Jodi Arias Legal Question and Answer Thread *no discussion*

I wonder why travisalexander.blogspot.com is still up.

JurysOut said:

I'm a little late on this one..but why was Chris Hughes permitted to repeat things his wife, Skye, told him?

It seemed very strange to me, especially since it happened over and over again.

Sorry if this has already been covered.

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I don't recall the specifics of this testimony, but he would be able to testify about her reactions she had to something as she was having the reaction -- and I think that is what the testimony was about (her reaction to the letter Nurmi sent her?)

I might be able to give you a better answer if you have some more specifics.

3trees said:

Can the bishops in which both JA & TA spoke to be called and compelled to testify or would this be considered hearsay and or privileged?

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Probably privileged under the "priest/penitent" privilege. There are some instances in which even privileged communications can be pierced and the testimony compelled -- such as sexual crimes against children in my state. It probably varies by state.

If it was a statement by Jodi, it would not be hearsay if it's offered by the State. Statements by the "party opponent" (Jodi in this case) are not hearsay. Statements by Travis would be hearsay.

kscornfed said:

i asked gitana this but didn't get an answer so here goes.

can you explain how the DA thinks that if the gunshot was first, it makes this murder not cruel? they seem to think it's very important and i don't get why it matters.

we know TA had defensive wounds---although IMO, he didn't have many and he had none on his arms---so i'm thinking he was definitely not 100% at the time he was being stabbed. (i'm a gunshot first person in this case.) i just don't know why it matters when it comes to deciding the cruelty of the crime.

also, could it be that the ME is sticking the 'gunshot last' for this reason? that the DA WANTS that wound to have been first?

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I think this is a non-issue and the defense is trying to make something of nothing simply because Flores' initial conclusion (gunshot first) was different from the ME's ultimate conclusion (stab first). When this issue was raised by the defense, they tried to spin it as a reason to dismiss the death penalty qualification but the judge ruled that there's sufficient evidence of the cruelty qualifier irrespective of which came first.

I'm' a gunshot first theorist also, but I do not think it matters and neither does the judge so the defense will get nowhere on this rabbit trail.

Laceybug said:

I have a couple of questions...

IF the prosecution receives new evidence in this case.. can he (if the judge allows it) come off of the rest and continue?

I see where they are listening to something in the judges chambers. Would it be just the attorneys and judge present listening or would Jodi be allowed in there to listen to it as well?

I hope I get this answer before court resumes. Thanks in advance!!

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So sorry I took so long to answer your question.

If the prosecution receives new evidence that it still wants to admit, it can do so in its rebuttal case at this point. The state has rested so I do not believe their case in chief can be reopened without having a mistrial and starting over. That said, if there's something new they want to present, I'm very confident they would be able to find a way to work it in on rebuttal.

If that were to happen -- and I do not believe this is what was happening yesterday -- depending on what the evidence is, it might cause a delay in the trial to give the defense an opportunity to explore, examine, test whatever the new evidence is.

If they are listening to something in chambers, Jodi has a right to be there. In fact, the court really can't do anything without Jodi being present unless she has signed a waiver of her right to be present.

chakti said:

DT claims there is a phone sex call recorded by Jodi of Travis and her having phone sex where he says she climaxies like a 12 year old girl.

How the heck could they get that in ?

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I'm curious about the phone call too.

Can the defense play the (alleged) phone sex recording if JA doesn't testify? How would they do this and who would introduce this -- would the computer forensic expert be able to do this?

Would they have to authenticate both voices as being JA's and TA's? Wouldn't JA have to give context if the defense is alleging that she's "faking an orgasm" and he's using her as a sex object as opposed to them having consensual phone sex?

It seems Juan will fight to keep it would as it's irrelevant but if it does get admitted he would insist JA would need to 'present' it.

TIA if you're able to answer!

LotusPawprint said:

I'm curious about the phone call too.

Can the defense play the (alleged) phone sex recording if JA doesn't testify? How would they do this and who would introduce this -- would the computer forensic expert be able to do this?

