Legal Questions for Our VERIFIED Lawyers #2

[AZlawyer]

So basically HHJP has to make a decision solely based on the facts and what he believes was her state of mind at the time?

Based on the facts and the law, yes. Her state of mind is really irrelevant. The question is not how she felt in the situation, but how a "reasonable person" would have felt.

If they go with the accident scenario and she freaked out...will KC have to take the stand?

Nope. The defense can argue any theory that is consistent with the evidence.

If the judge decides to keep Anthony's statements to investigators, out of evidence because of Sheriff's Office misconduct, the state will likely have to drop four counts against her related to lying to deputies, or it could appeal the decision and further delay the trial.

http://www.clickorlando.com/news/27103024/detail.html

AZ, do you know what this means? I can't tell from this article if it's the defense or state that would have to appeal the decision.

The state could appeal such a decision. The defense could not. IMO there will be enough lying kept in to preserve those counts, but I am sure the SA is not terribly worried about it. Those were just the charges to keep her in jail until LE could figure out what the heck happened.

If HHJP does not let the Universal Interview in, what impact would it have on the SA’s case?


Hypothetical question reference Universal Interview (UI) not being allowed at trial:

It is trial day, YM is on the stand. While being questioned by the DT, the answer from YM makes reference to the Universal Interview. The DT, for whatever reason, does not stop YM and the Universal Interview is out in the open. Can the SA than ask questions about the UI? OR, will HHJP stop YM and school the DT again?

HHJP would stop everything and decide if any real damage has been done--if so, he would have to declare a mistrial. If not, he could just instruct the jury to disregard that portion of the answer (which in real life acts as a big red flag to jurors: "HEY! Something interesting is being kept secret from you! When you deliberate, you should spend lots of time trying to guess what it was!").

If the defense team actually ASKS something about the Universal interview, I suppose they would have "opened the door" and the SA would be allowed to ask questions to rebut whatever the defense's point was. But IMO this would be raised as part of a later ineffective assistance of counsel claim.

 

[LiveLaughLuv]

In Florida, according to R. Hornsby, the State has much broader rights than the defense to appeal prior to a final judgment (this is called an "interlocutory" appeal). Here's the rule I assume he's referring to: http://floridarulesofappellateprocedure.com/rules/2009/08/rule-9140-appeal-proceedings-i.php. Maybe it's the same in Illinois.



I'm confused by the question, I'm afraid. KC certainly wasn't suspected of custodial interference--she had sole custody of Caylee--and in any event there's no crime that would "nix" Miranda. I didn't get to see the video of the hearing, so maybe I missed something?

I'm sorry AZ.....maybe I didn't quite give a question....

I just can't believe those fine detectives wouldn't read ICA her miranda rights...is there a statute of limitation on WHEN one can raise miranda warnings...



this is what LDB stated....

But Assistant State Attorney Linda Drane Burdick countered that the suspect words should not be off limits, claiming she freely and voluntarily spoke with police and had not been detained. Early in the investigation, police were looking at a woman named Zenaida Gonzalez -- whom Anthony said was the girl's babysitter, a claim the woman later denied -- and not Anthony as the prime suspect in the girl's disappearance, according to the prosecution.

"In no way did Ms. Anthony, or would a reasonable person, believe that they were in custody during any point in time when she was giving statements to the Orange County sheriff's office," Burdick said Monday. "Not being subject to custodial interrogation, Ms. Anthony was not entitled to her Miranda rights."
http://articles.cnn.com/2011-03-07/...alez-law-enforcement-murder-trial?_s=PM:CRIME

at around 5:50 mark LDB starts with custodial interrogation....14 minute mark and beyond...confronted with lying...apologizes for giving them the runaround...offered up her computer, in a heartbeat...17 minute mark..20 minute mark ICA was not being subject to custodial interrogation, Miss Anthony was not entitled to her miranda warnings...

http://www.wftv.com/video/27110723/index.html

So my question would be, have you ever heard of the custodial interrogation and not entitled to miranda???As I stated, I can't find any case law and am just worried this would get tossed and the State would loose alot of evidence to use against ICA....JMHO

Justice for Caylee

ETA:
Just found this little tidbit...

