Re: If You Are Innocent Until Proven Guilty
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Zeo
No the prosecutor is not responsible for maintaining impartiality or the presumption of innocence, but the court system, and the support systems are. the prosecutor however IS responsible for appropriately and cost effectively effectively deciding which cases are chargeable and should be pursued, and charging and pursuing ALL cases that are waiting on a single piece of evidence that all other evidence points to its not going to change the case significantly anyway, is defiantly a systematic tactic to try and get you to plead out for economic reasons.
That's a subjective interpretation. There is no way to codify what is sufficient to take to court and what is not without turning the entire system on its head and creating all new sources of appeals and arguments to delay the process even further.
The standard is "proof beyond a reasonable doubt." If you have a DA who is pursing cases with evidence beneath that standard, then it may be time to vote that DA out of office. In the meantime, the discretion is solely the DAs and attempting to codify in the law what might meet that standard or not is all but impossible.
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Only having ONE processing station for the entire state is Definitely ENCOURAGING that tactic, and judges putting up with it is encouraging it.
Which state is that? If RI, well, it IS a small state. We have counties in CA bigger than RI and we certainly do not have labs in every county in any case. Labs are expensive - VERY expensive. The economic downturn in 2008-09 gutted labs throughout the US. Your state may have also been effected by it. Almost half of the criminalists in my state were let go, and the entire narcotics bureau was eliminated as a result. They are just now beginning to recover.
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1. Pay jurors minimum wage, so they actually don't actively want to not be there.
Which jurors? Only the 12 and alternates (or 6, in those states where they allow 6 man juries)? All the potential jurors in the pool? Do you pay them for their actual time, or the entire day?
In way of example, in my county we would have 100-125 jurors called for selection. 80-90 might show up. Do they ALL get paid for the day? For a few hours? What?
And is this a true wage such that they will have to pay W-2s and be subject to the assorted rigors of employment? Or, as it is now, a per diem applied per day but based loosely on the minimum wage? In CA it's already nearly at minimum wage for jurors who actually are seated. But, if you add it for all the potential jurors, that'd be a nightmare.
And how would you pay for that? Leverage additional fines and fees on the defendants who lose (and often cannot pay the fines anyway)? Obviously additional taxes would have to be raised to pay for this. Any legislature and taxpayers will ask where the money will come from.
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2. Have funds set aside for the express purpose of covering court expenses, Have those funds put in escrow for reimbursement against valid charges a defendant files, and release them upon a determination of dismissal for any reason that is the states fault, or a not guilty verdict. Upon a guilty verdict of the charge necessitating the expenses, the state reclaims the funds immediately, and charges their normal court costs. (Ie again finding someone guilty of a traffic violation, when they were charged with DUI, still means the state has to pay, because the traffic violation would not have necessitated the expenses incurred. the fine and costs for the trafffic ticket wold be deducted from the re-imbersment of the expenses, because the accused already paid for it.)
That is easy to say, but with funds already gutted, what would you propose be cut in order to pay for these additional costs?
So, you are proposing that the court set aside funds to reimburse a defendant who is ultimately found not guilty?? Again, I ask, how would you propose paying for that?! Keep in mind that most defendants are incapable of paying their fines and the associated penalties, anyway. It's not like the state will be getting their money back any time soon. So, to pay for such a loser pays system, they'd have to raise massive additional taxes. The question would be, from where? From who? Clearly, it would be from you and me.
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3. Eliminate public defenders. You hire a lawyer of your choice, the state again puts money in escrow toward their fees, if you win he gets payed out of that, if you lose, you already payed the lawyer the same rate the state would have. This way you are guaranteed to get your money back if you win. This would encourage people to fight bogus charges, and encourage cops not to go hunting for minor borderline issues that are just people trying to live.
The Constitution guarantees representation. Sorry, but there will always have to be a public option.
How much it costs you or the state is not a consideration in a police investigation, so creating a system where the citizens are squeezed in a loser pay system wouldn't effect their actions.
