On Mar 10, 7:12 am, bon...@host122.r-bonomi.com (Robert Bonomi) wrote:
> Hint: 'motor vehicle' statutes do _not_ apply to airplanes. In actuality,
> in the U.S., if it is private plane, not being operated 'for hire', or by
> a paid pilot, 'drinking and flying' is =not= prohibited.
Geez, Robert, where did you get that idea? For someone who's normally so careful, did you just come up with that off the top of your head? What a dangerous thing to say. As you pointed out, the motor vehicle code doesn't apply to airplanes, but that doesn't mean "drinking and flying" is not prohibited by some _other_ law. Which, in fact, it is. Motor vehicle laws are state-specific, but pilots are regulated by Federal law. Now, I was already aware of that partly because I am a pilot and an aviation lawyer, but IMO common sense and Google should lead anybody to the same conclusion. By Googling "FAR alcohol pilot" I found the following information (paraphrased) on an official FAA website, www.faa.gov/pilots/safety/pilotsafetybrochures/media/alcohol.pdf:
Federal Aviation Regulation 91.17 regulates alcohol and drug use by pilots. Among other things, it provides that no one may operate or attempt to operate an aircraft (1) within 8 hours of having consumed alcohol, (2) while under the influence, (3) with a BAC of 0.04% or greater, or (4) while using any drug that affects safety.
As a "Part 91" rule, this applies to _all_ pilots, not just those in commercial service.
> Nor, is, as far
> as I know, 'drunken boating' an offense -- unless it's in commercial service.
What state are you talking about? Here in MD, it most certainly is illegal to operate a boat while under the influence of alcohol or narcotics. This is from the "Boat Maryland" safety-test website, http://www.boat-ed.com/md/course/p4-5_alcoholdrugs.htm:
"Maryland law states that a person is considered to be boating under the influence (BUI) if he or she:
* Has a blood or breath alcohol concentration of 0.08% or greater or
* Is impaired by alcohol or
* Is so far impaired by any drug, combination of drugs, or combination of one or more drugs and alcohol that he or she cannot operate a vessel safely or
* Is impaired by any controlled dangerous substance."
> Aside, you've raised an _interesting_ question -- what 'rules of the road'
> apply to an aircraft taxiing across a public roadway?
Under most states' motor vehicle codes, taxiing aircraft have the right-of-way over ground vehicles, because of their limited controllability on the ground, as you go on to point out:
> Now, a plane is obviously *not* 'street legal' in any conventional sense --
> no brake lights, no turn signals, no bumpers, many don't have a muffler, etc.
> Would the proscription on open alcoholic beverage containers apply to the
> pilot?
No, you already pointed out that state motor vehicle laws don't apply to planes. AFAIK the FARs don't say anything about whether a plane can have open cans of beer in it even while being flown, but the PILOT can't have consumed any.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Thursday, August 9, 2012
Eyewitness testimony and proof of facts, explained
On Mar 8, 6:54 am, s...@panix.com (Seth Breidbart) wrote:
> In article <vc2ou2146plc2r6uci38hd64j01a8dr...@4ax.com>,
>
> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >On Mar 3, 7:34 am, s...@panix.com (Seth Breidbart) wrote:
>
> >> How can he possibly know it came from his ex-wife? He can testify
> >> that he received it, but he can't prove that she sent it.
>
> >Yes he can. Legal "proof" does not mean scientific "proof".
> >Testimony is proof. If I testify that the moon is made of green
> >cheese, that is legally sufficient for the jury to deliberate and
> >reach a verdict that the moon IS in fact a moldy dairy product,
> >even though we all (think) we know better.
>
> I thought you're only supposed to testify to what you _observed_.
Good point. But as I'm sure you know, any act of observation changes the thing being observed, and every witness has a (slightly or greatly) different point of view. The law doesn't require that each witness test his conclusions to a scientific certainty before testifying to them, if those are the kind of conclusions that ordinary people draw from what they observe, nor does it require the witness to refrain from drawing conclusions at all, and limit himself to bare, basic recitation of the underlying facts. As long as it is within the usual realm of common understanding* and the witness believes what he is saying is true, _based_on_ what he observed, he can testify to it. Questions about the witness' opportunity and ability to perceive, his accuracy of recollection, and his biases that might fudge his conclusions about what he thought he saw, go to the weight of his testimony, not its admissibility.
* = conclusions that are _beyond_ the ordinary ken of the members of the jury, such as a medical diagnosis or reconstruction of the physics of an accident, require expert opinion testimony. But ordinary witnesses can testify to their opinions about matters they routinely draw conclusions about in everyday life, e.g. drunkenness, speed of a vehicle, distance to an object, tone of voice, body language, and so on.
Frex, "I saw Dave last night and he was drunk" is a conclusory statement that might be challenged on cross-exam if the witness never saw Dave actually imbibe anything that evening. But then the witness might point out that his conclusion was based on the facts that (1) the place where he saw Dave was a bar; (2) Dave had a mostly-consumed triple Scotch on the rocks in front of him when the witness saw Dave, along with a pitcher of beer; (3) when Dave stood up to shake hands with the witness he was wobbly on his feet and had a hard time connecting hands with the witness; (4) Dave's eyes were bloodshot; (5) etc. But he doesn't have to say all that, to begin with, in order to be allowed to testify under oath that "I saw Dave last night and he was drunk." The witness, if the attorney questioning him wants him to, can add these particular facts, to bolster the credibility of his conclusion, but he doesn't have to.
With regard to a letter or (by analogy, since caselaw is sparse) an email, the fact that the witness received a message purporting to originate from a particular person is sufficient to allow the witness to testify under oath that "My ex-wife Linda sent me an email admitting that she locked our kid in a closet when she went out to snort coke with Bob last night" even if he wasn't there to watch Linda lick the stamp and put the envelope in a blue-and-red box, or to watch her push the "send" button on her email client.
> he didn't _observe_ his ex-wife send it, all he can testify to is that
> he _received_ it and it had her name on it.
Those are the basic underlying facts, and he could testify in that fashion if he chose, but he is not limited to that, and could also testify to his conclusion that she sent it to him. The ex's lawyer, if she chose to go into it on cross-exam, could try to bring out the underlying facts on which the witness based his conclusions, such as the fact that he received it and it had her name on it; and then come up with other explanations for the underlying facts, such as that it was sent by someone else who had access to her account, or spoofed by someone completely unrelated to her account.
The jury then gets to decide whether Linda really sent it, or whether her new squeeze Bob sent it as a joke, or whether a malicious hacker spoofed it to get back at Linda for something unrelated.
Similarly, the witness who testified that he saw Dave drunk in my example above, could be tested on the strength of his underlying observations, the raw data as it were, and then the opponent may bring out evidence that the pitcher and the triple belonged to the party who had been sitting at the table before Dave, who had just arrived moments before the witness did; that Dave shook when he stood up because he has palsy; that Dave's eyes were bloodshot because he had been up all night poring over his stamp collection with a magnifying glass; etc.
> If I received a snail-mail letter with your name and return address,
> should I be able to testify that you sent it?
Scientifically, all the observer can know for sure is the fact of his observation; the objective existence of what was observed is a conclusion he draws from that observation. For each communicative event, there is a sender, a medium of transmission, and a receiver, each of which affects the content and meaning of the message. What the sender intended to send may not be what the receiver hears, but all the receiver can know is what he hears. Of course, the chances are unlikely that a ventriloquist is throwing his voice to make it appear that an oral admission came from Linda rather than from him, but this is technically no different than the mail situation when you break it down. All the hearer can testify to is that he heard a voice saying X, which appeared to come from Linda; but the law allows him to testify that "Linda said X." It's then up to Linda to put on evidence of the malicious ventriloquist putting words in her mouth.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> In article <vc2ou2146plc2r6uci38hd64j01a8dr...@4ax.com>,
>
> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >On Mar 3, 7:34 am, s...@panix.com (Seth Breidbart) wrote:
>
> >> How can he possibly know it came from his ex-wife? He can testify
> >> that he received it, but he can't prove that she sent it.
