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Eleanor Miller’s Answers

75 total

  • Can fugitive recovery agents blackmail me?

    because i bailed someone out and they skipped bail and because im on probation im violating by harboring a fugitive they are telling me if i dont turn her in that im going to be in trouble and i havent seen them since they were supposed to be le...

    Eleanor’s Answer

    Bail bondsmen are actually obligated (to their own insurance cos.) to find someone who has skipped bail. However, unless these recovery agents have some evidence that you know where the person is, or you are hiding or protecting the person, they should not be threatening you with probation violation or anything else.

    On the other hand, if you DO know where the person is, or are hiding or protecting him, you can get into trouble, not only for a probation violation but for other criminal offenses under AZ law.

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  • Can a criminal defendant file a motion pro se, challenging the search warrant and the aff. of probable cause filed

    Can I file a motion Pro Se in the court that gave the search warrant, challenging the merits of the search listed on the affidavit of probable cause, using the Aguilar Test. My attorney will not do anything. O when he was wanting paid, he even us...

    Eleanor’s Answer

    I do not practice in TN, but I can give you some generalized advice. In my jurisdiction, if you are represented by an attorney, a judge will not consider a pro se pleading from the defendant. I don't know if that is true in TN, but I suspect it is.

    There is a means of challenging the veracity of the search warrant affidavit, but you carry the burden of proving it contained lies or deceptive information. The case is called Franks v. Delaware, and the hearing a "Franks" hearing. Your attorney should know of this procedure. I would not suggest attempting this on your own because the burdens on the defendant challenging the affidavit's veracity are high and legal knowledge is required to do one properly. Of course, the other thing you need is clear evidence that the officer who obtained the search warrant did in fact lie or mislead the magistrate in the affidavit. If you don't have this, you won't even get a Franks hearing.

    Last, if you are unhappy with your attorney, you may fire him/her. A client always has that right. Before you do so, however, I would have a discussion with the attorney and find out what he is actually doing on your case. Many lawyers do not keep their clients apprised of what they are doing, but that doesn't necessarily mean they are doing nothing.

    Good luck.

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  • Can i be imprisoned is someone says? (I dont think i should do this)

    My brother had consensual sex with a minor at a club/hall. She was embarassed and stated that she was raped with no injury or no forced penatration. The prosecutor only went by hear say. Her exact words (I don't think i should do this) and then sh...

    Eleanor’s Answer

    I agree with the previous answer. A minor cannot "consent" to sexual conduct with an adult. It is what used to be, and still is in some states, called "statutory rape," because the illicit conduct is made illegal by statute (law), even if the conduct is consensual for both parties.

    I also agree that your brother can be convicted of statutory rape based upon the girl's testimony alone, although these days juries do expect some kind of physical evidence that a rape (or other sexual conduct) occurred. If the state proves she is a minor and she testifies that your brother had sexual conduct/contact with her, regardless of whether it was consensual, your brother can be found guilty. A conviction will only be more likely if there is physical evidence (DNA) to show that the rape occurred. And it sounds like there will be.

    Your brother is in need of a good, competent criminal defense attorney in your jurisdiction, and I suggest he get one immediately.

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  • Where do I find the best Criminal Attornery re: Child Porngraphy?

    My son says he did not download the pictures. Douglas Cty Came into the house and confiscated the computers and the police said you better get an attorney. Son said I did not do it... So here we are... Where do you find the best for this issue.

    Eleanor’s Answer

    There is also a distinct possibility that your son is telling you the truth. There are ways that information and pictures can be stored in another person's computer, without the knowledge of the computer's owner. When you discuss the case with an attorney, ask him/her if he/she uses experts, who have the ability to literally go back in time on the computer and determine whether it was your son or someone else that downloaded the images. A forensic computer expert is a critical component of the defense, if your son insists he did not download the images.

    But I certainly agree with the previous answer. Getting a good, competent attorney for your son as soon as possible is very important. I don't know if Colorado has criminal law specialization, but you should call and find out. That would be a good place to start in finding an experienced criminal defense lawyer.

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  • As a defendant the arresting officers and the Da are trying to indict me with someone else's charges

    I recently found out that someone is trying to add me to some one else's charges,can they get away with that and what can I do about it.

    Eleanor’s Answer

    There is so much more information an attorney would need to answer this question. Often, an indictment or complaint is filed before the state knows who all the "players" are in a case. For example, in a conspiracy, it may not know some of the co-conspirators' names. Usually they can get them from one of the defendants who has been charged. You then can be added to that indictment/complaint.

    You need to provide more information before your question can be answered. However, I suggest strongly you consult with a competent criminal defense attorney so that he/she can get all the information and direct you accordingly.

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  • Once found not guilty for trafficking in a contolled substance, can the authorities question you when you go to pick up your

    money they confinscated from you during the arrest?

    Eleanor’s Answer

    Sure they can. But you don't have to answer. Try to remember the Fifth Amendment gives you the absolute right to remain silent when being questioned by police, whether you are or are not in custody.

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  • Charged with violent crime. Can I be convicted based on one eyewitness' testimony?

    I am charged with stabbing someone. The victim chose a decade old picture of me from a photo array. The criminal complaint states that the victim is the only eyewitness. There are a ton of gaps in the case, but I'm still being prosecuted. I was no...

    Eleanor’s Answer

    Sadly, yes, you can. I echo the answer of the previous attorney. Get a competent criminal defense lawyer as soon as you are able to do so.

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  • Filing a motion???

    How would I go about filing a motion in court to suspend (or stay) my probation sentence in order to travel overseas??

    Eleanor’s Answer

    You should first ask your probation officer. He/she will either ask the court for you, or refuse to do so.
    If he/she refuses to do so, you will have to file something with the judge, generally the same one who sentenced you.
    Don't leave the country without a court order permitting it.

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  • What can happen if you leave the country for a week while on probation?

    My brother has been planning this trip for a year. He plans on asking for permission. But on the off chance he is denied to go on this trip, he was thinking about going anyway. He is on probation for felony drug possession. If he were to get caugh...

    Eleanor’s Answer

    First, I do not practice in MO, so it is always best to get the opinion and advice of an attorney who practices in your own state. However, anyone who is on probation has terms and conditions they must abide by. If one of the terms is that your brother not leave the state (or county or country) without court permission, and he goes on his trip without it, he will be in violation of that condition of probation. That could lead to a request by his probation officer to terminate his probation and send him to jail or prison (depending on the laws of your state). Once that request is made, he is entitled to a hearing before a judge on the validity of the allegation, but the state's burden of proof, ordinarily, is much lower than "beyond a reasonable doubt." If after the hearing the judge determines that your brother violated a condition of his probation, the judge can sentence him to any lawful sentence for the crime your brother committed and is on probation for.

    Tell him to get permission, or postpone the trip.

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  • Can a lawyer hold my property?

    I was involved in a seizure case that had to do with my husband being arrested for drugs. This case had nothing to do w/ me, but my things were seized. This included a car. I went in to talk to a lawyer, and hired him for the seizure case and t...

    Eleanor’s Answer

    Generally, an interest holder in seized property must file a response or answer to the seizure complaint within a specific amount of time. From what you have said, that time may have run out.

    I would contact another lawyer and ask him/her to find out if you still have time to answer the forfeiture complaint to have your property returned.

    As for the other lawyer, he is certainly entitled to be paid for whatever work he has done on the forfeiture. However, if that was what you initially retained him to do, and he allowed the time to go by to file an answer, you need to contact the state bar about that.

    It sounds like you are confused about what you hired the attorney to do. Clarify that through another attorney before you do anything, including contacting the state bar.

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