim or any co-defendants in his or her case. Sometimes, there are curfews and/or restrictions on places that the defendant can visit. If the defendant is alleged to have violated a special condition, then the prosecutor will seek to revoke the defendant’s bond. If this happens, the defendant is afforded minimal protections. The rules of evidence do not apply in a bond revocation hearing so hearsay is admissible, and the standard of proof is only by a preponderance of evidence. With that said, these hearings can be valuable in assessing the credibility of the alleged victim. If you can catch the alleged victim in a lie at the bond revocation hearing, then you can use that dishonesty to attack their credibility at trial, or a reasonable prosecutor may be willing to negotiate a reduction in the charges or a complete dismissal.

False Report of a Crime in Georgia

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By: Mary Agramonte

Under Georgia law, it is illegal to transmit false information to law enforcement, fire departments, and the public at large. For example, you can be charged with a crime in Georgia for calling 911 to report crimes, bombs, fires, or other serious situations that do not actually exist. In Georgia, these crimes are called False Report of a Crime, False Report of a Fire, and Transmitting a False Public Alarm.

In Georgia, it is a crime to willfully and knowingly give a false report of a crime to any law enforcement officer or agency. In fact, you can be charged with felony false statement AND misdemeanor false report of a crime for making up a crime that did not actually happen. If you are charged with both of these crimes, you will be sentenced for committing the misdemeanor, and will be subject to up to a year in jail, costly probation, and a fine of up to $1,000. Similarly, it is also a misdemeanor in Georgia to call the fire department for a fire that does not exist. This can also subject you to jail, probation, fines, and a criminal history for life.

Georgia treats the offense of Transmitting a False Public Alarm much more seriously. For example, if someone reports a bomb or other hazardous substance that does not actually exist, you can be found guilty of a high and aggravated misdemeanor. Depending on the location of the warning, you can be found guilty of a felony, where the mandatory minimum would be five to ten years in prison, and a fine of up to $100,000, that you would be required to pay.

Georgia courts treat False Report of Crimes, False Report of Fires, and Transmitting a False Public Alarms very seriously. If you or a friend has been charged with a crime involving the false report of a crime, call an experience criminal defense law firm right away. We provide FREE CONSULTATIONS that can protect your freedom and your future. 404-581-0999.

Are you entitled to Bond in the State of Georgia in Criminal Cases?

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The court is authorized but not required to grant a bond in most cases. The court may deny bond or grant a very high bond for more serious offenses, especially with repeat offenders. When deciding whether to grant a bond as well as to what amount, the court considers the following:

Does the person pose a significant threat of fleeing or failing to appear in court?

Does the person pose a significant danger to any person, the community or property?

Does the person pose a significant risk of committing a felony pending trial?

Does the person pose a significant risk of intimidating witnesses or otherwise obstructing the administration of justice?

Hiring an attorney shows that the defendant is committed to showing up to defend against the charges. If you have an active warrant for your arrest, then we can help streamline the turn in process and ensure that there is a bond for the charges so as to prevent excessive incarceration. If your loved one has been denied a bond, then contact us at 404-581-0999 to discuss how we can assist in bringing them back home.

Giving False Names and Statements to Police in Georgia

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by Mary Agramonte

The Constitution gives us an absolute right to remain silent in response to police questioning. Our best advice is to use it. Your silence cannot be used against you and is not a crime. So proudly use it!

Often times, people will instead make stories up to police officers in hopes of convincing them: ‘it wasn’t me!’ This can put you in a worse position as it is against the law to give false names, or false statements to police. In other words, providing basic identifying information is encouraged; lying can land you in jail.

It is a misdemeanor crime in Georgia to give a false name or birth date to a police officer if he’s in the lawful discharge of his official duties. O.C.G.A. §16-10-20.  Misdemeanors in Georgia have a fine of up to $1,000, plus all the taxes and surcharges. Giving a false name or birthday to an office can even carry up to a year in prison, or can land you on costly and time-consuming probation.

Similarly, under O.C.G.A. §16-10-20, it is against the law to make a use or make false statement to any government agency. In Georgia, it is a felony to make a false statement, or to make or use a false writing or document in any matter involving a government agency. The punishment for speaking or writing a false statement is a mandatory minimum of one to five years in prison, or a fine of $1,000, or both.

For example, it is illegal to alter or falsify information on any applications or documents that you are presenting to any branch of the government. It is also against the law to knowingly conceal or cover up something to the police, and it is illegal to lie to a police officer. All of these things can place you in a position where you are facing felony charges and serious prison time.

If you have been arrested and charged with giving a false name or false statement, it is important you have experienced criminal defense attorneys on your team fighting for innocence and freedom. Call the office now at 404-581-0999 and mention this blog to get a FREE CONSULTATION on your false name or false statement case in Georgia.

