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  1. #1
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    Mar 2020
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    Default Wrongful Conviction- and I'm the "Victim"

    My question involves criminal law for the state of: New York
    My boyfriend(now husband) was convicted of raping me, I wasn't/he didn't. Even though I told the DA that it never happened and they had no proof, they proceeded with the charges and won. (He was also charged with kidnapping, but was acquitted of that charge). Also worth noting that he was offered 6 months w/SHOCK, a very good offer compared to possible life in prison.

    The DA's main evidence was a police statement that the detective wrote, and I signed after days of drinking very(very) heavily. I tried to correct what he wrote, but was told it didn't matter/I could do it later. A few days later once I was finally given a copy of the statement, I read it and came forward right away to say that this did not happen.

    What ended up happening was that the DA took a little bit of truth and spun a completely false and disgusting narrative. A lot of which I have evidence of, but was ignored or "not allowed".

    There are so many details to this case, but I'm trying to keep it short.
    PS we're both in our 30's

    Any help, advice or questions are welcome.
    His appeal is coming up soon, within the next few months.

  2. #2
    Join Date
    Sep 2010
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    19,600

    Default Re: Wrongful Conviction- and I'm the "Victim"

    Presumably, he has an attorney now. Did he have one when he was initially tried. There's more to this than you are relating here. Your "written statement" wouldn't even be admissible on its own. It didn't convict him.

  3. #3
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    Mar 2020
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    Default Re: Wrongful Conviction- and I'm the "Victim"

    There is a lot more. The written statement (by the detective) was admissible b/c they held a Sirois hearing, in which I was declared legally unavailable. Meaning hearsay was allowed at trial.

  4. #4
    Join Date
    Sep 2005
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    California
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    20,594

    Default Re: Wrongful Conviction- and I'm the "Victim"

    On what grounds is he basing his appeal? Generally, there will be no new evidence (including testimony) permitted in an appeal. If you were allowed to take the stand and testify on your husband's behalf, then the jury apparently had the opportunity to weigh what you said and found it less than convincing. I suspect the prosecution presented some evidence indicating that a large number (some say as much as 75%) of DV victims recant or lie to protect their abuser, and this may have done some damage to any direct testimony you provided.

    Clearly you called the police about something, and you told them that you were sexually assaulted, and held or moved against your will. They didn't just make this tale up as a result of some rambling, inebriated tale about a boyfriend not relinquishing the TV remote or something. You said something, your then-boyfriend said something, witnesses heard or saw something, or physical evidence indicated that SOMETHING happened. If something did, then you may wish to speak to someone for help.

    At this point your husband needs to listen to his attorney. An appeal is based upon the record of the original trial and not new statements or thoughts, so at this point there's not much you can do except to abide by any orders that might be in place and provide emotional or financial support where possible.

    Quote Quoting lalafreed
    View Post
    There is a lot more. The written statement (by the detective) was admissible b/c they held a Sirois hearing, in which I was declared legally unavailable. Meaning hearsay was allowed at trial.
    WHY were you "legally unavailable"? You'd think that if you wanted to help your now husband you would have presented yourself at trial so you could testify.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  5. #5
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    Mar 2020
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    Default Re: Wrongful Conviction- and I'm the "Victim"

    I was available and did testify. Legally unavailable is a legal term, which gave the DA the ability to use hearsay.
    They didn't like that I "changed" my story.
    My story never included rape or kidnapping. That is what the detective decided to put in the statement.

  6. #6
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    California
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    Default Re: Wrongful Conviction- and I'm the "Victim"

    Quote Quoting lalafreed
    View Post
    I was available and did testify. Legally unavailable is a legal term, which gave the DA the ability to use hearsay.
    They didn't like that I "changed" my story.
    My story never included rape or kidnapping. That is what the detective decided to put in the statement.
    That doesn't make any sense to me ... there must be another term because "legally unavailable" doesn't cut it. You WERE available if you testified. I suspect they allowed your written statement in because you were accused of backpedaling on your original statement so they were permitted to admit your original statement in order to impeach your testimony. And, it seems, the jury found your current statement not credible if your boyfriend/husband was convicted.

    And, sorry, I see no reason at all for a detective making up a tale of rape and kidnapping out of whole cloth. Something you said led him in that direction. Apparently the jury agreed.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  7. #7
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    Mar 2013
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    17,783

    Default Re: Wrongful Conviction- and I'm the "Victim"

    Quote Quoting cdwjava
    View Post
    there must be another term because "legally unavailable" doesn't cut it.
    The term "legally unavailable" actually is appropriate. Apparently a NY thing as the cases that came up in a search for Sirois hearing were NY cases as was the original Sirois case in 1983 that gave rise to the term.

    In a later case, for example.

    "Given the complainant's sworn affidavit and the People's claims (including the People's additional claim that the complainant recanted her initial account of the assault), the People's motion requires the Court to determine, inter alia, whether a witness may be deemed "unavailable" for Sirois purposes when the witness is indeed physically available and intent upon testifying at defendant's trial, albeit to a version of events which completely differs from the version she told to numerous law enforcement officers and medical personnel soon after the alleged crimes." NY v. Turnquest 2012
    https://law.justia.com/cases/new-yor...-op-22019.html

  8. #8
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    Sep 2018
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    Ohio
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    380

    Default Re: Wrongful Conviction- and I'm the "Victim"

    Quote Quoting lalafreed
    View Post
    Legally unavailable is a legal term.
    Not exactly. UNavailable is simply the opposite of Available. The word is used I imagine in many legal citations/decisions. Example, if a person is out of the Country, they are UNavailable if their in person testimony is needed. Though you might read the phrase "Legally UNavailable" in a case, it is also equivalent to simply "UNavailable", it is not collectively a legal term.

  9. #9
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    Feb 2020
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    268

    Default Re: Wrongful Conviction- and I'm the "Victim"

    A Prosecutor will not drop charges if he thinks he will win in a courtroom. It has little do with whether he thinks a person is guilty or not. Same stands true for any trial attorney. Experienced litigators do not back down, they play the odds because they are trained fighters.

    If there is a big hole in an attorney's case, it is not for him to admit it or throw in the towel like he should. It for the other side to exploit it.

    In your case the prosecutor, in his mind, played his cards right because he won, which is all that matters to him. That alone makes your husband guilty, whether he was actually guilty or not. And the prosecutor can sleep like a baby.

    If I had to guess two things happened at your trial: The jury had a strong bias against wife beaters and rapists, and wanted an opportunity to lash out at (a perceived) one. And, your attorney was outmatched.

  10. #10
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    Mar 2013
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    Default Re: Wrongful Conviction- and I'm the "Victim"

    Quote Quoting RJR
    View Post
    Not exactly. UNavailable is simply the opposite of Available. The word is used I imagine in many legal citations/decisions. Example, if a person is out of the Country, they are UNavailable if their in person testimony is needed. Though you might read the phrase "Legally UNavailable" in a case, it is also equivalent to simply "UNavailable", it is not collectively a legal term.
    Legally unavailable is not the same as available.
    Legally blind is not the same as blind.
    Legally dead is not the same as dead.
    Legally liable is not the same as liable.
    Legally incompetent is not the same as incompetent.

    What do all those have in common? To be preceded by "legally" all those conditions require a court ruling except, perhaps, legally blind which has to meet government mandated standards in order to be eligible for government benefits.

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