Sex offense cases often involve the filing of many pretrial motions that are not typically filed in the defense of other criminal cases. We employ an aggressive pretrial motions practice and it has proven to be indispensable in our ability to win so many of our cases at or before trial.
Georgia law provides that the prosecution must disclose to the defense the identity of their witnesses, all of the witnesses’ statements, all documents and physical evidence related to the case, and the results of any scientific tests related to the case.
The Constitution also requires the prosecution to disclose any evidence that is exculpatory, which includes any evidence consistent with our client’s innocence.
Problems arise, however, when there is additional evidence that may exist, which the prosecution is not required to disclose by law, and which the defense cannot easily obtain. In cases where there is an alleged victim, we may want to obtain privileged information about the accuser’s past that would otherwise not be available to the public. For instance, we will typically want to obtain information about the accuser’s psychological history or know if he/she has been previously investigated by DFCS. These types of records are privileged and can only be obtained with a court order. Also, the prosecution will sometimes collect physical evidence or electronic devices but refuse to test or examine it. This evidence may help prove our client’s innocence. We need to know about it, gain access to it, and have it examined.
To gain access to privileged records or untested evidence, we must file particularized discovery motions. These pretrial motions must be filed well in advance of the scheduled trial to provide sufficient time to collect and examine the items. Often, the prosecution will object to this additional discovery, therefore, we must be prepared to argue these motions in court.
Also, in cases involving an alleged injury to a child, we have the right to request a pretrial deposition of the treating physician. This is a critical right that is often overlooked by defense attorneys in Georgia. We have obtained dismissals in child molestation cases as a result of these depositions as we are able to uncover other causes of a child’s apparent injuries (click here for an example).
Many cases that would normally be difficult to win at trial are dismissed as the result of successful motions to suppress illegally seized evidence.
Any evidence obtained as a result of an illegal search, an illegal detention or arrest, or an illegal interrogation may be suppressed. In many cases, the inability to use the illegally seized evidence will force the prosecution to dismiss the case.
Illegally seized evidence, however, does not get suppressed on its own. The defense must be aggressive and file well drafted motions seeking the suppression of this evidence. Many times, these issues are discovered early in the case at a preliminary hearing where carefully crafted questions to the arresting officers can disclose defects in their search, arrest, or interrogation procedures.
Unfortunately, we now live in times where a person can be accused of anything, even when it is false. Bernard is the attorney who knows the law and what law enforcement can and cannot do. The results were outstanding!