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18 Jul
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Posted by Mollo Law Firm
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Can somebody explain me difference between proof and evidence in the legal english? As i understand it, proof has more abstract meaning, while evidence is more practical.
Re: proof and evidence
It is not really a difference of abstract versus practical. Evidence is a fact or situation that suggests something might be true. Proof is a fact or situation that removes all doubt. Sometimes more than one evidence can add up to proof.
Fingerprints are proof that a person touched something. If I find your jacket in my car, it is evidence that you were there, but not proof. If the police find lots of money in my house, it might be evidence that I robbed a bank. A videotape showing me at the bank holding the gun would prove that I robbed a bank.
Be wary of lax standards for proof. We all want to know things absolutely, which causes us to tend to misinterpret mere evidence as proof.
Proof comes from a premise or premisses and an argument. For instance:
(1) All cats have fur.
(2) Fluffy is a cat.
(3) If Fluffy is a cat, then Fluffy has fur.
(1) and (2) are premisses. (3) is an argument. If the premisses are true and the argument is reasonable, we have proof that Fluffy has fur.
The problem usually is trying to establish that your premisses are true. Events occur in time. To actually say that an event happened requires evidence of its occurance. Evidence can be eyewitness accounts and the current effects of the event’s occurance. For instance we may have:
(A) A live, furless cat with a collar bearing the name tag “Fluffy.”
(B) a pile of white curly hair near the cat.
(C) a hair clipper.
(D) a 10 year old boy with bleeding scratches all over his forearms. He denies having shaved the fur off the cat.
(E) a 7 year old girl who claims to have seen the boy shaving the fur off the the cat.
We might:
(F) finger print the boy. We lift finger prints off of the clipper. They match.
(G) call in a veterinarian. She says the scratches on the boy’s are are consistant with the scratches that the cat could have made.
(H) test the blood on the cat’s claws. The DNA of the blood on the cat’s claws matches the boy’s DNA.
(I) test the DNA of Cat. The DNA of the pile of curly hair on the floor matches the cat’s DNA.
Items (A) through (I) are evidence. But until someone puts together a logical, inductive argument using the evidence as premisses, there’s no proof that Fluffy ever had any fur or that the boy shaved it off.
| Category: Law FAQ's | Tag: abstract meaning, Al Mollo Esq., evidence, Mollo Law Firm, practical, Proof |
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15 Jul
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Posted by Mollo Law Firm
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A case of suspected homicide: A woman is missing. Her husband’s alibi for the time his wife disappeared can’t be corroborated. He admits having a girlfriend. A neighbor calls police to report recent digging in the backyard. When police arrive, the husband is packed and ready to go.
Do police have probable cause to arrest him or to obtain a warrant to search the home?
Probable cause is a reasonable belief, based on facts, that evidence of a particular crime will be found in a particular place to be searched, or that a particular person is responsible for a particular crime — in this case, homicide. “Mere suspicion” is not enough.
The husband’s behavior is merely suspicious. That his alibi can’t be confirmed and that he is involved with another woman do not establish reasonable factual grounds to believe that a crime has been committed, or to link him to it. But the third factor — the backyard digging — is sufficient grounds to get a warrant to search the yard. When the yard is dug up and the missing woman’s body or clothing is found, the hole is evidence of a crime, linked to the husband, and establishes probable cause for his arrest.
If — before the yard was excavated — the neighbor claimed that the day the wife disappeared, she saw the husband carrying a shovel to the backyard, visibility was good, and she sees reasonably well, then the facts show: 1) evidence linking the digging to a crime, and 2) evidence linking the husband to the digging and the crime. Probable cause to search and to arrest would exist even before the yard was excavated. If she’d seen him struggle with the weight of a large bundle or her dog dragged home a scarf belonging to the victim, the showing of probable cause would be even stronger.
