Tuesday, November 23, 2010

Attorney's Fees May Be Awarded If False Affidavit Filed

There is a specific provision included in the local rules of the Clark County courts that allows for attorney's fees to be issued to an Adverse Party for defending itself against an improperly filed Protective Order.  "(n) The applicant may be ordered to pay all costs and fees incurred by the adverse party if by clear and convincing evidence it is proven that the applicant knowingly filed a false or intentionally misleading affidavit."
Nev. EDCR 5.22.  Along with having to show there was fraud, the standard of proof evincing the fraud is very high, "clear and convincing evidence."  This is contrary to the standard of proof for obtaining a Protective Order which is very low "to the satisfaction of the court."  In rare cases, it may be possible to be awarded attorney's fees.   One scenario could be if an Applicant included facts in an application that he was in Las Vegas when an Adverse Party provided phone records or plane tickets evidencing that they were in Oregon.  There are also other rules and case law that could be employed to request an award of attorney's fees to an Adverse Party.  It is very difficult to obtain an award of attorney's fees in any civil case, but, in certain cases, it may be possible for an Adverse Party to be awarded attorney's fees.  Please remember, attorney's fees can be awarded to the Applicant as well, and it is easier for the court to do so. 
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

Wednesday, November 10, 2010

How do you spell TPO? G-U-N

If the word "gun" appears in an Applicant's statement of facts, a protective order will be issued.  Even without the word gun, protective orders are easy to get.  The burden of proof needed for a judge or hearing master to issue a TPO is very low.  Pursuant to NRS§ 33.020, "If it appears to the satisfaction of the court from specific facts shown by a verified application that an act of domestic violence has occurred or there exists a threat of domestic violence..." the court may issue protective order.  For many reasons (political, abundance of caution, public policy, etc.), if there is an allegation of a gun involved in any event of domestic violence, a protective order will be issued against the Adverse Party.  From a prosecutorial perspective, taking action against a person who owns a gun is preventing a murder.
What does this mean?  From a defense perspective, it can give a pretext for lying.  Allegations become exponentially more powerful, so there could be a larger rationale to lie or exaggerate facts in an application when they pertain to guns.  It also means that your 2nd Amendment rights will be taken from you for extended period of time. 
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

Monday, November 8, 2010

He Said ... She Said

He said, she said is a common way for laypeople to describe the majority of battery domestic violence cases.  Many defendants have the impression that they cannot be convicted in a case that is "he said, she said."  This is false.  Many criminal cases are based mostly or entirely on testimonial evidence, not readily apparent injuries or other corroborating evidence.  If the finder of fact (judge or jury) in a criminal case believes that the testimony is credible, then a defendant can be found guilty of a crime based on testimony alone.
Looking at jury instructions is a simple, straightforward way to review some legal concepts.  Instructions on testimonial evidence and the credibility of witnesses differ slightly from juridiction to jurisdiction, but they are all similar to this one.  "In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe.  You may believe all of what a witness said, or only part of it, or none of it.  In deciding what testimony of any witness to believe, consider the witness's intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness's memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the general reasonableness of the testimony, and the extent to which the testimony is consistent with other evidence you believe."  Eighth Circuit CA Preliminary Jury Instruction 1.05.
This jury instruction takes into account corroborating evidence, but it is not necessarily a determining factor.  It is true that a case based on testimonial evidence is normally easier for a defense attorney to refute, but these cases can still be difficult to handle and a significant amount of work needs to be done to investigate and prepare in order to perform an adequate examination of a hostile witness.
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.