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ralph124c
04-24-2007, 12:45 PM
Neil Entwhistle (on trial in MA for murdering his wife and daughter) has a most unusual lawyer-they guy is saying that the judge should strike from the record, the evidence obtained by the police (when they entered the house and found the bodies). the lawyer says they didn't have a valid search warrant, so that evidence should not be relevant. OK..but how doe you erase a fact? The two dead bodies were found by police-how does a juror "erase' that fact from memory?

Gadarene
04-24-2007, 12:50 PM
How is his lawyer "most unusual"?

Giles
04-24-2007, 12:52 PM
OK..but how doe you erase a fact? The two dead bodies were found by police-how does a juror "erase' that fact from memory?
IANAL, but isn't it a matter of what evidence is given in court to the jury. So the police officers cannot testify on what they found when they entered the house, and the jury doesn't get to hear any of that. The deceased are still deceased, but the jury doesn't hear how they were found.

DanBlather
04-24-2007, 12:53 PM
As a juror I don't think I could. I am open to the presumption of innocence, burden of proof, etc. but as much as I value civil rights I wouldn't let a murderer go free because evidence was obtained illegally. In the jury room I would not mention the illegal evidence and tell other jurors that we are supposed to ignore it, but it would always be in my mind. I think that makes me a hypocrite.

Giles
04-24-2007, 12:57 PM
As a juror I don't think I could. I am open to the presumption of innocence, burden of proof, etc. but as much as I value civil rights I wouldn't let a murderer go free because evidence was obtained illegally. In the jury room I would not mention the illegal evidence and tell other jurors that we are supposed to ignore it, but it would always be in my mind. I think that makes me a hypocrite.
But that assumes that as a juror you have heard the evidence. Surely the defense lawyer would try to argue on the admissability of evidence before the jury has heard it, arguing the case to the court while the jury is not present.

Gadarene
04-24-2007, 01:02 PM
But that assumes that as a juror you have heard the evidence. Surely the defense lawyer would try to argue on the admissability of evidence before the jury has heard it, arguing the case to the court while the jury is not present.

Agreed.

And ralph, you're the most consistently entertaining poster since Wildest Bill.

SkipMagic
04-24-2007, 01:35 PM
I think you meant to post this in GQ. I'll move it there for you.

FatBaldGuy
04-24-2007, 01:40 PM
IANAL, but isn't it a matter of what evidence is given in court to the jury. So the police officers cannot testify on what they found when they entered the house, and the jury doesn't get to hear any of that. The deceased are still deceased, but the jury doesn't hear how they were found.This is all well and good, in theory, but IRL the jury has been reading newspapers and watching TV for months before the case came to trial and before they were selected to be on the jury. Can they be reasonably expected to disregard the images they saw on TV of the police dragging bodies out of the house, etc.

NOTE: I am commenting on cases in general, not the specific case in the OP.

Gfactor
04-24-2007, 02:03 PM
Previous thread on topic: http://boards.straightdope.com/sdmb/showthread.php?t=313073

Polycarp
04-24-2007, 02:06 PM
This is all well and good, in theory, but IRL the jury has been reading newspapers and watching TV for months before the case came to trial and before they were selected to be on the jury. Can they be reasonably expected to disregard the images they saw on TV of the police dragging bodies out of the house, etc.

NOTE: I am commenting on cases in general, not the specific case in the OP.

In any community, it's possible to find people who don't make a habit of following the news, or who view it selectively -- those for whom "the latest news" is whether Sanjaya was voted off American Idol, or whether the Yankees are ahead of the Red Sox, or what Pastor Orkrist had to say about the Book of Obadiah last week, or who came to visit that trashy Jane Farquhar in the third house down last Friday night. Sometimes (rarely), defense and prosecution will agree that a venireman is telling the truth when he says he's seen a couple of news reports, but doesn't trust the Globe or WBLT for the truth, and has formed no opinion about the case. It's these people that a jury in a well-publicized case is made up from.

