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Have you ever heard a police officer or a law enforcement official say any of the following?:
1. You have the right to remain silent. 2. Anything that you say can, and will, be used against you in a court of law. 3. You have the right to have an attorney present. 4. If you cannot afford an attorney, one will be appointed for you. These four (4) statements are commonly referred to as your Miranda warnings or Miranda rights. Miranda warnings or Miranda rights come from the landmark U.S. Supreme Court case of Miranda v. Arizona. They essentially go hand-in-hand with your Fifth Amendment right against self-incrimination. The 5th Amendment states that no person "shall be compelled in any criminal case to be a witness against himself." Thus, as a safeguard of your 5th Amendment rights, law enforcement officials must give you Miranda warnings before any custodial interrogation of you. If you or someone you know was arrested in Louisiana, it is imperative that you have experienced legal counsel helping you. For support after a criminal arrest, the Louisiana criminal defense attorney at Law Offices of Philip B. Adams can help. But what does that mean? In layperson's terms, for your protection, law enforcement officials are required to give you Miranda warnings before questioning if you have been placed under arrest or your freedom has been deprived in any significant way. Notably, law enforcement officials are not required to give you Miranda warnings prior to questioning you if you are not under arrest or being detained in any significant way. Oftentimes, there is a thin line between custodial interrogation and non-custodial questioning by police. Therefore, if you are ever stopped or approached by a law enforcement agent and asked questions, it is prudent to ask if you are free to leave. If you are free to leave, you have the right to do so without answering any questions. If you are not free to leave, it is a good idea to ask for an attorney and wait to speak with one prior to deciding to answer any questions by law enforcement. Additionally, if someone in law enforcement ever reads you your Miranda warnings, it's a good idea to ask for an attorney if you haven't already. It's your right not to talk. Knowing your Miranda rights and, more critically, exercising your Miranda rights could save you from a lot of legal trouble. They say silence is golden, but in a criminal case, silence may be freedom. If you or a loved one is facing misdemeanor or felony charges and has questions regarding whether 5th Amendment rights were violated, you or that loved one should speak with an attorney immediately. Call a Louisiana Criminal Defense Attorney Today Facing criminal charges can be stressful and, at times, may seem to be a losing battle. But, having the right legal counsel can make all the difference in a criminal case. The Law Offices of Philip B. Adams are experienced Louisiana criminal defense lawyers and have handled many cases dealing with the 5th Amendment and seeming violations thereof. We are located in Shreveport, Louisiana, and we represent criminal clients throughout the state of Louisiana. If you want to learn more about our firm, you can check out our website or call us at 318-230-7199 to set up a consultation. We are here to help. Has an accident left you damaged? Another way to put it is, do you have a loss or injury for which you may be entitled to compensation? Ask yourself. Did I have an accident that I believe is someone else's fault? Was my car or property damaged in any way? Was I physically injured in an accident and had to receive medical treatment? If I was physically injured, did that injury cause me pain or suffering? Did the situation mentally or emotionally affect me? Did I need to seek treatment for the emotional damage through some form of therapy?
If you said "yes" to any of the above questions, you should consult an experienced personal injury lawyer because pursuant to Louisiana tort law, if someone has damaged you or your property and that person is at fault, that person can potentially be held liable for your damages and required to pay for them. Damages are a necessary element to recover for a personal injury case. The damages you can recover can take many forms, from property damage, medical bills, lost wages, pain and suffering, and more. Your damages directly impact the amount of your recovery. No damages mean you will not recover financial compensation. The Louisiana personal injury attorney Philip B. Adams explains how to recover financial compensation in a personal injury case. How Do I Determine What My Damages Are? Identifying your damages and assessing their value can be tricky because you are not always aware of the types of damages you can seek recovery for, which could result in obtaining a settlement that is not fair or appropriate for your losses. The court awards money for damages on a case-by-case basis because no two cases are alike. Thus, the types of damages that you may have must be assessed specifically based on your situation to determine the amount of recovery that you may be due, if any. An experienced lawyer can help you navigate your personal injury case and ensure you receive the recovery you deserve. We look at your circumstances and determine if you have compensatory damages which are meant to make you whole. If so, we work to determine how much those damages are worth. Also, we review your case and determine if punitive damages are a possibility. Punitive damages are meant to punish the liable party but are usually only available in rare instances. For example, punitive damages may arise if you were injured by a drunk driver. No doubt, accidents can cause property destruction, which will require repairs. As with any repairs, the right “repair person” can make all the difference. The lawyers at the Law Offices of Philip B. Adams, LLC have experienced personal injury attorneys with a nearly decade-long track record of fighting for accident victims and helping them repair their lives. Call A Louisiana Personal Injury Attorney Today If you, a friend, or a family member wants to know if you can sue for your damages, do not hesitate to contact the Law Offices of Philip B. Adams, LLC today! We represent clients throughout the state of Louisiana and assist all victims of injury accidents, no matter how big or small their case may be. To learn more about our firm, you can visit our website or call us at 318-230-7199 to set up a consultation with an experienced Louisiana personal injury lawyer. La. R.S. 14:91.5 is unconstitutional on its face because it violates the Free Speech Clause of the Louisiana Constitution (Article I, Section III) and the Free Speech Clause of the United States Constitution (First Amendment). La. R.S. 14:91.5 is a Louisiana statute still in effect that criminalizes the use of a social networking website by sex offenders. Even the First Amendment of the United States Constitution and Article I, Section III of the Louisiana Constitution both protect registered sex offenders in having the right to engage in public discourse and speech.
