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Old 06-12-2019, 10:56 AM
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Omnibus criminal-justice questions


Had a lot of questions about criminal justice, law, etc. and it wouldn't be good to start a thread for each of them, so clumping them all together in one omnibus list (all pertaining to U.S. law, not foreign):

  • How do the courts expect the jury to "disregard" something when that statement or thought has been planted in their heads?
  • Can a foreigner bring criminal charges against a U.S. citizen in U.S. federal court if the foreigner has no residency in America? If so, how?
  • If a defendant has committed a variety of crimes, is it typical for a prosecutor to only bring forth one charge at a time, and if this leads to acquittal, then bring forth the next one (to keep the defendant in court as long as possible,) or does the prosecutor generally just bring forth the whole bundle of charges all at once just to spare everyone time and energy?
  • If the time that a crime happened cannot be determined, how does statute of limitations apply? What if it's a crazy scenario whereby, depending on the exact time of the crime, it might just be barely over or barely under SoL?
  • How common is it for the maximum sentence to be given (i.e., if max sentence is 20 years, judge applies full 20 years?) What is the typical proportion of the max sentence cap that is usually meted out (say, only 1/4 of the max ceiling?)
  • Can a governor or president commute a sentence down to however low he or she likes, regardless of the legal minimum sentence? Are commutations reversible by the next governor?
  • Do judges give defendants who are convicted despite pleading not guilty heavier sentences because they wouldn't plead guilty?
  • How aware are prisoners of what is happening in the outside world? They would probably know sports, politics, etc. but what news/things are they NOT aware of?
  • Can Trump really pardon himself, or was/is that a joke?
  • Considering how many innocent people are convicted, is this because the "beyond reasonable doubt" bar is actually in fact pretty low, or because they were innocent people who made a bargain plea?
  • Do prosecutors have some particular incentive to get more convictions (obviously, not paid bonuses, but are they graded or assessed based off of how many they prosecuted?)
  #2  
Old 06-12-2019, 11:17 AM
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[*]If a defendant has committed a variety of crimes, is it typical for a prosecutor to only bring forth one charge at a time, and if this leads to acquittal, then bring forth the next one (to keep the defendant in court as long as possible,) or does the prosecutor generally just bring forth the whole bundle of charges all at once just to spare everyone time and energy?

The term you're looking for is specimen charge. Used sometimes in cases of serial killers or war criminals/ mass murderers. The accused is charged and tried for only one or two of his multiple crimes. Then, if the prosecution should fail on some technicality, they have other murders they can try him for.
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Old 06-12-2019, 11:20 AM
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Answers from someone who has worked adjacent to the criminal justice system for a decade or so.

How do the courts expect the jury to "disregard" something when that statement or thought has been planted in their heads?

Whole swathes of our criminal justice system rely on 17th century psychological models. This is just one example. But it works at the margins. You'd be surprised how sophisticated some jury deliberation is in some cases. It is not unheard of for a jury to believe a person is guilty but think that they don't have sufficient evidence of a particular element because they had to disregard it.

Can a foreigner bring criminal charges against a U.S. citizen in U.S. federal court if the foreigner has no residency in America? If so, how?

Private individuals cannot bring criminal charges in federal court. Only prosecutors can.

If a defendant has committed a variety of crimes, is it typical for a prosecutor to only bring forth one charge at a time, and if this leads to acquittal, then bring forth the next one (to keep the defendant in court as long as possible,) or does the prosecutor generally just bring forth the whole bundle of charges all at once just to spare everyone time and energy?

Not unheard of to charge piecemeal, but for a whole range of reasons including some legal obligations to bundle in some circumstances, the range of crimes are usually charged at the same time.

If the time that a crime happened cannot be determined, how does statute of limitations apply? What if it's a crazy scenario whereby, depending on the exact time of the crime, it might just be barely over or barely under SoL?

