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Thursday, December 31, 2009

How To Choose a Criminal Defense Attorney - Tip #4

Is the potential attorney knowledgeable about your charge?

Too often, attorneys advertise themselves as "General Practice" and tout themselves as a jack of all trades: i.e. expert on all areas of law . . . including Criminal Law.

Granted, there are probably some very good general practice attorneys who can navigate different areas of law. However, do you really want a general practice attorney defending you on DUI charges, Domestic Violence Charges or a Charge of Homicide when you are facing substantial jail/prison time? Probably Not.

Be Smart. Ask around. Ask for references. Ask your potential attorney questions about their practice and the last time they handled a criminal case with charges similar to the ones you are facing.

If you don't like the answers you receive, odds are: you need to search for an attorney elsewhere.


Pittsburgh Criminal Defense Attorney Frank Walker
FrankWalkerLaw.com
412.281.5423 Office
412.401.1764 Cell

Friday, December 18, 2009

How to Choose a Criminal Defense Attorney - Tip #3

Are you able to reach your potential attorney?

Ask around.

Do you know what the number one (#1) gripe clients have about their attorney? Yep. You guessed it: "My attorney didn't return my call(s)!"

When searching for a Criminal Defense attorney, if the potential attorney fails to return your calls while you are searching for an attorney, what makes you think they will return your calls once you hire them?

Now granted, we are not going to sit on the phone for hours and give you Free Advice while you "search for an attorney". But your potential attorney should return your calls within a reasonable time to answer your questions about why they are the right candidate to represent your interest.

So if you are calling around looking for a Criminal Defense Attorney, make sure you are comfortable with the ability to contact your attorney if needed to answer simple questions. If not, the attorney client relationship could be strained throughout the entire process.

Pittsburgh Criminal Defense Attorney Frank Walker
FrankWalkerLaw.com
412.281.5423 Office
412.401.1764 Cell

Tuesday, December 8, 2009

Are There Two Mirandas?

After all these years, with police and federal agencies routinely giving criminal suspects Miranda warnings (under the 43-year-old Miranda v. Arizona), it seemed Monday as if the law books have a formal notion of what the warnings must be, but, in reality, officers may have their own variations.

The Court spent an hour in Florida v. Powell (08-1175) exploring whether the two can — or should — be the same.The argument, with Justices actually quoting, from open volumes of the U.S. Reports, what the Miranda opinion itself said, focused mainly on whether officers need to use a warning that makes sure the suspect knows that he has a right to a lawyer with him throughout the time that any questioning is being done by law enforcement officers. The Florida Supreme Court, finding that Tampa police were leaving that part too vague, mandated more clarity.

It is not enough, the state tribunal said, to tell a suspect that the right to a lawyer is available “before answering questions” and that the right existed “at any time you want during” questioning. Police, it said, must add that the right is to the lawyer’s presence throughout.A Florida deputy attorney general, Joseph W. Jacquot of Tallahassee, opened with the state’s complaint that its Supreme Court had used a “hypertechnical analysis of the warning’s language,” and thus deviated from the flexibility that the Justices have allowed since Miranda.

The argument bogged down for a time in a discussion of whether Florida’s court could mandate the same warning under state law, if the Justices ruled against it in this case under the U.S. Constitution. Soon, however, the argument got back to the basic point as Justice Sonia Sotomayor began questioning whether the Court itself had introduced uncertainy about what Miranda meant.Jacquot said that, as the precedents now stand, it is enough that officers “reasonably convey” what a suspect’s rights are. That provided an opening for Justice Stephen G. Breyer to start reciting from Miranda itself — a refrain that he repeatedly over and over — to the effect that the lawyer must be “with him during interrogation.” His voice rising, Breyer gave a pointed emphasis on the phrase “with him.”

Helping Jacquot out, Justice Ruth Bader Ginsburg suggested that Miranda also spoke approvingly of the warning the FBI used at that time – leaving out the “with him” language. “There is a confusion,” Ginsburg said, “between what Miranda spells out and many other cases spell out.”