The statute at issue, La. R.S. 14:91.5, reads as follows: “§91.5. Unlawful use of a social networking website A. The following shall constitute unlawful use of a social networking website: (1) The intentional use of a social networking website by a person who is required to register as a sex offender and who was convicted of R.S. 14:81 (indecent behavior with juveniles), R.S. 14:81.1 (pornography involving juveniles), R.S. 14:81.3 (computer-aided solicitation of a minor), or R.S. 14:283 (video voyeurism) or was convicted of a sex offense as defined in R.S. 15:541 in which the victim of the sex offense was a minor. (2) The provisions of this Section shall also apply to any person convicted for an offense under the laws of another state, or military, territorial, foreign, tribal, or federal law which is equivalent to the offenses provided for in Paragraph (1) of this Subsection, unless the tribal court or foreign conviction was not obtained with sufficient safeguards for fundamental fairness and due process for the accused as provided by the federal guidelines adopted pursuant to the Adam Walsh Child Protection and Safety Act of 2006. B. For purposes of this Section: (1) "Minor" means a person under the age of eighteen years. (2)(a) "Social networking website" means an Internet website, the primary purpose of which is facilitating social interaction with other users of the website and has all of the following capabilities: (i) Allows users to create web pages or profiles about themselves that are available to the general public or to any other users. (ii) Offers a mechanism for communication among users. (b) "Social networking website" shall not include any of the following: (i) An Internet website that provides only one of the following services: photo-sharing, electronic mail, or instant messaging. (ii) An Internet website the primary purpose of which is the facilitation of commercial transactions involving goods or services between its members or visitors. (iii) An Internet website the primary purpose of which is the dissemination of news. (iv) An Internet website of a governmental entity. (3) "Use" shall mean to create a profile on a social networking website or to contact or attempt to contact other users of the social networking website. C.(1) Whoever commits the crime of unlawful use of a social networking website shall, upon a first conviction, be fined not more than ten thousand dollars and shall be imprisoned with hard labor for not more than ten years without benefit of parole, probation, or suspension of sentence. (2) Whoever commits the crime of unlawful use of a social networking website, upon a second or subsequent conviction, shall be fined not more than twenty thousand dollars and shall be imprisoned with hard labor for not less than five years nor more than twenty years without benefit of parole, probation, or suspension of sentence. Acts 2011, No. 26, §1; Acts 2012, No. 205, §1” In 2011, Louisiana enacted a statute making it a felony for a class of registered sex offenders to engage in “[t]he intentional use of a social networking website by a person who is required to register as a sex offender and who was convicted of R.S. 14:81 (indecent behavior with juveniles), R.S. 14:81.1 (pornography involving juveniles), R.S. 14:81.3 (computer-aided solicitation of a minor), or R.S. 14:283 (video voyeurism) or was convicted of a sex offense as defined in R.S. 15:541 in which the victim of the sex offense was a minor.” La. R.S. 14:91.5(A)(1). “Use” under the statute “[means] to create a profile on a social networking website or to contact or attempt to contact other users of the social networking website.” La. R.S. 14:91.5(B)(3). A “social networking website” is defined as “an Internet website, the primary purpose of which is facilitating social interactions with other users of the website” and meets two capabilities. First, the website must “[allow] users to create web pages or profiles about themselves that are available to the general public or to any other users.” La. R.S. 14:91.5(B)(2)(a)(i). Second, the website must “[offer] a mechanism for communication among users.” La. R.S. 14:91.5(B)(2)(a)(ii). The statute includes four exceptions. First, the statute does not reach websites that “[provide] only one of the following services: photo-sharing, electronic mail, or instant messaging.” La. R.S. 14:91.5(B)(2)(b)(i). Second, the statute does not reach websites for which “the primary purpose