Lots of variation by state about how statutes of limitations work and exceptions to them. As a practical matter, even when there isn't some kind of exception, if the prosecutor has brought the charge, then they will be arguing that the crime was within the time period. If the accused wants to argue otherwise, they have to prove when the crime occurred. That's often hard for them to do if they are claiming they are innocent.

How common is it for the maximum sentence to be given (i.e., if max sentence is 20 years, judge applies full 20 years?) What is the typical proportion of the max sentence cap that is usually meted out (say, only 1/4 of the max ceiling?)

Very different in different places and with different judges and different crimes. But, generally speaking, the max is not that common.

Can a governor or president commute a sentence down to however low he or she likes, regardless of the legal minimum sentence? Are commutations reversible by the next governor?

In many places, yes. No, not reversible.

Do judges give defendants who are convicted despite pleading not guilty heavier sentences because they wouldn't plead guilty?

Yes. This is explicitly a part of sentencing in the federal system and many state systems.

How aware are prisoners of what is happening in the outside world? They would probably know sports, politics, etc. but what news/things are they NOT aware of?

Pretty aware. What long-term prisoners miss tend to be things that you wouldn't necessarily pick up by reading newspapers or just talking to people who come in off the streets. Like just how much people look at their phones all the time if you went in before 2008 or so.

Can Trump really pardon himself, or was/is that a joke?

The issue hasn't been decided by the Supreme Court. But the answer is probably "no."

Considering how many innocent people are convicted, is this because the "beyond reasonable doubt" bar is actually in fact pretty low, or because they were innocent people who made a bargain plea?

Both.

Do prosecutors have some particular incentive to get more convictions (obviously, not paid bonuses, but are they graded or assessed based off of how many they prosecuted?)

Yes. In some places, it is as little as social pressure. In some places, it is a much as promotion and salary.
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Old 06-12-2019, 11:31 AM
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[LIST][*]How do the courts expect the jury to "disregard" something when that statement or thought has been planted in their heads?
For some things they recognize the prejudice is too great, and they declare a mistrial. For example, the jury hears that the defendant in a rape case had 3 prior rape convictions that were not admissible. On the other hand, some evidence can be disregarded. If the jury heard a defendant didn't have a valid drivers license in a theft case (where there was evidence he did drive for whatever reason) the judge could tell the jury that they are just suppose to resolve the theft crime and disregard the fact that he drove without a license.

Quote:
[*]Can a foreigner bring criminal charges against a U.S. citizen in U.S. federal court if the foreigner has no residency in America? If so, how?
Individuals don't bring criminal charges. The prosecutor does on behalf of the US Government. If the crime was committed in the U.S., the court has jurisdiction over the defendant and the residence of the "victim" is not important.

Quote:
[*]If a defendant has committed a variety of crimes, is it typical for a prosecutor to only bring forth one charge at a time, and if this leads to acquittal, then bring forth the next one (to keep the defendant in court as long as possible,) or does the prosecutor generally just bring forth the whole bundle of charges all at once just to spare everyone time and energy?
All (or most) at the same time. For efficiency and because in some instances related crimes have to be tried together.
Quote:
[*]If the time that a crime happened cannot be determined, how does statute of limitations apply? What if it's a crazy scenario whereby, depending on the exact time of the crime, it might just be barely over or barely under SoL?
You would think this would be a jury question if their is a factual dispute about when the crime was committed. As I recall, however, what happens in practice is the defendant brings a motion to dismiss based on the S.O.L., and the judge has a hearing and decides. I don't know if it's a preponderance standard or not. It is incredibly rare. Usually it's clearly within or not within the statute.

Quote:
[*]How common is it for the maximum sentence to be given (i.e., if max sentence is 20 years, judge applies full 20 years?) What is the typical proportion of the max sentence cap that is usually meted out (say, only 1/4 of the max ceiling?)
Maximum sentence is rare. Many states (and the feds) have "guidelines" that set a range depending on a variety of factors.

Quote:
[*]Can a governor or president commute a sentence down to however low he or she likes, regardless of the legal minimum sentence? Are commutations reversible by the next governor?