Home > English > FAQs > Criminal Law > Arrest Information
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5 How Do I Know The Difference Between Being Questioned (Non-Custodial Interrogation) And Being Interrogated (Custodial Interrogation)?
If you feel you are free to go, you are present of your own free will and you have not been charged, you are probably being questioned in a non-custodial environment.

On the other hand, if you have been arrested, or if you have been detained and do not feel you are free to leave, or you have been given your Miranda rights, you are likely considered to be legally in police custody and therefore being interrogated.

Any statements you make during a custodial interrogation can be used against you as long as the police have read you your Miranda rights and you have waived the right to keep silent or have an attorney present. However, statements you make in response to non-custodial police questioning can still be used against you if the Miranda warning hasn't been given because Miranda rights only attach to custodial interrogations.http://resources.lawinfo.com/en/Leg...o-i-know-the-difference-between-being-qu.html

 

[MADJGNLAW]

Bringing this over from the other thread since it's a legal question.

If there are exceptions to Miranda Law when a child is missing
Anyone know? TIA

JVM transcript here: http://transcripts.cnn.com/TRANSCRIP...4/ijvm.01.html

HONOWITZ: But Jane, in missing child cases, there are some exceptions to Miranda. And I think also the prosecution might try to argue this. Sometimes, if a child is missing, they don`t know if the child is dead or alive. They`re trying to save the child`s life. You know, they can say that there`s an exception to Miranda, because we`re trying to save this child`s life.

And I think that, even if it gets to the point where the court is saying, "We might have a Miranda issue," I think that`s what the prosecutor is going to try to argue.




Read Casey Anthony's arrest report: http://media.trb.com/media/acrobat/2008-08/41377872.pdf


Here are some Federal Case Laws: http://www.amber-net.org/Statutes/aFederalCaseLaw.pdf

 

[LiveLaughLuv]

Quarles Public Safety Exception to Miranda: The Ethical, Legal and Effective Answer to "Ticking Time Bombs"
http://www.huffingtonpost.com/coleen-rowley/quarles-public-safety-exc_b_580218.html

I do believe this would apply in Caylee's allegedly missing child, race against time, imperitive for credible information....

What say YOU, AZ....JMHO


Justice for Caylee

 

[jennyb]

Morning AZLawyer!

Here's my question for the day (and THANK YOU so much for everything you do).

I read the A's attorney motion last night re: sequestration and I honestly don't see any reason why the judge should allow them in the courtroom. I thought I would see SOMETHING but I saw nothing lol.

Seems to me there's no downside to treating them like any other witnesses other than the A's being angry -- and there is a huge risk they will pull some stunt to hurt the proceedings. George could stand up and scream "I did it!" for example. They are both wild cards at this point.

I'm wondering if there is any reason the Judge might grant their request, other than THEY WANT IT.

It seems like they're simply asking for a personal favor, and being who they are, and how they've behaved so far, unless I'm missing something I don't see how in the heck they could or should be allowed to stay in the courtroom. There won't be any public outcry in their favor, that's for sure.

I feel pretty certain after reading the document and factoring in the personalities the Judge will say no, they can not be present unless they're testifying. For the ENTIRE TRIAL. Especially, since like any other witnesses, they could be recalled at anytime.

On a scale from 1-10 what's your best guess on how the judge will rule?

 

[LiveLaughLuv]

Bringing this over from the astrology forum....of course this ruling was only for this 4 day trial, March 2-7th....

I wanted to bring something to your attention. The Motion for the Anthonys was only ruled upon for the court hearings that were just attended. See below for the summary of this particular motion that was heard on 03/03/11.

http://sprocket-trials.blogspot.com/...ing-day-1.html

Next to speak was Mark Lippman, George and Cindy's attorney. He said he had filed a motion the previous day to have his clients, who were subpoenaed by the State, to be released from the rule of sequestration. He pointed out that the defense has not raised an objection and they are next of kin. They should be able to be in court for the testimony.

Linda Drane Burdick stated that listening to law enforcement officers testify could affect their testimony. She said that she would have no problem if they were called first to testiy.

Lippman then pushed his luck and indicated that the rule would continue through the trial if the judge issued an order.

Judge Perry said that the request would only address the hearing, not the trial and denied the motion based upon the following factors:

Their testimony may be colored by listening to other witnesses testifying.

He also based his decision on their testimony versus their depositions which tend to show their testimony may be colored.

