Saturday, March 08, 2008

Prelims: Lining Up Elements

As you begin to do more prelims, you will discover that the elements are the most important thing, especially if you're on the prosecution. The Stud has not spoken at length to defense attorneys, but has noticed that they frequently go to the most insignificant details of the facts that would make more sense in a full trial. The Stud's best guess is that what the attorneys are doing is preserving issues in the record. You will find that defense attorneys, after putting on such a rigorous cross-examination, will then answer that there is no affirmative defense, but simply a motion to dismiss for lack of sufficiency of the evidence.

In a prelim that the Stud conducted today, the issue was possession for sale of marijuana. What complicated the case included the following facts: (1) there was no transaction observed involving the defendant; (2) there was another person in the residence (who is a co-defendant); and (3) the residence belonged to a third party, who has not yet been apprehended. However, the Stud focused on the establishment of probable cause through surveillance two weeks prior to the warranted search, and on the fact that the defendant was observed with what appeared to be a green leafy substance resembling marijuana (which the defendant threw upon the knock and announce by the police, and which was later recovered and confirmed to be marijuana) as well as a large amount of US currency consistent, in the opinion of the testifying officer based on his background, training and expertise, with possession for sale.

The rest, including where the other marijuana and other paraphernalia were discovered, were interesting and will probably be used at trial to establish a totality of the circumstances, but were not significant for the purposes of a preliminary hearing.

The result: The defendant was held to answer.

Track record: 3-0.

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