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Tag: guilty

Should I intentionally botch my hair follicle test?

Would it be better to botch my hair follicle test so it reads nothing, or allow the judge and the world to see what I’ve been doing the last 6 months? 

First, learn the truth about hair follicle drug test accuracy. 

Second, reduced to its essence your question is, “Should I lie/deceive?” No, you should not. 

Third, when people try to lie and deceive to gain an advantage, those who are caught in their lies and deception cannot be trusted anymore, even when they tell the truth. 

See “The Boy Who Cried ‘Wolf’”https://etc.usf.edu/lit2go/35/aesops-fables/375/the-boy-who-cried-wolf/   

I know you don’t want to suffer for your wrongdoing. Few do. But it is part of the process of being accountable, responsible, and changing for the better. 

I know you fear (and with good reason) the punishment being excessive and unfair. But that doesn’t justify engaging in more wrongdoing. Two wrongs don’t make a right. 

If you are serious about being a responsible adult and changing for the better, you may, after conferring with a good (meaning not only a skilled but a decent) lawyer want to tell the court how you wrestled with this problem to show the court that you understand the difference between truth and lies, right and wrong, paying the price for one’s wrongs, and that you want no more and no less than for the punishment to fit the crime. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Would-it-be-better-to-botch-my-hair-follicle-test-so-it-reads-nothing-or-allow-the-judge-and-the-world-to-see-what-Ive-been-doing-the-last-6-months/answer/Eric-Johnson-311    

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Is there anything that can surprise a judge during a divorce proceeding?

Is there anything that can surprise a judge during a contested divorce proceeding?  

Of course.  

We’ve all read about cases where all of the circumstantial evidence indicated the defendant is guilty, only to be surprised in the eleventh hour some piece of evidence that conclusively proves he couldn’t be guilty, but that someone else is the perpetrator.  

We know, sadly, of people mistakenly or wrongfully convicted, which often comes as a surprise (because we hate the idea that the justice system can be and in such cases is corrupt at one or more levels): 

https://nypost.com/2021/12/01/alice-sebold-apologizes-to-man-wrongly-convicted-of-her-rape/  

https://innocenceproject.org/all-cases/ 

And we’ve all, unfortunately, learned of cases where the defendant was falsely accused, which surprises some. See: 

https://en.wikipedia.org/wiki/Duke_lacrosse_case 

Of course. I will describe one common way a judge can be surprised (especially in divorce and family law cases): like all of us, judges have their own worldviews based upon their individual personal experiences, what they were taught as they grew up, their own beliefs and biases. A good judge tries to be as aware as possible of these things, so that he/she will not take a subject approach to the case but will follow where the evidence leads according to what the law dictates.  

One of the things that many subjective-minded judges tend to do in divorce and child custody disputes is believe the woman/mother to be: 

  • honest 
  • the better parent of the two 
  • financially dependent on her husband 
  • under the husband’s explicit or implicit control (whether that be financially, emotionally/psychologically, physically, or both) 
    • victimized in some way (whether great or small) by the husband, if the wife claims to have been. Extremely common examples: “He controlled all the money, wouldn’t tell me how much/how little we had, and wouldn’t give me any to spend,” and/or “He forbade me from having a job,” and/or “He physically/sexually/emotionally abused me and/or the children,” and/or “He forced me to engage in sexual acts that I found objectionable/humiliating,” and/or “He never shared in the household chores and childrearing.” 

Don’t get me wrong; many wives/mothers are all of these things, but not always. But 25 years as a divorce and family lawyer I can tell you that in my experiences some judges presume the women to be some of these things simply by virtue of them being women, and if the wife/mother makes claims to being any of these things, the judge will often treat such claims as “prima facie” established until the husband/father refutes/rebuts them.  

Consequently, it often surprises some such judges when a husband/father proves* that, while he is not perfect: 

  • he is honest and/or the wife/mother has been lying about him or on the subject of other issues in the divorce and/or child custody case. 
  • he is either just as good a parent as his wife or the better parent of the two 
    • and if he proves he’s the better parent, that often comes as so big of a shock to some courts that the court cannot/will not bring itself to accept such a concept, let alone such a fact 
  • that if the wife/mother is in fact financially dependent on him (as many wives often are, though decreasingly so in modern society), he has been forthright and transparent about financial matters with his wife  
  • that he does not exercise any kind of force or control over his wife and/or children but is decent, loving, and treats all of his family members fairly and well 

*Getting over that bar is often extremely difficult, sometimes impossible for some husbands/fathers with some judges.  

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Is-there-anything-that-can-surprise-a-judge-during-a-contested-divorce-proceeding/answer/Eric-Johnson-311  

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As a lawyer, do you typically trust what your clients say?

As a lawyer, do you typically trust what your clients say?

