Example Of Affidavit Of Waiver Of Prosecution: Fill & Download for Free

Parties to litigation can ask that a court proceed to some extent in private, but there are specific requirements. FRCP 49.1(a) permits the redaction of certain private material, such as full social security numbers, or home addresses, or the names of minors, that could cause harm if available to the public But a person who files things with this information unredacted is deemed by subsection (h) to have waived the protection.There are a list of exemptions from that in subsection (b): “(b) Exemptions from the Redaction Requirement. The redaction requirement does not apply to the following:(1) a financial-account number or real property address that identifies the property allegedly subject to forfeiture in a forfeiture proceeding;(2) the record of an administrative or agency proceeding;(3) the official record of a state-court proceeding;(4) the record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed;(5) a filing covered by Rule 49.1(d);(6) a pro se filing in an action brought under 28 U.S.C. §§2241, 2254, or 2255;(7) a court filing that is related to a criminal matter or investigation and that is prepared before the filing of a criminal charge or is not filed as part of any docketed criminal case;(8) an arrest or search warrant; and(9) a charging document and an affidavit filed in support of any charging document.Subsection (f) permits a person making a redacted filing to file an unredacted version if the court seals the redacted version from public view.Subsection (d) of that rule permits filings to be made under seal whenever cause is shown. This can happen if the matter exposes particularly personal information, classified material, or proprietary information. The court can order this information unsealed at a later date if, again, cause is shown.All of this material is made available to the parties who can ask that material be sealed pending a hearing on whether the seal should remain or be dissolved. So you can see that material from filings is generally public absent a court order to the contrary, except that the parties and their lawyers have access to the information. This pretty much is restricted to civil cases, including divorces. The use of litigation to shame people in civil matters is pretty much restrained by this rule.But the contents of filings can become public through the parties themselves. I refer you to the current divorce cases of Johnny Depp and Amber Heard, where the parties have been saying ugly things about each other through publicly released statements used as weapons.Criminal cases are another thing. Criminal defendants and their lawyers have learned that, in an administration very interested in certain types of public approval, much benefit for the defense can be obtained by trying the case in the public forum. You need only think of the Roger Stone case where he has been putting out his version of events, while the prosecutors, who are bound by another set of rules, must remain silent even as their motives and actions become tools in political campaigns. Compare the president’s comments on Roger Stone with those he made about Michael Cohen. Stone has always had and kept a close relationship with the president, while Cohen broke with him and has accused him of crimes. The president, through Barr, is doing all he can to keep Stone from having to testify, while Cohen is left to the justice system. That is a hazardous course, as to Cohen, because he has already lost his law license through being convicted of a felony, and so has nothing to lose through a tell-all book. But that is a long-term threat, while the Stone case is a current one.I would not want to see any cases being tried in private because of the hazard to the parties themselves, and the wider hazard from unrestrained government. There have been instances of prosecutorial abuses in the past, and may be again. The biggest check on that is the effect on those folks’ careers of being found by a court to have abused the system of justice. That can only happen in the sunlight of an open democracy. Just look at the systems where a single family has total control, as in some Gulf states, or where a single political party has control without restraint, as in China. Public trials are an important check on that. The knowledge that an appeal would bring an unfavorable ruling, or even a judicial reprimand, helps keep things in accord with the laws. We see in Turkey, once a growing democracy, which is now ruled by a king-in-all-but name that the instruments of democracy are not as resilient as we’d hoped. When I was growing up, there were many veterans of WWII still active. These men had been trained to fight in groups, and were in their presences a hazard to tendencies toward overreach. But they are gone now, and many men, like the president, have no experience of fighting in the military. That, and the trend even now toward increased fighting digitally, has contributed to things like the destruction of labor unions and other organizations that might resist government overreach.I have experienced firsthand what happens when someone believes themselves out of the reach of the law. When I got a judgment against a guy who turned out to be a suspected serial killer, he was angry and I was ordered to have 24-hour protection for myself and my children while that was worked out. But he was smart and had to know that anything that happened to me (and his sister, who was my client) would be laid on him and he just wasn’t angry enough to want that to happen. Plus the arrangement she made with him included a waiver of any further action to enforce the judgment, so I was no further threat to him. And there may have been other terms of the siblings’ agreement to, since I was not a party to the negotiations. In that situation, exposure to public view kept me and my children alive.Then there is the example of the use in countries like Russia and China of secret trials and prosecutions. The political system has totally absorbed the judiciary in those countries, so people know better than to expect fairness from their government. And look at what has become of them - an entire society dedicated only to sustaining and expanding the power of the political elite. Public trials are one thing that has not fallen yet to any autocratic elite in the US. While it is not the only safeguard, for the individuals involved it is a very important safeguard and protection - the guarantee of a trial decision based upon admitted evidence and application of the law. With the appellate courts there to be sure that happens.