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4. Judges and cops get burnt out so easily, and often forget what its like to be on the other end of the bench. ANYONE with the authority to arrest or put another person in jail/ prison, should have to randomly be subject to an arrest, and have to at least once every 2 years, spend a couple days in jail or prison to remind them of what they are doing.
Never would happen. Never! You can't put someone in jail for grins and giggles and for nothing. A novel idea, but would clearly NEVER happen.
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I am a firm believer of "If you don't personally know what the consequences are for your actions, you have no business forcing your actions on another person." (on that note, I also feel jurors who have never been arrested are not qualified to be jurors for sentencing purposes, they have no concept of what has already occurred to a defendant, or the results of their actions.)
Most jurors have never been arrested, so you'd eliminate most the jury pool right away. Those convicted of certain crimes and felonies would likely be disqualified during voir dire. You'd never get a jury!
I've never been shot, so would that mean I shouldn't carry a gun? I have never been to jail, never been arrested, and never been tossed to the ground fighting with a cop. Ours is not a system that requires you entirely understand what its like to be on the other side in order to enforce the law. This idea would be just as ludicrous as the one above about putting judges and cops in jail periodically.
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5. Either a charge is a minor charge or its not. A structure where minor charges can become major charges upon conviction is just plain stupid(specifically DUI, theft and electronic crimes.)
I'm not sure what this is about. The charges you face are the charges you face. A misdemeanor does not suddenly become a felony if you are convicted.
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6. Eliminate any three strikes system. This is common sense. If a charge is severe enough that you should get a life sentence, you should not give it 2 more chances to happen again. Same token, if a charge is minor enough to warrant being a minor misdemeanor the first 2 times, why the hell is it suddenly important enough to be a Class 5 Felony the third time?
In my state there is a ballot proposal that will effectively eliminate our already emasculated Three Strikes law. That is not to say that first time serious offenders are getting hefty sentences, they are being let out. Career criminal enhancements are disappearing here.
And many offenses become more serious if they are repeated because the people through the legislature has decided that they deserve to be more seriously punished if the offender failed to get a clue the first time or two - like DUI.
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7. Uniform legal enforcement. this is huge, it should not be that one locality has an assininly severe punishment for something that is totally no big deal in shouting distance, in the same state.
You mean uniform sentencing? Well, there are always mitigating factors and circumstances that can make two seemingly identically charged cases not so identical. But, you can move for mandatory minimums and strict sentencing guidelines if you want to push the legislature.
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These would goo a LOOOONg way toward making a system people trusted in. The ideal system you TRUST if you're guilty you will found such, and if you're not you won't be penalized for being innocent. Failing that, you trust that the punishment fits the crime if you have to serve it anyway. A lot of people forget that entering the Criminal justice system is the States Choice (usually via cop) and NOT yours when you are innocent. its not like you put the game cart int he Nintendo and then get mad when your character dies. Its I went outside to try and live my life, and I got yanked off the street and thrown into a slanted system that by appearances wants to keep me locked up.
No, these would go a long way to convoluting the system and adding expenses, processes and procedures that would likely serve only to lengthen the process and raise taxes, not streamline the process or provide any sweeping improvement.
Re: If You Are Innocent Until Proven Guilty
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cdwjava
Never would happen. Never! You can't put someone in jail for grins and giggles and for nothing. A novel idea, but would clearly NEVER happen.
Well, they do on "reality" shows. You couldn't put a judge or officer in jail unless you put them in solitary/administrative segregation/whatever your state calls it so they really wouldn't get a real jail experience. You put them in gen pop, sooner or later (probably less than 15 minutes after they get there) they are going to get killed by someone they put in there.
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cdwjava
I've never been shot, so would that mean I shouldn't carry a gun?
Funny story on that. One of our local police departments back in the 90's was not wanting to start carrying OC because of the requirement to get blasted with it as part of the training. They said the same thing. They did eventually decide to start carrying OC though, tasers too. I've done OC but I'm in no hurry to ride the lightning.
Re: If You Are Innocent Until Proven Guilty
Let’s make it clear how the principle “innocent until proven guilty” actually works in our legal system. That is a presumption that applies at trial. The defendant starts the trial presumed innocent and the state must convince the jury or judge that the defendant is guilty. It is not a presumption that is given by cops or prosecutors. It is a principle meant to ensure a fair trial for the defendant.