The case of the suspected drug dealer: Police go to Bateman’s apartment to question him about a suspected drug deal. When the door opens, they see Bateman drop a marijuana pipe. While standing with him in the doorway, officers see other drug paraphernalia in the living room. An officer detects a strong odor of smoke. Officers ask if anyone else is in the apartment; Bateman says he doesn’t think so. Officers then hear a voice in the kitchen. An officer walks into the kitchen, finds it covered in smoke and soot, and sees a man he recognizes as a convicted drug dealer with an outstanding arrest warrant. After officers enter the apartment, they see a tobacco tin filled with what appears to be marijuana on the living room table.
Do officers have probable cause for a warrant to search the apartment for drugs? Yes. They saw a pipe and other paraphernalia. They smelled, then saw, evidence of cooking but no food, with a known drug dealer in the kitchen. These facts establish a reasonable belief that evidence of drug dealing will be found in the apartment.
Do officers have probable cause to arrest Bateman on the spot? Yes, for possession of marijuana. If possession of drug paraphernalia is illegal in that state, he can be arrested on that charge as well.
A search warrant was obtained and a meth lab found in a closet off the kitchen. Only then did officers have probable cause to arrest Batement for illegal manufacture of drugs.
(Facts adapted from State v. Bateman, 2004 MT 281, 323 Mont. 280, 99 P.3d 656.)
| Category: Law FAQ's | Tag: based on facts, crime, defendants rights, evidence, particular crime, probable cause, reasonable belief |
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15 Jul
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Posted by Mollo Law Firm
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The prosecutor and defense counsel may negotiate a plea agreement. Typically, the prosecutor agrees to recommend a specific sentence in exchange for the defendant’s agreement to plead guilty to some or all of the charges, or to lesser charges. In some cases, the prosecutor may agree to simply not oppose the defendant’s request for a particular sentence. But plea agreements are not binding on judges, and it’s not uncommon for a judge to reject an agreed-on recommendation and impose a stiffer sentence. Defendants are now advised, usually in writing, that a particular sentence is not guaranteed, and that the defendant may not withdraw the plea if the judge rejects the recommendation. Judges typically question defendants before accepting guilty pleas, and may refuse a plea if the defendant denies guilt or does not appear to understand the process. A judge may also refuse a plea if he or she believes the seriousness of the case does not warrant dismissed or reduced charges.
Some states require signed waivers or plea agreements. A typical agreement includes the defendant’s acknowledgment that:
– the plea is voluntary and is not the result of force, threats, or promises;
– defense counsel has explained the right to trial and the effect of waiving that right; and that he or she:
– is satisfied with the services of defense counsel, has been properly represented, and has had ample time to prepare a defense;
– is not suffering any emotional or mental disability and is not impaired by drugs, alcohol, or prescription medication; and
– fully understands what he or she is doing.
Many states allow a defendant to withdraw a plea before judgment is entered on a showing of “good cause,” such as the judge’s misstatement of the maximum sentence possible or the defendant’s lack of proper mental capacity. Pleas may be withdrawn after judgment if new, exculpatory evidence emerges.
While the public sometimes disparages plea agreements, agreements save time and money in a heavily-pressured judicial system. Prosecutors trade the risk of an acquittal for a certain conviction, and defendants exchange the risk of conviction for time and liberty. Some states limit the offenses in which agreements may be made. For example, New Jersey limits plea agreements in cases of driving under the influence of drugs or alcohol. Increasingly, victims are given a more active role in plea negotiations.
| Category: Law FAQ's | Tag: charges, guilty ple, lawyer, lesser charges, prosecutor, specific sentence |
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15 Jul
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Posted by Mollo Law Firm
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What is a deferred sentence? A judge has discretion to defer or postpone imposing sentence for a specified time, with conditions, in exchange for a guilty plea. Essentially, the judge reserves authority to impose a sentence. At the end of the deferral period, if the offender has met all conditions, charges are dismissed. In most states, the conviction becomes confidential information available to law enforcement and the courts, but not to the public. But if the offender fails to meet the conditions — e.g., commits another offense or fails to complete a treatment program — the judge may revoke the deferral and impose sentence.