I don’t represent people or causes in whom I don’t believe. That is not true of all attorneys, as many are aware. When it comes to prevailing in the court case, however, it does some, but little, good to trust what a client says because the courts try to base decisions not on matters of trust but on matters of proof. So whether I “trust” or believe my client, as an attorney I know I will almost always need more than my client’s word against the opposing party’s claim to prevail.

Fortunately, our standards of proof require (or are at least intended to require) more than “your word against mine.” That doesn’t always result in justice, however. I’ve represented people I believed were innocent but who looked guilty as sin. I’ve been approached by people who are guilty but whose story of innocence sounds more than plausible. Still standards such as “innocent until proven guilty” are obviously better than and spare more innocent people of false conviction than “guilty until proven innocent” and “preponderance of evidence” is far better than merely “your word against mine”.

Some lawyers don’t care whether their clients are trustworthy. These kinds of lawyers will represent a guilty client or a client who is undeserving of any court-conferred benefit. They justify doing so by making noble, lofty sounding but empty claims like “everyone has a right to legal representation,” as if mere “legal representation” is what’s needed and deserved when these attorneys are simply using and abusing the legal system for their own benefit and without thought of justice or faith in the rule of law.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/As-a-lawyer-do-you-typically-trust-what-your-clients-say/answer/Eric-Johnson-311

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In court cases, how does taking an oath make any difference?

In court cases, how does taking an oath make any difference?

From what I can tell, yes, it appears that taking an oath or affirming to tell the truth before being questioned as a witness in a legal proceeding (whether in court or whether the testimony is being given in relation to the court proceedings) does make a difference because lying under oath or affirmation is an element of the crime of perjury. No oath or affirmation, no perjury.

Lying without being under oath or affirmation can still be a crime or otherwise punished by law in other settings other than a court proceeding (for example, lying a law enforcement officer), so bear that in mind.

Clearly, the purpose of questioning a witness in a court proceeding is to gather factual and/or honest (truthful) information to help the court decide the case. Some information is factual, meaning it is not in dispute, it can be independently verified as true. Other information is “honest,” meaning that it may not be true but the witness believes what he or she is saying is true and is doing his/her best to testify as to what he/she remembers.

If one can be convicted of lying in court or in relation to court proceedings without having sworn an oath or affirmed to tell the truth I do not know of such a law (but that’s not to say such a law does not exist). Why one cannot be convicted of lying in court without having sworn an oath or affirmed to tell the truth I do not know.

I see no good reason why a law could simply be passed that any witness is guilty of perjury if the witness, when, after first being notified that the witness is questioned in the course of or in relation to the court proceedings, the witness makes a false statement of a material fact; and knowledge of the falsity made in a proceeding, or in relation to a matter, within the jurisdiction of the tribunal or officer before whom the proceeding was held or by whom the matter was considered.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/In-court-cases-how-does-taking-an-oath-make-any-difference/answer/Eric-Johnson-311?prompt_topic_bio=1

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What does a judge ask a child in a custody case?

In Utah (where I practice divorce and child custody law) the answer is: it’s almost impossible to say. Why?

  1. For reasons that I assert I can demonstrate are not highly rational*, the majority of judges are extremely reluctant to question children on the subject of the child custody award.
  2. Case files for child custody cases are classified as private and not accessible to the public, so unless the child is questioned in a public court proceeding (which happens so rarely one could honestly state that, statistically speaking, it never happens), we will never know (we can never know) what the child was asked or what the child said in response. Those judges who are willing to question children—as they are authorized by the Utah Code to do—almost never question children in public court proceedings but instead question them in chambers, although the questioning is conducted on the record and not covertly.
  3. The law gives judges the opportunity to avoid hearing directly from a child by instead appointing an attorney for the children known as a “guardian ad litem” and thus avoid ever actually hearing any testimony from the child’s own mouth by having the GAL claim to have spoken to the child, albeit not on the record (and thus there is no objectively verifiable way to confirm this), to have elicited from the child his/her experiences, observations, feelings, opinions, and desires (again, without there being any objectively verifiable way to confirm this) and then, based upon literally nothing that is objectively verifiable, make recommendations to the judge as to how the judge should rule on the issue of the child custody award.

*The ostensible reasons that most judges give for refusing to question children or allow children to be questioned by an attorney or attorneys are that they:

  1. A) fear that if parents find out what the child says, then the child may feel guilty for expressing a preference or preferences for one parent over another on particular subjects of parental abilities and fitness;
  2. B) fear that once parents discover what the child had to say the child may be punished or retaliated against if what the child said upsets or offends one or both parents; and/or
  3. C) conclude, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions.

Here is why I assert that such reasons are not rational:

1) First, parents are going to find out what a child thinks, feels, and wants with regard to child custody irrespective of whether the judge questions the child in court proceedings. Parents are going to learn of this (whether directly from the child or from his/her siblings, extended family members, friends, neighbors, teachers, counselors, coaches, ministers, etc.) before the child custody case is filed, during the pendency of the child custody case in court, at trial, and after the trial. It’s unavoidable. It’s inevitable. I submit that i) the belief that not questioning a child about his/her opinions and preferences regarding child custody will prevent the child’s parents from discovering those opinions and preferences, and ii) the believe that the only time and place in which the child will express such things is when questioned by the judge, is rather naive; it’s impossible to prevent parents from learning this information from and about the children.