Would they have to authenticate both voices as being JA's and TA's? Wouldn't JA have to give context if the defense is alleging that she's "faking an orgasm" and he's using her as a sex object as opposed to them having consensual phone sex?

It seems Juan will fight to keep it would as it's irrelevant but if it does get admitted he would insist JA would need to 'present' it.

TIA if you're able to answer!

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I do not think there's even chance of this being admitted without Jodi taking the stand. Only Jodi would be able to authenticate the voices on the tape and describe the circumstances under which it was recorded. I do not think a forensic expert could authenticate this, even if it was something saved on a hard drive he examined and extracted it from.

Much like the dubious photos the defense was trying to get admitted through the computer guy -- all he can say is he found these photos on a hard drive, but he cannot give any information about who took the pics, what the subject of the pic is, whether it's an accurate representation of what was being photographed etc.

Contrast that with the way the state introduced the naked photos of Travis and Jodi -- they had an expert testify to the device that took the pictures, the subjects were identified, the location was identified as looking like it did when crime scene investigators were in Travis' room, etc. You had all the necessary foundation come in from that witness.

For any phone recordings to come into evidence, there will have to be all of those elements established as a foundation. So, let's say there is a recording on Jodi's cell phone that was examined. A forensic guy might be able to accurately testify that the recording was made from that phone that belongs to Jodi and that it was recorded at a particular time, but he will not be able to identify the voices on the recording, etc.

If they somehow meet all the foundational requirements for a recorded conversation -- let's say Jodi takes the stand and gives all that testimony -- then there are the obstacles of relevance and possibly hearsay.

In my mind, a phone sex recording is probably not hearsay because it's not really "testamentary" assertions .. in other words, the statements made by Travis on such a recording (e.g. "yeah, baby") would not be offered to prove the truth of what Travis was saying. Possible exceptions -- if someone on the recording hypothetically said "I prefer sex with animals" or something else that the defense wants to allege is an actual preference of the person, then that might be hearsay and be inadmissible.

I think I have read that the defense wants to have statements admitted to the effect that Travis said Jodi sounds like a teenager having her first orgasm or something like that. Their argument would be that's not hearsay because they are not trying to prove that Jodi actually sounded like a teenager; they are trying to prove that Travis likes sex with teenagers or whatever deviant concoction they're trying to sell. So that really wouldn't be hearsay, but then there's the question of relevance ...and I don't see how that could have any relevance in this trial.

Now on the other hand if there were statements made by Travis where he's actually admitting to having done something abusive (real abuse -- meaning physical or sexual assaut), then that might be something that would be allowed because it would be relevant and could be an exception to hearsay.

Bottom line here -- there's no way to make a blanket generalization about admissibility without knowing what the statements are on the recording, but before you even get to any of that, there has to be someone (Jodi) testify about the foundational requirements to have a recording admitted.

chakti said:

DT claims there is a phone sex call recorded by Jodi of Travis and her having phone sex where he says she climaxies like a 12 year old girl.

How the heck could they get that in ?

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I'm more curious about how the defense team knows so much about 12 year old girls.

I was wondering about the sexual deviance
thing too because as awful as it would be, if Travis
was a pedo,it still would not be a reason to kill him.
She did not say he had a little boy in the shower she was trying
to protect. She was trying to protect herself.

I know the defense is trying to make him look
bad and calling him a pedo will make the jury
dislike him but it really doesn't effect her safety.

So even if he had tons of pedo videos on the computer
and they had some way to prove it was his its still
not a threat to Jodi

BritsKate said:

I got my legal decoder ring out of a Cracker Jack box so take this for what its worth. It would seem according to jury instructions published by the Arizona bar that lesser offenses are included with a first degree murder charge (except felony). I'm including the link so one of our esteemed attorneys can take a peek when they have time.

http://www.azbar.org/media/292098/2011_cumulative_supplement.pdf

Relevant portion of instructions begins at pp. 112 with felony and premeditated definitions just above.

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I carried this over from one of the other discussion threads.