It is an odd thing, but part of the reason that criminal cases can cost as much as they do is precisely because the system has a lot of procedures and protections built into them to protect the defendant’s rights and to ensure (as much as possible) that the defendant is given proper due process.
At least some of the recommendations you suggest for changing the system will likely never be adopted. I would oppose some of them myself, and others I think simply would not work as you think they would. For example, paying me minimum wage as a juror would not make me any more happy to be juror than what the courts in my area pay now.
Re: If You Are Innocent Until Proven Guilty
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free9man
Well, they do on "reality" shows.
Yeah ... those are real "reality." <roll eyes>
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You couldn't put a judge or officer in jail unless you put them in solitary/administrative segregation/whatever your state calls it so they really wouldn't get a real jail experience. You put them in gen pop, sooner or later (probably less than 15 minutes after they get there) they are going to get killed by someone they put in there.
Yeah. And if they had to volunteer for that? Nope! I'd resign, first. Hell, this career is a pain in the ass enough right now. Add that to it? Nope!
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Funny story on that. One of our local police departments back in the 90's was not wanting to start carrying OC because of the requirement to get blasted with it as part of the training. They said the same thing. They did eventually decide to start carrying OC though, tasers too. I've done OC but I'm in no hurry to ride the lightning.
Out here you get juiced in the academy so that you can testify as to its effects on you, and learn whether or not it is a tool you can safely deploy without being incapacitated. Agencies vary on having to get gassed in-service. Many agencies also require that officers be zapped by a Taser as part of their initial certification (sometimes re-certification as well). While shooting them with darts is rarely done, they do get probes clamped on and activated. I've been both gassed and zapped.
Re: If You Are Innocent Until Proven Guilty
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cdwjava
That's a subjective interpretation. There is no way to codify what is sufficient to take to court and what is not without turning the entire system on its head and creating all new sources of appeals and arguments to delay the process even further.
The standard is "proof beyond a reasonable doubt." If you have a DA who is pursing cases with evidence beneath that standard, then it may be time to vote that DA out of office. In the meantime, the discretion is solely the DAs and attempting to codify in the law what might meet that standard or not is all but impossible.
Which state is that? If RI, well, it IS a small state. We have counties in CA bigger than RI and we certainly do not have labs in every county in any case. Labs are expensive - VERY expensive. The economic downturn in 2008-09 gutted labs throughout the US. Your state may have also been effected by it. Almost half of the criminalists in my state were let go, and the entire narcotics bureau was eliminated as a result. They are just now beginning to recover.
Which jurors? Only the 12 and alternates (or 6, in those states where they allow 6 man juries)? All the potential jurors in the pool? Do you pay them for their actual time, or the entire day?
In way of example, in my county we would have 100-125 jurors called for selection. 80-90 might show up. Do they ALL get paid for the day? For a few hours? What?
And is this a true wage such that they will have to pay W-2s and be subject to the assorted rigors of employment? Or, as it is now, a per diem applied per day but based loosely on the minimum wage? In CA it's already nearly at minimum wage for jurors who actually are seated. But, if you add it for all the potential jurors, that'd be a nightmare.
And how would you pay for that? Leverage additional fines and fees on the defendants who lose (and often cannot pay the fines anyway)? Obviously additional taxes would have to be raised to pay for this. Any legislature and taxpayers will ask where the money will come from.
That is easy to say, but with funds already gutted, what would you propose be cut in order to pay for these additional costs?
So, you are proposing that the court set aside funds to reimburse a defendant who is ultimately found not guilty?? Again, I ask, how would you propose paying for that?! Keep in mind that most defendants are incapable of paying their fines and the associated penalties, anyway. It's not like the state will be getting their money back any time soon. So, to pay for such a loser pays system, they'd have to raise massive additional taxes. The question would be, from where? From who? Clearly, it would be from you and me.
The Constitution guarantees representation. Sorry, but there will always have to be a public option.