 

Be Ready for the Unthinkable – Child Molestation in Georgia

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by Ryan Walsh

Charges of child molestation or the sexual abuse of a child are the most serious cases we face as attorneys in Georgia. They usually begin with a call from someone who says they’ve been contacted by a detective regarding allegations of improper contact with a child and need to know if they should make a statement. We urge anyone who has been contacted by a law enforcement officer to call our office immediately before making any sort of statement. It is okay to tell them I need to contact my attorney. Get the detectives name and telephone number and bring that information to our office immediately.

To understand how to defend charges of child molestation and sexual abuse, you need to understand what child molestation is. Child molestation is define in the Official Code of Georgia Section 16-6-4 and states a person commits the act of child molestation when someone commits an immoral or indecent act to or in the presence of or with any child under the age of sixteen years old with the intent to satisfy the sexual desires of either the child or the person. You can also be charged with child molestation if you send a sexually explicit image to a child under 16 with the intent to arouse or satisfy the sexual desires of either the child or the sender.

The sentencing range for someone convicted of Child Molestation carries a minimum sentence of five years, and can be up to life imprisonment depending on the facts and circumstances surrounding the accusation.

Defending those accused of child molestation is difficult. The allegation often arises from the statement of a child to a person of authority, usually a parent or teacher. That statement then gets communicated to a law enforcement official and their investigation begins. At some point the child should be interviewed by a forensic psychologist, and that interview is often the most significant piece of evidence presented in the case. But just because there is an outcry from a child, doesn’t mean the case cannot be defended. Children can mimic their parents and older siblings and make statements that aren’t always factual for many reasons. They are prone to suggestion and sometimes coercion by family and friends.

It is important for a defense attorney to get involved early in these cases. Relationships have to be examined. Motives must be found. The Law Offices of W Scott Smith specialize in handling child molestation cases and investigations. Call us today at 404-581-0999 to discuss your case. There is no time to wait in protecting your freedom.

VIDEO – Georgia Fireworks Laws

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by Scott Smith and Ryan Walsh

Beginning on July 1, 2015 it became legal to purchase fireworks in Georgia. What used to be annual trips around the major holidays to the Alabama and South Carolina border has ended and consumer fireworks are now available for purchase in Georgia.

To legally purchase fireworks in Georgia you must be 18 years of age and provide a photo ID at a physical store licensed to sell fireworks. There are no online sales of fireworks in Georgia, so you can’t log in to your Amazon account and order your Fourth of July arsenal.

State law restricts the hours you can set off fireworks. On any day throughout the year, you can light fireworks from 10am until 9pm. Some counties and municipalities may extend these regular hours until 11:59pm depending on local noise ordinances. However, On July 3rd, 4th, December 31st and January 1st, the hours to light fireworks are extended until Midnight or 1am depending on date.

All fireworks must be lit by adults. Fireworks cannot be ignited in a public roadway or within 100 feet of gas stations, airports, jails or prisons.

If you’ve been cited for improper use of fireworks, give us a call at 404-581-0999. Our office of attorneys understands Georgia fireworks law and is ready to defend your citation.

Thank you.

VIDEO – Murder Defenses in Georgia

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by W. Scott Smith and Ryan Walsh

You’re watching this today because you or your loved one has been arrested for murder. That’s a tough word, murder, the most serious crime you can be charged with in our justice system. A charge that carries with it a life sentence, or possibly worse.

But remember, an arrest is not a conviction. The key to defending someone arrested with murder is to find representation quickly. Finding an attorney to handle your case as soon as possible could be the difference between an acquittal and conviction.

There are only four possible defenses to a murder case. (1)You weren’t there and you have an alibi as to where you were when it happened. (2)You were there, but someone else did it and you didn’t participate. (3)You did it, but you did it in defense of yourself, in defense of others, or in defense of your property. (4)And finally, you did it, and the person needed to be killed. That’s it. Those are the four defenses.

An attorney who is hired as soon as possible after arrest can begin their investigation into the case to find the defense that fits the facts of the case.

An attorney can ask the right questions to prevent evidence that may be lost over time due to lapses in memory,  the loss of witnesses, or destruction of evidence.

Attacking the case early is the key to getting these serious charges dismissed, reduced to less serious charges like voluntary and involuntary manslaughter, or getting a not guilty verdict after trial.

Our office of experienced criminal defense attorneys with murder experience will make visits to jails all over Georgia in representation of our clients. It is important to not discuss the case with anyone in custody over the phone as the jail records those calls and will use them against you at trial.

Call us today for a free consultation. We’re available twenty four hours a day, seven days a week. We’re here to help you in your time of need. Thank you.