So here's my take on whether Jodi can have the jury receive instructions on lesser included offenses, such as 2d degree murder.

Lesser-included offenses are not automatically given to the jury in their instructions. In Arizona, upon the request of the prosecution or defense, the judge must give instructions on all "necessarily" included offenses if there was trial evidence that could support a conviction on the lesser included offense.

The charge in this case is First Degree Murder, and that requires a premeditated, knowing or intentional killing of another person, without legal justification.

Second degree murder is a lesser included offense of First Degree Murder. Second degree murder is an knowing or intentional homicide without premeditation -- homicide committed in the heat of passion or in immediate response to some emotional provocation, without thinking about it.

In this case, the prosecution's evidence supports only a First Degree Murder charge, and there was no evidence in the State's case that would support a Second Degree Murder charge.

It's possible that the defense could produce some evidence that Jodi killed Travis in the heat of passion -- for instance, they could try to produce evidence that Jodi did not go there intending to kill Travis and had not considered it in advance, but while Travis was taking a shower he yelled out, "I hate your guts, and I was always just using you; I'm going to make sure you get excommunicated from the Church and everyone will know what a *advertiser censored* you are" or whatever might be considered provocative enough to elicit a very intense emotional reaction. And they could present testimony from Jodi that the weapons just happened to be nearby and without thinking about it she instinctively reached for the gun and shot him and stabbed him a bunch of times out of her immediate anger in response to his provocation.

Not likely they will present any such evidence because it flies in the face of the self defense justification. They are trying to present evidence that Travis actually attacked her and that she reasonably believed she had to kill him to save her own life. They really cannot present alternate theories of verbal provocation. But we'll see.

So IMO, there will not be an instruction on Second Degree Murder because there will have been no evidence that would support it.

If this is the case, the jury will only be instructed on First Degree Murder, Felony Murder and Justifiable Use of Deadly Force.

The most interesting among these is the instruction on justification self defense, which reads:

A defendant is justified in using or threatening deadly physical force in self-defense if the following two conditions existed:

1. A reasonable person in the situation would have believed that deadly physical force was immediately necessary to protect against another’s use or apparent attempted or threatened use of unlawful deadly physical force; and

2. The defendant used or threatened no more deadly physical force than would have appeared necessary to a reasonable person in the situation.

A defendant may use deadly physical force in self-defense only to protect against another’s use or apparent attempted or threatened use of deadly physical force.

Self-defense justifies the use or threat of deadly physical force only while the apparent danger continues, and it ends when the apparent danger ends. The force used may not be greater than reasonably necessary to defend against the apparent danger.

The use of deadly physical force is justified if a reasonable person in the situation would have reasonably believed that immediate deadly physical danger appeared to be present. Actual danger is not necessary to justify the use of deadly physical force in self-defense.

You must decide whether a reasonable person in a similar situation would believe that:

Deadly physical force was immediately necessary to protect against another’s [use] [attempted use] [threatened use] [apparent attempted use] [apparent threatened use] of unlawful deadly physical force.

You must measure the defendant’s belief against what a reasonable person in the situation would have believed.

A defendant has no duty to retreat before threatening or using deadly physical force in self-defense if the defendant:

1. Had a legal right to be in the place where the use or threatened deadly physical force in self-defense occurred; and

2. Was not engaged in an unlawful act at the time when the use or threatened deadly physical force in self-defense occurred.

The State has the burden of proving beyond a reasonable doubt that the defendant did not act with such justification. If the State fails to carry this burden, then you must find the defendant not guilty of the charge.

If there have been past acts of domestic violence as defined in A.R.S. § 13-3601, subsection A, against the defendant by the victim, the state of mind of a reasonable person shall be determined from the perspective of a reasonable person who has been a victim of those past acts of domestic violence. A.R.S. § 13-415.

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"Domestic violence" as defined by statute is in a nutshell physical or sexual assault, and does not include verbal provocation or name calling. So far we have seen no evidence of domestic violence by Travis, whatsoever, so self-defense is a non-starter here. I think she would have been better off arguing heat of passion and trying for a second degree murder conviction, which would at least get rid of the death penalty and a possibly shorter sentence.