How much it costs you or the state is not a consideration in a police investigation, so creating a system where the citizens are squeezed in a loser pay system wouldn't effect their actions.
Never would happen. Never! You can't put someone in jail for grins and giggles and for nothing. A novel idea, but would clearly NEVER happen.
Most jurors have never been arrested, so you'd eliminate most the jury pool right away. Those convicted of certain crimes and felonies would likely be disqualified during voir dire. You'd never get a jury!
I've never been shot, so would that mean I shouldn't carry a gun? I have never been to jail, never been arrested, and never been tossed to the ground fighting with a cop. Ours is not a system that requires you entirely understand what its like to be on the other side in order to enforce the law. This idea would be just as ludicrous as the one above about putting judges and cops in jail periodically.
I'm not sure what this is about. The charges you face are the charges you face. A misdemeanor does not suddenly become a felony if you are convicted.
In my state there is a ballot proposal that will effectively eliminate our already emasculated Three Strikes law. That is not to say that first time serious offenders are getting hefty sentences, they are being let out. Career criminal enhancements are disappearing here.
And many offenses become more serious if they are repeated because the people through the legislature has decided that they deserve to be more seriously punished if the offender failed to get a clue the first time or two - like DUI.
You mean uniform sentencing? Well, there are always mitigating factors and circumstances that can make two seemingly identically charged cases not so identical. But, you can move for mandatory minimums and strict sentencing guidelines if you want to push the legislature.
No, these would go a long way to convoluting the system and adding expenses, processes and procedures that would likely serve only to lengthen the process and raise taxes, not streamline the process or provide any sweeping improvement.
Allright: objection 1: A law stating that if a case would not normally be presented, and no substantial further evidence will ever be available, and the only evidence that is currently in process is not likely to change the status of the case and is known its not going to be available with in 90 days, then the prosecutor shall not press charges. This statue shall only apply internally to the functions of the state, and not be a general defense."
objection 2: Ohio, which is definitely large enough to warrant at least 2 crime labs, at least. Ideally, three Cleveland, Columbus, and Cincinnati.
objection 3: I don;t know ever state's jury pool. Buti do know that the ones I lived in, you rarely go more then one day at a time if not slected. (this is the jury pool) Alternates also usually are not required to be there for the entire case. Again THESE details are something for the state Legislator to work out, but I'd personally only pay that for a juoror that;s going to miss more then one day;s worth of work OR require their employer to pay the minimum wage for their jury time.(a proposal which has been greeted with fairly good response every time I;ve attempted o get it on the ballot, but I lack the resources to meet the qualification to make it a state ballot initiative(that is I need an advocate that resides in each of the 48 counties of Ohio, i;m not allowed to canvass the entire state myself or with 2-3 people)
I'll roll some of the others together. Loser pays all, defense attorneys, and taxes. First as I said the moeny would be held IN ESCROW, the state would not lose it till they lost the case(hence no recovery). again you;d hire what ever attorney you wanted, pay a small state mandated retained like they do for Probate lawyers and lots do for Public defenders ) and then they get their fee from the state when you win, no NEED for a PD, because every lawyer would be a PD effectively. the state is meeting the Constitutional requirement by guaranteeing you have a lawyer, they don;t need a PD to do that. the difference is this way YOU get to choose your lawyer, instead of the state choosing for you, and you get your money back.
Arresting cops and judges: If someone of the stuff my employers required me to do was legal, then if they agreed it was part of their job duties to submit to that training, then yes you can. Work at a state disability Center, you basically are agreeing to be arrested for anything the facility coordinate thinks you should be for.
I never said it would not result in a tax hike, but frankly right now the current system is being subsidized by the innocent accused.
as for juries never having been arrested, again only for sentencing. I would need to have much more clear understanding of sentencing to see how many cases that would affect, but in general it is my understand that a jury int his state only sentences upon request of the defense.