Breyer soon countered that the FBI had since revised its warning, to include the “with him” admonition.Justice Sonia Sotomayor openly expressed what some of her colleagues may have been thinking silently: that perhaps police can’t be trusted to make warnings explicit unless they are required to do so. In Tampa, she said, the officers “chose to obfuscate a little bit and be less specific. Shouldn’t we assume that tht is an intent to deceive or perhaps to confuse?” The state’s lawyer replied: ”Absolutely not.” Tampa’s police, he insisted, drafted the rights form to “reasonably convey the warning.”

The state court, he asserted, treated the warning requirement by reading it like a legal document, such as a will or an easement.Joining Florida in opposing the state court’s mandated warning, a federal lawyer, David O’Neil, assistant to the Solicitor General, relied on the Court’s post-Miranda precedents suggesting that no particular form of warnings was constitutionally required. But he also expressed confidence that law enforcement would not be likely to fudge the warnings, saying that police were not “looking for every way to get around the warnings.”That prompted a skeptical retort from Justice Anthony M. Kennedy, suggesting that a narrowing of the required warning would be widely imitated.

It also led Justice Sotomayor to suggest it may mean something that there is a split in lower courts on whether the Tampa approach adequately conveyed the scope of a suspect’s rights. That ambiguity, she suggested, might be a basis for the Court now to provide some clarity.Justice Breyer then engaged O’Neil in a discussion of what a suspect was likely to conclude from a warning that followed the Tampa approach.

The Justice suggested that an individual would assume it meant a right to talk a lawyer only before questioning began, and not to have the lawyer present throughout. O’Neil disagreed. No suspect is going to interpret the Tampa version as a suggestion that he can walk in and out of a room each time he wants to consult his lawyer.

The lawyer for Kevin DeWayne Powell, the suspect in the case, relied on the specific language of the Miranda opinion to support what the Florida court had done. But Assistant Public Defender Deborah K. Brueckheimer had some early trouble with Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia over how the Court in Miranda had treated the FBI warning in use at the time.

They suggested that the Court had embraced a warning without the requirement that the suspect be told his right included the continuing presence of counsel.After a while, Justice Scalia suggested that “this is angels dancing on he head of a pin.” It would be “quite fantastic,” Scalia said, for the suspect Powell to have refused to confess had he just known that his right to a lawyer included the actual presence throughout questioning. And the Chief Justice came to the rescue of the Tampa police department’s reputation, indicating that there was no “malevolent reason” that those officers revised their warning form.

Brueckheimer said it didn’t really matter what the police motive was; what was critical, she said, was how the suspect understood what he had been told.Justice Samuel A. Alito, Jr., sought to introduce a slippery-slope argument, commenting that, if Miranda warnings were read with the precision lawyers use, perhaps even the phrase “you have a right to remain silent” would be deemed insufficient to give that warning.Brueckheimer, however, sought to reassure the Court that neither she nor the Florida Supreme Court was indicating that there had to be “magic language” in order to enforce Miranda warnings adequately.

The argument then tailed off into a discussion of whether the Florida court’s ruling was, or could have been, based on the state constitution, rather than on Miranda itself.

(Reported at SupremeCourtBlog)


Pittsburgh Criminal Defense Attorney Frank Walker
FrankWalkerLaw.com
412.281.5423 Office
412.401.1764 Cell

Monday, December 7, 2009

Miranda rights warning could get rewrite

The Supreme Court on Monday seemed headed toward telling police they must explicitly advise criminal suspects that their lawyer can be present during any interrogation.

The arguments in front of the justices were the latest over how explicit the Miranda warning rights have to be, as justices debated whether the warnings police gave Kevin Dwayne Powell made clear to him that he could have a lawyer present while being interrogated by police.

This Could be a very interesting case to follow for both prosecutors and defense attorneys alike.

Pittsburgh Criminal Defense Attorney Frank Walker
FrankWalkerLaw.com
412.281.5423 Office
412.401.1764 Cell

Monday, November 30, 2009

Pittsburgh Criminal Defense Attorney Frank Walker | Case Results

FrankWalkerLaw.com
Criminal Defense Lawyer Frank Walker
444 Liberty Avenue, STE 2200Pittsburgh, PA 15222
Phone: 412-401-1764 Alt. Phone: 412-227-0290


Case Results - Just A Sample of the Results We Achieved For Our Clients After They Asked Attorney Frank Walker for Help!