There is some variation between states on what exactly a “preliminary hearing” is. So there are multiple correct answers to this question.In Pennsylvania, a preliminary hearing is usually held in place of indictment proceedings—grand juries are rare. However, both preliminary hearing and indictment exist for the purpose of allowing or requiring the Commonwealth to adduce evidence sufficient to determine that a crime might have happened, which is antecedent to a criminal prosecution the same way that producing a legally viable complaint is to a civil case. A preliminary hearing is held before a magisterial district judge (this is the same class of official who hears small claims). The DJ may dismiss a case at the preliminary hearing stage, but this is quite rare, as the fact that the crime is alleged is ordinarily sufficient to bind it over for trial.Although both the preliminary hearing and trial will require proof of the charges, the standard of proof is radically different.At a preliminary hearing, the state need only present a prima facie¹ case—the question is “Is there something that the state or its witnesses can say that might establish that this crime happened?” Conflicts in the evidence and credibility are not relevant at this point. The defense may move to dismiss, but it can only prevail if there is a failure to show the elements² of the crime or that the defendant was involved at all.This standard of proof means that although a defendant (at least theoretically)³ may offer evidence contravening the prosecution’s version of events at the “prelim”, it is usually pointless to do so at this stage. In fact, most preliminary hearings are actually waived altogether, although occasionally a defendant will insist on a preliminary hearing because “I’m entitled to a hearing and I’m not going to waive anything” or in order for the defense attorney to eyeball the prosecution’s witnesses.⁴ ⁵At trial, of course, the state is held to the familiar “reasonable doubt” standard. The jury must evaluate the credibility of the Commonwealth’s evidence at this stage, even if the defense puts on no affirmative evidence of its own, and can reject the charges if they are not satisfied with the proof put forward, or if they find there to be reasonable doubt as to such proof.Notes:¹ This term means “at first blush” and means legally sufficient without weighing any contravening factors or defenses.² Although mens rea, or intent, is usually a required element, the Commonwealth is not expected to get inside the defendant’s head at this point, so it will normally be deemed a credibility issue as long as there is some evidence in support of all other required elements.³ The rules do say this. But I was PCRA counsel in a case once where apparently the DJ had refused to allow the defendant the right to call a witness in his own defense at the “prelim”, reasoning that there was no way that affirmative evidence from the defense could defeat the Commonwealth’s “probable cause” simply by bringing in more evidence. I raised this in an appeal, but the case ended up decided on other grounds. And generally, anything a DJ does is subject to de novo review by a common pleas court, so this issue isn’t subject to traditional appellate review and may never be clarified.⁴ We have local case law to the effect that if there is a legal issue such as “was this conduct actually within the legal definition of the crime”, you are required to present this at a prelim to avoid waiver. However, most substantive issues are normally preserved for trial with or without waiver.⁵ You do not want to waive when the charging officer is not competent to provide testimony as to the offense and an essential prosecution witness recants or fails to show up at the hearing—the prosecution’s low-ish burden notwithstanding, the presumption of innocence does apply and the state has to come up with competent evidence to support the charges. The officer’s testimony or affidavit may not be competent for this purpose, because some charges arise from a third party witness or a victim calling the cops, who only arrive after the fact. So, for example, charges arising from a domestic dispute where the cops were called after the fact will require the testimony of a complainant; charges arising from drunken driving, when the officer observed the offense and pulled the driver over, will not. The Commonwealth will usually withdraw charges if it discovers that such an essential witness is not available and no explanation for the absence has been furnished.