>
> >Yes he can. Legal "proof" does not mean scientific "proof".
> >Testimony is proof. If I testify that the moon is made of green
> >cheese, that is legally sufficient for the jury to deliberate and
> >reach a verdict that the moon IS in fact a moldy dairy product,
> >even though we all (think) we know better.
>
> I thought you're only supposed to testify to what you _observed_.
Good point. But as I'm sure you know, any act of observation changes the thing being observed, and every witness has a (slightly or greatly) different point of view. The law doesn't require that each witness test his conclusions to a scientific certainty before testifying to them, if those are the kind of conclusions that ordinary people draw from what they observe, nor does it require the witness to refrain from drawing conclusions at all, and limit himself to bare, basic recitation of the underlying facts. As long as it is within the usual realm of common understanding* and the witness believes what he is saying is true, _based_on_ what he observed, he can testify to it. Questions about the witness' opportunity and ability to perceive, his accuracy of recollection, and his biases that might fudge his conclusions about what he thought he saw, go to the weight of his testimony, not its admissibility.
* = conclusions that are _beyond_ the ordinary ken of the members of the jury, such as a medical diagnosis or reconstruction of the physics of an accident, require expert opinion testimony. But ordinary witnesses can testify to their opinions about matters they routinely draw conclusions about in everyday life, e.g. drunkenness, speed of a vehicle, distance to an object, tone of voice, body language, and so on.
Frex, "I saw Dave last night and he was drunk" is a conclusory statement that might be challenged on cross-exam if the witness never saw Dave actually imbibe anything that evening. But then the witness might point out that his conclusion was based on the facts that (1) the place where he saw Dave was a bar; (2) Dave had a mostly-consumed triple Scotch on the rocks in front of him when the witness saw Dave, along with a pitcher of beer; (3) when Dave stood up to shake hands with the witness he was wobbly on his feet and had a hard time connecting hands with the witness; (4) Dave's eyes were bloodshot; (5) etc. But he doesn't have to say all that, to begin with, in order to be allowed to testify under oath that "I saw Dave last night and he was drunk." The witness, if the attorney questioning him wants him to, can add these particular facts, to bolster the credibility of his conclusion, but he doesn't have to.
With regard to a letter or (by analogy, since caselaw is sparse) an email, the fact that the witness received a message purporting to originate from a particular person is sufficient to allow the witness to testify under oath that "My ex-wife Linda sent me an email admitting that she locked our kid in a closet when she went out to snort coke with Bob last night" even if he wasn't there to watch Linda lick the stamp and put the envelope in a blue-and-red box, or to watch her push the "send" button on her email client.
> he didn't _observe_ his ex-wife send it, all he can testify to is that
> he _received_ it and it had her name on it.
Those are the basic underlying facts, and he could testify in that fashion if he chose, but he is not limited to that, and could also testify to his conclusion that she sent it to him. The ex's lawyer, if she chose to go into it on cross-exam, could try to bring out the underlying facts on which the witness based his conclusions, such as the fact that he received it and it had her name on it; and then come up with other explanations for the underlying facts, such as that it was sent by someone else who had access to her account, or spoofed by someone completely unrelated to her account.
The jury then gets to decide whether Linda really sent it, or whether her new squeeze Bob sent it as a joke, or whether a malicious hacker spoofed it to get back at Linda for something unrelated.
Similarly, the witness who testified that he saw Dave drunk in my example above, could be tested on the strength of his underlying observations, the raw data as it were, and then the opponent may bring out evidence that the pitcher and the triple belonged to the party who had been sitting at the table before Dave, who had just arrived moments before the witness did; that Dave shook when he stood up because he has palsy; that Dave's eyes were bloodshot because he had been up all night poring over his stamp collection with a magnifying glass; etc.
> If I received a snail-mail letter with your name and return address,
> should I be able to testify that you sent it?
Scientifically, all the observer can know for sure is the fact of his observation; the objective existence of what was observed is a conclusion he draws from that observation. For each communicative event, there is a sender, a medium of transmission, and a receiver, each of which affects the content and meaning of the message. What the sender intended to send may not be what the receiver hears, but all the receiver can know is what he hears. Of course, the chances are unlikely that a ventriloquist is throwing his voice to make it appear that an oral admission came from Linda rather than from him, but this is technically no different than the mail situation when you break it down. All the hearer can testify to is that he heard a voice saying X, which appeared to come from Linda; but the law allows him to testify that "Linda said X." It's then up to Linda to put on evidence of the malicious ventriloquist putting words in her mouth.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Copyright and Usenet posts, part 2
On Mar 4, 7:17 am, Jonathan Sachs <xxxx...@sbcglobal.not> wrote:
> On Sat, 03 Mar 2007 07:34:13 -0500, "b.good" <benzos_g...@hotmail.com>
> wrote:
>
> >Are usenes posts considered public domain?
>
> In theory, no. In practice, once you publish something on USENET
> there is no effective way to prevent others from doing what they want
> with it.
I would agree that there is no practical way to prevent others from copying and republishing my Usenet posts in a "below-the-radar" fashion, to borrow your apt metaphor; but there certainly is, if the infringer makes a big Tsimmis out of it and atracts the attention of those whose toes he is stepping on in doing so. If OP decided to publish a bestselling book called "The legal wit and wisdom of Mike Jacobs" (not that he would, but frex) which collected all my Usenet posts on legal subjects since 1995, and maybe my Fidonet or dialup BBS posts before that, I would definitely have my lawyer knocking on his door to collect royalties and/or to file a cease-and-desist order.
Obviously, Jonathan, your statement quoted above is broader than what you really meant, as you go on to say in response to OP's further query:
> >Really what I am asking is what would be involved in publishing a book
> >of usenet posts, from a legal standpoint?
>
> If you're thinking about publishing a book, you should see an
> intellectual property attorney about getting permissions. You're
> flying above the radar, and an author who wants to go after you for
> using his material without permission probably can do so, even though
> there is no practical way for him to prevent other users from
> reproducing his material on USENET and in similar forums.
Agreed, but I would go on to add that the limited reproduction of Usenet posts in similar forums or quoted in other Usenet posts (as I am doing here with _your_ original work of creative authorship) is non-infringing because it is an expected fair use of your copyrighted material.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> On Sat, 03 Mar 2007 07:34:13 -0500, "b.good" <benzos_g...@hotmail.com>
> wrote:
>
> >Are usenes posts considered public domain?
>
> In theory, no. In practice, once you publish something on USENET
> there is no effective way to prevent others from doing what they want
> with it.
I would agree that there is no practical way to prevent others from copying and republishing my Usenet posts in a "below-the-radar" fashion, to borrow your apt metaphor; but there certainly is, if the infringer makes a big Tsimmis out of it and atracts the attention of those whose toes he is stepping on in doing so. If OP decided to publish a bestselling book called "The legal wit and wisdom of Mike Jacobs" (not that he would, but frex) which collected all my Usenet posts on legal subjects since 1995, and maybe my Fidonet or dialup BBS posts before that, I would definitely have my lawyer knocking on his door to collect royalties and/or to file a cease-and-desist order.
Obviously, Jonathan, your statement quoted above is broader than what you really meant, as you go on to say in response to OP's further query:
> >Really what I am asking is what would be involved in publishing a book
> >of usenet posts, from a legal standpoint?