Pittsburgh Criminal Defense Attorney Frank Walker represents those charged with crimes ranging from misdemeanor charges all the way up to murder charges.

Attorney Frank Walker has defended countless adults and juveniles charged with crimes throughout Pittsburgh, McKeesport, Brentwood, East Liberty, Avalon, Etna, West Mifflin, Claitron, Homestead, Homewood, Bethal Park, North Side, Westmoreland County, Duquesne, Washington County, Beaver County and surrounding areas.

Click Here to view results from some of our more notable cases

Pittsburgh Criminal Defense Attorney Frank Walker
FrankWalkerLaw.com
412.281.5423 Office
412.401.1764 Cell

Saturday, November 28, 2009

How To Choose a Criminal Defense Attorney - Tip #2

Asking Questions.

Many times, clients seeking to choose a criminal defense attorney fail to ask questions, whether tough or routine. Questioning your potential attorney on certain tactics or strategy should not offend the attorney. Think about it, the criminal defense lawyer does not face the possible maximum sentence and fines that you face, so it's totally reasonable, if not prudent to ask questions and make sure that you are understanding exactly what will happen during the criminal process you or your family member are facing.

Here are some examples of decisions or advice that you should question and make sure you have a clear reason and explanation for the decision.

- If the potential attorney is recommending that you waive your preliminary hearing without receiving anything in return, ask why!

- If the criminal defense lawyer is pushing you to plead guilty, make sure you know all the elements of every single crime you are pleading guilty to. In addition, make sure you know the possible penalties, defenses, fines, suspensions and possible repercussions of your guilty plea.

- If your attorney is advising you to waive your absolute right to a jury trial, make sure you understand why and make sure you know the pro's and con's of jury trial versus non-jury or bench trial.

Asking questions BEFORE you decide on a criminal defense lawyer will help you fully understand your rights throughout the criminal justice process and assist you in making the best decision on how to proceed in your case.





Pittsburgh Criminal Defense Attorney Frank Walker
FrankWalkerLaw.com
412.281.5423 Office
412.401.1764 Cell

Saturday, November 21, 2009

How to Choose a Criminal Defense Lawyer - Tip #1

Ask the potential criminal lawyers if they have experience in your type of case. You want a lawyer with years of experience in the charges brought against you.

What type of experience? Preferably, you want your attorney to have dealt with your particular issue in the past, from the inception of the case: from the preliminary hearing all the way through trial.

For example, an attorney that typically deals with fraud cases wouldn't have much experience in drug charges. Additionally, you want someone who was actually the lead attorney on the particular case, not an intern, clerk or second chair.


Pittsburgh Criminal Defense Attorney Frank Walker
FrankWalkerLaw.com
412.227.0290
412.401.1764

Tuesday, November 10, 2009

Search Warrant

a written order by a judge which permits a law enforcement officer to search a specific place (eg. 112 Magnolia Avenue, Apartment 3, or a 1991 Pontiac, Pennsylvania license number 123ABC) and identifies the persons (if known) and any articles intended to be seized (often specified by type, such as "weapons," "drugs and drug paraphernalia," "evidence of bodily harm"). Such a search warrant can only be issued upon a sworn written statement of a law enforcement officer (including a prosecutor).

The 4th Amendment to the Constitution specifies: "…no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." The 14th Amendment applies the rule to the states. Evidence unconstitutionally seized cannot be used in court, nor can evidence traced through such illegal evidence.

Pittsburgh Criminal Defense Attorney Frank Walker
FrankWalkerLaw.com
412.227.0290
412.401.1764

Saturday, October 10, 2009

What's the Difference Between a Felony and a Misdemeanor?

Most states break their crimes into two major groups: felonies and misdemeanors. Whether a crime falls into one category or the other depends on the potential punishment. If a law provides for imprisonment for longer than a year, it is usually considered a felony. If the potential punishment is for a year or less, then the crime is considered a misdemeanor.

In some states, certain crimes are described on the books as "wobblers," which means that the prosecutor may charge the crime as either a misdemeanor (carrying less than a year's jail time as punishment) or a felony (carrying a year or more).

Behaviors punishable only by fine are usually not considered crimes at all, but infractions -- for example, traffic tickets. But a legislature may on occasion punish behavior only by a fine and still provide that it is a misdemeanor -- such as possession of less than an ounce of marijuana for personal use in California.

