Technicalities in Criminal Litigation
- Every charge, ticket, or "information" cites a specific law, statute or ordinance.
- The specific law, statute or ordinance is comprised of individual elements.
- If the accused can defeat or challenge any single element, it is grounds for dismissal.
Wait out the specifics.In criminal or administrative cases, the burden of proof is ordinarily on the accuser or government.
If the accused waits for the specifics of the allegation and compares it with the charged statute, the accused may prevail on the non-match itself.
Accused parties often wish to jump into presenting a defense to the allegation without waiting to see what the specifics of the allegation are or determining whether the allegations match up to the specific statute claimed to apply.
For example, a person who legally borrows, but fails to timely return a friend's borrowed car, who is mistakenly charged with receiving stolen property may foolishly rush to combat the charge in advance of trial only for the charge to be amended to the proper charge of larceny by conversion. Because the elements of receiving and concealing stolen property did not match the illegal activity of keeping a car lawfully obtained, permanent dismissal may be obtained if challenged at the perfect time.
Procedure, Procedure, ProcedureThere is a maxim that substantive law shall always prevail over procedure.
There is a legal truth, however, that 90% of law, and most decisions, are based on procedure, rather than substantive law.
Judges and juries make determinations based more on procedure. Lawyers who know what to say and when to say it usually carry the day, often regardless of substance or subject matter. Requests for jury instructions and how they are read carry great influence over juries.
In a forensic files TV crime story, a youth who allegedly conspired with his mother to shoot and kill his father with a shotgun, and, at the murder trial of the youth, the youth portrayed through witnesses, that his father was a bad, abusive man, and argued, successfully, that it may have been his mother that actually pulled the trigger. Procedure prevailed over substance, as it often does.
You are much better off with a local lawyer who knows all the local rules and procedures than someone learning them on-the-job-training on your case.
Procedure almost always carries the day in reality.