Perry said that they could testify first and then be excused to listen to the other witnesses.

Linda Drane Burdick indicated that the motion had been faxed after 5 yesterday, and, rather than lodging an objection, she agreed. (I noted that she called them the Grandparents! I thought that was a nice touch on her part to indicate their relationship to Caylee.)

 

[jennyb]

I just keep thinking how much more smoothly the trial would run. Keeping them out would lower the circus atmosphere considerably. At the very least, we know they will be a huge distraction. How much is this judge supposed to consider their feelings? It's not like they can run to some appellate court because their feelings are hurt. They've already proven themselves to be hostile and uncontrollable.

I'm trying to be objective and not let my personal feelings enter into my thinking here. Just looking at it from JP's vantage point of wanting this trial to move forward in an orderly fashion... hmmm....

 

[AZlawyer]

I'm sorry AZ.....maybe I didn't quite give a question....

I just can't believe those fine detectives wouldn't read ICA her miranda rights...is there a statute of limitation on WHEN one can raise miranda warnings...
this is what LDB stated....

at around 5:50 mark LDB starts with custodial interrogation....14 minute mark and beyond...confronted with lying...apologizes for giving them the runaround...offered up her computer, in a heartbeat...17 minute mark..20 minute mark ICA was not being subject to custodial interrogation, Miss Anthony was not entitled to her miranda warnings...

http://www.wftv.com/video/27110723/index.html

So my question would be, have you ever heard of the custodial interrogation and not entitled to miranda???As I stated, I can't find any case law and am just worried this would get tossed and the State would loose alot of evidence to use against ICA....JMHO

Justice for Caylee

ETA:
Just found this little tidbit...
<snipped>

BBM

There is no "statute of limitations" on raising the failure to read Miranda rights except that you have to do it before the statement is admitted into evidence (because then it's obviously too late). This is the same rule as for any other objection to evidence. There is no reason to bring up your evidentiary objections at the beginning of the case, as the judge certainly won't bother ruling on them until close to trial.

"Custodial interrogation" is what I've been talking about when I say that Miranda rights are necessary only if the person is "in custody" while they are being interrogated.

Bringing this over from the other thread since it's a legal question.

If there are exceptions to Miranda Law when a child is missing
Anyone know? TIA

JVM transcript here: http://transcripts.cnn.com/TRANSCRIP...4/ijvm.01.html

HONOWITZ: But Jane, in missing child cases, there are some exceptions to Miranda. And I think also the prosecution might try to argue this. Sometimes, if a child is missing, they don`t know if the child is dead or alive. They`re trying to save the child`s life. You know, they can say that there`s an exception to Miranda, because we`re trying to save this child`s life.

And I think that, even if it gets to the point where the court is saying, "We might have a Miranda issue," I think that`s what the prosecutor is going to try to argue.


Read Casey Anthony's arrest report: http://media.trb.com/media/acrobat/2008-08/41377872.pdf

Here are some Federal Case Laws: http://www.amber-net.org/Statutes/aFederalCaseLaw.pdf

Quarles Public Safety Exception to Miranda: The Ethical, Legal and Effective Answer to "Ticking Time Bombs"
http://www.huffingtonpost.com/coleen-rowley/quarles-public-safety-exc_b_580218.html

I do believe this would apply in Caylee's allegedly missing child, race against time, imperitive for credible information....

What say YOU, AZ....JMHO


Justice for Caylee

I noticed the SA didn't argue this, and I assume they've done more research than I have. And really I've only heard the public safety exception used for true emergency situations in which getting the information quickly could actually prevent immediate harm to someone. The case most lawyers remember involved the need to recover a loaded gun that officers knew was somewhere in a grocery store. One of the links above mentioned a case of an 11-month old baby who had been hidden in a forest in a duffel bag with night (cold) approaching. Here, LE was looking at a month-old kidnapping of a child by a caregiver who would never hurt her and who could have been anywhere, or a murder/accidental death by a mother (no emergency because it can't be fixed), or perhaps an underground adoption (no emergency for the same reasons as the "Zanny" situation--child presumably with loving caregivers who could have been anywhere after a month).

This exception is for "24"-like emergencies, where the clock is ticking and someone could get killed if immediate action isn't taken.

Morning AZLawyer!

Here's my question for the day (and THANK YOU so much for everything you do).