Pittsburgh Criminal Defense Attorney Frank Walker
FrankWalkerLaw.com
412.227.0290
412.401.1764

Sunday, September 20, 2009

New Radio ad from Pittsburgh Attorney Frank Walker - Call for Free Consultation for Arests at Pittsburgh G-20 Summit




Going out this weekend in Downtown Pittsburgh? Pittsburgh Attorney Frank Walker has a Free public service announcement for you and your friends: Don't Drink and Drive. Dui Charges in Pittsburgh require immediate attention and action. For a free consultation visit FrankWalkerLaw.com or call Frank at 412. 401. 1764.

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Pittsburgh Criminal Defense Attorney Frank Walker
FrankWalkerLaw.com
412.227.0290
412.401.1764

Wednesday, September 2, 2009

Law Terms: Expert Witness

Expert Witness - a person who is a specialist in a subject, often technical, who may present his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or criminal case.

It is an exception to the rule against giving an opinion in trial, provided that the expert is qualified by evidence of his/her expertise, training and special knowledge. If the expertise is challenged, the attorney for the party calling the "expert" must make a showing of the necessary background through questions in court, and the trial judge has discretion to qualify the witness or rule he/she is not an expert, or is an expert on limited subjects.

Experts are usually paid handsomely for their services and may be asked by the opposition the amount they are receiving for their work on the case. In most jurisdictions, both sides must exchange the names and addresses of proposed experts to allow pre-trial depositions.

Pittsburgh Criminal Defense Attorney Frank Walker
FrankWalkerLaw.com
412.227.0290
412.401.1764

Monday, August 31, 2009

Law Terms: Evidence

Every type of proof legally presented at trial (allowed by the judge) which is intended to convince the judge and/or jury of alleged facts material to the case. Evidence can include oral testimony of witnesses, including experts on technical matters, documents, public records, objects, photographs and depositions (testimony under oath taken before trial).

Evidence includes so-called "circumstantial evidence" which is intended to create belief by showing surrounding circumstances which logically lead to a conclusion of fact. Comments and arguments by the attorneys, statements by the judge and answers to questions which the judge has ruled objectionable are not evidence.

Charts, maps and models which are used to demonstrate or explain matters are not evidence themselves, but testimony based upon such items and marks on such material may be evidence. Evidence must survive objections of opposing attorneys that it is irrelevant, immaterial or violates rules against "hearsay" (statements by a party not in court), and/or other technicalities.

Pittsburgh Criminal Defense Attorney Frank Walker
FrankWalkerLaw.com
412.227.0290
412.401.1764

Saturday, August 15, 2009

Law terms - Homicide

Homicide - the killing of a human being due to the act or omission of another. Included among homicides are murder and manslaughter, but not all homicides are a crime, particularly when there is a lack of criminal intent. Non-criminal homicides include killing in self-defense, a misadventure like a hunting accident or automobile wreck without a violation of law like reckless driving, or legal (government) execution. Suicide is a homicide, but in most cases there is no one to prosecute if the suicide is successful. Assisting or attempting suicide can be a crime.

Pittsburgh Criminal Defense Attorney Frank Walker
FrankWalkerLaw.com
412.227.0290
412.401.1764

Friday, August 7, 2009

Law Terms: Suppression of Evidence

Suppression of evidence:



1) a judge's determination not to allow evidence to be admitted in a criminal trial because it was illegally obtained or was discovered due to an illegal search. (Pursuant to the 4th amendment of the US Constitution and Article I Section 8 of the Pennsylvania Constitution)



2) the improper hiding of evidence by a prosecutor who is constitutionally required to reveal to the defense all evidence. Such suppression is a violation of the due process clause (5th Amendment, applied to states by the 14th Amendment) and may result in dismissal, mistrial or reversal on appeal, as well as contempt of court for the prosecutor.

Pittsburgh Criminal Defense & Injury Attorney Frank Walker 
Pittsburgh Criminal Defense - Injury Site
Morgantown, West Virginia Criminal Defense Site
1-800-496-4143 Toll Free
412.315.7441 Office 
412.532.6805 Cell

Follow us on Twitter @frankwalkerlaw

Thursday, August 6, 2009

Preliminary Hearing

preliminary hearing

in criminal law, a hearing to determine if a person charged with a felony (a serious crime punishable by a term in the state prison) should be tried for the crime charged, based on whether there is some substantial evidence that he/she committed the crime.