>
> If you're thinking about publishing a book, you should see an
> intellectual property attorney about getting permissions. You're
> flying above the radar, and an author who wants to go after you for
> using his material without permission probably can do so, even though
> there is no practical way for him to prevent other users from
> reproducing his material on USENET and in similar forums.
Agreed, but I would go on to add that the limited reproduction of Usenet posts in similar forums or quoted in other Usenet posts (as I am doing here with _your_ original work of creative authorship) is non-infringing because it is an expected fair use of your copyrighted material.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Copyright and Usenet posts
On Mar 3, 7:34 am, "b.good" <benzos_g...@hotmail.com> wrote:
> Are usenes posts considered public domain?
No. Posting your message where other people can see it isn't the same as giving up all control over that message, which is what happens when something becomes "public domain." If something is public domain I can re-sell it, modify it at will, make throw pillows or bobbleheads with those sayings emblazoned on them, etc. and make money on them any other way I can. Saying that anything posted on Usenet is "public information", as I do in my sigblock disclaimer, just means it is not private and confidential since strangers can read it. That's not the same thing as making the posts "public domain."
I'm coming late to this thread, but no one so far seems to have mentioned the "fair use" issue. The FAQs in some newsgroups address this subject. Even if they don't, IMO there is (or should be; I'm not aware of any caselaw directly deciding the issue in the context of Usenet) a limited fair use right for others to quote and republish Usenet posts in the same medium on which they were posted (i.e. the Internet, whether thru newsservers or webservers) for purposes of participating in an ongoing discussion, which is the implied reason the OP posted his comment to Usenet in the first place; and for others to download, save or archive such posts and even print them on paper if it is for the downloader's personal use, not for resale. If you don't intend others to download your post to their own computers, read those copies they made of your post, and then paste all or part of it into their replies, don't post to Usenet, because those are the reasonable expectations anyone should have of what others will do with your work.
Others here have indicated they are concerned that Usenet archivists such as Google are making money off of their posts, but IMO that is no different legally than just running a Usenet newsserver, so long as the archivist in doing so is continuing the original purpose and medium for which Usenet posts were originally made public by their authors, i.e., making them available online for others to freely read and comment on electronically.
IMO it is no more improper for Google to make money off of advwertising which they draw, in part, from the presence of their sought-after Usenet archives than for any other ISP or newsserver to make money off of the services they provide in bringing new Usenet posts to your computer doorstep in the first place, or retaining older posts for a limited period of time on their servers so you can go back and download the beginning of a thread you come into in the middle. Now, if Google or others started charging direct user fees for visitors to access specific Usenet archives, as opposed to the service fee your ISP gets for simply providing the newsfeed bandwidth, I _would_ have a problem with that. Making any other use of a Usenet post would IMO also require the permission of the author, such as:
> Really what I am asking is what would be involved in publishing a book
> of usenet posts, from a legal standpoint?
If you intend to publish a book and make use of any of _my_ posts in permanent printed form for sale, I would expect to receive royalties. And I may not give you my permission, depending on lots of things. At the very least, even if you are only quoting a small portion of a few posts in a larger book (not a mere collection of other people's Usenet posts), we all would expect full and proper attribution to the original source and identification of the author of each segment quoted. And if you're reazlly serious about this idea, consult (and pay) a local lawyer competent in intellectual property law FIRST.for a real opinion based on your complete scenario, to avoid digging yourself into a very expensive hole. I am NOT a copyright lawyer, so my advice is worth what you didn't pay for it.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Are usenes posts considered public domain?
No. Posting your message where other people can see it isn't the same as giving up all control over that message, which is what happens when something becomes "public domain." If something is public domain I can re-sell it, modify it at will, make throw pillows or bobbleheads with those sayings emblazoned on them, etc. and make money on them any other way I can. Saying that anything posted on Usenet is "public information", as I do in my sigblock disclaimer, just means it is not private and confidential since strangers can read it. That's not the same thing as making the posts "public domain."
I'm coming late to this thread, but no one so far seems to have mentioned the "fair use" issue. The FAQs in some newsgroups address this subject. Even if they don't, IMO there is (or should be; I'm not aware of any caselaw directly deciding the issue in the context of Usenet) a limited fair use right for others to quote and republish Usenet posts in the same medium on which they were posted (i.e. the Internet, whether thru newsservers or webservers) for purposes of participating in an ongoing discussion, which is the implied reason the OP posted his comment to Usenet in the first place; and for others to download, save or archive such posts and even print them on paper if it is for the downloader's personal use, not for resale. If you don't intend others to download your post to their own computers, read those copies they made of your post, and then paste all or part of it into their replies, don't post to Usenet, because those are the reasonable expectations anyone should have of what others will do with your work.
Others here have indicated they are concerned that Usenet archivists such as Google are making money off of their posts, but IMO that is no different legally than just running a Usenet newsserver, so long as the archivist in doing so is continuing the original purpose and medium for which Usenet posts were originally made public by their authors, i.e., making them available online for others to freely read and comment on electronically.
IMO it is no more improper for Google to make money off of advwertising which they draw, in part, from the presence of their sought-after Usenet archives than for any other ISP or newsserver to make money off of the services they provide in bringing new Usenet posts to your computer doorstep in the first place, or retaining older posts for a limited period of time on their servers so you can go back and download the beginning of a thread you come into in the middle. Now, if Google or others started charging direct user fees for visitors to access specific Usenet archives, as opposed to the service fee your ISP gets for simply providing the newsfeed bandwidth, I _would_ have a problem with that. Making any other use of a Usenet post would IMO also require the permission of the author, such as:
> Really what I am asking is what would be involved in publishing a book
> of usenet posts, from a legal standpoint?
If you intend to publish a book and make use of any of _my_ posts in permanent printed form for sale, I would expect to receive royalties. And I may not give you my permission, depending on lots of things. At the very least, even if you are only quoting a small portion of a few posts in a larger book (not a mere collection of other people's Usenet posts), we all would expect full and proper attribution to the original source and identification of the author of each segment quoted. And if you're reazlly serious about this idea, consult (and pay) a local lawyer competent in intellectual property law FIRST.for a real opinion based on your complete scenario, to avoid digging yourself into a very expensive hole. I am NOT a copyright lawyer, so my advice is worth what you didn't pay for it.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Jury verdict of acquittal = unassailable
On Mar 3, 7:34 am, b...@nyx.net (Barry Gold) wrote:
> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >None of this changes the law that a jury's verdict of ACQUITTAL cannot
> >be challenged by the state on appeal, without unconstitutionally
> >violating the Double Jeopardy clause. (The State CAN appeal an
> >acquittal if it was based on an error of _law_ committed by the trial
> >judge, but cannot challenge the jury's factual finding of guilty or
> >not guilty if there was no error in the judge's legal instructions or
> >in his decisions to admit or exclude some of the evidence).
>
> What? I've never heard of that happening. Once a jury is seated,
> jeopardy attaches and the defendant _cannot_ be retried if the jury
> brings in a Not Guilty verdict, regardless of errors by the trial
> judge.
Agreed, but maybe I wasn't clear enough in my use of language in the post Barry quotes. Once the jury returns a verdict of acquittal, it is unassailable. I was talking about errors of law made by the judge that resulted in an acquittal by the judge on a ruling of law _before_ the jury verdict comes in; such as an erroneous conclusion that a prior mistrial bars retrial under the double jeopardy clause. (Some mistrials _are_ re-triable, others are not; hence, confusion and mistaken rulings can occur.) Under proper circumstances, if the state _was_ in fact permitted to re-try defendant and the judge's ruling erroneously deprived it of that chance, those rulings can, and often are, appealed by the State to get another re-trial.