Deferrals are usually limited to traffic offenses, misdemeanors, or first-time, nonviolent felonies. Actor Macauley Culkin received a deferred sentence and a fine for possession of anti-depressants without a prescription and marijuana.
What is a suspended sentence? A judge may impose sentence but suspend a portion, e.g., a ten year sentence with all but two years suspended. The offender must serve the two years, although in many state systems, time served can be reduced for good behavior. During the suspended period, the offender remains on supervised probation, with conditions. The judge may reimpose the rest of the sentence if the offender violates the terms of his release and probation. The time suspended hangs over his or her head, as an incentive, until the full sentence expires.
Conditions may include limited jail time, work release, payment of court costs, a fine, or restitution, treatment, community service, house arrest, or other terms aimed at rehabilitating the offender while protecting the victim and society.
Revocation and resentencing: If a condition is violated, the prosecutor where the case was originally handled files a petition to revoke the deferred or suspended sentence. Where possible, the case returns to the sentencing judge. The judge schedules a revocation hearing to determine whether the conditions were violated. The prosecutor’s burden of proof is usually “by clear and convincing evidence,” a lower standard than “beyond a reasonable doubt,” the standard for conviction. If a violation is found, the judge may continue the original sentence, modify the conditions of release, impose a sentence where sentencing was deferred, or impose all or part of a suspended sentence.
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15 Jul
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Posted by Mollo Law Firm
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When a person is convicted of multiple offenses, the judge must impose sentence for each offense. The judge may require the sentences to be served concurrently, meaning at the same time, or consecutively, one after the other.
The factors a judge considers:
– Did the offenses arise from the same conduct? Concurrent sentences are typically imposed on offenses arising from the same incident, where the defendant’s actions violate multiple statutes. Example: a woman convicted of theft by forging her employer’s signature on a check is also convicted of forgery for the same act. Concurrent sentences are likely.
– Did the defendant intend to commit separate crimes? Say our forger then then destroyed a bank letter inquiring into the resulting overdraft. In covering up her theft by forgery, she committed a second crime, mail destruction. Consecutive sentences are likely.
– Was the defendant previously sentenced, in any court, to a sentence not yet completed? If she was on probation for a previous forgery — or an unrelated crime, such as assault — consecutive sentences are likely. In addition, her probation will be revoked, requiring her to complete her prior sentence.
– Were multiple incidents committed against the same victim? If our embezzler forged multiple checks over a period of months, she clearly had time to contemplate her actions and stop her criminal behavior. Again, consecutive sentences are likely.
Particulars vary from state to state. Some states mandate consecutive sentences for certain offenses, e.g., DUI and vehicular homicide (or any crime charged as the result of a death or injury the defendant caused while intoxicated). This is a legislative expression of public policy, based on the seriousness of the crimes. As always, the nature of the crime, the impact on the victim and community, and the defendant’s criminal history are major considerations.
And, as in any two-for-one deal, the higher sentence controls. Thus, if a two-year and a five-year sentence are imposed concurrently, the defendant remains subject to state control for five years.
Life sentences may be consecutive, and a sentence for another offense may be consecutive to a life sentence. This reflects a policy of imposing the sentence appropriate to the crime, regardless of the likelihood of the defendant actually serving it. In addition, such sentencing serves the philosophical roles discussed in an earlier column of rehabilitation, retribution, and deterrence.
| Category: Law FAQ's | Tag: concurrently, consecutively, convicted, judge, sentence, seperate crimes |
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15 Jul
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Posted by Mollo Law Firm
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Yes, but very young children must first be found competent to testify. In Idaho, Joseph Duncan was set to stand trial for murdering a woman, her boyfriend, and her teenage son, and kidnaping her two younger children for sex; he later killed the younger boy but was captured in Montana with the girl, who is now nine. Idaho law requires a judge to interview privately any child under ten to determine competency. Days before trial, the judge found the girl competent to testify.