A preliminary hearing is held in the lowest local court (municipal or police court), but only if the prosecutor has filed the charge without asking the Grand Jury for an indictment for the alleged crime. Such a hearing must be held within a few days after arraignment (presentation in court of the charges and the defendant's right to plead guilty or not guilty).

Since neither side wants to reveal its trial strategy, the prosecution normally presents only enough evidence and testimony to show the probability of guilt, and defendants often put on no evidence at all at the preliminary hearing, unless there is a strong chance of getting the charges dismissed. If the judge finds sufficient evidence to try the defendant, the case is sent to the appropriate court (variously called superior, county, district, common pleas) for trial.

If there is no such convincing evidence, the judge will dismiss the charges.

From the defense perspective, the preliminary hearing is one of the most important steps in the criminal justice process since you get an opportunity to hear the evidence against you, evaluate witnesses and effectively map out a strategy for your defense.

Pittsburgh Criminal Defense Attorney Frank Walker
FrankWalkerLaw.com
412.227.0290
412.401.1764

Wednesday, August 5, 2009

US Constitution - Bill of Rights - Tenth Amendment

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Pittsburgh Criminal Defense Attorney Frank Walker
FrankWalkerLaw.com
412.227.0290
412.401.1764

Tuesday, August 4, 2009

US Constitution - Bill of Rights - Ninth Amendment

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Pittsburgh Criminal Defense Attorney Frank Walker
FrankWalkerLaw.com
412.227.0290
412.401.1764

US Constitution - Bill of Rights - Eight Amendment

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Pittsburgh Criminal Defense Attorney Frank Walker
FrankWalkerLaw.com
412.227.0290
412.401.1764

Sunday, August 2, 2009

US Constitution - Bill of Rights - Seventh Amendment

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Pittsburgh Criminal Defense Attorney Frank Walker
FrankWalkerLaw.com
412.227.0290
412.401.1764

US Constitution - Bill of Rights - Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Pittsburgh Criminal Defense Attorney Frank Walker
FrankWalkerLaw.com
412.227.0290
412.401.1764

US Constitution - Bill of Rights - Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Pittsburgh Criminal Defense Attorney Frank Walker
FrankWalkerLaw.com
412.227.0290
412.401.1764

US Constitution - Bill of Rights - Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Pittsburgh Criminal Defense & Injury Attorney Frank Walker 
Pittsburgh Criminal Defense - Injury Site
Morgantown, West Virginia Criminal Defense Site
1-800-496-4143 Toll Free
412.315.7441 Office 
412.532.6805 Cell

Follow us on Twitter @frankwalkerlaw

Friday, July 31, 2009

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.



Pittsburgh Criminal Defense Attorney Frank Walker

FrankWalkerLaw.com

412.227.0290

412.401.1764

Thursday, July 30, 2009

Amendment II - US Constitution - Bill of Rights

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.



FrankWalkerLaw.com

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Amendment I - US Constitution - Bill of Rights

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.



FrankWalkerLaw.com

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412.401.1764

DNA is changing the way America fights crime, not its policies towards convicts

Crime and exoneration
Hidden evidence


A JUDGE can tell prospective jurors that in a criminal trial, unlike an episode of “CSI: Crime Scene Investigation”, scientific evidence is not necessary to secure a conviction, an appeals court in Baltimore ruled on July 7th. Quite right, too. The evidence submitted in real courts is often not as cut-and-dried as it seems on television. Yet the use of DNA to secure convictions is growing fast. The people not benefiting from this are those who may have been wrongfully convicted before DNA was routinely examined, and who are being denied access to evidence that could set them free.

Read the Rest of the article by clicking here...

FrankWalkerLaw.com

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Tuesday, July 28, 2009

Preamble to the United States Constitution

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.



FrankWalkerLaw.com

412.227.0290

412.401.1764

Pennsylvania Constitution - Article I - Security From Searches and Seizures

Section 8.

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed by the affiant.