I don't think anyone on this forum disagrees that a jury verdict of acquittal, in USA courts, is the final word on the subject and bars any re-trial of the defendant on the same criminal charge -- even if the judge's mistakes of law favoring the defendant contributed to that verdict.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >None of this changes the law that a jury's verdict of ACQUITTAL cannot
> >be challenged by the state on appeal, without unconstitutionally
> >violating the Double Jeopardy clause. (The State CAN appeal an
> >acquittal if it was based on an error of _law_ committed by the trial
> >judge, but cannot challenge the jury's factual finding of guilty or
> >not guilty if there was no error in the judge's legal instructions or
> >in his decisions to admit or exclude some of the evidence).
>
> What? I've never heard of that happening. Once a jury is seated,
> jeopardy attaches and the defendant _cannot_ be retried if the jury
> brings in a Not Guilty verdict, regardless of errors by the trial
> judge.
Agreed, but maybe I wasn't clear enough in my use of language in the post Barry quotes. Once the jury returns a verdict of acquittal, it is unassailable. I was talking about errors of law made by the judge that resulted in an acquittal by the judge on a ruling of law _before_ the jury verdict comes in; such as an erroneous conclusion that a prior mistrial bars retrial under the double jeopardy clause. (Some mistrials _are_ re-triable, others are not; hence, confusion and mistaken rulings can occur.) Under proper circumstances, if the state _was_ in fact permitted to re-try defendant and the judge's ruling erroneously deprived it of that chance, those rulings can, and often are, appealed by the State to get another re-trial.
I don't think anyone on this forum disagrees that a jury verdict of acquittal, in USA courts, is the final word on the subject and bars any re-trial of the defendant on the same criminal charge -- even if the judge's mistakes of law favoring the defendant contributed to that verdict.
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
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(tel) 410-740-5685 (fax) 410-740-4300
Wednesday, August 8, 2012
Emails - use as evidence, 4
On Mar 3, 7:34 am, Herb <her...@mail.com> wrote:
> On Fri, 02 Mar 2007 07:02:22 -0500, "Mike Jacobs" <mjacobs...@gmail.com> wrote:
> >all OP has to do to
> >uphold his authentication of the document is to stick to his guns and
> >continue to testify that the document is what it purports to be.
>
> What you say was all rather compelling, Mike, until this point. We are
> talking, after all, about a divorce case: the archetypical "he said /
> she said". The person who introduces an email has no more claim to
> credibility than the person who denies it.
Correct. And that goes to whether the evidence will be BELIEVED, in a he-said/she-said case.
But it doesn't prevent the disputed document from being ADMITTED into evidence, which I assumed was all that OP was asking about. If it didn't even get into evidence, the factfinder would not get to hear OP's side of the story, so it would just be a "she-said" case. The judge or jury will get to hear both sides and decide which one they believe, after all the evidence is in, as long as OP jumps thru the necessary hoops to even get his proffered document admitted into evidence. Which, based on the great level of confusion exhibited by most of the posters on this thread, I'm not real confident at this point he will be able to do. Perhaps OP ought to have a lawyer representing him at this contested custody hearing? It's his call.
> E.g., one party can
> introduce an email wherein the opponent admits they were cheating. The
> opponent can easily deny that they were cheating, and also deny that
> the email is authentic. (The opponent can even introduce an email
> wherein the 1st party has threatened to create fake emails, to use as
> faked evidence of non-existent cheating.)
Yes, they could all do that. But the disputed document DOES get to be admitted into evidence based simply on the proponent's testimony that it is authentic. The rest goes to its weight, not admissibility.
> So that brings us right back to the question of proof, and this
> offshoot: if one party is deliberately lying, they take the chance of
> being exposed by technical proof, and then their credibility on other
> matters suffers also. (OTOH, people might soon generally learn to say,
> "I don't recall ever sending any email like that", as they currently
> do when denying spoken words.)
Which side the judge or jury chooses to believe will depend on ALL the credibility factors based on ALL the evidence admitted at the hearintg, not just this one document. Of course OP has to do more than just get the document admitted into evidence if he wants it to be believed. But only he (or his lawyer, if he's smart enough to have one) knows what facts he will have to bring out, to establish his own credibility and poke holes in his ex's.
> I'd imagine that the matter of cost can vary widely.
Yes, it does, which is why IMO the full-blown scientific analysis is likely to happen only in a case where a very large value is at stake, to make it worth it.
> As a side note: on the tv courtroom shows, I've always seen printouts
> of emails being introduced without question as to authenticity. Maybe
> everybody with the show is too dumb to know better, or maybe it's all
> been agreed to beforehand.
Actually, in most cases where both parties have lawyers, it IS agreed in advance, either directly bwetyeen the lawyers, or through pre-trial discovery requests asking the other side to point out any of the requester's documents they do have authenticity questions about, or through the judge decreeing that all documents exchanged between the parties before trial (e.g. at a pretrial conference) will be deemed authentic and admissible UNLESS the parties raise an issue at that time, which the judge can then resolve BEFORE the trial begins, to save the jury's time from sitting by while the parties engage in needless wrangling at the bench.over whether to admit one document or another.
If OP is pro se, however, and especially if he is planning to "spring" this document on his ex as a surprise at trial, he is going to have to jump thru all the legally required hoops then and there, or else risk having the document not be accepted into evidence by the judge to even have its contents considered in deciding the ultimate issues.
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Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
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(tel) 410-740-5685 (fax) 410-740-4300
> On Fri, 02 Mar 2007 07:02:22 -0500, "Mike Jacobs" <mjacobs...@gmail.com> wrote:
> >all OP has to do to
> >uphold his authentication of the document is to stick to his guns and
> >continue to testify that the document is what it purports to be.
>
> What you say was all rather compelling, Mike, until this point. We are
> talking, after all, about a divorce case: the archetypical "he said /
> she said". The person who introduces an email has no more claim to
> credibility than the person who denies it.
Correct. And that goes to whether the evidence will be BELIEVED, in a he-said/she-said case.
But it doesn't prevent the disputed document from being ADMITTED into evidence, which I assumed was all that OP was asking about. If it didn't even get into evidence, the factfinder would not get to hear OP's side of the story, so it would just be a "she-said" case. The judge or jury will get to hear both sides and decide which one they believe, after all the evidence is in, as long as OP jumps thru the necessary hoops to even get his proffered document admitted into evidence. Which, based on the great level of confusion exhibited by most of the posters on this thread, I'm not real confident at this point he will be able to do. Perhaps OP ought to have a lawyer representing him at this contested custody hearing? It's his call.
> E.g., one party can
> introduce an email wherein the opponent admits they were cheating. The
> opponent can easily deny that they were cheating, and also deny that
> the email is authentic. (The opponent can even introduce an email
> wherein the 1st party has threatened to create fake emails, to use as
> faked evidence of non-existent cheating.)
Yes, they could all do that. But the disputed document DOES get to be admitted into evidence based simply on the proponent's testimony that it is authentic. The rest goes to its weight, not admissibility.
> So that brings us right back to the question of proof, and this
> offshoot: if one party is deliberately lying, they take the chance of
> being exposed by technical proof, and then their credibility on other
> matters suffers also. (OTOH, people might soon generally learn to say,
> "I don't recall ever sending any email like that", as they currently
> do when denying spoken words.)
Which side the judge or jury chooses to believe will depend on ALL the credibility factors based on ALL the evidence admitted at the hearintg, not just this one document. Of course OP has to do more than just get the document admitted into evidence if he wants it to be believed. But only he (or his lawyer, if he's smart enough to have one) knows what facts he will have to bring out, to establish his own credibility and poke holes in his ex's.