I read the A's attorney motion last night re: sequestration and I honestly don't see any reason why the judge should allow them in the courtroom. I thought I would see SOMETHING but I saw nothing lol.

Seems to me there's no downside to treating them like any other witnesses other than the A's being angry -- and there is a huge risk they will pull some stunt to hurt the proceedings. George could stand up and scream "I did it!" for example. They are both wild cards at this point.

I'm wondering if there is any reason the Judge might grant their request, other than THEY WANT IT.

It seems like they're simply asking for a personal favor, and being who they are, and how they've behaved so far, unless I'm missing something I don't see how in the heck they could or should be allowed to stay in the courtroom. There won't be any public outcry in their favor, that's for sure.

I feel pretty certain after reading the document and factoring in the personalities the Judge will say no, they can not be present unless they're testifying. For the ENTIRE TRIAL. Especially, since like any other witnesses, they could be recalled at anytime.

On a scale from 1-10 what's your best guess on how the judge will rule?

They aren't asking for a personal favor--they're asking for "victim's rights" pursuant to Florida law. Normally this would make sense, but in this case they are disruptive in the courtroom, hostile to the prosecution, and can't seem to keep their stories straight. I think he will keep them out. There is no risk to the integrity of Casey's trial if they are kept out (and no appeal issue created for Casey to argue), and there is a risk of mistrial and/or perjury if they are kept in.

I just keep thinking how much more smoothly the trial would run. Keeping them out would lower the circus atmosphere considerably. At the very least, we know they will be a huge distraction. How much is this judge supposed to consider their feelings? It's not like they can run to some appellate court because their feelings are hurt. They've already proven themselves to be hostile and uncontrollable.

I'm trying to be objective and not let my personal feelings enter into my thinking here. Just looking at it from JP's vantage point of wanting this trial to move forward in an orderly fashion... hmmm....

They can indeed run to the appellate court and complain about being kept out of the trial in violation of the "victim's rights" statutes. IMO they would have approximately a 0.00001% chance of winning such an appeal.

 

[Turnadot]

Baez asserts that KC is innocent. He's right, KC is innocent...until the State proves otherwise!

Which bring me to my question.

After KC is found guilty and the sentencing phase starts, can the defence still say to the jury that KC is innocent?


After a second forum search, I see this had already been asked and answered. Sorry!!

 

[LolaMoon08]

We have 62 days until jury selection is to begin on May 9th, 2008. I know that Judge Perry stated that there would be a gag order (for the lawyers) so that the location would not be leaked. He also stated that he would give them an advances warning for the location... I am not sure if it was 60 or 30 days?

What I want to know is... what happens if the jury location is leaked? Not by the defense, but people who have started to get jury duty notices for May 9th, 2008 and people put two and two together?

Also, what happens once a potential juror is released? What stops them from contacting the media and saying that he was just released from the jury for Casey's trial? Could Judge Perry issue a gag order for the released people?

Also, what does happen if the jury location is leaked just one day into selection? Would they have to pack up and start over again? Or is Judge Perry's job just to make sure there is no pre-jury selection media and what happens after they arrive... happens?

 

[AZlawyer]

Baez asserts that KC is innocent. He's right, KC is innocent...until the State proves otherwise!

Which bring me to my question.

After KC is found guilty and the sentencing phase starts, can the defence still say to the jury that KC is innocent?

First, of all, I just want to say that the "presumption" of innocence at trial doesn't make a person actually innocent. If KC is guilty, she's already guilty now--no verdict required.

The defense is entitled to maintain at the penalty phase that KC is innocent. However, this might tick off the jury, which, after all, would have just returned a verdict stating that she was guilty beyond a reasonable doubt.

 

[Turnadot]

First, of all, I just want to say that the "presumption" of innocence at trial doesn't make a person actually innocent. If KC is guilty, she's already guilty now--no verdict required.

The defense is entitled to maintain at the penalty phase that KC is innocent. However, this might tick off the jury, which, after all, would have just returned a verdict stating that she was guilty beyond a reasonable doubt.

Interesting. Thank you.

I always assumed that when a defence lawyer said, 'My client is innocent...' they were not using the term innocent colloquially, instead, they are using it in a Court of Law kind of way; is that correct?