ralph124c
04-25-2007, 08:09 AM
In any community, it's possible to find people who don't make a habit of following the news, or who view it selectively -- those for whom "the latest news" is whether Sanjaya was voted off American Idol, or whether the Yankees are ahead of the Red Sox, or what Pastor Orkrist had to say about the Book of Obadiah last week, or who came to visit that trashy Jane Farquhar in the third house down last Friday night. Sometimes (rarely), defense and prosecution will agree that a venireman is telling the truth when he says he's seen a couple of news reports, but doesn't trust the Globe or WBLT for the truth, and has formed no opinion about the case. It's these people that a jury in a well-publicized case is made up from.
The point is, you would have to be living under a rock, not to know that Entwhistle's wife's and daughters bodies were found by the police 9who were investigating a missing persons report). So, if you are a juror, and the defense lawyer objects, how are you supposed to deal with the evidence? They can say: the police did enter the house, they did find bodies, but this evidence must NOT be considered? truly bizarre!

Gfactor
04-25-2007, 08:11 AM
They can say: the police did enter the house, they did find bodies, but this evidence must NOT be considered? truly bizarre!

How would you handle it?

muldoonthief
04-25-2007, 09:09 AM
From the articles I've read, there's a lot of physical evidence in the house that ties Entwistle (no "h" in the name if you want to search for stories BTW) directly to the shootings. This is what they're trying to suppress. Also, it would suppress a lot of the other evidence they found, since it was based on the original search. So it's no much of "there were no bodies found since the search was illegal" as "here's blood, DNA, fiber, etc. evidence the jury can't see since the search was illegal."

As for the "unusual" move - why not try it? If they win, the prosecution loses a big part of its case - all they'd have then is the fact Entwistle fled the country. If they lose, I wouldn't be surprised if they try to plea bargain.

The more bizarre story to come out recently - Entwistle is trying to get his last month's rent & security deposit back (the house was rented).

ralph124c
04-25-2007, 09:09 AM
How would you handle it?
I think the defence atty should try to convince the jury that they bodies were possibly NOT those of the murder victims..hows that grab ya?

Gadarene
04-25-2007, 09:20 AM
:D :D :D :D :D

Jodi
04-25-2007, 09:26 AM
Neil Entwhistle (on trial in MA for murdering his wife and daughter) has a most unusual lawyer-they guy is saying that the judge should strike from the record the evidence obtained by the police (when they entered the house and found the bodies).

First, this is not a "most unusual lawyer." You're talking about pre-trial motions, which are standard in trial work. Second, you're not talking about a motion to strike evidence from the record. The "record" is the pleadings, motions, rulings, testimony, and instruction that make up the trial. Before evidence may be "stricken from the record," it must first be in the record -- said out loud, in front of the jury, during trial. In this case, Mr. Entwhistle's attorneys are arguing that the evidence should be excluded -- that is, that it should not be allowed in the trial at all, so the jury will never hear it in the first place. So this isn't a question of how we "unring the bell," meaning, instruct jurors to disregard evidence they just heard. This is a pre-trial motion to exclude this evidence to prevent it from ever being part of the record or considered by the jury in their deliberations. As the term indicates, pre-trial motions are argued by the lawyers and decided by the judge before the trial even begins.

The lawyer says they didn't have a valid search warrant, so that evidence should not be relevant.

No. There is a different at law between "relevant" and "admissible." Evidence that may be relevant to a case -- as this clearly is -- may still be disallowed for other reasons, such as that it is too prejudicial, or procedural safeguards were not followed. As a general rule, law enforcement may not seach a private residence without obtaining a warrant first (absent exigent, or emergency, circumstances). The violation of the homeowner's constitutional rights is considered so grave that the penalty for that violation is that the government may not use the wrongfully-obtained evidence to prove its case. The evidence becomes what is called "fruit of the poisonous tree" -- i.e., results of a bad search. Entwhistle's lawyer is not arguing that this evidence is not relevant but that it is not admissible.

OK..but how doe you erase a fact? The two dead bodies were found by police-how does a juror "erase' that fact from memory?