> I'd imagine that the matter of cost can vary widely.
Yes, it does, which is why IMO the full-blown scientific analysis is likely to happen only in a case where a very large value is at stake, to make it worth it.
> As a side note: on the tv courtroom shows, I've always seen printouts
> of emails being introduced without question as to authenticity. Maybe
> everybody with the show is too dumb to know better, or maybe it's all
> been agreed to beforehand.
Actually, in most cases where both parties have lawyers, it IS agreed in advance, either directly bwetyeen the lawyers, or through pre-trial discovery requests asking the other side to point out any of the requester's documents they do have authenticity questions about, or through the judge decreeing that all documents exchanged between the parties before trial (e.g. at a pretrial conference) will be deemed authentic and admissible UNLESS the parties raise an issue at that time, which the judge can then resolve BEFORE the trial begins, to save the jury's time from sitting by while the parties engage in needless wrangling at the bench.over whether to admit one document or another.
If OP is pro se, however, and especially if he is planning to "spring" this document on his ex as a surprise at trial, he is going to have to jump thru all the legally required hoops then and there, or else risk having the document not be accepted into evidence by the judge to even have its contents considered in deciding the ultimate issues.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
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For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
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(tel) 410-740-5685 (fax) 410-740-4300
Emails - use as evidence, 3
On Mar 3, 7:34 am, s...@panix.com (Seth Breidbart) wrote:
> How can he possibly know it came from his ex-wife? He can testify
> that he received it, but he can't prove that she sent it.
Yes he can. Legal "proof" does not mean scientific "proof". Testimony is proof. If I testify that the moon is made of green cheese, that is legally sufficient for the jury to deliberate and reach a verdict that the moon IS in fact a moldy dairy product, even though we all (think) we know better. How do you think all those juries in Salem in the 1600s found all those witches?
As I've noted in other posts, authentication of a document is just one of the bare-minimum requriements for it to be accepted into evidence, NOT conclusive proof that it IS what it claims to be. That remains for the jury to decide, and if OP's proof (i.e. his testimony regarding provenance of the document) is not believed, the jury is free to reject that document as well as to consider the effect of OP's mischaracterization of that document on the credibility of the REST of OP's testimony.
> Only she can testify to that,
Um, no. The whole point of the hearsay exdception that allows OP to introduce a document that he alleges is an admission by his party opponent, though his own testimony rather than hers, is that she IS likely to deny having made it, if that were the only legal way to get it into evidence. That's why an out-of-court admission by the party opponent is admissible into evidence independent of that party's testimony, as long as _someone_ (such as OP) can testify that it was an admission made at some previous time, by OP's ex.
> or a _lot_ of circumstantial evidence (it came
> from her account while she was dialed in from her apartment with a
> security camera in the hall to prove nobody else was present, and her
> computer was certified not to have any malware on it that could have
> sent the message, and . . .) can prove it.
This is confusing scientific proof with legal proof. A sworn word of testimony carries just as much legal weight, if not more, than all the scientific proof in the world, at least in the eyes of the law.
> If all he knows is that it came from your-ex-w...@gmail.com, that
> might not even be her account (e.g. somebody else registered an
> account with my name there to annoy me. Somebody who received email
> from seth.breidb...@gmail.com had better not testify that I sent it.)
This also is meat for cross-exam and goes to the ultimate weight, not the initial admissibility, of the disputed document.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
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For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> How can he possibly know it came from his ex-wife? He can testify
> that he received it, but he can't prove that she sent it.
Yes he can. Legal "proof" does not mean scientific "proof". Testimony is proof. If I testify that the moon is made of green cheese, that is legally sufficient for the jury to deliberate and reach a verdict that the moon IS in fact a moldy dairy product, even though we all (think) we know better. How do you think all those juries in Salem in the 1600s found all those witches?
As I've noted in other posts, authentication of a document is just one of the bare-minimum requriements for it to be accepted into evidence, NOT conclusive proof that it IS what it claims to be. That remains for the jury to decide, and if OP's proof (i.e. his testimony regarding provenance of the document) is not believed, the jury is free to reject that document as well as to consider the effect of OP's mischaracterization of that document on the credibility of the REST of OP's testimony.
> Only she can testify to that,
Um, no. The whole point of the hearsay exdception that allows OP to introduce a document that he alleges is an admission by his party opponent, though his own testimony rather than hers, is that she IS likely to deny having made it, if that were the only legal way to get it into evidence. That's why an out-of-court admission by the party opponent is admissible into evidence independent of that party's testimony, as long as _someone_ (such as OP) can testify that it was an admission made at some previous time, by OP's ex.
> or a _lot_ of circumstantial evidence (it came
> from her account while she was dialed in from her apartment with a
> security camera in the hall to prove nobody else was present, and her
> computer was certified not to have any malware on it that could have
> sent the message, and . . .) can prove it.
This is confusing scientific proof with legal proof. A sworn word of testimony carries just as much legal weight, if not more, than all the scientific proof in the world, at least in the eyes of the law.
> If all he knows is that it came from your-ex-w...@gmail.com, that
> might not even be her account (e.g. somebody else registered an
> account with my name there to annoy me. Somebody who received email
> from seth.breidb...@gmail.com had better not testify that I sent it.)
This also is meat for cross-exam and goes to the ultimate weight, not the initial admissibility, of the disputed document.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
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For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Emails - use as evidence, 2
On Mar 3, 7:34 am, Herb <her...@mail.com> wrote:
> There is the matter of whether the emails were addressed to you, or
> to the spouse.
Preliminary note: the rules of evidence still trip up a lot of lawyers. I don't expect pro se litigants such as OP, to have much of a chance of doing everything right to get a contested document into evidence, if he's up against a lawyer on the other side. So I don't want OP to think that ALL he has to do is testify that this is an email he received from his ex-wife, and his troubles are over. There are lots of other things that have to be considered, besides "authenticity", before a document will be received into evidence by the judge. And being received into evidence just means it is part of the body of facts that the factfinder will be allowed to consider in deciding the issues, NOT that it is certifiably true and accurate. That is for the jury still to decide at the END of the case.
Of course Herb's right, but that question goes to admissibility, not to authenticity of the document, which is all OP asked about and all I was responding to in my first reply to OP's post. If the emails were allegedly sent by OP's wife, to him or anybody else, they are non-hearsay as an admission of a party opponent. That means they could come into evidence based solely on OP's testimony that he downloaded and printed them from a computer and email account he legally had access to, and that they are an unmodified printout of what came to his computer. If the ex denies sending them, that would go to their weight, not their admissibility. "Authentication" of evidence doesn't mean you've proven beyond a shadow of a doubt that it is what it purports to be; just that you've testified under oath that it is. The judge or jury will decide at the end of the case whether it _really_ is authentic or not, based on all the evidence from both parties. But they will do so, WITH the questioned document in front of them, it having been admitted into evidence based on OP's authentication testimony. Thinking otherwise is putting the cart before the horse.
Of course, there is a big difference between what is MINIMALLY required, legally, to authenticate a document to get it admitted into evidence, and what is PRACTICALLY required, by common sense, to get a judge or jury to actually BELIEVE that the document is an incriminating admission by the party opponent. The latter is highly fact-specific and I wouldn't begin to suggest whether OP or his ex have a better chance of establishing their credibility to the factfinder, through this or other means, such that their side is the one that will be believed. That's what trials are for.
