Comments on: Legal fictions and the standard of proof http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/ Sat, 22 Nov 2008 09:50:26 +0000 http://wordpress.org/?v=2.6.3 By: Legal fictions: collateral consequences edition | a public defender http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/#comment-37791 Legal fictions: collateral consequences edition | a public defender Tue, 26 Aug 2008 22:48:00 +0000 http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/#comment-37791 [...] in the day, I posted about two different legal fictions: rehabilitation during voir dire and the difference between the standard of proof in trials and VOP hearings. Here’s another that’s been [...] [...] in the day, I posted about two different legal fictions: rehabilitation during voir dire and the difference between the standard of proof in trials and VOP hearings. Here’s another that’s been [...]

]]> By: SPO http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/#comment-19250 SPO Wed, 26 Mar 2008 17:14:23 +0000 http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/#comment-19250 Miranda, why is the court necessarily bound? Probation revocation can happen for a non-crime. The standard there is preponderance of the evidence--why does the standard change simply because things have been put in front of a jury? And what about the "probation is a court order" rationale I mentioned. Miranda, why is the court necessarily bound? Probation revocation can happen for a non-crime. The standard there is preponderance of the evidence–why does the standard change simply because things have been put in front of a jury?

And what about the “probation is a court order” rationale I mentioned.

]]> By: Miranda http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/#comment-19215 Miranda Wed, 26 Mar 2008 13:30:11 +0000 http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/#comment-19215 I think I agree with Gideon on this one. There is a difference between being convinced that the state has proven each element beyond a reasonable doubt and being convinced that a witness's testimony is factually accurate beyond a reasonable doubt. Rather, what we're asking the fact finder in a VOP or a criminal trial to do is to first make factual determinations about the evidence: did this witness actually see the defendant commit this crime; does any other evidence link the defendant to the crime. THEN, we're asking the fact finder to determine if the state has proven that the defendant was the perp. beyond a reasonable doubt. I agree that it's a legal fiction to say that a jury decided to believe that the witness saw the defendant commit this crime but was not convinced beyond a reasonable doubt that the defendant committed the crime. I think it is only logical that what went on in that jury room was that when deciding whether the witness actually saw the defendant commit the crime, the answer was, we don't know - and we can't know because the identification is too unreliable. Why would this decision change if the state's burden was proof by preponderance of the evidence?? I think it's problematic when a judge makes a finding of fact that is contrary to the jury's finding. Because I believe that the jury could have only concluded that the witness's identification was unreliable (and therefore expressly rejected the state's urging to find that the witness did see the def. commit the crime), I do not believe the judge should be able to determine that the witness did see the defendant commit the crime in another proceeding. I think I agree with Gideon on this one. There is a difference between being convinced that the state has proven each element beyond a reasonable doubt and being convinced that a witness’s testimony is factually accurate beyond a reasonable doubt.

Rather, what we’re asking the fact finder in a VOP or a criminal trial to do is to first make factual determinations about the evidence: did this witness actually see the defendant commit this crime; does any other evidence link the defendant to the crime. THEN, we’re asking the fact finder to determine if the state has proven that the defendant was the perp. beyond a reasonable doubt.

I agree that it’s a legal fiction to say that a jury decided to believe that the witness saw the defendant commit this crime but was not convinced beyond a reasonable doubt that the defendant committed the crime.

I think it is only logical that what went on in that jury room was that when deciding whether the witness actually saw the defendant commit the crime, the answer was, we don’t know - and we can’t know because the identification is too unreliable. Why would this decision change if the state’s burden was proof by preponderance of the evidence??

I think it’s problematic when a judge makes a finding of fact that is contrary to the jury’s finding. Because I believe that the jury could have only concluded that the witness’s identification was unreliable (and therefore expressly rejected the state’s urging to find that the witness did see the def. commit the crime), I do not believe the judge should be able to determine that the witness did see the defendant commit the crime in another proceeding.

]]> By: SPO http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/#comment-19129 SPO Tue, 25 Mar 2008 17:43:09 +0000 http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/#comment-19129 Another issue here is the power of the courts to enforce their orders. The conditions of probation are courd orders, and courts really cannot be bound by what the prosecutor does or what juries do. Another issue here is the power of the courts to enforce their orders. The conditions of probation are courd orders, and courts really cannot be bound by what the prosecutor does or what juries do.