of which is the facilitation of commercial transactions involving goods or services between its members or visitors.” La. R.S. 14:91.5(B)(2)(b)(ii). Third, the statute does not reach websites for which “the primary purpose of which is the dissemination of news.” La. R.S. 14:91.5(B)(2)(b)(iii). Fourth, the statute does not reach websites “of a governmental entity.” La. R.S. 14:91.5(B)(2)(b)(iv). La. R.S. 14:95.1 punishes the “use” of a social networking website and arguably can be construed as punishing only conduct; however, the “use” of a social networking website like Facebook is almost always as a means of expression, as every Facebook user knows and as is common knowledge. Facebook users invariably comment and post on what other active users do as well as read content posted by others. In fact, the whole premise of Facebook is built around interaction with other “friends” and members of the public in an online forum. The same argument can be made about similar social media sites Instagram, Twitter, etc. Undoubtedly, La. R.S. 14:91.5 proscribes a substantial amount of constitutionally protected expression and conduct. “[T]he sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002). A legislature “may pass valid laws to protect children” and other victims of sexual assault “from abuse.” See id., at 245; accord, New York v. Ferber, U.S. 747, 757 (1982). However, the assertion of a valid governmental interest “cannot, in every context, be insulated from all constitutional protections.” Stanley v. Georgia, 394 U.S. 557, 563 (1969). It is well established that, as a general rule, the Government “may not suppress lawful speech as the means to suppress unlawful speech.” Ashcroft v. Free Speech Coalition, U.S., at 255. While enacted with good intentions, La. R.S. 14:95.1 invariably suppresses a substantial amount of lawful speech and conduct in an effort to suppress unlawful speech and conduct. In fact, La. R.S. 14:95.1 criminalizes in a blanket fashion all use of social networking websites by a certain class of sex offenders with no regard to the type of use. In doing so, La. R.S. 14:91.5 does not even purport to have a pretense of “narrow tailoring” of the statute’s prescribed conduct to the government’s legitimate interest in protecting children. The statute arbitrarily burdens all registered sex offenders within a class by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal. With one overbroad stroke, Louisiana prevents access and use to what for many people is a principal source for knowing current events, checking ads for employment, conducting business, speaking and listening, and otherwise exploring the vast realms of human thought and knowledge. Fortunately, although Louisiana Revised Statute 14:91.5 is still in effect, the United States Supreme Court has already addressed the crux of the issue presented in this blog post in a similar case. In Packingham v. North Carolina, 137 S.Ct. 1730, 198 L.Ed.2d 273 (2017), the United States Supreme Court unanimously reversed, in an 8-0 decision on First Amendment grounds, a conviction of a registered sex offender under a North Carolina law that made it a felony for a registered sex offender to access a commercial social networking web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal web pages. In Packingham, the petitioner was convicted for having used Facebook with no allegation that he used the website to facilitate the sexual abuse of any children or anyone for that matter. Id. La. R.S. 14:91.5 and the North Carolina statute at issue in Packingham are similar in so many ways that the same rationale employed in Packingham to strike down the North Carolina statute can easily be employed to strike down La. R.S. 14:95.1. If you or someone you know has been unlawfully arrested under La. R.S. 14:91.5, contact a competent attorney who understands the constitutional dimensions of La. R.S. 14:91.5 and can help you fight back against government overreach. Do not let your constitutional rights be violated. La. R.S. 14:81.4, Prohibited Sexual Conduct between an Educator and a Student, is arguably unconstitutional. Notably, this statute only criminalizes sexual conduct between an educator and a student of the age of consent. To the extent that La. R.S. 14:81.4 criminalizes the performance of private, consensual, non-commercial acts of sexual intimacy between individuals otherwise legally capable of consent, La. R.S. 14:81.4 is arguably unconstitutional.