FrankWalkerLaw.com

412.227.0290

412.401.1764

Monday, July 27, 2009

Pennsylvania Constitution - Article I - Freedom of Press and Speech; Libels

Section 7

The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever by made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury; and in all indictments for libels the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.



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Pennsylvania Constitution - Article I - Jury Trial

Section 6

Trial by jury shall be as heretofore, and the right thereof remain inviolate. The General assembly may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case. Furthermore, in criminal cases, the Commonwealth shall have the same right to trial by jury as does the accused.



FrankWalkerLaw.com

412.227.0290

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Pennsylvania Constitution - Article I - Elections

Section 5

Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.



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Pennsylvania Constitution - Article I - Religion

Section 4

No person who acknowledges the being of a God and a future state of rewards and punishments shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this Commonwealth.



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Religious Freedom - Pennsylvania Constitution - Article I

Section 3

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect or support any place of worship or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship.


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Political Powers - Article I

Section 2.
All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.



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Inherent Rights of Mankind

Section 1.

All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.



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Pennsylvania Constitution

WE, the people of the Commonwealth of Pennsylvania, grateful to Almighty God for the blessings of civil and religious liberty, and humbly invoking His guidance, do ordain and establish this Constitution.



FrankWalkerLaw.com

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Mentally Incompetent Inmate

Commonwealth v Sam, 952 A.2d 565 (Pa. 2008)­the Court, per Castille, C.J., holds that Art. I, section 8 of the Pennsylvania Constitution does not provide a greater right for a mentally incompetent inmate to refuse antipsychotic medication for the purpose of rendering the inmate competent to participate in post-sentencing proceedings than did the parallel federal right determined by the United States Supreme Court in Sell v. United States, 539 U.S. 166 (2003). Baer, J., joined by Todd, J., dissented.



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Sunday, July 26, 2009

New York Independent Source Doctrine

The Court of Appeals, in a case remarkably similar to that at bar, has clearly held that the inevitable discovery doctrine can never be used to allow the admission into evidence of contraband which was directly seized as the result of an illegal search. People v. Stith, 69 N.Y.2d 313, 319 (1987).

Moreover, a brief review of the history of this doctrine demonstrates why the People should not be allowed to resort to the Inevitable Discovery doctrine to "save" the illegally obtained evidence in this case.

A. The "Inevitable Discovery" Exception to the Exclusionary Rule does not apply here. The exclusionary rule has been applied in New York State, as elsewhere, to fulfill the twofold purpose of preserving the integrity of the judicial system and deterring illegal conduct by the police by excluding from use in Court as evidence property secured by the government in violation of an individual's constitutionally protected rights.

Exclusion of evidence is hoped to remove any incentive for law enforcement officials to employ illegal means to obtain evidence.

To achieve these ends, our federal courts, since Silverthorne Lumber Company v. United States, 251 U.S. 385 (1920), and the states, since Mapp v. Ohio, 367 U.S. 643 (1961), in addition to excluding the illegally obtained evidence itself, also refuse to admit any evidence derived from or found as a result of the improper conduct, labelling such derivative evidence the "fruit of the poisonous tree."

The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Silverthorne, 251 U.S. at 392.

Silverthorne allowed that if knowledge of derivative facts "is gained from an independent source they may be proved like any others ...." 251 U. S. at 392. It is from this "independent source" exception to the exclusionary rule that courts have found an "inevitable discovery" exception to the exclusionary rule.

It would be well to note at present two elementary features of the " independent source" doctrine which are important to a correct understanding of the "inevitable discovery" rule: first, it is not too simple to observe that the "independent source" "exception" is an exception to the exclusionary rule which applies to evidence derived from conduct unlawful under the Fourth, Fifth or Sixth Amendment; it is not an " exception" to the warrant requirement, the Fifth Amendment privilege, or the right to counsel. That is, the "independent source" rule is not concerned with justifying or excusing the primary intrusion.