Re: If You Are Innocent Until Proven Guilty
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Zeo
I'll roll some of the others together. Loser pays all, defense attorneys, and taxes. First as I said the moeny would be held IN ESCROW, the state would not lose it till they lost the case(hence no recovery). again you;d hire what ever attorney you wanted, pay a small state mandated retained like they do for Probate lawyers and lots do for Public defenders ) and then they get their fee from the state when you win, no NEED for a PD, because every lawyer would be a PD effectively. the state is meeting the Constitutional requirement by guaranteeing you have a lawyer, they don;t need a PD to do that. the difference is this way YOU get to choose your lawyer, instead of the state choosing for you, and you get your money back.
The problem with this is that the state cannot afford to pay those lawyers their normal fees and most would balk at being paid less for their work. Everyone would be wanting the best there is and that gets real expensive, real quick. Some would hire the most expensive lawyer they could find, especially if they know they are innocent, just to stick it to the state for believing their evidence says the contrary.
You also get back to the fundamental problem with a loser pays system in criminal justice: Just because you are found not guilty doesn't necessarily mean you are not guilty, the state just failed to prove it's case beyond a reasonable doubt. So society should pay millions in dollars of attorneys fees for criminals who just out-foxed the system?
Re: If You Are Innocent Until Proven Guilty
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Zeo
Allright: objection 1: A law stating that if a case would normally be presented, and no substantial further evidence will ever be available, and the only evidence that is currently in process is not likely to change the status of the case and is known its not going to be available with in 90 days, then the prosecutor shall not press charges. This statue shall only apply internally to the functions of the state, and not be a general defense."
That's silly because it imposes a new statute of limitations that is much tighter than the current statute of limitations. As it stands, there are already laws that require a speedy trial once proceedings have been begun. If there is a continuance, it is because the defense has agreed to it. Otherwise, the state has whatever tiume frame the law already says in order to pursue criminal charges. A year, two years, more, whatever it is.
Additionally, WHO will decide what evidence is "substantial?" The defense? the prosecutor? A judge? Such a determination will also turn the system on its head and open up an entirely new avenue of motions, objections and defense delays as the defense will argue that a piece of evidence is not relevant and the sate will argue it is. Our system says that a trier of fact should make such a determination, NOT a judge.
This sort of rule will never come to be.
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objection 2: Ohio, which is definitely large enough to warrant at least 2 crime labs, at least. Ideally, three Cleveland, Columbus, and Cincinnati.
I suspect there are more than that in Ohio. They are limited by resources and need. One cannot arbitrarily state that there may be more or less. if you want more, once again you have to identify funding. I'm sure the state and many agencies would LOVE to have more criminalists. However, this is a significant ongoing expense.
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objection 3: I don;t know ever state's jury pool. Buti do know that the ones I lived in, you rarely go more then one day at a time if not slected. (this is the jury pool) Alternates also usually are not required to be there for the entire case. Again THESE details are something for the state Legislator to work out, but I'd personally only pay that for a juoror that;s going to miss more then one day;s worth of work OR require their employer to pay the minimum wage for their jury time.(a proposal which has been greeted with fairly good response every time I;ve attempted o get it on the ballot, but I lack the resources to meet the qualification to make it a state ballot initiative(that is I need an advocate that resides in each of the 48 counties of Ohio, i;m not allowed to canvass the entire state myself or with 2-3 people)
In CA many prospective jurors are unemployed, retired, state or federal employees, or self-employed. Therefore having an employer pay them minimum wage may not be viable and would not create any incentive to the juror.
Besides, a juror that doesn't want to be there is probably not going to suddenly be enthused for $65 even if the state pays it.
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I'll roll some of the others together. Loser pays all, defense attorneys, and taxes.
Ah, so the loser in a DUI case will pay ALL the court costs?? Really?? And, with so many defendants being indigent or lacking such resources ... hmmm ... that will still have to be paid for by the state.
And mandating that the state pays the defense costs? Again, another thought that would turn the system on its head, and cost a fortune. Cases can be lost even when the suspect is guilty as sin. I have been present in DV prosecutions where the victim/witness goes sideways (i.e. lies) and the defendant goes free. Not because the state lacks evidence (photos, statements in writing and recorded, blood, medical reports, etc.) but because the jury decided that the victim didn't want anything to do with the prosecution then why should they convict the abuser? In this situation, the abuser walks and is rewarded for his actions in spite of the evidence.