Second, the value that many judges place on preventing children from feeling guilty or uncomfortable is misplaced. For two reasons. One, children who are going to feel guilty and uncomfortable about their child custody preferences, who are going to feel as though they are betraying a parent by expressing a preference for one over the other. are going to feel that way regardless of whether they express those preferences to the judge or a custody evaluator or a guardian ad litem (GAL). Two, getting to the truth about how children feel and why—when it comes to their child custody preferences—is far more important than sparing them from feeling guilty (especially when we already know they’re going to feel guilty regardless of whether they testify). Otherwise stated, preventing child testimony does no good: it protects the children from nothing, while denying the judge the clearest, purest sources of information about the children’s experiences, observations, feelings, opinions, and preferences as they relate to the child custody award.

2) If the judge believes that children will not be punished for expressing a preference for one parent over another, so long as those preferences are not expressed to the judge, again, that’s not rational either. It is impossible for a judge to prevent parents from learning a child’s feelings, opinions, and preferences regarding child custody. Thus it is impossible for a judge to prevent a parent who gets upset by those feelings, opinions and preferences from learning about them and from punishing and retaliating against his/her child once he/she learns of them. A judge can’t even mitigate the amount and severity of the retaliation and punishment because the judge is powerless to prevent the child’s feelings, opinions, and preferences from being discovered. And so once again, we find the court depriving itself of one of the clearest and purest sources of information and guidance on the subject of thee child custody award based upon a fear and a belief that has no rational basis. Closing one’s ears and eyes to what a child can say on the subject displays, frankly, a shocking disregard for the best interest of the child.

3) Concluding, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions. See self-fulfilling prophecy. While it is certainly true that some children may be, for various reasons (such as being too young to talk, too young to have a consistent and reliable understanding of right and wrong and truth and falsity, placed in circumstances that call the veracity or credibility of the child’s testimony into question from the outset, etc.), one sure way to guarantee that we never determine how informative, probative, and reliable a child’s testimony may be and what weight to give such testimony is to dispense with allowing the child to testify in the first place.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-does-a-judge-ask-a-child-in-a-custody-case/answer/Eric-Johnson-311

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Why do some lawyers settle for a plea bargain when they know their client is innocent?

Many different reasons, but here’s a good example of one reason: because there are times when being innocent may not result in the jury believing you are, in fact, innocent.

I had a client (some details of the story are changed out of respect for privacy) who caught his wife in bed with their neighbor. He and the neighbor were friends, and so he was welcome to enter his neighbor’s house without knocking. Somehow, this friend/neighbor must not have figured my client would come to the house without knocking on the day the neighbor and my client’s wife were in bed together, asleep. When my client rounded the corner and entered the bedroom, he screamed in anger and pain, “Heather*, you slut!” The neighbor, who’d been drinking, woke up startled and disoriented, thinking there was an intruder in his house and he charged my client trying to kill him (he didn’t know it was his friend). My client was caught off guard and was so scared he soiled his pants and took a swing at the attacking neighbor, breaking his jaw.

My client, who had never been in trouble with the law a day in his life, was charged with aggravated assault. I believed he was innocent. His wife, who witnessed the whole thing, believed he was innocent. Do you believe I could have gotten the jury to believe that a man who caught his wife in bed with another guy broke the guy’s jaw accidentally and/or in self-defense?

I didn’t either. Or more accurately, I didn’t think the odds were good enough to risk it.

Worse, if my client had been found guilty by the jury, he could have gone to prison for at least 5 years. That’s not just five years, but five years away from his wife (who he still loved and who still wanted to be with him) and their 2-year old daughter. And losing a job he loved and that paid well.

The prosecutor offered him a deal to plead to a lesser charge and to get 30 days in jail. It was a bird in the hand is worth two in the bush situation.

I told my client that if I were him, I wouldn’t risk going to prison for at least 5 years if I could plead guilty and serve only 30 days. He could serve the time and then go back to his family and job without skipping much of a beat, compared to 5 terrifying and miserable years in prison.

It wasn’t easy. He has a criminal record now. He’s a felon. He can’t vote or own or use a gun. But he’s a free man who spent 30 days away from his family and job and life instead of 5 years. Not an easy choice to make, but not the hardest to make, either.

This is a perfect example of one situation where I advised my client to take a plea deal.

*not her real name

https://www.quora.com/Why-do-some-lawyers-settle-for-a-plea-bargain-when-they-know-their-client-is-innocent/answer/Eric-Johnson-311

Utah Family Law, LC | divorceutah.com | 801-466-9277

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