 

[AZlawyer]

We have 62 days until jury selection is to begin on May 9th, 2008. I know that Judge Perry stated that there would be a gag order (for the lawyers) so that the location would not be leaked. He also stated that he would give them an advances warning for the location... I am not sure if it was 60 or 30 days?

What I want to know is... what happens if the jury location is leaked? Not by the defense, but people who have started to get jury duty notices for May 9th, 2008 and people put two and two together?

Also, what happens once a potential juror is released? What stops them from contacting the media and saying that he was just released from the jury for Casey's trial? Could Judge Perry issue a gag order for the released people?

Also, what does happen if the jury location is leaked just one day into selection? Would they have to pack up and start over again? Or is Judge Perry's job just to make sure there is no pre-jury selection media and what happens after they arrive... happens?

IMO HHJP will do everything he can to prevent leaks in the selected location, but he is not going to keep packing up and trying again.

I imagine there will be thousands of jury summonses sent out for May 9 around the State of Florida--how would anyone know that their summons was for the Casey Anthony case?

HHJP could have a gag order for released potential jurors, but really the point of the gag order is to prevent a media blitz in that location BEFORE jury selection. AFTER jury selection, it doesn't matter too much, because the selected jurors will be sequestered. Maybe there will be a gag order on potential jurors just until the end of jury selection.

 

[AZlawyer]

Interesting. Thank you.

I always assumed that when a defence lawyer said, 'My client is innocent...' they were not using the term innocent colloquially, instead, they are using it in a Court of Law kind of way; is that correct?

If they say, "my client is innocent," generally they mean really truly innocent.

If they say, "The prosecution cannot prove its case and therefore, according to the law, my client is innocent," generally they mean that the client is guilty but no one can prove it so you have to let him go.

 

[ZsaZsa]

We have 62 days until jury selection is to begin on May 9th, 2008. I know that Judge Perry stated that there would be a gag order (for the lawyers) so that the location would not be leaked. He also stated that he would give them an advances warning for the location... I am not sure if it was 60 or 30 days?

What I want to know is... what happens if the jury location is leaked? Not by the defense, but people who have started to get jury duty notices for May 9th, 2008 and people put two and two together?

Also, what happens once a potential juror is released? What stops them from contacting the media and saying that he was just released from the jury for Casey's trial? Could Judge Perry issue a gag order for the released people?

Also, what does happen if the jury location is leaked just one day into selection? Would they have to pack up and start over again? Or is Judge Perry's job just to make sure there is no pre-jury selection media and what happens after they arrive... happens?

When I got a Jury notice it was for three months, during that time period I had to call in to the Jury office several times to see if I was needed for a case scheduled to start in the following week. Each time they told me I was not needed, and gave me a date when to call again. After three months I hadn't been used....

 

[pip]

Now that we are so close to trial, do you expect any more jaw-dropping discovery could come out yet, or do you think it's all pretty much out already? TIA!

 

[LambChop]

What could the A's be signing an affidavit for at this late date that they need it signed the sooner the better? Any idea?

 

[strach304]

If they say, "my client is innocent," generally they mean really truly innocent.

If they say, "The prosecution cannot prove its case and therefore, according to the law, my client is innocent," generally they mean that the client is guilty but no one can prove it so you have to let him go.

Just to expand on your answer what is the difference between innocent and not guilty? Is there a distinction? I've seen this batted around in a lot of cases. Legal jargon that I never really got. :waitasec:

 

[AZlawyer]

Now that we are so close to trial, do you expect any more jaw-dropping discovery could come out yet, or do you think it's all pretty much out already? TIA!

There should be more deposition transcripts for sure, and I think there was a statement made in court about bug evidence in the vacuum cleaners?

What could the A's be signing an affidavit for at this late date that they need it signed the sooner the better? Any idea?

No clue. :waitasec:

Just to expand on your answer what is the difference between innocent and not guilty? Is there a distinction? I've seen this batted around in a lot of cases. Legal jargon that I never really got. :waitasec:

Not guilty means the government cannot prove your guilt beyond a reasonable doubt. Innocent means you didn't do it.

 

[Capri]

At what point can a witness "resign" as a witness (for lack of a better term). Specifically, if they have not been paid, agree they are pro bono, but have had depositions taken, can they refuse/choose not to testify for the defense, or would the court order them to at that point?