But if the emails were sent by someone else _to_ OP's ex, they would be hearsay, and OP would not be able to use them as substantive evidence all by themselves. He could still use them to cross-examine his ex, asking her whether she received them and whether they are authentic copies of what she received, but he would not be able to use the emails themselves in evidence if she denied receiving them. Even if she admitted receiving them, they could NOT be used as evidence of the facts they contain, e.g. if they are from her paramour saying "I love you" OP can't use them to prove that the other man loves OP's ex-wife. But if they say something like, "I'll meet you behind the library Tuesday at 9:30 pm" and OP followed his wife Tuesday night after she suspiciously told him she was going out to return a book to the library before it closed (e.g. if she doesn't read), OP could then use the incriminating email to show plan, motive, and opportunity for the clandestine meeting. The permutations are endless and really go beyond OP's original question, which was just how to "authenticate" the printouts so he could use them in evidence, assuming they are OTHERWISE admissible for some relevant purpose, not unduly and unfairly prejudicial, and non-hearsay.
> To the group: does the OP have the right to use emails that were
> exchanged between the spouse and a third party? Is the ownership of
> the computer the determining factor (i.e., whether the spouse left it
> behind, or left it unattended - or if the computer belongs solely to
> the OP - or if the computer is owned jointly but the email account
> belongs to the spouse)?
This is a gray area of rapidly changing law, but IMO it should be tested on the same basis as snailmail. If OP's ex left a love letter from her gigolo lying on her desk in plain view, in a room of the house that OP had equal and legal access to, yes he can take and use it as evidence against her. Even if she had the letter in a locked drawer in her personal desk at her workplace and OP broke in and stole it, the letter MAY still be admissible in evidence, although OP could suffer other possible consequences for his illegal steps in accessing it; OR the judge may rule it inadmissible due to the means of its acquisition. Same with email. If it was sent to her on a joint email account where OP and his ex both knew her password and/or where the received and sent mails were clearly visible on their computer (after being saved) without any password, IMO they are fair game. If OP stole her password or hacked her private email acocunt, though, other consequences may ensue.
> As a general question: can information gained by the use of "snooping"
> software or devices be used as evidence, and is ownership of the
> computer a determining factor?
Gray area. See above.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
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For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> There is the matter of whether the emails were addressed to you, or
> to the spouse.
Preliminary note: the rules of evidence still trip up a lot of lawyers. I don't expect pro se litigants such as OP, to have much of a chance of doing everything right to get a contested document into evidence, if he's up against a lawyer on the other side. So I don't want OP to think that ALL he has to do is testify that this is an email he received from his ex-wife, and his troubles are over. There are lots of other things that have to be considered, besides "authenticity", before a document will be received into evidence by the judge. And being received into evidence just means it is part of the body of facts that the factfinder will be allowed to consider in deciding the issues, NOT that it is certifiably true and accurate. That is for the jury still to decide at the END of the case.
Of course Herb's right, but that question goes to admissibility, not to authenticity of the document, which is all OP asked about and all I was responding to in my first reply to OP's post. If the emails were allegedly sent by OP's wife, to him or anybody else, they are non-hearsay as an admission of a party opponent. That means they could come into evidence based solely on OP's testimony that he downloaded and printed them from a computer and email account he legally had access to, and that they are an unmodified printout of what came to his computer. If the ex denies sending them, that would go to their weight, not their admissibility. "Authentication" of evidence doesn't mean you've proven beyond a shadow of a doubt that it is what it purports to be; just that you've testified under oath that it is. The judge or jury will decide at the end of the case whether it _really_ is authentic or not, based on all the evidence from both parties. But they will do so, WITH the questioned document in front of them, it having been admitted into evidence based on OP's authentication testimony. Thinking otherwise is putting the cart before the horse.
Of course, there is a big difference between what is MINIMALLY required, legally, to authenticate a document to get it admitted into evidence, and what is PRACTICALLY required, by common sense, to get a judge or jury to actually BELIEVE that the document is an incriminating admission by the party opponent. The latter is highly fact-specific and I wouldn't begin to suggest whether OP or his ex have a better chance of establishing their credibility to the factfinder, through this or other means, such that their side is the one that will be believed. That's what trials are for.
But if the emails were sent by someone else _to_ OP's ex, they would be hearsay, and OP would not be able to use them as substantive evidence all by themselves. He could still use them to cross-examine his ex, asking her whether she received them and whether they are authentic copies of what she received, but he would not be able to use the emails themselves in evidence if she denied receiving them. Even if she admitted receiving them, they could NOT be used as evidence of the facts they contain, e.g. if they are from her paramour saying "I love you" OP can't use them to prove that the other man loves OP's ex-wife. But if they say something like, "I'll meet you behind the library Tuesday at 9:30 pm" and OP followed his wife Tuesday night after she suspiciously told him she was going out to return a book to the library before it closed (e.g. if she doesn't read), OP could then use the incriminating email to show plan, motive, and opportunity for the clandestine meeting. The permutations are endless and really go beyond OP's original question, which was just how to "authenticate" the printouts so he could use them in evidence, assuming they are OTHERWISE admissible for some relevant purpose, not unduly and unfairly prejudicial, and non-hearsay.
> To the group: does the OP have the right to use emails that were
> exchanged between the spouse and a third party? Is the ownership of
> the computer the determining factor (i.e., whether the spouse left it
> behind, or left it unattended - or if the computer belongs solely to
> the OP - or if the computer is owned jointly but the email account
> belongs to the spouse)?
This is a gray area of rapidly changing law, but IMO it should be tested on the same basis as snailmail. If OP's ex left a love letter from her gigolo lying on her desk in plain view, in a room of the house that OP had equal and legal access to, yes he can take and use it as evidence against her. Even if she had the letter in a locked drawer in her personal desk at her workplace and OP broke in and stole it, the letter MAY still be admissible in evidence, although OP could suffer other possible consequences for his illegal steps in accessing it; OR the judge may rule it inadmissible due to the means of its acquisition. Same with email. If it was sent to her on a joint email account where OP and his ex both knew her password and/or where the received and sent mails were clearly visible on their computer (after being saved) without any password, IMO they are fair game. If OP stole her password or hacked her private email acocunt, though, other consequences may ensue.
> As a general question: can information gained by the use of "snooping"
> software or devices be used as evidence, and is ownership of the
> computer a determining factor?
Gray area. See above.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Emails - use as evidence
On Feb 28, 11:38 pm, "John A. Weeks III" <j...@johnweeks.com> wrote:
> In article <e2rau2d45ct83tlh11rf4rpa03olai7...@4ax.com>,
> "Relayer" <relayer...@aol.com> wrote:
> > I am about to introduce incriminating emails I have in a divorce and
> > custody action as evidence. I have copies of the emails. What else do
> > I need to have/be prepared to do to ensure they are accpeted as
> > authentic and as evidence?
>
> How do you plan to show that they are authentic? Anyone can
> type up a bunch of E-mails and put someone else's name on
> them.
For a document to be admitted into evidence, the law in most states typically doesn't require such detailed scientific proof of its non-fakeability as John then goes on to recite in detail. To lay a sufficient foundation regarding authenticity of a document to allow it into evidence, a witness who claims to have personal knowledge of the document's authenticity has to testify under oath that the thing is what it appears to be. That's it.
So, if the proponent of the evidence (OP, the one who actually received the email and wants to have it admitted) gets on the stand and swears, "This is an exact copy of an email I received on the PC in my kitchen from my ex-wife at 6:51 pm on March 12, 2006, as indicated in the email headers", that is sufficient authentication in most jurisdictions to offer it into evidence, Of course, the opponent is free to cross-examine the witness about the details of his computer email system, its openness to spoofing, whether the purported email was faked or altered, etc., but that just goes to its weight, not its admissibility. Besides, most juries are clueless about that kind of stuff anyway and the counterarguments about possible fakery would go right over their heads.
