Since cross examination serves multiple purposes such as impeaching credibility and finding inconsistencies in the opposing party’s theory of the case, certainly failing to challenge witnesses would in most cases represent an important lost opportunity since it could contribute to reducing the weight given to certain evidence by the trier of fact.
I think the only point being made by moi and others is that the trier is also capable of weighing evidence and applying the applicable standard without your assistance as opposing counsel.
Labdad and lawbuff touched on this, but - “affirmative defense” is a legal term referring to something the defense has the burden of proving that forces innocence. The burden of proof is usually on the prosecution, but for certain defenses - such as self-defense, duress, and insanity - the burden of proving the defense is on the defense.
Example: Defendant is charged with battery (hitting another person). Prosecution bears the burden of proof to show beyond a reasonable doubt that the defendant hit another person. If the prosecution doesn’t put on evidence, they don’t meet their case. But let’s say they present a witness who takes the stand and says “John Doe punched me in the face, yadda yadda.” It’s believable. If the defense wants to claim self-defense, they can’t just say “self-defense!”, they need to put on their own witnesses/evidence and the jury needs to believe it before they can make a finding of not guilty due to self-defense.
Getting back, if we may, to ralph’s original question, from which the thread has somewhat digressed, Tsarnaev’s factual guilt is absolutely up for debate. The pictures might not be him. The confession might have been coerced, the product of a morphine-addled mind, or the statement of a punk kid who wanted to look like a big man for all his anti-american buddies. (I don’t suggest any of this is the case, but the government is the one who has to prove it isn’t.)
The O.J. Simpson trial is illustrative. I think any half-honest examination of the facts surrounding the case make Simpson’s (factual) guilt plain. But the State had, basically, two pieces of evidence: DNA and testimony of the investigating detective. The defense showed that the DNA was not properly handled and the investigating detective hated black folk – or at least, that these were reasonable conclusions – and so the jury acquitted. There’s more concrete evidence against Tsarnaev, of course, but the point is that during cross examination, the defense may very well evoke evidence that what we think we know about Tsarnaev’s guilt is based on a foundation that’s not nearly as solid as it seems now, when the only side of the story is the one drafted by the pulic information office of the Boston P.D.
c’mon. In my limited experience, that last point is almost never ‘proven’ in an ordinary non-lawyer sense by anything presented in court.
They find a young man inside a closed and locked building at night, and that is taken as proof of an intent to commit a crime. If he wants to try to claim he was not intent on committing a crime, the requirment for proof falls on him. And, of course, nothing he says in self defense is admissable evidence, so he needs some other kind of evidence.
I admit that this seems to be in conflict with the clear statement of the law above, but the fact is that in all my time observing lower courts, I never saw any attempt to independently prove intent for anything, nor did the judge require it.
I defer to your experience on the practicalities. I was mainly a word monkey doing research and writing briefs. I did read a lot of transcripts but those were almost exclusively for appellate briefs so your focus is a bit different.
IANAL, but work with them, and I think the defendant’s statements are (generally) very much admissible. The finder of fact might or might not find his statements particularly believable, and might think they’re weak or even worthless evidence to use for reaching a conclusion about guilt, but they’re certainly admissible evidence.
I don’t dispute your overall point about lack of intent being, in actual practice, something the defense has to actively raise, and even give some evidence for, however.
I’m a little curious about the admissibility comment too. In what sense are exculpatory statements not admissible, assuming there are no hearsay problems?
I guess I stopped reading once it seemed like the issue was a matter of trial experience because in the US at least, that part about the defendant’s testimony not being admissible wouldn’t be true to the best of my knowledge.
But give me a rule of evidence to look up and I have the 2012 annotated rules for NJ which are pretty much the same as the federal I think.
I do think that is the actual question. Not if he can use an affirmative defense. He can’t unless he tries to plead insanity. It certainly wasn’t self-defense. The question is about if he can have an effective defense. That is completely unknown at this time. We think we know what the evidence is but we really don’t know what they have and what will be admissible.
Quoting a dictionary link is not “specific” in nature, at least here. This is a quote from a case.
…In considering a summary judgment motion, a court accepts as true the nonmovant’s evidence and draws “justifiable inferences
. . . in [her] favor.” Estate of Parsons v. Palestinian Auth.,
651 F.3d 118, 123 (D.C. Cir. 2011)…
Very similar, if not exact, to a Motion to dismiss for failure to state a claim upon which relief can be granted;
…A motion to dismiss pursuant to Rule 12(b)(6) may be granted only if,
accepting all well-pleaded allegations in the complaint as** true**, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (citing Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir. 1986)…
The court considers the facts as TRUE, there is just no COA stated.
What lawbuff has attempted to do, whether in bad faith or simply out of ignorance I cannot judge, is to conflate the rendering of an issue not in dispute with the standard by which such rendering is made. This is laid out very clearly in NJ Court Rule 4:46-2
“Not a single link that can be verified”? Aren’t you a lawyer? He gave you the reporter citations. Beyond that, if you don’t know what rule 12(b)(6) is, you’re apparently not a lawyer.
Aren’t you cute. In the real world, real lawyers don’t use the fed. rules of civil procedure unless in fed. ct. they use their own state’s court rules, to wit:
That really wasn’t obvious I take it. BTW, THAT is what you should be questioning in terms of relevance. Would you like me to explain why or do you want to try that on your own?
Since you quote NJ law here is a case link and a quote from it, that should ice it, if not, I have no further comment.
IV
A
Analytically, tying the test for summary judgment determinations to the question of what reasonable conclusions a rational jury can draw from the evidence is similar to an involuntary dismissal under Rule 4:37-2(b). We recognized as much in Dairy Stores, supra, 104 N.J. at 156, 516 A.2d 220. The standard for determining a motion for an involuntary dismissal under Rule 4:37-2(b) is the same as the standard for determining motions under Rule 4:40-1, and Rule 4:40-2. The motion
must be denied “if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff’s favor.” R. 4:37-2(b); see S. Pressler, Current N.J. Court Rules, R. 4:40-2 comment (1991). In each case, “the court must accept as true all the evidence which supports the position of the party defending against the motion and must accord him [or her] the benefit of all legitimate inferences which can be deduced therefrom, and if reasonable minds could differ, the motion must be denied.” S. Pressler, supra, R. 4:40-2 comment (1991); see Dolson v. Anastasia, [55 N.J. 2, 5-6, 258 A.2d 706 (1969).]
Lawbuff’s correct. To the extent that you’re saying the court must only accept reasonable inference and NOT assume the truth of well-pleaded allegations, you’re wrong, deltasigma.