Yes, and no.


Quote:
[*] Do judges give defendants who are convicted despite pleading not guilty heavier sentences because they wouldn't plead guilty?
Sometimes. It varies. Some understand there were legitimate issues to be tried, and don't hammer the defendant. What typically happens is the charges are higher because of no plea deal. So the defendant has great risk if they don't plead.

Quote:
[*]How aware are prisoners of what is happening in the outside world? They would probably know sports, politics, etc. but what news/things are they NOT aware of?
No idea.


Quote:
[*] Can Trump really pardon himself, or was/is that a joke?
Not clear.

Quote:
[*]Considering how many innocent people are convicted, is this because the "beyond reasonable doubt" bar is actually in fact pretty low, or because they were innocent people who made a bargain plea?
Some of each.
But I'm not sure I agree there are "many" innocent people convicted.


Quote:
[*] Do prosecutors have some particular incentive to get more convictions (obviously, not paid bonuses, but are they graded or assessed based off of how many they prosecuted?)
not really. Most prosecutors win most of their cases. If they really start losing too many cases someone would notice.
  #5  
Old 06-12-2019, 11:54 AM
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Originally Posted by Richard Parker View Post
Private individuals cannot bring criminal charges in federal court. Only prosecutors can.
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Originally Posted by Procrustus View Post
Individuals don't bring criminal charges. The prosecutor does on behalf of the US Government. If the crime was committed in the U.S., the court has jurisdiction over the defendant and the residence of the "victim" is not important.
Maybe "bring charges" was the wrong term. What I meant was more like, suppose there were a law that governed the behavior of U.S. citizens abroad (for instance, I would guess that U.S. federal law prescribes criminal penalties for U.S. citizens who facilitate human trafficking abroad - so then if, say, an American citizen were trafficking Nigerian victims in Nigeria, and a Nigerian victim wanted to prosecute the American trafficker under U.S. law, would they have to personally locate some U.S. prosecutor and file a grievance claim with them in order to make the prosecutor aware?) In such a situation, the foreigner plaintiff has no U.S. residency and the crime didn't take place in the U.S. (although there would be extraterritorial jurisdiction.)

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Originally Posted by Procrustus View Post
I'm not sure I agree there are "many" innocent people convicted.
According to the Innocent Project, about 1 percent behind bars are innocent (which amounts to about 20,000 inmates) - that could be "many" or "few" depending on how one looks at it.

Quote:
Originally Posted by Richard Parker View Post
In some places, it is a much as promotion and salary.
Sounds a bit dangerous (moral hazard/conflict of interest) to me.


Quote:
Originally Posted by Peter Morris View Post
The term you're looking for is specimen charge. Used sometimes in cases of serial killers or war criminals/ mass murderers. The accused is charged and tried for only one or two of his multiple crimes. Then, if the prosecution should fail on some technicality, they have other murders they can try him for.
Thanks, that makes sense. IIRC, this is what happened with Saddam Hussein's trial in 2005-2006. He was guilty of a great many things but only charged with the one specific Dujail massacre of the 1980s.


Quote:
Originally Posted by Richard Parker View Post
if the prosecutor has brought the charge, then they will be arguing that the crime was within the time period. If the accused wants to argue otherwise, they have to prove when the crime occurred.
Does this mean "burden of proof is on the prosecution" doesn't apply because in this instance, the case has technically not entered the court yet? (since SoL is about whether a case should even make it to court or not in the first place)