Email is no different in that sense than a fax, a photocopy, a photograph, digital or otherwise, or even a purported original handwritten document with an ink signature. Any of the above can be tampered with, altered, etc. Signatures can be forged, words or entire paragraphs can be whited out with correction liquid and then photocopied cleanly, persona non grata can be digitally erased from a family photo, etc. or their head can be pasted onto someone else's body, just to name a few ways evidence can be faked. But simply showing the fact that evidence _can_ be faked (by the one cross-examining it) is not enough to conclusively prove that it _was_ faked. The burden of proving that evidence was faked lies with the one opposing the evidence, but even if his proof of fakery is convincing, the faked document STILL comes into evidence thru the proponent's authentication testimony.
> Just because they came by E-mail doesn't mean that
> the person whose name is on them is the real sender. Do you
> have log files from the servers to prove that any mail even
> flowed between the sender and the recipient? Even if you can
> prove that the E-mail was sent, how can you prove that it hasn't
> been tampered with or edited?
OP doesn't have to do that. Rather, it would be up to the ex (or her atty) to argue reasons why they think the document in evidence _was_ tampered with.
> Unless the sender admits writing them and sending them, then
> you might have little more than a type of hearsay.
Hearsay is an admissibility question, not an authenticity question. Even if a document is genuine, it may not be admissible in evidence unless it is relevant, probative of some disputed issue, and not barred by some other rule, such as the hearsay rule. The hearsay rule bars admission into evidence of any out-of-court statement (oral _or_ written) that is offered for the purpose of proving the truth of the facts recited in that statement. But if an out-of-court statement is offered for some other purpose, such as to prove notice, or a promise, or belief, it is not hearsay and may be admitted for that other purpose, assuming its authenticity has been sufficiently established by testimony.
But a document which contains admissions by a party opponent (OP's ex, frex) is admissible in most jurisdictions under an exception to the hearsay rule. In sone jurisdictions, such as under the Federal rules, it is in fact considered non-hearsay rather than hearsay-but-admissible-under-an-exception (a technical distinction which I have never figured out why it makes any difference).
> In corporate settings, you can get backup tapes from the servers,
> pull up backups and log files, and establish a chain of custody.
> Some E-mail systems use public key cryptology, so you really can
> authenticate that the mail came from who it says it came from,
> and that it hasn't been tampered with. But if you are talking
> good old PC to PC E-mail via Yahoo or some other Yeah-hoo, then
> you have a difficult challenge.
All of that may be so if we are talking about a multizillion-dollar Enron case or a murder case, or if this was the custody hearing for Anna Nicole Smith's baby, but it is highly unlikely anyone will even raise such questions or require such detailed proof in your garden variety divorce-and-custody case. And if they do, all OP has to do to uphold his authentication of the document is to stick to his guns and continue to testify that the document is what it purports to be.
> Then again, you might not get challenged. Some folks, especially
> older folks, accept what looks like it came from a computer as
> the gospel. Proof by intimidation might work in this case.
John's right about the cluelessness of most foax about the ease of computer forgery, but characterizing this as "intimidation" may be a stretch. Unless the opposing cross-examiner can poke holes in the witness' story, or show him to be an evasive or weasely type such as would affect his credibility, all we're talking about is a simple, honest witness (himself maybe relatively clueless about what goes on inside his computer) saying that he received an email from his ex and that the copy he hands to the clerk is an exact printout of what he received.
--
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Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
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For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
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(tel) 410-740-5685 (fax) 410-740-4300
> In article <e2rau2d45ct83tlh11rf4rpa03olai7...@4ax.com>,
> "Relayer" <relayer...@aol.com> wrote:
> > I am about to introduce incriminating emails I have in a divorce and
> > custody action as evidence. I have copies of the emails. What else do
> > I need to have/be prepared to do to ensure they are accpeted as
> > authentic and as evidence?
>
> How do you plan to show that they are authentic? Anyone can
> type up a bunch of E-mails and put someone else's name on
> them.
For a document to be admitted into evidence, the law in most states typically doesn't require such detailed scientific proof of its non-fakeability as John then goes on to recite in detail. To lay a sufficient foundation regarding authenticity of a document to allow it into evidence, a witness who claims to have personal knowledge of the document's authenticity has to testify under oath that the thing is what it appears to be. That's it.
So, if the proponent of the evidence (OP, the one who actually received the email and wants to have it admitted) gets on the stand and swears, "This is an exact copy of an email I received on the PC in my kitchen from my ex-wife at 6:51 pm on March 12, 2006, as indicated in the email headers", that is sufficient authentication in most jurisdictions to offer it into evidence, Of course, the opponent is free to cross-examine the witness about the details of his computer email system, its openness to spoofing, whether the purported email was faked or altered, etc., but that just goes to its weight, not its admissibility. Besides, most juries are clueless about that kind of stuff anyway and the counterarguments about possible fakery would go right over their heads.
Email is no different in that sense than a fax, a photocopy, a photograph, digital or otherwise, or even a purported original handwritten document with an ink signature. Any of the above can be tampered with, altered, etc. Signatures can be forged, words or entire paragraphs can be whited out with correction liquid and then photocopied cleanly, persona non grata can be digitally erased from a family photo, etc. or their head can be pasted onto someone else's body, just to name a few ways evidence can be faked. But simply showing the fact that evidence _can_ be faked (by the one cross-examining it) is not enough to conclusively prove that it _was_ faked. The burden of proving that evidence was faked lies with the one opposing the evidence, but even if his proof of fakery is convincing, the faked document STILL comes into evidence thru the proponent's authentication testimony.
> Just because they came by E-mail doesn't mean that
> the person whose name is on them is the real sender. Do you
> have log files from the servers to prove that any mail even
> flowed between the sender and the recipient? Even if you can
> prove that the E-mail was sent, how can you prove that it hasn't
> been tampered with or edited?
OP doesn't have to do that. Rather, it would be up to the ex (or her atty) to argue reasons why they think the document in evidence _was_ tampered with.
> Unless the sender admits writing them and sending them, then
> you might have little more than a type of hearsay.
Hearsay is an admissibility question, not an authenticity question. Even if a document is genuine, it may not be admissible in evidence unless it is relevant, probative of some disputed issue, and not barred by some other rule, such as the hearsay rule. The hearsay rule bars admission into evidence of any out-of-court statement (oral _or_ written) that is offered for the purpose of proving the truth of the facts recited in that statement. But if an out-of-court statement is offered for some other purpose, such as to prove notice, or a promise, or belief, it is not hearsay and may be admitted for that other purpose, assuming its authenticity has been sufficiently established by testimony.
But a document which contains admissions by a party opponent (OP's ex, frex) is admissible in most jurisdictions under an exception to the hearsay rule. In sone jurisdictions, such as under the Federal rules, it is in fact considered non-hearsay rather than hearsay-but-admissible-under-an-exception (a technical distinction which I have never figured out why it makes any difference).
> In corporate settings, you can get backup tapes from the servers,
> pull up backups and log files, and establish a chain of custody.
> Some E-mail systems use public key cryptology, so you really can
> authenticate that the mail came from who it says it came from,
> and that it hasn't been tampered with. But if you are talking
> good old PC to PC E-mail via Yahoo or some other Yeah-hoo, then
> you have a difficult challenge.
All of that may be so if we are talking about a multizillion-dollar Enron case or a murder case, or if this was the custody hearing for Anna Nicole Smith's baby, but it is highly unlikely anyone will even raise such questions or require such detailed proof in your garden variety divorce-and-custody case. And if they do, all OP has to do to uphold his authentication of the document is to stick to his guns and continue to testify that the document is what it purports to be.
> Then again, you might not get challenged. Some folks, especially
> older folks, accept what looks like it came from a computer as
> the gospel. Proof by intimidation might work in this case.
