Legal Question in Criminal Law in California

Possible Infringement of Civil Rights During Trial

I have some concerns about the trial of my sister. She was given a sentence of 26.5 years for what boils down to a fist-fight over an allegedly stolen cellphone (the ''victim's'') and a checkbook (my sister's). The victim alleges my sister had a gun, however all other witnesses present - 4 - said there was none. The person my sister was with is a member of a gun-club and has guns in his car frequently, had a gun in a lock-box that night. However, the key was in his possession and never relinquished to my sister. She never touched the gun. He said as much in a police report that the prosecutor had thrown out because he was unavailable for subpoena. The police chose not to finger print the gun, I understand that is their right but they did not preserve the evidence so the defence could either - is this a violation of her civil rights? How can she have a fair trial when the only evidence is tainted?


Asked on 6/27/03, 5:42 pm

2 Answers from Attorneys
Edward Hoffman Law Offices of Edward A. Hoffman

Re: Possible Infringement of Civil Rights During Trial

The testimony of one witness -- even (perhaps especially) the victim -- is enough to support a factual finding by the jury, no matter how many witness offered contrary testimony. A big part of the jury's job is to decide whom to believe, and they evidently believed the victim.

As to the gun, police are only required to preserve evidence if it is reasonable to believe it supports the defendant's position. The possibility of fingerprints on the gun may or may not have been relevant depending upon the facts. (It is possible to possess a gun without actually touching it, and if that is what was alleged then the lack of prints would be irrelevant.) I would need to know more detail in order to assess the relevance in this case.

Another issue here is that if the defense never asks for the evidence, it doesn't matter whether it was preserved or not.

(I must add that much of my analysis here has been oversimplified for the sake of clarity. A detailed explanation of the law would take forever to type and would exceed my space limitations anyway. Just don't take any actions based on the assumption that I have given you a complete analysis of either the law or the facts.)

There may well be some appealable issues here. I have handled many criminal appeals and I would be interested in discussing this case with you if you don't already have counsel. I should add that there are strict time limits involved in filing a notice of appeal. I don't know when this case was tried, when (or if) sentencing was held or what papers have actually been filed. Your sister needs to have these details attended to in order to preserve her rights.

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Answered on 6/27/03, 6:05 pm
H.M. Torrey The Law Offices of H.M. Torrey

Re: Possible Infringement of Civil Rights During Trial

in the nutshell, you may have grounds for an appeal in this matter, however, a much greater analysis of your sister's facts and trial transcripts would be needed for review. if you would like further legal assistance in this unfortunate criminal matter involving your sister, please email me directly on how you would like to proceed.

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Answered on 6/27/03, 9:03 pm


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