Last edited by Velocity; 06-12-2019 at 11:55 AM.
  #6  
Old 06-12-2019, 12:48 PM
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Maybe "bring charges" was the wrong term. What I meant was more like, suppose there were a law that governed the behavior of U.S. citizens abroad (for instance, I would guess that U.S. federal law prescribes criminal penalties for U.S. citizens who facilitate human trafficking abroad - so then if, say, an American citizen were trafficking Nigerian victims in Nigeria, and a Nigerian victim wanted to prosecute the American trafficker under U.S. law, would they have to personally locate some U.S. prosecutor and file a grievance claim with them in order to make the prosecutor aware?) In such a situation, the foreigner plaintiff has no U.S. residency and the crime didn't take place in the U.S. (although there would be extraterritorial jurisdiction.)
Yes, if the crime didn't come to t he attention of the U.S. authorities, then the victim (or anyone, really) would have to report it. Probably to law enforcement, such as the FBI, not the prosecutor. They would (if they chose to) investigate and then decide whether or not to prosecute.
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Old 06-12-2019, 12:48 PM
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... would they have to personally locate some U.S. prosecutor and file a grievance claim with them in order to make the prosecutor aware?
Basically. Crimes get referred for prosecution a lot of ways. People call the FBI from abroad. They call the U.S. Embassy. They work through channels in their own government. Etc.

Quote:
Originally Posted by Velocity View Post
Sounds a bit dangerous (moral hazard/conflict of interest) to me.
Absolutely.

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Originally Posted by Velocity View Post
Does this mean "burden of proof is on the prosecution" doesn't apply because in this instance, the case has technically not entered the court yet? (since SoL is about whether a case should even make it to court or not in the first place)
As far as I know, in most jurisdictions the burden is on the prosecutor and the issue is usually resolved before trial. The point I was making is that the prosecutor is gonna cite some evidence that the crime happened on X date. In many cases, there's no particular reason for the defendant to have any evidence about when the crime actually happened--especially pre-trial. In most jurisdictions, criminal defendants get relatively little in the way of discovery. I'm not even sure SOL evidence is Brady material (i.e., has to be disclosed to the defense).
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Old 06-12-2019, 01:35 PM
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Do judges give defendants who are convicted despite pleading not guilty heavier sentences because they wouldn't plead guilty?

Yes. This is explicitly a part of sentencing in the federal system and many state systems.
Yes, the justification for this is that by pleading 'not guilty', the convicted person is refusing to take responsibility for his actions or to show remorse.
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Old 06-13-2019, 10:09 PM
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[*]If a defendant has committed a variety of crimes, is it typical for a prosecutor to only bring forth one charge at a time, and if this leads to acquittal, then bring forth the next one (to keep the defendant in court as long as possible,) or does the prosecutor generally just bring forth the whole bundle of charges all at once just to spare everyone time and energy?
My state (and I would presume others) has a "mandatory joinder" rule:

Quote:
Originally Posted by W.Va. R. of Crim. Pro. 8 (a) (2)
Mandatory joinder. — If two or more offenses are known or should have been known by the exercise of due diligence to the attorney for the state at the time of the commencement of the prosecution and were committed within the same county having jurisdiction and venue of the offenses, all such offenses upon which the attorney for the state elects to proceed shall be prosecuted by separate counts in a single prosecution if they are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan, whether felonies or misdemeanors or both. Any offense required by this rule to be prosecuted by a separate count in a single prosecution cannot be subsequently prosecuted unless waived by the defendant.
(underline mine). So at least in West Virginia, if it is loosely the "same" crime, the State only gets one shot. If you kidnapped someone in 2012 and then later committed a burglary in 2017, then they could have two shots.
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Old 06-14-2019, 02:04 AM
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My state (and I would presume others) has a "mandatory joinder" rule:
(underline mine). So at least in West Virginia, if it is loosely the "same" crime, the State only gets one shot. If you kidnapped someone in 2012 and then later committed a burglary in 2017, then they could have two shots.
And, since it would be prejudicial to try you for two seperate crimes at the same trial (see! he must be a kidnapper -- he's a burgler!), that normally means two trials. And since it's difficult to have you in two trials at the same time, that normally means sequential trials. which means it takes even longer to get to the final result.

And starting a new trial by telling the new jury that you just got convicted would be prejudicial, that means keeping the details of the first trial away from the jury of the second trial.

Dunno how the rules vary between different locations.