John's right about the cluelessness of most foax about the ease of computer forgery, but characterizing this as "intimidation" may be a stretch. Unless the opposing cross-examiner can poke holes in the witness' story, or show him to be an evasive or weasely type such as would affect his credibility, all we're talking about is a simple, honest witness (himself maybe relatively clueless about what goes on inside his computer) saying that he received an email from his ex and that the copy he hands to the clerk is an exact printout of what he received.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Jury nullification - scope of concept clarified
On Feb 25, 9:49 am, s...@panix.com (Seth Breidbart) wrote:
> Specifically, Article 23 of the Maryland Declaration of Rights, once
> known as Article 15, Section 5, provides that: In the trial of all
> criminal cases, the Jury shall be the Judges of Law, as well as of
> fact, except that the Court may pass upon the sufficiency of the
> evidence to sustain a conviction.
>
> During the first 100 years of its existence the provision simply
> read: In the trial of all criminal cases, the jury shall be the
> judges of law as well as fact.
That's what the MDR _says_, but that clause is no longer good law, because it has been found unconstitutional, just a couple of months ago. On December 5, 2006, the MD Court of Special Appeals upheld a trial court ruling granting a new trial to a man, Raymond Leon Adams, who was convicted in 1979 of rape and was serving a life sentence. The basis for Adams' appeal was that the original trial judge (in 1979) had repeatedly told the jury, in accord with the MDR, that any instructions he gave them on the facts or the law were purely advisory, and that the jury was free to disregard anything he said. The CSA in 2006 held that "instructing the jury that the law as presented to it is binding is essential to the guarantee that no criminal conviction be obtained other than by the rule of law."
CSA based its 2006 _Adams_ ruling on a 2000 case from the US 4th Circuit, _Jenkins_v_Hutchinson_, which held that an advisory "reasonable doubt" instruction given pursuant to the MDR violated the defendant's Federal constitutional right to due process, applying their ruling retroactively and overturning Jenkins' conviction, even though such an instruction was permitted at the time of Jenkins' conviction by State law.
The _Jenkins_ court, in turn, based its reasoning on _In_Re_Winship_, a 1970 SCOTUS case which had held that any provision of law relieving the prosecution of its burden of proof beyond a reasonable doubt in a criminal trial is unconstitutional under the 5th Amendment due process clause. Yet, MD judges continued to give such instructions throughout the next 3 decades, since no MD or Federal decision until _Jenkins_ in 2000 had ever ruled upon the constitutionality of this clause of the MDR.
IMO the _Adams_ ruling goes beyond the bare minimum required by _Winship_ and _Jenkins_ to comply with the US constitution, and holds that ANY statement by the judge to a jury that ANY of his instructions on the law are merely "advisory" is now forbidden. It is not enough for MDR merely to ensure that the judge can act as a check on the sufficiency of the evidence, because the jury, not the judge, is the one who has to be convinced beyond a reasonable doubt of the defendant's guilt. A jury that returns a conviction on a lesser standard will only be overturned on sufficiency-of-evidence grounds if the judge finds, as a matter of law, that the prosecution's evidence was not even barely enough to present the issue to the jury. Of course, in most cases a "bare bones" prima facie case by the prosecution, that barely meets the sufficiency-of-evidence test, is not going to have much "weight" with a jury, and is unlikely to convince the jury of guilt beyond a reasonable doubt; but if the judge tells the jury that his instructions are merely "advisory", many such cases would be likely to result in conviction even though the jury _had_ some reasonable doubt.
None of this changes the law that a jury's verdict of ACQUITTAL cannot be challenged by the state on appeal, without unconstitutionally violating the Double Jeopardy clause. (The State CAN appeal an acquittal if it was based on an error of _law_ committed by the trial judge, but cannot challenge the jury's factual finding of guilty or not guilty if there was no error in the judge's legal instructions or in his decisions to admit or exclude some of the evidence).
So, as a practical matter, a jury is still free to acquit just because they don't like the substantive law under which a defendant was charged. But no one is constitutionally permitted to TELL them that. The jury swears an oath to follow the law as instructed by the judge, and that is what they are supposed to do.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Specifically, Article 23 of the Maryland Declaration of Rights, once
> known as Article 15, Section 5, provides that: In the trial of all
> criminal cases, the Jury shall be the Judges of Law, as well as of
> fact, except that the Court may pass upon the sufficiency of the
> evidence to sustain a conviction.
>
> During the first 100 years of its existence the provision simply
> read: In the trial of all criminal cases, the jury shall be the
> judges of law as well as fact.
That's what the MDR _says_, but that clause is no longer good law, because it has been found unconstitutional, just a couple of months ago. On December 5, 2006, the MD Court of Special Appeals upheld a trial court ruling granting a new trial to a man, Raymond Leon Adams, who was convicted in 1979 of rape and was serving a life sentence. The basis for Adams' appeal was that the original trial judge (in 1979) had repeatedly told the jury, in accord with the MDR, that any instructions he gave them on the facts or the law were purely advisory, and that the jury was free to disregard anything he said. The CSA in 2006 held that "instructing the jury that the law as presented to it is binding is essential to the guarantee that no criminal conviction be obtained other than by the rule of law."
CSA based its 2006 _Adams_ ruling on a 2000 case from the US 4th Circuit, _Jenkins_v_Hutchinson_, which held that an advisory "reasonable doubt" instruction given pursuant to the MDR violated the defendant's Federal constitutional right to due process, applying their ruling retroactively and overturning Jenkins' conviction, even though such an instruction was permitted at the time of Jenkins' conviction by State law.
The _Jenkins_ court, in turn, based its reasoning on _In_Re_Winship_, a 1970 SCOTUS case which had held that any provision of law relieving the prosecution of its burden of proof beyond a reasonable doubt in a criminal trial is unconstitutional under the 5th Amendment due process clause. Yet, MD judges continued to give such instructions throughout the next 3 decades, since no MD or Federal decision until _Jenkins_ in 2000 had ever ruled upon the constitutionality of this clause of the MDR.
IMO the _Adams_ ruling goes beyond the bare minimum required by _Winship_ and _Jenkins_ to comply with the US constitution, and holds that ANY statement by the judge to a jury that ANY of his instructions on the law are merely "advisory" is now forbidden. It is not enough for MDR merely to ensure that the judge can act as a check on the sufficiency of the evidence, because the jury, not the judge, is the one who has to be convinced beyond a reasonable doubt of the defendant's guilt. A jury that returns a conviction on a lesser standard will only be overturned on sufficiency-of-evidence grounds if the judge finds, as a matter of law, that the prosecution's evidence was not even barely enough to present the issue to the jury. Of course, in most cases a "bare bones" prima facie case by the prosecution, that barely meets the sufficiency-of-evidence test, is not going to have much "weight" with a jury, and is unlikely to convince the jury of guilt beyond a reasonable doubt; but if the judge tells the jury that his instructions are merely "advisory", many such cases would be likely to result in conviction even though the jury _had_ some reasonable doubt.
None of this changes the law that a jury's verdict of ACQUITTAL cannot be challenged by the state on appeal, without unconstitutionally violating the Double Jeopardy clause. (The State CAN appeal an acquittal if it was based on an error of _law_ committed by the trial judge, but cannot challenge the jury's factual finding of guilty or not guilty if there was no error in the judge's legal instructions or in his decisions to admit or exclude some of the evidence).
So, as a practical matter, a jury is still free to acquit just because they don't like the substantive law under which a defendant was charged. But no one is constitutionally permitted to TELL them that. The jury swears an oath to follow the law as instructed by the judge, and that is what they are supposed to do.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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