Assuming the motion to excude is granted and the evidence is not allowed in -- The jury isn't required to "erase that fact from their memory"; they just aren't allowed to consider it as evidence when deciding Mr. Entwhistle's guilt. They are expected to decide the case based on the evidence presented at trial and only the evidence presented at trial, without regard to what they know or think they know from outside sources. They will be instructed to that effect at the close of the evidence (after both sides have rested), before they go deliberate.

The point is, you would have to be living under a rock, not to know that Entwhistle's wife's and daughters bodies were found by the police (who were investigating a missing persons report).

If those facts were not presented to you during trial, you don't consider them when weighing the evidence to decide the defendant's guilt or innocence.

So, if you are a juror, and the defense lawyer objects, how are you supposed to deal with the evidence?

It's not "evidence" if you never hear it, and it's not "evidence" if it's stricken from the record. You don't "deal" with it; you disregard it for purposes of your deliberations.

They can say: the police did enter the house, they did find bodies, but this evidence must NOT be considered? truly bizarre!

They can't say that, and they won't say that. If the motion to exclude these facts is granted, then the jury will never hear how or when or where the bodies were found. The jury won't be told not to consider these facts; they won't hear them in the first place. If the motion to exclude these facts is not granted and the evidence is admitted, then the jury will be allowed to consider that evidence during its deliberations.

IOW, if certain facts are not helpful to the jury in making its determination (irrelevant), or if certain facts could not be considered by the jury in making its determination (inadmissible), then in most cases the jury will never hear those facts at all. The proffered evidence will be excluded before the trial even begins.

It is extremely common to try to decide such evidentiary matters prior to trial. Pre-trial evidentiary motions serve to: (1) avoid "tainting" the jury with inadmissible evidence; (2) lay the legal basis for an appeal if evidence you want in is excluded or evidence you want out is included; and (3) let the lawyers know what evidence they will have to work with (what they can get the witnesses to say, or must make sure the witnesses avoid saying). It's not "unusual" or "bizarre"; it happens before virtually every trial these days.

Baffle
04-25-2007, 09:28 AM
The point is, you would have to be living under a rock, not to know that Entwhistle's wife's and daughters bodies were found by the police 9who were investigating a missing persons report). So, if you are a juror, and the defense lawyer objects, how are you supposed to deal with the evidence? They can say: the police did enter the house, they did find bodies, but this evidence must NOT be considered? truly bizarre!
I must be living under a rock.

Jodi
04-25-2007, 09:32 AM
I think the defence atty should try to convince the jury that they bodies were possibly NOT those of the murder victims..hows that grab ya?

Well, it doesn't grab me very well. On what basis would you try to convince the jury that the bodies were other than the murder victims? You are not allowed to wildly speculate without any basis -- maybe it was Hoffa and the Lindberg baby! -- you have to have at least a smidge of a basis in fact. What argument could you as a defense attorney make that these are other bodies? The prosecution will put up the officer who discovered the bodies and the coroner who examined/autopsied them, and together they will positively identify them as the victims. I don't see a viable argument that those identifications were mistaken.

pravnik
04-25-2007, 09:37 AM
I think the defence atty should try to convince the jury that they bodies were possibly NOT those of the murder victims..hows that grab ya?After the state puts on the ME and family members who positively identified the victims? Grabs me like malpractice. :dubious:

Gfactor
04-25-2007, 09:37 AM
I think the defence atty should try to convince the jury that they bodies were possibly NOT those of the murder victims..hows that grab ya?

So what? The defense is that the cops found some other corpses in the defendant's house and the victims are really still alive?

Giles
04-25-2007, 10:04 AM
I suspect the point is that, while there is no doubt that the victims are dead, and these bodies are theirs, the police won't be able to bring any evidence of where they were found, or of what else they found in the house, and all of that evidence might link the defendants more strongly to the crime. Presumably the defense is going to be that there is insufficient evidence that the defendants committed the crime, and that someone else (unidentified) might have done it, not that no crime took place.

iamthewalrus(:3=
04-25-2007, 10:14 AM
I must be living under a rock.Me too. I read the news regularly, but I skip over stuff like this. People randomly do horrible things all the time. But it's not interesting for me to read about it.

