# I pit Kris Kobach **URL:** \ **Category:** The BBQ Pit\ **Created:** [September 5, 2014, 7:25am UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561 "2014-09-05T07:25:37Z")\ **Posts on this page:** 1\ **Showing post:** 291
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 12, 2014, 8:27pm UTC](https://boards.straightdope.com/t/i-pit-kris-kobach/697561/291 "2014-09-12T20:27:25Z")
> [@elucidator](#): > > Oh, OK, OK, I give up, I’ll google “de novo”! Fuckin’ lawyers! You might refresh your recollection by reading [this thread from 2008.](http://boards.straightdope.com/sdmb/showthread.php?p=9972228) You had a similar reaction at the time: > [@Judge rules FISA is "exclusive" means for wiretapping -- POTUS can't use CinC power](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/15): > > Boy, sure is exciting watching lawyers argue. If I kept on like that for more than about four hours, I might need a doctor. And these posts discussed the meaning of _de novo_: > [@Judge rules FISA is "exclusive" means for wiretapping -- POTUS can't use CinC power](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/5): > > Also, **Bricker** , why do you believe the case will be reviewed \*de novo \* and could you explain exactly what that means to those of us who are not lawyers and haven’t encountered the term before? I mean, going back to my high school Latin, it looks like **of** or **from new** , but I don’t quite know how that applies here. > [@Judge rules FISA is "exclusive" means for wiretapping -- POTUS can't use CinC power](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/7): > > Sure. > > An appellate court has several different “modes” of review. > > When a trial court has made a finding of fact, the appellate court is pretty much bound to accept it. The only way a finding of fact may be disturbed on appeal is if the appellate court determines that it’s without any support in the record. > > But a conclusion of law is different. When a trial court reaches a conclusion about what the law is, the appellate court has no particular deference for that conclusion. They don’t give it any weight at all; they consider the question afresh, anew, from the beginning – “_de novo_”. > [@Judge rules FISA is "exclusive" means for wiretapping -- POTUS can't use CinC power](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/8): > > OK, let’s see if I have this straight by giving a concrete example. > > Someone commits a murder that is unquestionably a murder and pre-planned at that. THe appelate court is pretty much bound to accept it unless there was some kind of violation in the original trial. > > But someone else kills someone, but you can’t tell if it was completely an accident, self-defense, or murder, so you don’t know if the law applies or not. That is subject to \*de nova \* review? > [@Judge rules FISA is "exclusive" means for wiretapping -- POTUS can't use CinC power](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/19): > > Eh… sorta. > > Maybe a different example will help. > > Jack is accused of planning to kill his neighbor Steve. He knows Steve mows the grass every Saturday morning, so he sets up his sniper rifle in his bedroom window, and when Steve’s out mowing, he shoots. But the bullet misses Steve and travels into the next yard, where it kills George. > > As a matter of law, what’s the crime? The defense says, “Hey, it’s not premeditated murder. Jack planned to kill Steve. If he had, sure, it would be premeditated. But Jack killed George completely by accident. No premeditation – no intent, even! It’s an accidental death!” > > The prosecution syas, “No. The rule is that the intent, and the premeditation, that Jack had for killing Steve gets _transferred_ to George’s death.” > > The jury finds Steve guilty. The trial court agrees with the prosecution’s theory, and enters a verdict of guilty for premeditated murder. > > Now, the appellate court must accept that Jack planned to kill Steve, that he shot the gun, and that George died as a result. Those are facts, and the jury, as the finder of fact, can’t be questioned on those findings. (Assuming there’s support in the record for the finding. If the only evidence the jury heard was a psychic from Germany saying she dreamed the whole murder scene, then that’s not enough evidence for a reasonable jury to find those facts to be true.) But assuming there’s sufficient evidence in the record, the jury’s finding of fact is unquestioned on appeal. > > But the conclusion of law – that the intent for one killing is “transferred” to another death is something the appellate court will review without particularly caring what the trial court decided. They will take the facts and figure of what the law says about them, independently of the trial court’s decision – _de novo_. > [@Judge rules FISA is "exclusive" means for wiretapping -- POTUS can't use CinC power](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/20): > > Wouldn’t the Lindburgh law cover that situation? Any death that is the result of a felony’s (attempted murder) being commited is 1st degree murder? Or is that a myth from my childhood? > > I’m not certain of your last sentence, so let me confirm: do you mean that the appellate court would review the evidence from the start, rather than looking at any aspect of the first trial? Just want to make sure. > [@Judge rules FISA is "exclusive" means for wiretapping -- POTUS can't use CinC power](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/21): > > Not review the evidence – review the conclusions of law. The evidence, the facts, they are stuck with. They may _recite_ the facts; they don’t review them for correctness. > [@Judge rules FISA is "exclusive" means for wiretapping -- POTUS can't use CinC power](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/22): > > OK, let me get this straight. I understand that the evidence is the evidence. Does the appellate court review the evidence to decide for themselves whether Jack was or wasn’t planning to kill Steve or do they accept the lower court’s decision and review the legal decision as to whether or not that makes him guilty of Steve’s murder or both? > > I’m sorry, **bricker** ; I’m not trying to be obtuse, really. I just achieve obtuseness naturally. > [@Judge rules FISA is "exclusive" means for wiretapping -- POTUS can't use CinC power](https://boards.straightdope.com/t/judge-rules-fisa-is-exclusive-means-for-wiretapping-potus-cant-use-cinc-power/455200/24): > > No. They accept that Jack was planning to kill Steve. > > George is the one that died (or, in our latest modification, is injured). They review the legal decision that planning to kill Steve, actively _trying_ to kill Steve, but actually killing or wounding George amounts to a particular crime. --- _[View the full topic](https://boards.straightdope.com/t/i-pit-kris-kobach/697561)._