Mental Competency Issues

Issues of mental competency are becoming more and more prevalent in the courtroom. While it has always been the elephant in the room in capital trials, it is starting to appear in minor criminal complaints. If your client may not pass the standard of mental competency to be held accountable or if you are trying to prove that the defendant is competent – you have an uphill battle on either side. The problem is that precedent for competency is subject to every evolving accepted medical standard. Ever petition for competency rulings has to approach the subject as if it is new.

Criminal Defense Law

The problem with the new Asperger’s defense trend

There have been more cases in the news where Asperger’s has been pointed towards as the competency factor for the defendant. While Asperger’s is a recognized disorder on the Autism Spectrum scale, the new DSM-V has redefined the qualifications for its diagnoses. Part of this stems from the “trendiness” of the diagnoses which resulted in many people with other social issues being labeled as having Asperger’s. There is more of a chance that the court may find that the diagnosis is supported, but the experts may present that it does not affect the mental competency of the client.

Making sure that your expert is right

After talking to Criminal Lawyers at Montoya Shaffer LLC, it’s evident you have to make sure that your expert is going to be seen as having the stronger evidence for a ruling in your favor when it comes to competency issues. It is also helpful to make sure that you have supporting witnesses who are in positions of authority that can document how the client was able/not able to meet requirements of a position or responsibility due to issues that support/combat a diagnosis of Asperger’s.

What to do when someone is high functioning

If the client is on the high functioning end of the Autism Spectrum it can be very hard to determine whether or not they are mentally competent. You have to clearly define phases of competency and relate them back to mental and emotional processing that result in cause and effect understanding. A client on the spectrum will not be able to internalize the cause and effect without structured repetition. If there is no challenge to the impact of their behavior, they may not meet the requirements for competency and culpability in a criminal matter. Before you approach mental competency, make sure you have a full understanding of the support and criticisms of the diagnosis.

Medical Malpractice Lawsuits In Florida

Florida personal injury laws apply to circumstances that warrant a medical malpractice lawsuit. These conditions occur when a medical professional produces an injury due to lack of training, misdiagnosis, failure to diagnose properly, or commits an act of malice. If you were the victim of any of these situations, you should hire a personal injury attorney to fight back.

Medical Malpractice in Florida

When a medical malpractice claim is filed in the state of Florida, the first order of business is a review by the hospital or governing board that runs the medical facility in which the injury occurred. This review results in a full-scale investigation into where an error was made or lapse in judgment on the doctor’s part. The board reviews the findings of this investigation and reports back to the court.Malpractice

Once the reasoning behind the injury is discovered, the medical review board contacts the victim’s personal injury attorney to offer a settlement, if the doctor was at fault. When this distinction is made, it is likely that the board will terminate the doctor or ask him or her to resign from their position within the medical facility. However, if the victim does not accept this settlement offer a court hearing or trial is scheduled.

In these cases, expert testimony is required to verify the events that occurred during the procedure or surgery in which the victim sustained the injury. This expert should have extensive experience in the medical field that relates to the treatment option acquired by the victim. The expert must also possess a valid license to practice, and at least ten years experience in this field.

Negligence or malice that is present in a medical malpractice case could lead to criminal charges. If it is proven that the medical professional utilized his or her position within the hospital to inflict an injury due to a personal agenda, this is a criminal act and is prosecuted through a criminal case. However, extensive evidence is required to support this accusation.

Victims of medical malpractice suffer not only physical injuries but also a stir in the foundation built on trust. Patients place their lives in the hands of doctors every day, and when this trust is broken it leaves a significant impact. If you were the victim of medical malpractice, you should contact Personal Injury Lawyers to establish your rights and prevent future injuries by the doctor you trusted.

Durability tests in the criminal field

Durability tests used to be something that was rarely an issue in the criminal law field. In recent years there have been more and more cases in the court that have hinged upon durability tests in order to prove the existence of any criminal activity at all. The question of which power of attorney was standing in the moment is going to become more and more important as time goes on.Criminal Law Defense

What is likely to happen?

As the nation’s population ages, more and more people are living longer and living in residential and assisted living complexes. A standard part of the application procedure is for the person to place a power of attorney on file that only becomes durable under conditions of diminished capacity. Where problems tend to occur is that the durability of the power of attorney is limited to the extent of the incapacity and the arrival of a deemed competent member of the family. This is when the struggle between who has the real power of attorney is going to complicate criminal proceedings. If you are looking at a case of fraud and financial abuse, or even medical negligence, the power of attorney that was durable at the time of the incident is what will be the deciding factor in whether or not a crime has been committed.

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The tangled web of “certified” specialists

Whether you are looking at a case in which someone is claiming to have exercised power of attorney as a certified senior advisor or a certified mental health advocate you have to be very aware of the grey area in which these two certifications exist. There is currently no standardized certification for a mental health advocate available. There is only one recognized certification for a certified senior advisor. There are many people who will lay claim to both titles as the process of standardization and certification is under development now. It will be criminal cases featuring a CSA (certified senior advisor) that you will most likely encounter. These are people who are charged with helping seniors with finances, healthcare and legal issues and many legal lines can be crossed during the course of their activity if they are not actually certified. With everyone involved in the chain of process and procedure revolving around a durability test you must make sure to backtrack the certifications and authorizations as are applicable in your jurisdiction. Get in touch with Lloyd Gastwirth, a Criminal Lawyer for more information on durability tests.