]]> By: Mark in Jersey http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/#comment-19127 Mark in Jersey Tue, 25 Mar 2008 16:32:05 +0000 http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/#comment-19127 There is a case in Connecticut law from the past few years where a guy on probation violates it by committing some sort of assault (on his landlord I believe) but the charges are either dropped (because there was not enough evidence to prove beyond a reasonable doubt or by jury) or dismissed (he completed some sort of counseling and the charges were dismissed), but the judge found by preponderance of the evidence that probation was violated and sent him to jail... I'll try to see if I still have the caption. I know it was upheld on appeal. There is a case in Connecticut law from the past few years where a guy on probation violates it by committing some sort of assault (on his landlord I believe) but the charges are either dropped (because there was not enough evidence to prove beyond a reasonable doubt or by jury) or dismissed (he completed some sort of counseling and the charges were dismissed), but the judge found by preponderance of the evidence that probation was violated and sent him to jail…

I’ll try to see if I still have the caption. I know it was upheld on appeal.

]]> By: Alec http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/#comment-19041 Alec Mon, 24 Mar 2008 03:09:16 +0000 http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/#comment-19041 A very interesting question. I think like many of the other posters I disagree with you. A jury could reasonably make a determination that, given a close case, it was better to err on the side of caution and decide that the government did not prove its case beyond a reasonable doubt. A good defense attorney could easily say, well, this isn't a question of "more likely than not." Particularly if there was an expert testifying on the question of, say, cross-racial identification. That does not appear to be the case here, but we are talking about a murder case, and jurors might be very hesitant about convicting someone of murder if they have any lingering questions about eyewitness testimony. The last I checked Prof. Berman was reporting that the 6th circuit had granted an en banc rehearing on this question. I don't know if the issue was resolved or not. Very interesting, in light of Sixth Amendment case law, which continues to evolve and change. A very interesting question. I think like many of the other posters I disagree with you. A jury could reasonably make a determination that, given a close case, it was better to err on the side of caution and decide that the government did not prove its case beyond a reasonable doubt. A good defense attorney could easily say, well, this isn’t a question of “more likely than not.” Particularly if there was an expert testifying on the question of, say, cross-racial identification. That does not appear to be the case here, but we are talking about a murder case, and jurors might be very hesitant about convicting someone of murder if they have any lingering questions about eyewitness testimony.

The last I checked Prof. Berman was reporting that the 6th circuit had granted an en banc rehearing on this question. I don’t know if the issue was resolved or not. Very interesting, in light of Sixth Amendment case law, which continues to evolve and change.

]]> By: SPO http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/#comment-18862 SPO Fri, 21 Mar 2008 16:28:28 +0000 http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/#comment-18862 Such is the risk you run when you commit a crime and get probation. But let's think about this further--probation can be revoked for actions that are not crimes, and what's the standard of proof there--preponderance of the evidence. So what you're saying is that the standard of proof should change, dependent on whether something got put in front of a jury? Or are you saying that the state is estopped? I guess I understand your concerns, but I think that your reaction, like your reaction to the Troy Davis case, is a little over the top. Such is the risk you run when you commit a crime and get probation.

But let’s think about this further–probation can be revoked for actions that are not crimes, and what’s the standard of proof there–preponderance of the evidence. So what you’re saying is that the standard of proof should change, dependent on whether something got put in front of a jury? Or are you saying that the state is estopped?

I guess I understand your concerns, but I think that your reaction, like your reaction to the Troy Davis case, is a little over the top.

]]> By: Gideon http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/#comment-18849 Gideon Fri, 21 Mar 2008 13:35:40 +0000 http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/#comment-18849 Well, let's think that out. Assuming that this is only an ID case, the jury either believes her or not, right? If they think she was probably telling the truth, then what is the doubt? I just can't get past the underlying assumption that they believed her, but didn't believe her enough. I could be completely wrong, but I don't think people work that way when asked to make judgments about the truth or falsity of a statement. Well, let’s think that out. Assuming that this is only an ID case, the jury either believes her or not, right?

If they think she was probably telling the truth, then what is the doubt?

I just can’t get past the underlying assumption that they believed her, but didn’t believe her enough.

I could be completely wrong, but I don’t think people work that way when asked to make judgments about the truth or falsity of a statement.

]]> By: WTTO http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/#comment-18848 WTTO Fri, 21 Mar 2008 13:29:34 +0000 http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/#comment-18848 You don't think that a jury is sophisticated enough to think, "she was probably telling the truth but we have some doubt, so we are voting not guilty?" You don’t think that a jury is sophisticated enough to think, “she was probably telling the truth but we have some doubt, so we are voting not guilty?”

]]> By: Gideon http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/#comment-18818 Gideon Fri, 21 Mar 2008 02:53:51 +0000 http://apublicdefender.com/2008/03/20/legal-fictions-and-the-standard-of-proof/#comment-18818 I'm not sure I follow. Are you saying this result is okay? I’m not sure I follow. Are you saying this result is okay?

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