A preliminary hearing, in criminal practice, usually refers to a proceeding, done at or very near the outset of the case, where a magistrate or judge will examine the charges and the prosecution will be required to adduce some evidence to support the charges. Those italics are important, because the prosecution is not required, at this stage, to prove that the crime happened or that the defendant did it. All it is required to do is show that there is some sort of evidence, which, if believed by the jury later, would support the conclusion that the crime happened and that the defendant did it. However, the preliminary hearing court is not rendering any determination of guilt.The purpose of the preliminary hearing is to make sure that prosecutorial power is not abused to arbitrarily charge people with things that cannot be proven at all and to provide an expeditious way to short-circuit prosecution of charges that are wholly without factual merit, and as such is alternative to, but considered comparable in importance to the process of submitting charges to a grand jury for ratification—some independent authority is given the power to veto a prosecution that is insufficiently grounded in fact to justify submission to a petit jury.It’s analogous to the summary judgment process in a civil case. While unlike the preliminary hearing, summary judgment is (1) not automatic and (2) generally decided only on papers, the legal standard is essentially the same: if the plaintiff has provided a prima facie case in their affidavits and depositions so that there is some evidence, however thin, that supports each element of the case, then the case should be bound over for trial.But all the above said, any issues that go only to the weight of evidence, such as the credibility of the Commonwealth’s witnesses, are all-but-irrelevant, and the defendant’s positive evidence will also not normally be sufficient to dismiss charges at a preliminary hearing.Generally the only reasons a case will be dismissed at this stage are (1) at the sufferance or instance of the prosecution, (2) when a necessary witness fails to appear, or (3) if an argument can be made that the activity described in the charges does not actually amount to a crime. If none of these potential factors are applicable (which probably describes 95% of all cases), the defendant may choose to waive the hearing and allow the case to proceed to trial (or plea proceedings); there’s no penalty for doing so, because the prosecutor still has to prove the trial beyond a reasonable doubt at the trial. Often, waiving a preliminary hearing will be helpful in plea or bail negotiations; even without that, some defendants (or their attorneys) are just glad to have one less court proceeding to sit through.For example, take a relatively simple and commonly-encountered case: DUI. The elements of this case are (1) the defendant operated a motor vehicle (2) under the influence of alcohol or other intoxicants such that (3) either the defendant was incapable of operating the vehicle safely or was over a specified categorical limit. In this case, the charging officer and the complaining witness are the same—the officer who made the traffic stop would need to explain that they observed the defendant and that they determined (this can be done through lay observation, “Breathalyzer,” or blood test) that the defendant was likely intoxicated. If you are the defendant in this proceeding, and the charging officer is present in court, you’re likely going to want to waive the hearing. You already know pretty much what the officer will say. Your protestations that you just seemed drunk because you have naturally slurred speech or that the officer in question has a grudge against you because you were high school rivals won’t cause the charges to be dismissed, because credibility is a question for the jury. You will probably waive in this case (even if the officer isn’t present, courts will usually continue cases to permit police officers to be present).Now suppose the case is simple assault. The client is charged with being involved in a bar fight. Someone called the cops after the fight happened and the officer shows up after it has been broken up. The Commonwealth will need to call a witness other than the charging officer, who has only hearsay testimony to present, and you can object to this, preventing the state from showing corpus delicti. The complaining witness decides they do not want to follow through with the case and fails to appear without cause. You wouldn’t waive in this case, because the charges will probably go away if a hearing is held. (The prosecutor would actually likely move to withdraw without prejudice in this event.)Considering the simple assault case again: the witness has appeared, and the client asserts self-defence. You probably will want the client to waive. Self-defence is an affirmative defence in most states and involves credibility judgments in any event. The case will be bound over no matter what you say and you might want to not say more than you have to at this point.Lastly, suppose the charge is something like driving under a suspended licence. The cause of the suspension was an out-of-state conviction, and the other court directed the suspension as part of its judgment. The date of the offence was after the other court’s action but before the defendant’s DoT gave formal notice of the suspended licence. There could be a material question of law (not of fact; the date the driver was stopped and charged is not subject to reasonable question, nor is the other court’s judgment) based on your state’s law as to whether the suspension was, in fact, in effect, on the date of the offence. In this case, you may be required under local rules to present this defence at a preliminary hearing in order to preserve it for trial. Similarly, some courts may consider “suppression” issues at preliminary hearings. Issues such as First Amendment immunity could properly be raised at this stage as well. If such an issue is properly considered at the preliminary hearing, failure to raise it will be legal waiver later. So in that case, you wouldn’t waive.Needless to say, the inquiry into whether or not it’s advisable to waive a hearing is heavily dependent on local procedural law and the specific way in which the charges came about, and anyone who is facing a summons in a criminal case should seek local legal advice immediately.