Allow me to illustrate some of the ramifications of this law. Suppose Jane Doe is a student at School A, and Teacher Jack is a teacher at that same school. Teacher Jack is not a teacher of Jane and does not have any classes with Jane because she is only taught by other teachers at the same school. Jane is 20-years-old. Teacher Jack is also an adult who is 25-years-old and just graduated from college with a Bachelor’s degree and is teaching his first semester. Teacher Jack and Jane Doe somehow meet, develop a relationship, and eventually have sexual intercourse. Teacher Jack is never alleged to have used his position of trust or authority as a teacher to somehow coerce or exploit Jane into having intercourse with him. They are not even in the same classroom, and he does not teach her in any capacity at the school. Basically, the two individuals willingly and voluntarily engage in sex as consenting adults and have no other connection to each other aside from being at the same school. Eventually, someone finds out about the relationship and reports Teacher Jack for violating La. R.S. 14:81.4. Under the letter of the law, Jack has indeed violated La. R.S. 14:81.4. Jack is, therefore, arrested. He is distraught because he didn’t realize he was violating the law by engaging in a relationship with Jane, a 20-year-old of the age of consent who he does not even teach. To see why the law is violated in this context, one needs to only read the law. Keep in mind when reading the law that in Louisiana the age of seventeen is the “age of consent” for a person to legally be able to consent to sexual intercourse. La. R.S. 14:81.4, Prohibited Sexual Conduct between Educator and Student, reads as follows: “§81.4. Prohibited sexual conduct between educator and student A. Prohibited sexual conduct between an educator and a student is committed when any of the following occur: (1) An educator has sexual intercourse with a person who is seventeen years of age or older, but less than twenty-one years of age, where there is an age difference of greater than four years between the two persons, when the victim is not the spouse of the offender and is a student at the school where the educator is assigned, employed, or working at the time of the offense. (2) An educator commits any lewd or lascivious act upon a student or in the presence of a student who is seventeen years of age or older, but less than twenty-one years of age, where there is an age difference of greater than four years between the two persons, with the intention of gratifying the sexual desires of either person, when the victim is a student at the school in which the educator is assigned, employed, or working at the time of the offense. (3) An educator intentionally engages in the touching of the anus or genitals of a student seventeen years of age or older, but less than twenty-one years of age, where there is an age difference of greater than four years between the two persons, using any instrumentality or any part of the body of the educator, or the touching of the anus or genitals of the educator by a person seventeen years of age or older, but less than twenty-one years of age, where there is an age difference of greater than four years between the two persons, when the victim is a student at the school in which the educator is assigned, employed, or working at the time of the offense using any instrumentality or any part of the body of the student. B. As used in this Section: (1) ‘Educator’ means any administrator, coach, instructor, paraprofessional, student aide, teacher, or teacher aide at any public or private school, assigned, employed, or working at the school or school system where the victim is enrolled as a student on a full-time, part-time, or temporary basis. (2) ‘School’ means a public or nonpublic elementary or secondary school or learning institution which shall not include universities and colleges. (3) ‘Sexual intercourse’ means anal, oral, or vaginal sexual intercourse. Emission is not necessary, and penetration, however slight, is sufficient to complete the crime. (4) ‘Student’ includes students enrolled in a school who are seventeen years of age or older, but less than twenty-one years of age. C. The consent of a student, whether or not that student is seventeen years of age or older, shall not be a defense to any violation of this Section. D. Lack of knowledge of the student's age shall not be a defense. E.(1) Whoever violates the provisions of this Section shall be fined not more than one thousand dollars, or imprisoned for not more than six months, or both. (2) For a second or subsequent offense, an offender may be fined not more than five thousand dollars and shall be imprisoned, with or without hard labor, for not less than one year nor more than five years. F. Notwithstanding any claim of privileged communication, any educator having cause to believe that prohibited sexual conduct between an educator and student shall immediately report such conduct to a local or state law enforcement agency. G. No cause of action shall exist against any person who in good faith makes a report, cooperates in any investigation arising as a result of such report, or participates in judicial proceedings arising out of such report, and such persons shall have immunity from civil or criminal liability that otherwise might be incurred or imposed. This immunity shall not be extended to any person who makes a report known to be false or with reckless disregard for the truth of the report. H. In any action to establish damages against a defendant who has made a false report of prohibited sexual conduct between an educator and student, the plaintiff shall bear the burden of proving that the defendant who filed the false report knew the report was false or that the report was filed with reckless disregard for the truth of the report. A plaintiff who fails to meet the burden of proof set forth in this Subsection shall pay all court costs and attorney fees of the defendant. Acts 2007, No. 363, §1; Acts 2009, No. 210, §1, eff. Sept. 1, 2009.” Under the facts of Jack’s case, La. R.S. 14:81.4 is arguably unconstitutional on its face and unconstitutional as applied in that it (i) violates the vital interest in liberty protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution, (ii) violates the Fourteenth Amendment guarantee of equal protection of the laws embodied in the United States Constitution, and (iii) constitutes an infringement of the right to privacy embedded in the United States Constitution. While a detailed analysis of the unconstitutionality of La. R.S. 14:81.4 is beyond the scope of this blog due to the sheer length required to adequately explore this topic, if you or someone you know is charged with La. R.S. 14:81.4, don’t let your constitutional rights potentially be violated. Contact a competent, knowledgeable attorney for help. Author: Attorney Philip B. Adams The constitutionality of La. R.S 14:103A(2) is a nuanced issue that calls for considerable analysis. On its face, Louisiana Revised Statutes 14:103A(2) Disturbing the Peace (through use of profane words), as of 2022, reads as follows: “A. Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public: … (2) Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business, occupation, or duty; or … Amended by Acts 1960, No. 70, §1; Acts 1963, No. 93, §1; Acts 1968, No. 647, §1; Acts 1979, No. 222, §1; Acts 2006, No. 805, §1; Acts 2013, No. 30, §1, eff. May 29, 2013.” A statute (i.e., “law”) can be unconstitutional on its face (i.e., in its entirety) and/or unconstitutional as applied to the context of a particular person’s case. Louisiana Revised Statutes 14:103A(2) is arguably unconstitutional on its face and as applied. For the purpose of an “as applied” illustration, consider the following hypothetical fact pattern. Suppose a law enforcement officer is told by a person “You’re an asshole.” because that person is upset by something the officer did. That person doesn’t scream and yell these words in public. He simply mutters these words in a normal tone of voice in the presence of the officer. Enraged by what he perceives as an affront to his authority, the officer handcuffs the person for having violated Louisiana Revised Statutes 14:103A(2)(Disturbing the Peace Through Profane Words), thereby arresting him. That person is then transported to jail. Can that person be validly prosecuted under La. R.S. 14:103A(2)? In other words, is it constitutional to arrest an individual under such a fact pattern? Although each case is fact-specific, I do not believe it is constitutional to arrest someone under this fact pattern under this “as applied” analysis. A legal analysis as to why Louisiana Revised Statutes 14:103A(2) may be unconstitutional is detailed and considerable and beyond the scope of this blog article. The constitutional guarantee of freedom of speech forbids the States from punishing the use of words or language not within “narrowly limited classes of speech.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). Even as to such a class, however, because “the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn,” Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958), “(i)n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom,” Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. “Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” NAACP ‘ Button, supra, 371 U.S., at 433, 83 S.Ct., at 338. Great care must be taken in the regulation of spoken words to punish only classes of speech not protected by the First and Fourteenth Amendments to the United States Constitution, viz., “the lewd and obscene, the profane, the libelous and the insulting or ‘fighting’ words—those which by their very utterance inflict injury and tend to incite an immediate breach of the peace.” Chaplinski v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Only “fighting words-those which by their very utterance inflict injury and tend to incite an immediate breach of the peace,” are punishable. White v. Morris, 345 So.2d 461 (La.1977), citing Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Words not considered “fighting words” are constitutionally protected expressions. In addition, when such words are addressed to a police officer, the State must produce a stronger showing that the words are such as to incite the addressee to an immediate breach of the peace. City of New Orleans v. Lyons, 342 So.2d 196 (La.1977); Norrell v. City of Monroe, 375 So.2d 159 (La.App. 2d Cir.1979); White v. Morris, supra; State in Interest of W.B., 461 So.2d 366 (La.App. 2d Cir.1984). As found by the court in Lyons, supra, police officers are expected to exercise more restraint than others and insulting language is less likely to cause a breach of the peace and fall within the “fighting words” exception to protected speech. See also Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 972, 39 L.Ed.2d 214 (1974). The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. “Speech is often provocative and challenging.... [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131 (1949). As you can see from the above brief analysis, determining whether a law is unconstitutional in a criminal context is complex. This blog article would be significantly longer if a full analysis of Louisiana Revised Statutes 14:103A(2) were provided. Each case is fact-specific. If you or someone you know has been arrested for having violated Louisiana Revised Statutes 14:103A(2), that person needs to immediately hire a competent attorney to protect his or her First Amendment freedoms. You can visit our “Contact Us” link and contact attorney Philip B. Adams with the Law Offices of Philip B. Adams, LLC to schedule an initial consultation. DNA evidence routinely arises in Louisiana sexual assault cases, particularly in rape allegations. When consent is raised as a defense, the presence of DNA on the body of the accuser is expected and is consistent with consent. DNA test results do not prove that a rape or sexual assault occurred. Without additional facts, the presence of DNA on an accuser simply proves that the accused’s DNA somehow got on the accuser. Since DNA is easily transferred, it is important to attempt to find out why that DNA is found in a particular location. A DNA examiner cannot testify as to whether consent existed during a sexual encounter nor how that DNA got on a particular location. It’s possible DNA could be located on an accuser’s body without any direct contact between the accuser and accused because of a phenomenon known as secondary transfer of DNA. Only the accuser, the accused, and any other witnesses can possibly testify and provide additional details to help a jury determine whether consent existed and how the accused’s DNA got to a particular location.