Leaffan
04-25-2007, 10:24 AM
I must be living under a rock.
Christ, I live in Canada and know all about this case. :confused:

Mr. Slant
04-25-2007, 10:34 AM
The point is, you would have to be living under a rock, not to know that Entwhistle's wife's and daughters bodies were found by the police 9who were investigating a missing persons report). So, if you are a juror, and the defense lawyer objects, how are you supposed to deal with the evidence? They can say: the police did enter the house, they did find bodies, but this evidence must NOT be considered? truly bizarre!

Who is Entwhistle?
I've never heard of this guy.
You can find 11 more like me somewhere.

Jodi
04-25-2007, 10:42 AM
Who is Entwhistle?
I've never heard of this guy.
You can find 11 more like me somewhere.

But your jury pool isn't made up of people out there somewhere. In most cases, it's made up of people living in the community where the crime occurred. I think you would be hard-pressed to find many people in Boston who haven't heard of the Entwistle case.

Reminds me of an old David Letterman joke about the massive media coverage of the OJ case. He was commenting on the defense's desire to find 12 jurors who had not heard of the OJ case and asked, "How are they going to find 12 Amish people living in LA?"

Gfactor
04-25-2007, 10:46 AM
ralph124c as others have pointed out, and as was pointed out in the previous thread, most of the big evidentiary issues are resolved before trial. Of course, some issues come up at trial by surprise, and sometimes the judges change their minds.

It's possible the trial judge could deny the motion to suppress evidence based on the a bad warrant and reconsider the decision later on, based on a subsequent motion or trial objection.

Ideally this decision would happen before any evidence was introduced before the jury, but again, it's possible the cat gets out of the bag before the ruling. It's also likely that the prosecutor would have mentioned the evidence in an opening statement. Opening statements aren't evidence, but can still result in trial prejudice under the right conditions.

In cases like that, the court has a few choices:

1. Curative or limiting instructions ("The jury will discregard all references to the smoking gun found in his hand at the time he was arrested") or ("The prosecutor referred to bodies found at the defendant's house. Statements of counsel are not evidence, and no evidence has been introduced on this point.")

2. Mistrial. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nh&vol=0308%5Cremic107&invol=1 ; http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=394&invol=731 ; http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=in&vol=app%5C09240301.jgb&invol=2 (as you can see, mistrials are hard to get). A mistrial solves the tainted jury problem by getting a new one--or under some circumstances--ending the case. http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2007/02/09/MNGLQO1LRS1.DTL

3. A directed verdict of acquittal on some or all of the charges. If the evidence is very significant, and the court ultimately excludes it, the prosecution may not be able to prove its case. For example, a screw up that gets the body and most of the physical evidence excluded will present significant problems for the prosecution. The prosecution may not even be able to prove that the victim is really dead. If the court concludes that no reasonable jury could convict (http://www.boulder-bar.org/bar_media/trial/12.6.html ) the court can take the case (or part of it) from the jury. Here's a case where that happened (sort of): http://coa.nmcourts.com/documents/opinions/Gomez%20Ro.pdf

Valgard
04-25-2007, 10:50 AM
I served as jury foreman in federal court last year and we were quite good at making our decision based only on the evidence. We spent a lot of time arguing and debating various things and any time somebody would bring up something that wasn't entered into evidence there would always be someone else ready to say "But we can't use that".

I seem to recall once or twice during court proceedings that the judge turned to us and said "The jury will disregard that" but it wasn't for anything major, and we certainly didn't use it.

We had some big questions (such as why the case was being brought 8 years after the events in question) which we were able to ask the prosecutor after the case was over - turned out that the defendant had been on the run for 8 years, changing his identity constantly. For whatever reason that was not allowed to be mentioned in court so we didn't know it during our deliberations; the question came up ("Why are they doing this now?") but it wasn't part of our decision making process.

