I know, the question about defense of guilty defendants comes back. My question: is it impossible to conduct an “Affirmative” defense for Dzhokhar Tsarnaev?
His guilt is not questionable-he admitted building and setting the bombs (he wrote a confession). He also appears in several videos at the Marathon, engaged in planting the bombs. He has also admitted that his “jihad” involved killing American people.
So, can his defense council “affirmatively” defend him?
Or are they pretty much confined to pointing out “flaws” in the evidence against him? Or will they attempt to “prove” that he did all of this while insane?
Of course, the confession he wrote is quite damning-what can the defense offer to refute such an admission?
“Affirmative Defense” is a legal term. It means, essentially, “I admit everything that is alleged in the indictment, but I still shouldn’t be found guilty.”
Examples of “Affirmative Defense” are, for example, justification (or self-defense), tolling of the statute of limitations, or - yes - insanity.
The way you’re using the word “affirmativey” seems to indicate you think “affirmative defense” means something else.
You say “his guilt is not questionable.” But there is no presumption of guilt. In the US, his innocence is presumed. He doesn’t have to put up any defenase. The prosecution must prove him guilty beyond a reasonable doubt.
Well, I don’t think it’s always quite that simple.
There is a tendency for courts to believe ANYTHING that anyone claims, however lame, if the claim is not disputed by someone else. If a vehicle accident happens at 4 in the morning but the prosecutor or plaintiff claims that the sun was shining brightly, and if the defense doesn’t dispute that, then the court may accept as fact that the sun was shining brightly.
If follows that the prosecution can put forward ANY case they want, however lame, but if it is even remotely plausible, it then falls to the defense to refute it, lest the court accept the lame prosecution and convict on the basis of that.
(IANAL, and never regretted it, but I think all of the above follows from various things I’ve read about how courts work. Question for real lawyers: Is any of the above actually correct?)
The court can take judicial notice of the fact that the sun had not risen at 4 AM at that locale at that part of the year.
Still, I’d like to know if my general point is correct . . .
(a) . . . that anybody can say just about anything in a court, and if somebody else doesn’t refute (or at least simply deny) that, then the court will tend to take that as given fact, and,
(b) . . . therefore, a prosecutor can make just about any old lame accusation (or any other simple statment of fact), and if it’s at least plausible, then a burden is created on the defense to refute that – or at the very least, to simply stand up and declare “I deny that” – lest the court accept the accusation as truth?
If the defense simply refuses to defend, on the theory that the prosecution’s case isn’t “beyond a reasonable doubt”, isn’t that likely to lead to a conviction?
Absolutely false for criminal cases in the United States. The Prosecution (ie, the State or Federal Government) has the burden of proof. They must establish each and every element of the crime or crimes charged beyond a reasonable doubt. The defendant has no burden of proof in most circumstances…exceptions being the use of affirmative defenses, such as self defense.
I recently won a criminal case without calling a single witness, or otherwise putting on a defense case. I cross examined the prosecution witnesses, and when the State rested, I moved for a dismissal on the basis that the prosecution failed to prove one of the elements of the offense charged. The Judge agreed, and my client walked. This is a fairly common defense strategy, sometimes called a “failure of proof” defense.
What might the verdict have been if you had not even done so much as cross-examine the prosecution witnesses, but instead had let their direct testimony go unchallenged? Would the court have then taken their testimony as fact, and as sufficient fact to convict? My understanding was that the defense, at the very least, must dispute something.
I’m not sure this will help, but if I’ve understood what you’ve said so far, there seems to be an implicit assumption - specifically that prosecution witnesses would be willing to perjure themselves and that the prosecution, either knowingly or with reckless disregard for the truth, would be willing to suborn perjury. That takes a very dim view of things. One which while it can’t be categorically excluded, is certainly one could be considered an outlier at the very least.
Beyond that, every crime is more than a single charge. It is composed of discrete elements each of which must be supported by proof that meets the applicable standard. For example I did a quick google on the elements of burglarly and found this from the NY penal code.
Note that intent is an essential element in at least 2 of the elements. It’s difficult to show this convincingly even without cross examination if people are just making shit up. Contrary to popular belief, juries aren’t stupid. They can be deceived and misled on occasion, but that’s not the same thing.
Your honour, be it the moon, or sun, or what you please;
And if you please to call it a rush-candle,
Henceforth I vow it shall be so for me.
IANA either, but it seems to me:
Of course, you cannot “say whatever you want”.
The lawyers can argue something in presentations, summary, etc, but only sworn testimony is 'evidence".
A lawyer who does not challenge “the sun was shining at 4AM” probably has failed somewhere.
Juries may decide whatever they want for whatever reason they want - but judges are usually pretty good at figuring out the facts based on what was said.
Somewhere in there, common sense must come into play. The judge does not need expert testimony, for example, to conclude “I have difficulty believing the witness would mistake a black van for a white sportscar”.
Ther are plenty of appeals (from what I’ve read) where the complaint was that due to incompetence on the part of the defence attorney, the defendant was deprived of a right to a fair trial. I would assume that prosecutor who tries to “pull one over” on the defence is simply asking for an appeal and likely a retrial. (not to mention case dismissed in the situation of outright fraudulent prosecution evidence - does double jeopardy apply here?)
I would imagine at this point the best the guy can do is a Clarence Darrow defence - try to minimize the evidence and his involvement, at the very least avoid the death penalty. Darrow considered getting his client life instead of death as a victory when the client was caught dead to right, so to speak. A good defence would be to show the guy as a fool and a dupe for his older brother, who seems to have been the main instigator in all this.