Some states establish competency review requirements by statute, while others rely on case law. Most states require that witnesses under ten be interviewed to determine their competency, either before trial or during trial but outside the presence of the jury. Older children’s competency may also be challenged, if the lawyer opposing the testimony files a motion asking the court to determine competency. In the Duncan case, the nine year old is the only living witness to a triple homicide; the judge determined her competency before trial because of the potential effect on plea discussions and trial if she were unable to testify.
The issue in determining competency is whether the minor witness has the ability to 1) understand the obligation to tell the truth, and 2) to accurately relate events seen, heard, or experienced. (The same rules apply to adult witnesses whose mental capacity is in question.) Those criteria are broken down further into these elements:
• Capacity to observe.
• Sufficient intelligence.
• Adequate memory.
• Ability to communicate.
• Awareness of the difference between truth and falsehood.
• Appreciation of the obligation to tell the truth in court. Judges are trained to use age-appropriate terms and measures. A young child may say that if she lies she’ll be punished, or if he doesn’t tell the truth, God won’t love him any more. In most cases, that’s enough.
In Washington State, a three year old was allowed to testify about abuse that occurred when she was two, because she met the basic criteria for competence as to the subject of her testimony. Obviously, she could not be asked more complex questions that a seven or ten year old could understand and respond to, but she demonstrated her understanding of the difference between the truth and a lie, and the importance of telling the truth; the judge concluded that she had the necessary ability to observe and communicate what had happened to her. However, it’s entirely possible that another three year old or an older child might not be found competent.
When a child is unable to testify, their prior statements to parents, counselors, doctors, or law enforcement may be admissible at trial under some circumstances. I’ll look at that issue in another column.
As a direct result of the Idaho court’s competency decision in Duncan’s case, on the day jury selection was scheduled to begin, Duncan pled guilty in state court to three charges of first degree homicide and three charges of first degree kidnaping. He was immediately sentenced to life in prison without parole on the kidnaping charges. Federal prosecutors plan to try him on additional kidnaping and homicide charges for taking the two young children to Montana where he molested both and killed the boy. If he is not sentenced to death on the federal charges, Idaho may still seek the death penalty on the Idaho homicides. Duncan said he wanted to spare the family and community any more pain. It’s unlikely that he would have pled guilty without the nine year old’s testimony. Two other states are still considering charges for unrelated crimes.
The possibility that a child will testify can add a lot of drama and tension to a case. You can use that possibility, the competency evaluation, and the trial testimony to complicate your plot and add layers to your story.
| Category: Law FAQ's | Tag: Al Mollo Esq., case law, children, competency, jury, Mollo Law Firm, stat laws, testify |
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15 Jul
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Posted by Mollo Law Firm
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Direct evidence is testimony or physical evidence of a fact. Circumstantial evidence is evidence of one fact that leads to an inference or presumption. For example, Clete Purcel testifies that he saw the mobster take a shot at Dave Robicheaux. That’s direct evidence. But if Clete testifies that he watched Dave enter the mobster’s office and a few minutes later, heard a shot, went in, and found the mobster standing over Dave with a gun in his hand, that’s circumstantial evidence. The witness did not see what happened, but because of the circumstances, we infer or presume that the mobster shot Dave.
If, instead, a witness saw Dave and Clete enter the office together, heard a shot, saw Clete run out of the room and leave the building, then found Dave checking the prostrate mobster for a pulse, the witness’s testimony is direct evidence that Clete fled the scene. But it’s only circumstantial evidence that Clete shot the mobster. And you know Dave didn’t see a thing.
Circumstantial evidence may be enough to prove a defendant’s guilt. But because circumstantial evidence is not conclusive proof, the judge must decide it’s relevant before admitting it at trial, considering what facts the evidence is intended to prove, and whether it makes those facts more probable. The judge looks through the lens of experience, judgment, and knowledge of human behavior, and asks what inferences a juror is likely to make fairly, reasonably, and consistently with all the other evidence.
But all evidence rises and falls on the credibility of the witness. If you’re counting on Clete Purcel to make your case, expect problems.