Criminal negligence in commercial real estate

Paths begin to cross in legal fields when there is an injury that occurs as a result of negligence on a commercial property. This isn’t about slip and fall claims, but about pursuing criminal negligence in everything from work related accidents to fire hazards and unsafe construction areas. If you are bringing a case of criminal negligence to court there are several things that you have to look at to make sure you have solid ground.

Look at the client

During your free consultation you can’t let the perception of a client’s pain and suffering, and desire for compensation blind you to the realities of the viability of the case. Review the insurance claims findings carefully. You are going to be looking for any indication that the client assumed liability for their bodily safety or property by entering onto the location. When you are looking at commercial leases, many now include a clause indemnifying the property owners from liability due to a clause requiring the rental business to carry their own insurance. This may severely limit the ability of the client to name the owner as a plaintiff in the case. You also want to make sure that there is reasonable claim after an injury settlement. The courts do not favor frivolous lawsuits, or lawsuits that are determined to be based out of greed.

Look at yourself

To prove criminal negligence you have to have the resources to conduct the appropriate investigation. This not only means time, but staff and equipment. One of the best experts to have on your side is an industry professional who can provide a qualified examination of the risk of the property. To do this you will need unbiased visual documentation at the most, and qualified witnesses to the condition of the property prior to the incident at the least. The goal is to make sure that you can create a visualization of the state before the incident. Trying to prove what a condition was like before it was repaired is going to be a hard sell without documentation.

Identity Theft Law

Bringing it all together

With criminal negligence you may be closing the door to a settlement and your client has to be prepared for that fact. If the business has a public reputation to preserve, the filing of the case may result in an invitation to the table. If there is no public façade, then they may be more inclined to meet in the courtroom. Get in touch with Immigration Lawyers or Criminal Lawyers for more info.

The Many Faces of Identity Theft

Identity Theft and Fraud are closely intertwined in the criminal justice system, and there is a push to criminalize a new form of theft and impersonation that is beginning to occur on the Internet. The main problem with these cases is that the precedent has yet to be set, and laws aren’t uniformly in place to determine the criminal culpability across jurisdiction. Many eyes are turning towards the evolving McCann case in the UK as the defining incident that will begin to define this area of criminal behavior.

The McCann Case

The Madeline McCann case in the UK has nothing to do with Identity Theft, Fraud or Impersonation – it has to do with an ongoing investigation into the disappearance of the young girl while on vacation with her family in Portugal. While the parents were investigated and cleared of any involvement by the police; many on the Internet have decided that they are guilty. The McCann’s have been attacked and threated online by the so-called “trolls” who rely on anonymity for their protection.

The Dossier

All of this began to change recently when the UK police were given a dossier of years’ worth of evidence documenting verbal threats on the Internet by the trolls. As they began to investigate and identify the persons behind each post it began to be a question of how they would be charged. In the states there have already been several tests cases where people using false names have stalked and harassed others online. In most of these cases there were criminal charges filed, some under Identity Theft laws and others under esoteric rulings about encouraging someone to take their own life. With the McCann’s there stands to be a new, global precedent set for how prosecutors can charge those who use false names and avatars to protect their identity while threatening and harassing people whose identity is known online.

Proving intent

In the cases the problem has always been proving the chain of events that shows intent that the harm become real. Online stalking and harassment is only now starting to be defined, and it will be years before the transfer of the regulations regarding restraining orders is translated to the digital environment. For now, all eyes are on the dossier and how the UK police will decide to charge those they discover have engaged in long-term harassment practices.

Defending against 3 Strikes in Jurisdictions it doesn’t exist

Laws and Justice

While California is infamous for its 3 strikes ruling, and the later backpedaling from its strict enforcement, it has set up a precedent that many jurisdictions across the nation follow without acknowledging that they do so. If your client is a habitual offender you are going to have to be nimble to avoid inheriting a 3 strikes mindset from the judge and jury.

How do you know if 3 strikes are present in the room?

The first tell-tale sign is if the prosecutor is advocating for the admission of prior convictions or arrests. You have to make sure that you file early motions to bar certain aspects of your client’s record from being admitted to prevent this. You also have to carefully examine your potential witness list to make sure that none of them are going to open the door to allow for questioning on prior activities. You can also tell if 3 strikes are on the list by doing your homework to look at the track record of the judge and prosecutor. Don’t look just for the judgments, but look at the defendant’s history that was facing them when stiffer penalties have been put in place.

Negotiating to a lesser charge

One of the best ways to defuse the 3 strikes mentality is to negotiate to a lesser charge before you even enter the courtroom. If you can get the prosecutor to accept a lesser charge and pleas you can create another path for your client’s history. It can be imperative that there is a gain to the plea, and that is most often achieved in cost and time savings. When that is not the case, find something for your client to offer.

Preparing an offer of rehabilitation

The second your client is released from custody they have to become involved in some kind of viable rehabilitation program. This can range from a 12 step support group to therapy to a structured residential program. The faster you can show that you client is taking steps to reform the more you will incline the court to leave room for continued change and improvement. If your client is determined to fight charges head on, make sure that they are very aware of the potential of a serious penalty being passed against them due to the repetitious nature of the offense. Creating a time frame for them to think about the possible outcome can be one of the best ways to get them to see reason.