It’s kind of hard to argue “wasn’t me!” when there’s a written confession, equipment for making the bombs was removed from his room, photos of him, and apparently an eyewitness will be on the stand minus 2 legs… You can try, the question is whether the judge or jury believes you or the other evidence.
You are conflating two things. The prosecutor’s statements are not evidence, unless he’s sworn in as a witness for some reason.
Witness testimony is evidence, but as Oakminster notes, the prosecution must still prove each element of the crime. If you have one witness who says, “I saw Jim running away from the body covered in blood,” that’s pretty strong circumstantial evidence (to a layperson) that Jim is the killer. However, standing alone, it’s not evidence sufficient to prove any element of murder (the jury is permitted to draw certain inferences from the testimony which may support one or more of the elements, but that’s beyond the scope of this thread.)
You are correct that uncontroverted testimony is given great weight by a factfinder, but that doesn’t lead to the conclusion you drew.
Getting back to the OP, there are affirmative defenses and affirmative defenses. Generally, you can argue in the alternative; that is, attack the prosecution’s case while simultaneously saying, “but even if they prove that I did it, I am not culpable because of [affirmative defense].” In other words, “I didn’t steal the TV, but even if I did it was 19 years ago and the statute of limitations has run.”
Some affirmative defenses do not allow alternative pleading by their nature. That’s because a criminal defendant has the burden of proving (by a preponderance of the evidence, IIRC) any affirmative defense.
So, to claim entrapment, you have to admit that you committed the crime in question, because otherwise you can’t prove that the police wrongfully induced you to do it.
No. The finder of fact–that is, the jury in a jury trial, or the judge in a bench trial–determines whether testimony is believable. The mere fact that a witness testifies to something does not automatically mean their testimony must be taken as factual unless rebutted. The jury (or judge) decides whether to believe the evidence, and decides what the evidence means.
It is absolutely common for defendants to present no defense after the prosecution rests, and rely on the jury to weigh the evidence presented by the prosecution and decide whether there is reasonable doubt about the elements of the crime.
I’m sure you’re right, but I would say the general tendency is that people believe what they’re told if they aren’t given an opposing viewpoint. Remember, in the hypothetical situation the defense isn’t simply not presenting a case, he isn’t even cross-examining the prosecution witnesses. He’s doing nothing at all to contradict what the prosection is saying.
It may be true that people might tend to believe that if testimony is rebuttable, the defense would rebut it, and therefore if there is no rebuttal the testimony is credible.
But there is absolutely no legal requirement for the defense to rebut anything. The prosecution must prove each and every element of the crime, beyond a reasonable doubt. If the finder of fact believes there is reasonable doubt to any of those elements, they will find the defendant not guilty.
It may be that Senegoid is confused between civil and criminal trials. It is true that in a civil case the burden of proof is much different, and if one side doesn’t present a case the preponderance of the evidence will be entirely for the other side. Then you can get summary judgments against the side that didn’t present a case that presume everything the other side claimed was true. And once the facts are adjudicated it can be extremely difficult to get a new hearing of the facts, appeals courts are almost entirely focused on questions of law, not fact.
Well, somebody’s confused. 
At the summary judgment level, it is presumed that everything the non-moving party asserts is true. The non-moving party does have the burden of demonstrating that a material issue of fact exists, but that’s not the same thing.
As an illustrative example, not for MA though, I sometimes pull case law from this online source on various subjects.
R.C. 2901.05(A) – On an affirmative defense the defendant bears both the burden of going forward with the evidence and the burden of proof by a preponderance of the evidence.
R.C. 2901.05(C) – An affirmative defense is either: (1) designated by statute as such; or (2) “A defense involving an excuse or justification peculiarly within the knowledge of the accused, on which he can fairly be required to adduce supporting evidence.”
http://www.opd.ohio.gov/rc_casebook/affirmative_defenses_in_general.htm
Example of law, not cited in link though:
2921.21 Compounding a crime.
A) No person shall knowingly demand, accept, or agree to accept anything of value in consideration of abandoning or agreeing to abandon a pending criminal prosecution.
(B) It is an affirmative defense to a charge under this section when both of the following apply:
(1) The pending prosecution involved is for a violation of section 2913.02 or 2913.11, division (B)(2) of section 2913.21, or section 2913.47 of the Revised Code, of which the actor under this section was the victim.
(2) The thing of value demanded, accepted, or agreed to be accepted, in consideration of abandoning or agreeing to abandon the prosecution, did not exceed an amount that the actor reasonably believed due him as restitution for the loss caused him by the offense.
(C) When a prosecuting witness abandons or agrees to abandon a prosecution under division (B) of this section, the abandonment or agreement in no way binds the state to abandoning the prosecution.
(D) Whoever violates this section is guilty of compounding a crime, a misdemeanor of the first degree.
It’s not assumed to be true. You are only given the benefit all reasonable inferences. There is a difference.
The case law is against you on that. The purpose of SJ is to adjudicate a case due to the fact since ALL the facts are briefed, there is NO reason to legally continue, as no facts give rise to a Cause of Action.
Now, at 1st, there may be a Motion to Dismiss for failure to state a claim upon which relief can be granted. If that fails, then other facts come out through depositions/interrogatories, etc., then if there is still no legal COA, SJ may be applied for.
Where exactly are you getting this from? A summary judgment motion is to dispose of a case when there is no dispute of any material fact. And as to the specific standard, you are simply wrong.
I think the confusion stems from the idea that you are saying what the legalities are, and I (and I think Senegoid) is asking what the practicalities are. I mean, I know that there is no legal requirement for the defense to rebut anything, but practically speaking, if the defense doesn’t rebut anything, he doesn’t have much of a chance I wouldn’t think.