I have a question about these evidentiary hearings... why weren't they done pre-trial?

(thanks for all the answers in this thread!!!)

minor4th said:

Probably privileged under the "priest/penitent" privilege. There are some instances in which even privileged communications can be pierced and the testimony compelled -- such as sexual crimes against children in my state. It probably varies by state.

If it was a statement by Jodi, it would not be hearsay if it's offered by the State. Statements by the "party opponent" (Jodi in this case) are not hearsay. Statements by Travis would be hearsay.

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In talking to Flores in the interview room she mentions that the bishop told her that Lisa turned down TA's proposal. This is what I was referring to, that she spoke of her and the bishop's discussion of TA and her relationship with him. So I guess I am asking if in this occasion the DA could call the bishop to the stand and discuss this talk they had. Since the Mormon church bishops, from what I have read, serve a term of seven years instead of a life long term, would that still apply legally as a life long priest/penitent conversation, again, legally?

nursebeeme said:

I have a question about these evidentiary hearings... why weren't they done pre-trial?

(thanks for all the answers in this thread!!!)

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Someone asked about this yesterday in the discussion thread

Short answer is that many determinations cannot be made in advance because relevance and foundation issues might depend on other evidence that is presented.

The defense does not have to preview its whole case for the state and have every piece of evidence pre-screened for an admissibility ruling. And remember the defense is allowed to change its theory of the case even mid-trial.

The phone recordings, for instance, their relevance would depend on what the state presents in its case. So there couldn't really be a pre-trial determination. The state did make a pre-trial motion to preclude evidence about Travis' sexual proclivities, but the judge deferred ruling until the state presented its evidence, and that was the proper ruling IMO. This may be why the state was careful not to bring any evidence of Jodi stalking Travis, and might be why they really narrowed their presentation of evidence to the essentials -- maybe trying to avoid opening the door for the defense to argue these tapes are relevant to rebut the state's evidence that Travis was trying to distance himself from Jodi. Pretty smart, I'd say.

I'm trying to think of any evidence the state presented that might conceivably give the defense an argument that these tapes are relevant, but I can't think of anything. All of the mention about stalking was brought up by the defense.

3trees said:

In talking to Flores in the interview room she mentions that the bishop told her that Lisa turned down TA's proposal. This is what I was referring to, that she spoke of her and the bishop's discussion of TA and her relationship with him. So I guess I am asking if in this occasion the DA could call the bishop to the stand and discuss this talk they had. Since the Mormon church bishops, from what I have read, serve a term of seven years instead of a life long term, would that still apply legally as a life long priest/penitent conversation, again, legally?

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Interesting. So maybe the argument could be made that Jodi waived the privilege by discussing with Flores her conversations with the bishop. If there were something really compelling they thought the bishop could add, they might be able to make that argument, probably unsuccessfully. Jodi didn't disclose too much about her discussion with the bishop - probably not enough to argue a complete waiver.

As a practical matter, they wouldn't bother because there's no way in hell-o Jodi told the truth to her bishop, so he'd probably only be able to give the same story Jodi gave Flores

today we heard about the helio phone and that there were texts and 8 recordings on it (most likely the sex tapes)

can these be brought in if Jodi testifies to lay the foundation?

or would the recording of someone without their permission thing come into play?

tia

what did you make of Jodi's testimony? what would you attack in cross?

I will answer your questions nurse, but I have to process this for a bit and let it settle in

another poster on the trial discussion thread asked why the jury was asked to leave for three minutes and then return (before Arias took the stand). Do you know why that would happen?

nursebeeme said:

another poster on the trial discussion thread asked why the jury was asked to leave for three minutes and then return (before Arias took the stand). Do you know why that would happen?

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Probably so they would not see the security device on her leg

By Jodi's testimony so far would you say the jury is leaning toward the self defense theory or pre meditated murder?