Last edited by Melbourne; 06-14-2019 at 02:04 AM.
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Old 06-14-2019, 02:17 AM
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"How do the courts expect the jury to "disregard" something when that statement or thought has been planted in their heads?"

The court believes they have found a legal method to unring the bell, at least in theory.
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Old 06-14-2019, 11:09 AM
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Basically. Crimes get referred for prosecution a lot of ways. People call the FBI from abroad. They call the U.S. Embassy. They work through channels in their own government. Etc.



Absolutely.



As far as I know, in most jurisdictions the burden is on the prosecutor and the issue is usually resolved before trial. The point I was making is that the prosecutor is gonna cite some evidence that the crime happened on X date. In many cases, there's no particular reason for the defendant to have any evidence about when the crime actually happened--especially pre-trial. In most jurisdictions, criminal defendants get relatively little in the way of discovery. I'm not even sure SOL evidence is Brady material (i.e., has to be disclosed to the defense).
IANAL, but isn't it the case that the prosecutor has to prove the elements of a crime as defined in the transgressed statute? I.e. this person died, the defendant caused the death by the following means, it occurred at this locale and date...

I suppose a prosecutor could try to bluff that the defendant (or his lawyer) was too stupid to know the terms of the SoL for that crime, and prosecute anyway. I'm going to guess expecting the other side not knowing the law is a poor strategy to rely on. Plus, "my lawyer was incompetent" would be valid grounds for appeal.

If the dates are fuzzy and there is a possibility that the SoL applies, I would have to imagine the defence will raise that and the prosecution would have to prove it does not apply. Lacking such proof appears to be the essence of "reasonable doubt" that one of the elements of the crime is satisfied.

(Most often, I would expect this scenario when for example an incident of childhood molestation comes to light much later after the fact. Dates, times, even exact locales could be fuzzy.)
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Old 06-14-2019, 11:37 AM
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If the dates are fuzzy and there is a possibility that the SoL applies, I would have to imagine the defence will raise that and the prosecution would have to prove it does not apply. Lacking such proof appears to be the essence of "reasonable doubt" that one of the elements of the crime is satisfied.

(Most often, I would expect this scenario when for example an incident of childhood molestation comes to light much later after the fact. Dates, times, even exact locales could be fuzzy.)
I would guess that that is one reason why sex crimes do not have a statute of limitations in the U.S. - because much of its prosecution relies on memory, and that memory gets fuzzy over time.

But can the prosecution get a conviction if the victim cannot even name a time/date when the crime occurred?


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Originally Posted by UltraVires View Post
My state (and I would presume others) has a "mandatory joinder" rule:

(underline mine). So at least in West Virginia, if it is loosely the "same" crime, the State only gets one shot. If you kidnapped someone in 2012 and then later committed a burglary in 2017, then they could have two shots.
Does this apply to "serial" offenses? Say, a burglar has committed many burglaries over a long serial streak - (and let's say there were no SoL for burglary,) could the prosecution get him for one burglary, lock him up for the max sentence of (say, 3 years,) then when he is released, promptly charge him for the next burglary, lock him up again for another max sentence of 3 years, and then keep rinsing and repeating, essentially locking him up for life?

(Obviously, extreme example; it would take a really bored or stick-it-to-em prosecutor to do that, but just asking about the legal hypothetical.)


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Originally Posted by Tim@T-Bonham.net View Post
Yes, the justification for this is that by pleading 'not guilty', the convicted person is refusing to take responsibility for his actions or to show remorse.
Well, it could also mean that the person is in fact innocent.
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Old 06-14-2019, 12:14 PM
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Does this apply to "serial" offenses? Say, a burglar has committed many burglaries over a long serial streak - (and let's say there were no SoL for burglary,) could the prosecution get him for one burglary, lock him up for the max sentence of (say, 3 years,) then when he is released, promptly charge him for the next burglary, lock him up again for another max sentence of 3 years, and then keep rinsing and repeating, essentially locking him up for life?

