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Retracting a Burglary Charge

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  • 08-10-2010, 07:33 PM
    Softtouch
    Retracting a Burglary Charge
    Say a person said you broke into their house and then later says oh, I was mistaken, he didn't break in he had my permission to be there. There has already been an arrest, an indictment, etc. It is the State against the defendent. If the supposed victim decides he is not actually a victim will charges be dropped?
  • 08-10-2010, 09:13 PM
    aardvarc
    Re: Retracting a Burglary Charge
    Possible, although not likely. At least not without adding the possibly that the "victim", who would then have willfully and knowingly filed a false police report, could be facing criminal charges of their own. The criminal justice system isn't a game, and tax payers don't like their money wasted on reindeer games. If the DA has gone through the effort, they're going to want SOMEONE convicted.
  • 08-10-2010, 09:24 PM
    KeyWestDan
    Re: Retracting a Burglary Charge
    The victim said this to you, or to a third party?

    If the victim said it to you, it is worthless. You could also be charged with intimidating a witness for even talking to the victim. Let us hope that was not the case.

    If the victim said it to a third party, then perhaps your attorney can skip around the hearsay rule and get it introduced. Not likely though.

    Again, if the victim said it to you, it is worthless.

    The alleged victim needs to be deposed by your attorney and make the statement under oath.

    Anything else is meaningless.

    Is there physical evidence of a burglary or breakin? If not, then the obvious answer is you were invited in. If there is, then you have a struggle to prove it was not you.
  • 08-10-2010, 10:15 PM
    greenmancan
    Re: Retracting a Burglary Charge
    Quote:

    Possible, although not likely. At least not without adding the possibly that the "victim", who would then have willfully and knowingly filed a false police report, could be facing criminal charges of their own.

    If you have witnesses or proof that the person changed their mind that would be a possible defense.If you won the case they still may go after the "victim".
  • 08-10-2010, 10:31 PM
    cdwjava
    Re: Retracting a Burglary Charge
    Quote:

    Quoting Softtouch
    View Post
    Say a person said you broke into their house and then later says oh, I was mistaken, he didn't break in he had my permission to be there. There has already been an arrest, an indictment, etc. It is the State against the defendent. If the supposed victim decides he is not actually a victim will charges be dropped?

    The state may not believe the recanted statement, nor do they have to. The victim might choose to recant for any number of reasons - a sense of guilt for some reason, compassion, or fear of retaliation. Recanting does not mean the crime was not committed and that is what the state will look at. They will want to see if they can still make the case or not, and whether or not the reasons given for the recanted accusation make any sense.

    The defendant's attorney can certainly use that for plea leverage or as a defense at trial.
  • 08-10-2010, 10:55 PM
    KeyWestDan
    Re: Retracting a Burglary Charge
    Good points Cal Cop.

    Victims recanting in domestic violence cases seldom do the accused any good if there is other evidence, and often even if there isn't. The prosecutors half expect this to happen and proceed regardless.

    One final thought. Every crime usually has multiple elements and the state must prove all the elements of the crime beyond a reasonable doubt.

    Intent is often an element and sometimes can be the hardest to prove.

    Other times another element is lacking.

    I have seen any number of cases where the state can't prove a particular element and they conduct the trial like it doesn't even exist. I have seen any number of public defenders and court appointed attorneys sit through this without having a clue or objecting. Defendant's usually have no clue about the importance of jury instructions either.

    Lots of other little things can have an effect.

    Here in Florida if the defendant does not introduce any physical evidence, the defense counsel gets a rebuttal closing argument. If you introduce anything, then you lose it. So the value of the evidence has to be stacked up against getting the last word to the jury.
  • 08-10-2010, 11:07 PM
    greenmancan
    Re: Retracting a Burglary Charge
    If he was tried and acquitted using that defense and the witness remained somewhat reluctantly cooperative with the DA do you think they would be less likely to go after the victim?
  • 08-10-2010, 11:28 PM
    KeyWestDan
    Re: Retracting a Burglary Charge
    What is far better for the defense, is for the victim to be fully cooperative for the state under direct testimony and then to fall apart under the defense attorney's cross examination. This works even better if the witness has given a deposition that conflicts with the trial testimony in some way.

    The state will prep their witnesses and if a witness said something in a pre-trial deposition they don't like they will prep the witness to gloss over it or ignore it. A good defense attorney will pounce on that. I just love crossing hostile witnesses.

    Defense counsel can also ask questions that the state would never ask that would call into question the veracity of the witness before a jury, especially like getting into details the witness would not have thought of answers for if the testimony is perjured.

    It is like a loose thread on a piece of clothing. Pull at that thread long enough and the entire thing comes apart.

    I almost always go with a trial by jury if there is a viable defense except for really horrible crimes where the emotions of the jury would go against a valid defense. Don't do those though.

    But obviously you are not equipped to play lawyer. You are better off leaving it to the professionals.
  • 08-11-2010, 11:57 PM
    Softtouch
    Re: Retracting a Burglary Charge
    What if the only witness doesn't show up for court? What if it has been so long since the crime happened that the witness is fuzzy on what actually happened?
  • 08-12-2010, 12:16 AM
    cdwjava
    Re: Retracting a Burglary Charge
    Quote:

    Quoting Softtouch
    View Post
    What if the only witness doesn't show up for court?

    Then they can recess or continue the matter while the cops go pick him up on an arrest warrant.

    Quote:

    What if it has been so long since the crime happened that the witness is fuzzy on what actually happened?
    Then the DA can present him with the police report or a copy of his statement to refresh his memory.

    If the DA does it right, he will meet with the witness ahead of time.

    Uh ... you wouldn't be considering tampering with a witness, would you?
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