So basically you are just being pedantic that the belief part was presumed and not stated explicitly.
I’m curious how often you think it is the case that a citizen’s arrest is made when the person making the arrest has probable cause that a felony has been committed but does not believe the person is guilty of the felony?
It was pretty clear to me early on in this mess that a felony must be believed to have occurred. That you can’t go arresting for misdemeanor violations. So I would presume (and maybe I am the idiot for giving the benefit of the doubt) that all the talk after that about probable cause had to do with probable cause of a felony being committed.
If you can find the person willing to make a probable cause citizen’s arrest that will also swear they do not believe the person they are arresting is guilty of a felony, then that idiot deserves what they get in civil court.
All points well taken, to be sure. But since I think ywtf is a vet, I was trying to find something that might resonate with her. She still thinks it’s simply about reading and parsing language, and it’s not – because language used in law is often terms of art, and is not susceptible to simply “reading it honestly.”
There a set of volumes called the American Jurisprudence 2d. It retails for $10,000 hardcover – it’s one of those sets that stereotypically covers the walls of a lawyer’s office. It has every freaking thing under the sun. But not really. There’s Wayne Lefave’s “Substantive Criminal Law,” another hefty two volume set that lays out the common law and decisions shaping it.
These kinds of resources exist because you cannot practice law, cannot understand law, simply by flipping to a relevant passage. Lwyers can – because they have spent three years being stuffed to the gills with the background information and analytical skill set necessary to use those resources effectively.
Yes – most people have exposure to the law. I can think of a dozen TV shows about the law and not one about a vet. But this exposure strips away the complexity. No real closing argument sounds like Jack McCoy’s. No real trial is punctuated by “(snarky comment),” “Objection!” “Withdrawn.” These kinds of things are great for dramatic pacing and storytelling, but lousy for accuracy.
You, my dear, are asking for it. Now you’re doomed on your next important final with a pedantic professor to make some grammatical error such that said professor makes a snarky comment that makes you cringe. Even better if it’s a spoken grammatical gaffe while you’re being grilled Socratic-style. Mwahahahaha…karma!
That’s a good point. It would seem like the arrester would point to the fact that the prosecutors thought there was probable cause, too (or they wouldn’t have charged the arrestee). First, the arrestee may contend that the prosecutor didn’t have probable cause to charge him. But a prosecutor presumably has protections from civil liability for this, while the arrester does not. Second, the arrestee may argue that the prosecutor based their probable cause (to indict) on information that was not available to the arrester at the time he made his arrest.
As far as his first sentence not being directly related to his last. I would break the paragraph into two separate paragraphs. The second paragraph would be:
In other words, even if you are sure that there will be enough evidence for a conviction… it may not matter because the prosecutor may not bother to prosecute the arrestee (for reasons that have nothing to do with how much evidence you have.)
I don’t think we are talking about the same thing.
If I am convicted, that constitutes pretty good proof that there was probable cause to arrest me. Hence the statement that I am unlikely to prevail in a civil suit for false arrest once I am convicted.
[QUOTE=you with the face]
The author of that piece implies that if charges are pressed against the arrestee and it goes to trial but there’s a not guilty verdict (i.e. no conviction) then the arrestee could argue there wasn’t probable cause. All I’m saying is I don’t see how they could argue that when the state already had to make a case for probable cause when charges were pressed.
[/QUOTE]
She seems to be thinking that the mere fact that someone is indicted and brought to trial means that probable cause has been established. As you very properly point out, that is not true - the standards are different for arrest than for conviction.
Being convicted proves probable cause to arrest. Being indicted does not. Thus one cannot use indictment as proof of probable cause in the same way you can use conviction.
[QUOTE=emeraldia]
It would seem like the arrester would point to the fact that the prosecutors thought there was probable cause, too (or they wouldn’t have charged the arrestee).
[/QUOTE]
I don’t think it matters what the prosecutors thought - it matters what they prove. If the jury agrees the accused is guilty, that is pretty good evidence that probable cause for arrest was present. If the prosecution doesn’t prove their case, then you cannot point to the guilt of the suspect as evidence that the arrest was justified.
I think he was just being excessively lawyerly (forgive me lawyers) to exclude the possibility of someone thinking “I have probable cause to arrest this bank robber, after all he walked up to the me with a note demanding the coin bags and forcefully pointed to some filled ones. It doesn’t matter that I know the man and he comes in every week to get the empty bags.” At that point the person really doesn’t have probable cause because of the extra information, even though the teller who started yesterday might.
And I guarantee, there is someone, somewhere who believes probable cause is such as objective standard that either both tellers have it or neither does.
Should be
"And I guarantee, there is someone, somewhere who believes probable cause is such an objective standard that either both tellers have it or neither does.
Well, technically, if it went to trial then the prosecutor would have “proven” to a judge that probable cause existed (Even if they were unable to prove to a jury (or judge) guilt “beyond a reasonable doubt”.) Obviously the latter one would be far more helpful to the arrester’s case than just the former. But, technically, the arrester only needs to prove that the arrester had probable cause at the time he made the arrest.
The prosecutor would have to prove that probable cause existed to defeat a motion to suppress the arrest (or its results). However, the prosecutor might still be able to obtain a conviction even if the arrest is suppressed.
A good example, then, of the value of knowing what the legal definition of probable cause is. Probable cause exists when the facts and circumstances within the arresting person’s knowledge, and of which he has reasonably trustworthy information, alone are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed. In other words, probable cause cannot exist if the teller knows the guy and knows he comes in every week for bags.
No, it looks now like she is – as kind of a desperate measure – saying that belief is also necessary, and the failure the mention that was so egregious as to justify this statement from the OP.
But of course it’s not wrong. Because the definition of probable cause includes the facts and circumstances known to the person doing the arresting. If they don’t believe it, then probable cause doesn’t exist.
Of course, it’s a good opportunity to go back and re-read the OP, where she supports the “100% wrong” claim by quoting California law to show that a citizen’s arrest requires that a criminal offense has to have been genuinely committed. Which it does, apparently – in California.
Though sloppy, intemperate and often drunk while on this message board, I am the very picture of professionalism and competence in the classroom. Grammatical errors do not happen in my realm.
More importantly, I only take professors who give multiple-choice finals.
Among the many things that haunt me is the idea that someone somewhere will unearth my Property final and pass it around. I had no freakin idea what I was writing. I believe I vowed to burn Blackacre to the ground that day.
Only multiple choice finals? If you can manage it, great. I wish I had had that idea twenty years ago.