So to answer the OP specifically, the jury doesn't "erase" something from their minds, but if they are doing their jobs they know that they can't use it to make their decision. If the jury I served on was representative, juries are quite capable of doing that.

Shodan
04-25-2007, 01:59 PM
We had some big questions (such as why the case was being brought 8 years after the events in question) which we were able to ask the prosecutor after the case was over - turned out that the defendant had been on the run for 8 years, changing his identity constantly. I ask the Great Legal Minds of the SDMB (hi, Jodi) - could this have been admitted as evidence of a guilty mind?

Regards,
Shodan

Gadarene
04-25-2007, 02:03 PM
I ask the Great Legal Minds of the SDMB (hi, Jodi) - could this have been admitted as evidence of a guilty mind?

In what respect?

Gfactor
04-25-2007, 02:13 PM
I ask the Great Legal Minds of the SDMB (hi, Jodi) - could this have been admitted as evidence of a guilty mind?

Regards,
Shodan

Here's a surprise: It depends. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=va&vol=1961011&invol=1; http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=10th&navby=case&no=986224 ; http://writ.news.findlaw.com/colb/20031119.html ; http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=5th&navby=case&no=9820419cr0

Gadarene
04-25-2007, 02:28 PM
Findlaw links aren't particularly helpful when one isn't registered for Findlaw, Gfactor. :)

Jodi
04-25-2007, 02:30 PM
I ask the Great Legal Minds of the SDMB (hi, Jodi) - could this have been admitted as evidence of a guilty mind?

Regards,
Shodan

Ha! Thanks for the elevation to GLM/SDMB. :) As to your question, and as Gfactor said: Maybe. But the chance that the jury might infer a guilty mind is probably why the evidence of flight was kept out. Flight can support an inference of guilt, but there are other reasons people might flee (like fear of the police or belief they will not receive a fair trial), so it is my understanding that judges look very carefully at flight evidence before allowing it in. They don't want the jury to place too much weight on the fact the defendant fled, since that alone is not enough to support a verdict of guilt beyond a reasonable doubt. A conviction that rested heavily on flight evidence would probably be vulnerable on appeal.

But I say "It is my understanding" because I've never practiced criminal law or dealt with a flight issue, and so will defer to those who have.

Gfactor
04-25-2007, 02:33 PM
Findlaw links aren't particularly helpful when one isn't registered for Findlaw, Gfactor. :)

Heh. Didn't give me a problem or ask for a login. Allow me to summarize.

Some cases say use of an alias can be introduced as evidence of consciousness of guilt. Most cases say flight can be introduced under some circumstances as evidence of consciousness of guilt. OTOH, admission of the evidence isn't automatic. Here's an illustrative statement of the test from one of the cases:

Evidence of an accused's flight is generally admissible as tending to establish guilt. See United States v. Williams , 775 F.2d 1295, 1300 (5th Cir. 1985). A flight instruction is proper when the evidence supports four inferences: 1) the defendant's conduct constituted flight; 2) the defendant's flight was the result of consciousness of guilt; 3) the defendant's guilt related to the crime with which he was charged; and, 4) the defendant felt guilty about the crime charged because he, in fact, committed the crime. See United States v. Murphy , 996 F.2d 94, 97 (5th Cir. 1993). Harmless error applies. See United States v. Barnhart , 889 F.2d 1374, 1379 (5th Cir. 1989).

And from another one that I'm not sure I cited:
"Although flight to avoid prosecution is evidence of another crime, it is nevertheless admissible to show a consciousness of guilt." Id. at 102, 409 S.E.2d at 479. "Evidence of flight from authorities that occurred days, or even months, after a crime is admissible, as 'any flight at a time when it may be to avoid arrest, prosecution, or confinement tends to show a consciousness of guilt.'" Ricks v. Commonwealth, 39 Va. App. 330, 335, 573 S.E.2d 266, 268 (2002) (citation omitted). "The remoteness in time of the flight goes to the weight of the evidence and not to its admissibility." Langhorne, 13 Va. App. at 103, 409 S.E.2d at 480.

