POSSESSION OF A HANDGUN/FIREARM BY A CONVICTED FELON: HOW TO FIGHT IT
One of the toughest cases to defend is when the police accuse you as a defendant of possessing a handgun or firearm and you are a convicted felon. This guide is meant as an overview on how to fight these charges in the state of Kentucky.
Ownership and Possession: The first line of defense in defending yourself on felon with a gun chargeThe single best defense in any possession of a gun case is "I didn't own it" and "I didn't possess it." There are many forms this defense may take.
MULTIPLE PEOPLE IN CAR
If there are multiple people in the car, some or all who are not felons, it is often a winning strategy to have the non-felon gun owner to come in to Court and testify for the defense that he/she owned the gun and you did not know about it. Think about it: if you were to carry a gun, would you tell everyone? No. Does everyone you get in the car with question you or you ask them if they have a gun? No. Often times many of us get into cars with people who have guns and we never know. And if you carry a gun and have done classes, you as a citizen know you should never advertise to people that you are carrying. That is just bad taste, bad form, and against safety procedures.
GUN NOT FOUND ON YOU
If the gun isn't found on your person, it is often enough to simply assert they cannot prove it was in your possession. I like to take out my wallet, set it in front of jury, and ask them if they possess my wallet because it is closer to them than it is to me. Of course they don't! Most jurors will understand this argument. Maybe you were driving a friend or girl friend's car and had no idea he/she had a gun in there. Maybe it was found in a room you never went into. Maybe it was under the seat because someone else put it there when you all were stopped. The possibilities are endless. If this is the facts, it is very hard for the prosecution to prove you "possessed" the gun. Even if they argue "constructive possession," most jurors want to know it was on your person if they are going to convict.
Second line of defense: The Scientific EvidenceI cannot stress this enough: If the police do not do DNA AND!! FINGERPRINTS (BOTH!!!), hammer them on cross examination. Your life is on the line. They are trying to send you to prison. They want to take away your freedom and your liberty. If that is the case, there is absolutely no excuse for an officer accusing you of possessing a gun NOT to do DNA and Fingerprint analysis.
Many officers on cross will testify "we don't usually do that in these cases." That is exactly what I want them to say every single time. Because you know what the response question on cross to this is: "You mean to tell me officer that you have charged my client, accused him of possessing this gun, and want to send him to prison and take away his rights but that this case is not important enough to do that?" There is no good answer for them here. You often follow it up to hammer the point home: "This case is not important enough, right officer? That's what you are telling this jury?" And make them answer that question. You have to be relentless. Those good at testifying will often find a way to explain themselves, but it usually does more harm then good. Once you get the officer trying to give a lengthy explanation of why they could have done something, should have done something, but didn't, doubt usually will creep into the mind of the jurors, and then you get to argue in closing one of my favorite lines to use because it is so effective in getting acquittals: "what are they trying to hide from you?" When you can say that, suddenly the juror starts questioning why the police and the prosecution didn't do certain things or call certain witnesses. I have won more trials with this argument then almost any other. Regardless, always make sure you hammer them on not doing both DNA and fingerprints. And do NOT let a crime scene tech say they cannot do both. That is bogus. Often they will print the gun handle but get DNA off of the slide. Any good crime scene tech will tell you this.