Second, as a consequence, the "independent source" exception is not concerned with the admissibility of the primary evidence obtained in the wrongful intrusion, which is always suppressed, but with whether evidence derived from that unlawful intrusion or that primary evidence must also be suppressed.[ 1 Somewhat akin are the "purged taint" exception, Wong Sun v. United States, 371 U.S. 471, 488 (1963) and the "attenuation of taint" rule, Cf. U.S. v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054.]1

The New York Court of Appeals may be the first in the nation to have articulated the true "bright line" between a narrow "inevitable discovery" exception to the exclusionary rule and a broader loophole that would actually be an exception to the warrant requirement itself. Under New York law, the primary evidence obtained in an unlawful intrusion may not be used at all. Only evidence derived secondarily will be admitted if it was inevitable that evidence would have been found by lawful means anyway.

This is the only articulation of the rule which discourages evasion of the warrant mandate. People v. Stith, 69 N.Y. 2d 313, 514 N.Y.S. 2d 201 (1987).

Since the evidence sought to be offered in this case is the primary evidence that was seized by the trooper at the time of the stop of the vehicle and its unlawful search, the "inevitable discovery" exception provides no relief for the state from the application of the exclusionary rule.

The only legitimate route for the police to have obtained the evidence now sought to be entered would have been on an application for a warrant to search the vehicle, armed with the information that some white paper was seen in the door panel. Thus, this case is a clear example of how allowing the evidence in would circumvent the warrant requirement.

B. History of the inevitable discovery exception to the exclusionary rule. The history of the inevitable discovery exception leading up to Stith explains the rationale of that case and, simultaneously, the inapplicability to this case, at least under the New York constitution, of the inevitable discovery exception.

The first clear application of the "inevitable discovery" exception was in Somer v. U.S., 138 F.2d 790 (2nd Cir. 1943) where, although Judge Hand found that the primary evidence had been illegally procured, the derivative arrest of the accused could be upheld if the prosecution could show that the defendant would have been arrested without the illegally obtained information.

1. Primary vs. Secondary Evidence. The distinction between primary and derivative evidence has already been addressed, for it is elemental to the independent source exception. The primary evidence is, in this case, the controlled substances that were discovered and retrieved by the trooper when he unlawfully deviated from what has been argued as an inventory of the vehicle.

Neither the Supreme Court, Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501 (1984); Gilbert v. California, 388 U.S. 263, 272 (1967), nor the New York Court of Appeals, People v. Fitzpatrick, 32 N.Y.2d 499, 346 N.Y.S.2d 793 (1973); People v. Payton, 45 N.Y.2d 300, 408 N.Y.S.2d 395; People v. Knapp, 52 N.Y.2d 689, 439 N.Y.S.2d 871 (1981), had ever applied the "inevitable discovery" exception to primary evidence seized.

If the primary evidence could be admitted where it was shown that its discovery would have been "inevitable" without the unlawful conduct, the "inevitable discovery" exception would become an exception to the warrant requirement, or the right to counsel, or the Fifth Amendment privilege.



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Petition for Allowance of Appeal GRANTED

Commonwealth v. Henderson, C., Pet, No. 569 WAL 2008 Granted

Opinion By: per curiam
Posted By: W.D. Prothonotary

Date Rendered: 6/30/2009

Date Posted: 7/1/2009

Opinion Type: Petitions for Allowance of Appeal



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About the Pa Supreme Court

The Supreme Court of Pennsylvania is the highest court in the Commonwealth. It is also the oldest appellate court in the nation, dating to 1684. The court makes final interpretations of state law and has administrative authority over the entire Pennsylvania court system. Seven justices make up the court. They are elected to 10-year terms.

The longest-serving member of the court presides as chief justice. The court holds sessions in Philadelphia, Harrisburg and Pittsburgh.The Supreme Court receives about 2,500 civil and criminal appeals each year. It has the discretionary power to hear and decide only those cases that it deems to have statewide importance or to require clarification on a point of law. The court must review certain types of cases such as all death penalty cases and appeals from lawsuits that originate in Commonwealth Court.

The Supreme Court also can take up any case in any court in Pennsylvania if it considers an issue of immediate public importance to be at stake. When it does this, the court exercises one of two powers known as the "King's Bench" power or the power of "extraordinary jurisdiction."



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Pittsburgh Prepares for the G-20 Summit

Organizers say it's too early to tell how many local and international demonstrators will descend on Pittsburgh for September's G-20 summit, but they agree most protesters will arrive early, angry and stay that way. (Read Full Article)

Indeed, the city of Pittsburgh will be a media hotspot during the G-20 Summit in September.


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