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posted on 10/29/17

To recap our story, Charles and Donna found their young daughter, Brianna, with her boyfriend after curfew, and a yelling match ensued in front of the family home. When James, the boyfriend, called the police out of fear for an escalating situation, the officers who arrived on scene ended up taking James himself into custody for drugs they found in his vehicle. After the chaos subsided, Brianna ran away from the family home, incurring scratches on her face as she did so. In panic, not knowing where their daughter had gone, Donna and Charles called the police.

The police had already been out to the house once, and no one was in a very good mood when they returned. When they saw the abrasions on Brianna’s face, they immediately assumed that Charles had put them there, so they took him into custody.

Now that all the facts have been analyzed, it is decision time for James and Charles. The former is charged with drug possession largely because he gave officers consent to rummage through his trunk, while the latter is charged with resisting arrest, which is one of the most amorphous crimes in the book, and family violence assault, although there is not much evidence against him.

There are actually two major decisions to be made by each defendant, and both choices go hand in hand. First, a defense attorney must formulate a compelling theory of the case, based on the evidence and applicable law, that would move the factfinder towards a not guilty verdict. Second, attorney and client must jointly decide whether a bench or jury trial is best.

Defenses in a Warrantless Search Case

Consent is a recognized exception to the search warrant requirement. Many times, “consent” is more like “assent” because some officers are not above using their authority to pressure people into consenting and the defendant plays no role whatsoever in the subsequent search. In some contexts, such as divorce modifications, there is a difference between consent and assent, but in this situation, the two are synonymous.

A better defense in consent search cases is lack of effective consent; for example, a roommate giving consent to search a dwelling. In these situations, the officers can search the premises if they believe the consenting party had legal authority, but they cannot open locked containers inside the dwelling.

Unfortunately for James, this defense is not available because he owned the car.

That probably leaves lack of probable cause, and courts have consistently held that furtive gestures, like nervous movements, do not constitute probable cause. If the officers searched the trunk based solely on James’ attitude, an attorney could probably get the evidence excluded. But since James gave consent, the evidence will probably be admitted.

Burden of Proof in a Criminal Case

Things look pretty bleak for James, but Charles may have defenses to both the assault and resisting charges. The prosecutor must establish guilt beyond a reasonable doubt. Illinois courts do not define this phrase, but it typically means evidence of such an overwhelming character that the only reasonable interpretation is the one that the prosecutor provides.

Brianna has an injury and Charles has an attitude, but unless she says her father hit her, there is no evidence that Charles caused that injury. Moreover, if she was there the whole time and did not see a fight, an attorney could subpoena Donna to testify. Even if she is reluctant to cooperate, she must still testify under oath.

Resisting cases are inherently hard to prove without video or other evidence other than the officer’s testimony. Furthermore, resisting arrest usually involves a physical act, so without any injury to the officer, the case is even harder to prove.

What Type of Trial is Best?

In Illinois, unlike some other states, defendants have an absolute right to waive a jury trial. Jury trials are normally advantageous because defendants may have to wait several months, or even a year, for a trial date, giving an attorney more time to prepare. Furthermore, 12 people decide the defendant’s fate instead of one judge.

These advantages may be disadvantages in other contexts. If the defendant is in jail or just wants to conclude the matter quickly, waiting months and months is not a good idea. Moreover, if the defendant happens to be in a court with a pro-defense judge, a jury trial may be an unnecessary risk.

James probably needs a jury trial because the law and facts are not on his side, but an anti-police juror or two may be sympathetic toward his plight. Charles probably needs a bench trial. Once the jurors hear “child abuse,” and the prosecutor is sure to repeat this phrase frequently, they may turn against him. Furthermore, the law and facts are favorable.

Count on Experienced Attorneys

The best groundwork in a criminal defense matter is useless without good trial tactics. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Javier Villaraco)