No, this won't happen, either. It would create a system where no one would ever get charged absent a confession because every case before a jury can be a roll of the dice.
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First as I said the moeny would be held IN ESCROW, the state would not lose it till they lost the case(hence no recovery). again you;d hire what ever attorney you wanted, pay a small state mandated retained like they do for Probate lawyers and lots do for Public defenders ) and then they get their fee from the state when you win, no NEED for a PD, because every lawyer would be a PD effectively. the state is meeting the Constitutional requirement by guaranteeing you have a lawyer, they don;t need a PD to do that. the difference is this way YOU get to choose your lawyer, instead of the state choosing for you, and you get your money back.
Transients, addicts, gang bangers, etc., have no money for an attorney. The state would have to provide one. There is no way a Constitutional Convention would be convened to get rid of this. But, these attorneys would have to consider that if their indigent client loses, they do not get paid at all ... hmmm ... how many private attorneys would be defending the indigent if that were to happen? And you'd have to build in wage and hour limits into any such legislation to prevent absurd billable hours at $500 per hour and the like.
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Arresting sops and judges: If someone of the stuff my employers required me to do was legal, then if they agreed it was part of their job duties to submit to that training, then yes you can. Work at a state disability Center, you basically are agreeing to be arrested for anything the facility coordinate thinks you should be for.
Yeah ... no. No judge or officer is going to agree to being locked up as a condition of employment. You think recruiting and retention of qualified personnel is tough today? Do this, and it would be damn near impossible!
Not to mention the very real security threats to these officers and judges while behind bars.
Another one that will never happen.
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I never said it would not result in a tax hike, but frankly right now the current system is being subsidized by the innocent accused.
Restitution rarely compensates for the costs. These suggestions you propose would be horrendously expensive and most agencies and states lack the funding right now for basic services - how would they justify all of this? But, I suppose if they laid off all the street cops, the resulting fewer cops and solved cases would naturally reduce caseloads and needs for trials.
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as for juries never having been arrested, again only for sentencing.
So, now you'd have to impanel TWO juries for every trial! 24 people?? One for the trial, and one for sentencing? Oy! And if we are paying all of them ... Double Oy!
Of course, in most states, the jury does not engage in the sentencing process, so that may be a moot issue anyway.
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I would need to have much more clear understanding of sentencing to see how many cases that would affect, but in general it is my understand that a jury int his state only sentences upon request of the defense.
I am not familiar with any state that allows a jury to set a sentence ... one may exist, but I am not familiar with it.
Re: If You Are Innocent Until Proven Guilty
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cdwjava
T
I suspect there are more than that in Ohio. They are limited by resources and need. One cannot arbitrarily state that there may be more or less. if you want more, once again you have to identify funding. I'm sure the state and many agencies would LOVE to have more criminalists. However, this is a significant ongoing expense.
My lawyer told me that the HWP only has one crime lab in the entire state, and this was confirmed by Patrol Literature.
Re: If You Are Innocent Until Proven Guilty
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Zeo
My lawyer told me that the HWP only has one crime lab in the entire state, and this was confirmed by Patrol Literature.
That's different than having too few labs, that means that they only contract with one. We're like that, too. Every county only uses one lab. Some counties have their own, others have to contract with another county, or, most often, the state DOJ. In the north state we have only one DOJ tox lab for drugs and one for alcohol - and they are 90 miles from each other. There are more than one lab, however. But, we're bigger than Ohio.
I'm sure if the state had the money, they could create a second lab. But, why pay for the infrastructure when you don't ave to. Two labs means dividing resources ... one means maximizing resources. The delay in the mail or shipping is minimal compared to a delay that may be caused by staffing or lack of materials.
Re: If You Are Innocent Until Proven Guilty
the delay is in testing. Pulling from the stats 19,158 DUI arrests so far this year. there is no way, even if testing only occurred in half of these, that that one lab can keep up with that !
http://statepatrol.ohio.gov/statistics/