(Obviously, extreme example; it would take a really bored or stick-it-to-em prosecutor to do that, but just asking about the legal hypothetical.)
I would argue that serial burglary or even serial murder would be "two or more acts or transactions connected together or constituting parts of a common scheme or plan."

Keep in mind, though, that there is nothing that prohibits the prosecutor from charging all (say 40) counts of burglary and the judge running everything consecutive and giving the man 120 years in prison. It just must be charged at the same time unless the defendant consents.

And this is where a defense lawyer must make a choice. Do I want all 40 tried together? It's prejudicial to my client for the jury to hear that he is accused of 40 burglaries, but if I win once, it's over. It is less prejudicial to have 40 burglary trials, but I must win all 40 to keep him out of jail.

The answer is, it depends.
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Old 06-14-2019, 06:21 PM
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IANAL, but isn't it the case that the prosecutor has to prove the elements of a crime as defined in the transgressed statute? I.e. this person died, the defendant caused the death by the following means, it occurred at this locale and date...
Let's say that a man's body is found in his apartment on June 15 at 6:00 am. The man has been stabbed to death. There is video tape of you entering the apartment at 10:00 pm on June 14 and leaving at 2:00 am on June 15. No one else entered or left the apartment during this time. Your fingerprints and DNA are on the bloody knife. The police find an email where you threatened to kill him.

Are you suggesting that if the prosecution can't prove beyond a reasonable doubt whether the murder occurred before or after midnight, they can't convict you?
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Old 06-14-2019, 06:56 PM
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Does this apply to "serial" offenses? Say, a burglar has committed many burglaries over a long serial streak - (and let's say there were no SoL for burglary,) could the prosecution get him for one burglary, lock him up for the max sentence of (say, 3 years,) then when he is released, promptly charge him for the next burglary, lock him up again for another max sentence of 3 years, and then keep rinsing and repeating, essentially locking him up for life?
In UK law, yes they can do that. To avoid this, defendants will often ask for other offences to be "Taken Into Consideration" or TIC.

Example. Another example.
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Old 06-14-2019, 07:31 PM
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Let's say that a man's body is found in his apartment on June 15 at 6:00 am. The man has been stabbed to death. There is video tape of you entering the apartment at 10:00 pm on June 14 and leaving at 2:00 am on June 15. No one else entered or left the apartment during this time. Your fingerprints and DNA are on the bloody knife. The police find an email where you threatened to kill him.

Are you suggesting that if the prosecution can't prove beyond a reasonable doubt whether the murder occurred before or after midnight, they can't convict you?
The exact date rarely matters. That’s why indictments and complaints usually say “on or about the forth of June.”
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Old 06-14-2019, 07:46 PM
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Let's say that a man's body is found in his apartment on June 15 at 6:00 am. The man has been stabbed to death. There is video tape of you entering the apartment at 10:00 pm on June 14 and leaving at 2:00 am on June 15. No one else entered or left the apartment during this time. Your fingerprints and DNA are on the bloody knife. The police find an email where you threatened to kill him.

Are you suggesting that if the prosecution can't prove beyond a reasonable doubt whether the murder occurred before or after midnight, they can't convict you?
As Procrustus says - exact date does not matter. However, if the timeline is sufficiently vague that it cannot be established the crime happened within the statute's time limitation - yes, there is reasonable doubt that a chargeable crime has occurred.

The whole purpose of SoL is so that a person does not have to dig up evidence to defend himself that may have disappeared with time... phone records, bank records, lost or deteriorated physical evidence, fuzzy witness memories (or rather, reinforced by newer suggestions rather than fact).

IIRC most fairly serious crimes, especially murder, have no limitation, or a very long one.

Last edited by md2000; 06-14-2019 at 07:48 PM.
  #19  
Old 06-14-2019, 08:47 PM
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Well, it could also mean that the person is in fact innocent.
It could mean that in the real world. But if convicted the presumption is that it doesn't mean that. If you're going to punish an attempt to dodge guilt, it is the only logical way to make that work.
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