In contrast with a consent case, if an accused denies having ever had a sexual encounter with an accuser, DNA can become a powerful tool for testing the truthfulness of such an assertion. If the accused’s DNA is found, for example, within an internal vaginal swab of the accuser, the accused’s defense may be refuted depending on the specific facts. Even still, a consent defense may not be refuted. For example, if the accused’s genitalia was touched by the accuser, and she engaged in vaginal stimulation, one might expect to find the accused’s DNA inside her even if the accused never physically engaged in penile penetration. If the accuser claimed penile penetration, the presence of DNA in her vagina would not potentially refute the accused’s defense unless the DNA present is coupled with identified semen and sperm indicating ejaculation or, perhaps, the presence of Prostate Specific Antigen (PSA), indicating ejaculation. But what if the accused told investigators that he ejaculated while being manually stimulated by the accuser’s hand; his semen got on her hand; and then she vaginally stimulated herself without wiping her hand? Assume also that the accuser claimed penile penetration. Then, one might still expect to find the accused’s DNA and semen inside the accuser’s vagina even if there was no penile penetration. The presence of DNA and semen would be consistent with both the account of the accuser and the accused in this scenario. As you can see, every case is highly fact-dependent. Under these scenarios, the presence of DNA alone would not prove that a rape or sexual assault occurred. DNA can only potentially be helpful in evaluating the credibility of witnesses in a sexual assault case. Often, far more than DNA is needed to determine who may be telling the truth in such a case. Consider also a case in which the accused’s DNA is only found on the clothing of the accuser even though she claims she was vaginally raped. Assume internal and external vaginal swabs were taken. A lack of DNA in this hypothetical from these vaginal swabs could potentially support an accused’s defense that he did not vaginally rape the accuser but rather was engaged in foreplay by rubbing the outside of her clothing with his hands and stopped when the accuser indicated she was uncomfortable with moving forward during a sexual encounter. In this case, one would expect to find DNA on the clothing if the accused is telling the truth or expect to find the presence of DNA on and/or within the accuser’s vagina if she is telling the truth. If only DNA is found on the clothing, it is likely that the accused is telling the truth. Even still, a lack of DNA on the accuser’s vagina would not necessarily refute her account. If the accused wore a condom, for instance, and non-consensually penetrated the accuser, it’s possible no DNA would be found inside her even though she is telling the truth about being penetrated. DNA’s discriminatory power is potentially enhanced when an accuser and an accused’s stories contradict one another, such as when one person claims consent and the other does not. On the other hand, when the defense claims consent, and the accuser claims rape or sexual assault, one expects to find the presence of DNA even though both claims are inconsistent. Additional factors, such as the consumption of alcohol or drugs, contradictory accounts, inconsistent behavior, the presence of injuries, etc., must also often be used with DNA forensics when assessing witness credibility in sexual assault cases. These cases often highly depend on witness credibility and are, thus, fact-intensive. To complicate matters, alcohol consumption by both parties is often involved in sexual assault allegations. To ensure you are not wrongfully convicted, it’s important to consult with a knowledgeable and informed Louisiana criminal defense lawyer if you face a Louisiana rape or sexual assault allegation in which DNA forensics are involved. Louisiana criminal cases, especially serious felonies such as homicides, rapes, armed robberies, and burglaries, often involve the use of DNA science. We’ve all heard the term “DNA”, but what does it mean? DNA is an acronym that stands for “Deoxyribonucleic Acid.” DNA is a biological polymer that can be transferred in heredity from one organism to another. Almost every cell in the human body has DNA present. One can think of DNA as being an instruction book for telling cells how to function, grow, replicate, etc. Although DNA science is incredibly complex and rapidly evolving as a subject matter, for purposes of this blog article, it is enough for the reader to understand that DNA is a hereditary material that is contained within almost every cell of an individual.
