If you are currently facing criminal charges you are undoubtedly experiencing a range of emotions, including worry and confusion. Unless you have been through a criminal prosecution before, you may not know exactly what to expect. You probably have a number of questions about the process in general and about your case in particular. Only an experienced Nebraska criminal defense attorney can answer specific questions about your case or provide you with individualized guidance and advice; however, you may be able to learn more about the process in general which will make you feel more empowered about your own defense and your future. For example, a common question asked by defendants is “Can a criminal defense attorney get evidence thrown out?
Gathering Evidence in a Criminal Case
In a criminal case there are numerous different types of evidence that can be used against a defendant, including things such as:
- Testimony by a victim or a witness
- Physical evidence such as a gun or drugs
- Bodily fluid evidence such as blood
- Ballistics evidence such as a spent shell casing
- Audio and video
- Test results such as the results of a breath test in a DUI case
- Documentary evidence such as receipts or ledgers
Just as there are a number of different types of evidence, there are also a number of different ways in which the police can gather that evidence. Sometimes they find the evidence on a suspect, sometimes they find it during a search and seizure, and sometimes they obtain it through interviews. The manner in which evidence was obtained will directly influence the likelihood that the evidence can be excluded, or “thrown out.”
How Is Evidence Excluded?
There are also a number of different grounds under which evidence might be excluded from a trial. Some common reasons why a judge might order that evidence be excluded include:
- Illegal search and seizure – for the police to conduct a search and seizure they must first obtain a warrant unless an exception to the warrant requirement applies. Unfortunately, a number of exceptions have been carved out for your person and your vehicle; however, your home remains fairly well protected by the warrant requirement. If the police failed to obtain a warrant, and your attorney can convince a judge that an exception does not apply, the search may be declared illegal and any evidence obtained during the search may be declared in admissible at trial.
- Break in the chain of custody – from the moment the police discover a piece of evidence its whereabouts must be accounted for up to the day of trial to ensure that the evidence is not become contaminated, lost, or tampered with prior to the trial. If the chain of custody is broken the evidence may be excluded.
- Violation of rights – you have a number of rights as an accused in the United States, such as your right to remain silent and your right to an attorney. If you exercise those rights and the police ignore them, any evidence obtained after that point may be excluded. For instance, if you ask for an attorney and the police ignore that request, anything you say after that point may be excluded.
- Excluded by rule – there are rules of criminal procedure that must be followed by everyone involved in the criminal prosecution process. Failure to follow rules could lead to exclusion of evidence from any subsequent trial.
Getting evidence “thrown out” is not something that occurs easily; yet, it does happen with some frequency. To find out if you can exclude evidence in your trial, talk to your Nebraska criminal defense attorney right away.
Contact Us
If you are currently facing criminal charges, it is certainly in your best interest to consult with an experienced Nebraska criminal defense attorney right away. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced criminal defense attorney.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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