Biffy the Elephant Shrew
04-25-2007, 02:34 PM
Who is Entwhistle?
I've never heard of this guy.
Me neither. Only Entwistle I know of is the late Who bassist.

Frylock
04-25-2007, 03:52 PM
I can imagine plausible scenarios in which evidence is excluded which would lead a reasonable jury to find the defendant guilty.

I wonder if it has ever happened that evidence was excluded which would lead a reasonable jury to find the defendant innocent?

So in other words, I can imagine a reasonable juror saying, after a trial, "Well, if I had known that, I would have found the guy guilty!" But has it ever happened that a (reasonable) juror (would have) said, after a trial, "Well, if I had known that, I would have found the guy innocent!

-FrL-

Bryan Ekers
04-25-2007, 04:26 PM
Christ, I live in Canada and know all about this case. :confused:

So do I and... I don't.

yIIa
04-25-2007, 05:08 PM
I personally wish the "illegally obtained evidence" defence would just be legislated away. Punish overreaching police, but make that a separate case.
We should have a system based on full truth, not "balanced" partial truths.

Gfactor
04-25-2007, 05:43 PM
I wonder if it has ever happened that evidence was excluded which would lead a reasonable jury to find the defendant innocent?

All the time.

http://law.wisc.edu/rcid/caselaw/wisconsin/opinions/99-0498.htm

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=10th&navby=docket&no=042215

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ia&vol=app%5C20001108%5C99-1737&invol=1

Notice that courts apply different standards to different types of objections and rulings, and that none of the standards matches your formulation exactly.

Shodan
04-25-2007, 05:54 PM
Thanks to all the GLMs/SDMB.

Regards,
Shodan

Frylock
04-25-2007, 06:22 PM
All the time.

http://law.wisc.edu/rcid/caselaw/wisconsin/opinions/99-0498.htm

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=10th&navby=docket&no=042215

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ia&vol=app%5C20001108%5C99-1737&invol=1

Notice that courts apply different standards to different types of objections and rulings, and that none of the standards matches your formulation exactly.

Thanks. I couldn't look at the last one without a login, but the other two were certainly interesting and relevant.

I should have phrased my request differently: I was looking for cases where evidence was excluded which would have led a reasonable jury to find the defendant innocent, and where it was clear that the exclusion shouldn't be the basis for a successful appeal.

In other words, I was looking for cases analogous to the ones in which evidence was excluded which would lead a reasonable jury to convict, where the exclusion was legally correct.

-FrL-

Gfactor
04-25-2007, 06:35 PM
In other words, I was looking for cases analogous to the ones in which evidence was excluded which would lead a reasonable jury to convict, where the exclusion was legally correct.

You're looking for an exclusionary rule that applies against the defendant.

There are a few rules (privelege and some public policy-based rules--I've got an idea about a case in which I was involved) like that and also some events (like failure to give notice of an affirmative defense) that could qualify. I'll poke around and see what I can find after I finish doing homework with my daughter.

I couldn't look at the last one without a login. Weird. They must have changed something over there. I almost never have to give a login for that site, even on a borrowed computer.

Gfactor
04-25-2007, 07:51 PM
In other words, I was looking for cases analogous to the ones in which evidence was excluded which would lead a reasonable jury to convict, where the exclusion was legally correct.

-FrL-

Here is one: http://laws.lp.findlaw.com/getcase/10th/case/992262.html (Affirming exclusion of surprise alibi testimony) cert. denied. 531 U.S. 1089 (2001)

Gfactor
04-25-2007, 08:25 PM
There's also testimony precluded because a witness invokes the privilege against self-incrimination. See generally, http://findarticles.com/p/articles/mi_qa3805/is_199806/ai_n8785735/pg_19 (and the accompanying text, http://findarticles.com/p/articles/mi_qa3805/is_199806/ai_n8785735/pg_2)

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