Because of its hereditary properties, DNA is remarkably useful in assisting forensic scientists in criminal investigations. DNA can be collected from blood, hair, skin, semen, etc. The power of DNA lies in its ability to show physical contact between a given person’s DNA and an object or scene. Although DNA is an incredibly useful investigative tool, it has serious limitations that are often not well understood or known by laypersons unfamiliar with DNA science. A simple example will suffice to demonstrate just one limitation of DNA. Many other limitations exist, but for now, one limitation–DNA transfer–will be discussed. Consider the simplified hypothetical that follows. You are Person A. Your hands contain skin cells, and each of those skin cells contain DNA within their nuclei. You are sweating after a long workout. While you were working out, the skin on your hands got abraded somewhat from tight gripping of the metal bar of the weights you were deadlifting. These abraded skin cells are barely hanging on to your hand and are ready to slough off at any moment, given the right circumstances. Right after your workout, your hands are a rich repository of your DNA, particularly within your sweat and skin cells. You finish your workout and shake hands with Person B. In the process of shaking hands, you transfer your sweat and skin cells to Person B. This action is referred to as primary or direct transfer. Person A’s DNA is directly transferred to Person B during the handshake. Person B now has Person A’s DNA on his hand. Person B does not wipe his hands, wash his hands, or take any other action to rid himself of Person A’s DNA. Person B leaves the presence of Person A. Within a half hour, Person B is somewhere else. Person B takes the same hand that was used to shake Person A’s hand and grabs a pistol out of the glovebox of his car. In grabbing the pistol, Person B has now transferred some of Person A’s sweat and skin cells to the grip and trigger of the pistol. This type of transfer is known as secondary transfer of DNA. Person B takes this same gun and then shoots and kills someone in a drive-by shooting. No one else sees Person B shoot. Person B tosses the gun to the ground. Law enforcement later arrive at the scene, recover the gun, swab it for DNA, and retrieve DNA from the gun. Shell casings recovered from the crime scene are also correlated with the barrel of the pistol. It turns out that Person A has a prior felony conviction for burglary, and Person A previously had to give a DNA sample when he was booked into jail years ago for the felony offense. Getting back to the hypothetical case, when law enforcement enter the unknown DNA from the gun into CODIS (Combined DNA Index System), the unknown DNA from the gun matches the DNA from Person A’s felony burglary conviction case. Law enforcement now believe that they know who the killer is. They believe Person A is the killer. No other DNA was recovered from the gun in a quantifiable amount, not even Person B’s DNA. Assume Person B’s DNA was on the gun since he was the actual killer, but the amount of DNA deposited by Person B is not quantifiable. In forensic science, if an insufficient amount of DNA is not deposited, when an analyst later arrives at a crime scene and swabs for possible DNA evidence, the amount picked up on the swab may not later be enough to biochemically amplify at a laboratory during the Polymerase Chain Reaction (afterwards, PCR) process. The PCR process is one stage of several stages that is necessary to “match” an unknown DNA profile to a known DNA profile. In this hypothetical, we know who the real killer is. The real killer is Person B. However, secondary transfer of DNA in this hypothetical makes it seem as if Person A is the killer when he is not only because Person A’s DNA was left behind in a quantifiable amount and Person B’s DNA was not. Why did Person B’s DNA not also transfer to the gun in a quantifiable amount? Shouldn’t there have been at least direct transfer of a sufficient amount of Person B’s DNA to the gun? An infinite number of variables can influence whether, and how much, DNA is transferred. Heat, light, grip pressure, angles, genetics, etc. can all influence whether, and how much, DNA is transferred. Some people even regularly shed more skin cells than others or sweat more than others, thereby leaving behind more potential DNA. For the purposes of this hypothetical, let’s assume that, for whatever reason, Person B’s DNA did not transfer to the gun in a quantifiable amount even though Person B pulled the trigger and actually touched the gun. We now have a situation in which Person A, an innocent person, can be brought into the criminal justice system because of an inherent limitation in DNA science that arises during secondary transfer. This risk is heightened if the law enforcement agency investigating the case misunderstands or misapplies the DNA results in this hypothetical. Innocent Person A could be charged with murder because it looks as if he is the killer when he is not. As the previous hypothetical just demonstrated, when encountering a Louisiana criminal case involving DNA science, it’s important to hire a competent legal professional who can meticulously examine all of the evidence to ensure that you are not wrongfully convicted of a crime. DNA evidence is much more limited in its usefulness than many people realize, and a skilled legal practitioner can expose its limitations to a judge and jury. Not all attorneys understand the science of DNA. If you are factually innocent and facing charges based on a misunderstanding or misapplication of DNA science by law enforcement, reach out to a skilled advocate who can fight to demonstrate your innocence so that you don’t become a statistic in the legal system. Louisiana law contains many legal “presumptions.” Several legal presumptions apply in the context of automobile cases. Preliminarily, what is a legal presumption? A legal presumption essentially relieves a litigant of the duty of proving negligence of the adverse party in a case. Basically, the other party is presumed to be at fault and must prove that he or she is not at fault to escape liability for someone else’s injury and rebut the legal presumption.
