Okay - I think our awesome lawyers have not been pestered for awhile - and here's one that may have you
ullhair: or :laughcry: but since we're almost at :slapfight: in a couple of threads - we really need your wise words..
In the OS of the OCA trial, Baez said two things. First that GA abused OCA, and that Caylee drowned on June 16/2008.
HHJP did not allow JB as we know, to use the abuse angle, but he did allow the drowning statement into the body of the trial.
JB stated a number of times after the OS was completed and in the trial, that Caylee died from drowning on Day one. So is this a statement of fact acknowledged as such by the court, or did this continue to be a theory and up to the jury to accept.
Then when the jury came back with a not guilty verdict, did the drowning then become fact? And is OCA in her upcoming civil trials going to be held to this "fact" as "real" or can she go back to saying she doesn't know if Caylee was alive or dead on June 16th?
It may be a simple answer to you - but to those of us who have no freaking idea - it's very confusing. Thank you in advance and I :bow:to your superior knowledge... and could I offer you a little refreshment :martini: for your trouble? :innocent:
Putting forth a theory during opening statement does not make whatever is said by the attorney, automatically become "fact."
Again, the jury is the "finder of fact."
Sometimes, the jury will be asked specifically to determine whether or not something is a fact en route to making a decision. They do this in addition to deciding all of the facts in dispute and issuing a verdict by applying the law to the facts as they find them to be.
For example, the jury in this case was specifically asked to determine whether or not Casey was a caretaker. That is a specific fact. If I recall, the jury found that the fact was that she was not a caretaker. Unless it is a specific "fact question" on the jury/verdict forms, we generally are not privy to what facts the jury found in the efforts to render a verdict.
The mere fact that JB put forth a theory does not make it fact. The not guilty findings do not make it fact.
If the jury is not the finder of fact, other info becomes fact because the Judge takes "Judicial Notice." This takes the fact finding job away from the jury.
Judge Perry would have had no legal basis to make that ruling so it did not happen. Had the Judge acknowledged the theory as fact, there would have been an announcement that "judicial notice" was taken. Didn't happen.
Nothing JB said in argument counted as evidence. Also, the not guilty verdict did not establish any fact as being true. So Casey can adopt any factual theory she wants for purposes of the civil case with Z not-F G.
The NG verdict established that Casey was not a caretaker. I do not recall any other determinations on the forms but it's been a while and I am no spring :chicken:
This is so because as part of the verdict, the jury had to decide whether or not Casey was a "caretaker." So, That particular fact , as I recall, was established but that 's about it .
HHJP was generous in allowing the drowning theory to be referenced in closing argument, based on some pretty thin threads of evidence.
But the fact that JB said it was NOT one of the threads of evidence upon which HHJP relied. JB's statements were not evidence.
Whether or not JB might have violated some ethics rule by presenting a theory of the defense that he pulled out of his...I mean, out of thin air, is not really the point. The point is that his statements in opening (or closing) argument regarding his theory of the defense are not binding upon Casey as admissions of fact.
First of all, let me assist you--
"Whether or not JB might have violated some ethics rule by presenting a theory of the defense that he pulled out of his..."
The word you were looking for is, I know, I know.: :butthead:
That said, I agree with AZ but she-who-must-keep-talking
hone::dj:
must add on
So let me throw in the fact that in a criminal trial, counsel must be extremely cautious in making openings, and arguments. As the representative of the defendant, counsel absolutely has the power to make a statement which then becomes binding upon the defendant.
http://www.law.cornell.edu/supct/html/03-931.ZS.html
This is what is known as a type of "judicial admission." This doctrine is not the same as saying that everything counsel says , can and will be used against the client to infinity plus one hour, when it comes to using those attorney statements in subsequent litigation, be it criminal or civil. Lawyers have gotten into trouble (disciplinary type trouble) for saying things in opening and closing which were jaw-dropping boo-boo's. Rare, but it happens.
Suppose JB's opening did constitute a binding judicial admission,
The issue would become this:
If a lawyer makes a judicial admission in a criminal trial, is the lawyer's client bound by that admission in future proceedings.
A "judicial admission" is generally understood to be a concession to an alleged fact.
For example: Sure my client murdered him but there is an explanation. Did I mention he was incredibly negligent as well. Gee she was really drunk out of her mind but such a good driver.
These admissions go to items alleged for the most part.
It was not alleged by the state that Caylee drowned, specifically.
JB was not "admitting" to a fact which helped the other side.
Not that this post is too long but it is time for...
Intermission---
opcorn:
Anyway, it's my opinion that the drowning theory does not rise to an admission level, as presented in opening, to even get us to the issue of how long it would bind the client.
Based on 10 minutes of "research" lol, it appears that the elements in Florida for judicial estoppel are:
(1) a representation as to a material fact that is contrary to a later-asserted position,
(2) reliance on that representation,
(3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon,
(4) successfully maintaining a position in one proceeding, while taking an inconsistent position in a later proceeding, in which the same parties and questions are involved.
Seems to me that the "same parties" requirement would make the doctrine inapplicable here, regardless of the meaning of "successfully maintaining," "reliance," etc.
Agree...nth power.
The doctrines of judicial estoppel, res judicata, etc.....not a factor.
The fact of the drowning is not an item that has been categorically proven in a Court of law.
The drowning is not a matter which was found to be true and a fact by the jury and as such , remains undecided for Court purposes.
The legal requirements to invoke the doctrine of judicial estoppel just aren't met. Ditto for res judicata.
Hope this helps a little.
If it makes things more confusing, then :nevermind:
MH:wolf:
opinion, of course