In a case involving a motorist who changes lanes and gets into an accident in Louisiana, a legal presumption applies that the driver who was changing lanes and got into an accident is presumed to be at fault in the accident. To avoid liability, the driver changing lanes must show that he or she acted reasonably and safely in changing lanes. For example, if a driver changes lanes and winds up side-swiping another vehicle in the adjacent lane while changing lanes, the driver changing lanes is most likely going to be presumed to be at fault. A reasonably prudent driver would not change lanes and wind up side-swiping another vehicle in the adjacent lane of travel. Had the driver in this hypothetical acted with sufficient caution, he or she would have seen the other vehicle in the adjacent lane and waited until the appropriate time to change lanes, avoiding a side-swipe collision. Whether fault will be assessed against you in a lane-change case is a fact-dependent inquiry. All facts in your case must be examined to determine who may be at fault in any given rear-end collision. If you are unsure as to whether you might be at fault, consult with a competent attorney for advice. For any automobile collision, prevention is best. No one wins when people get seriously hurt or, even worse, killed in an accident. How can you avoid causing a potentially nightmarish scenario? To minimize your chances of getting into a lane-change collision, exercise caution and pay attention to the movement patterns of nearby vehicles. Additionally, use your blinker everytime you change lanes to signal to other potentially unsuspecting motorists that you intend to change lanes. Sometimes, you may think you are clear to change lanes and not see another vehicle because of a blind spot, so it is best to maximize caution and use your blinker no matter what you think you know about the roadway conditions. You have nothing to lose but a second or two of your time in putting on your blinker. Not doing so could cost you thousands of dollars and high stress, however, if you get in an automobile accident, and you are at fault under the lane-change presumption. To facilitate your ability to pay attention when changing lanes, it is important to proactively avoid being distracted. Put away your cell phone before you even begin driving. Do not text message while driving. Text messaging can be as dangerous as drunk driving. If you must call, do so through the speakers in your vehicle to enable hands-free talking on the phone if you have that functionality. A collision can occur in a second or two of you looking down at a cell phone screen to send a text message. That “Lol” text may not be so funny later when an ambulance shows up to take you to a hospital. Even worse, the cost of that text may very well be your life and/or the lives of others. No text is so important that it cannot wait until you are off the road. Additionally, avoid consuming alcohol and/or drugs before and during driving. A night out at a bar may lead to some fun, but it will also lead to a ruined night if you later get in an accident while intoxicated. Drink responsibly and get an Uber ride if available, or have a friend take you home. Don’t ever drink and drive. In all of your conduct while driving, act with prudence. If you are the victim of a lane-change collision in Louisiana, hire a competent attorney to help you obtain compensation for your damages. Detailed, strategic, and compassionate advocacy can go a long way towards helping you when you need it most. If a business is responsible for your injury, you can take legal action. In Louisiana law, cases involving parties who are injured while on the premises of a business are referred to as “premises liability cases.” Fortunately, Louisiana law provides potential avenues for legal relief in such circumstances. Premises liability cases fall under personal injury law and are distinct from employment law issues. To illustrate the difference, take, for example, the issue of wrongful termination of an employee. This issue falls under employment law. On the other hand, some examples of situations that might fall under premises liability law are the following: slip and falls, glass or foreign objects in food that a customer eats at a restaurant, negligent hiring of an employee that leads to physical harm on a business’s premises (e.g., sex offender who later hurts, rapes, or molests someone in connection with the business), and sexual assault and battery by an employer on an employee on a business’s premises. If you are unsure what area of law your injury may fall under, a competent attorney can help clarify any uncertainty.
While premises liability cases are less common than the stereotypical automobile accident prevalent in personal injury law, premises liability cases are no less harmful. Take the stereotypical slip-and-fall case. Imagine an elderly grandmother walking into a grocery store. She is walking down an aisle with merchandise on both sides stacked all the way up to her eye level. As she is getting ready to round the corner on an aisle, unknown to her, clear laundry detergent has leaked to the floor. No warning sign is conspicuous. The laundry detergent has been on the floor for hours. The clear detergent is not easily recognizable to someone turning a corner down the aisle since it can’t be easily seen due to its opaque nature and because it is along the edge of the corner. This elderly grandmother slips and falls, cracking a hip bone. She later needs extensive surgery because her fracture is severe. As one can probably imagine from this example, slipping and falling on clear laundry detergent at a grocery store and cracking a hip bone can be dreadfully painful and debilitating. When you experience a premises liability injury, it is imperative that you seek immediate medical attention if necessary. The last thing you want is for your injury to become exacerbated because of inattention to the healing process. Once you receive initial medical attention, it’s important to continue to comply with all medically reasonable recommendations from your healthcare provider(s). Following this simple step can go a long way toward expediting your healing. If you are harmed by the negligent conduct of a business, know that you don’t have to face that business alone. It can be daunting to try to get compensation for your injury from a business with well-heeled lawyers and insurance companies. However, a fierce advocate can help level the playing field on your behalf. The law exists to hold everyone, even mighty corporations, accountable. The purpose of justice is not to show favoritism to the rich and powerful but to do the right thing regardless of who the parties may be. Since a significant portion of the Louisiana public has a record of an arrest or conviction, even if only a misdemeanor, expungements are widely applicable to the general population. An expungement is basically a legal mechanism under Louisiana criminal law for concealing a person's criminal record. Obviously, if you plead guilty to a crime, or you are found guilty in a court of law, you have a record of conviction. However, if you are merely arrested and not even later found guilty or plead guilty, you still have a record of arrest. Even if you are later found not guilty at trial, or the charge gets dismissed by the District Attorney, you will still have a record of arrest that can be easily accessed and possibly misconstrued by people who don't know the full details of your case. Saying all of this brings me to why you should get an expungement. In Louisiana, some benefits of an expungement are the following:
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