# So my brother was just arrested (a rant) **URL:** \ **Category:** The BBQ Pit\ **Created:** [March 6, 2003, 4:32am UTC](https://boards.straightdope.com/t/so-my-brother-was-just-arrested-a-rant/159427 "2003-03-06T04:32:28Z")\ **Posts on this page:** 14\ **Page:** 6
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 27, 2003, 3:19pm UTC](https://boards.straightdope.com/t/so-my-brother-was-just-arrested-a-rant/159427/101 "2003-03-27T15:19:57Z")
> [@](#): > > California Penal Code Section 187 (a) [hence muder sometimes being referred to as “187”] > “Murder is the unlawful killing of a human being, or a > fetus, with malice aforethought.” > > Which sounds dangerously close to a circular definition to me. > > Would the prosection have to prove, beyond a reasonable doubt, that the killing was illegal? Or could they take it as prima facae? Well, I am no expert on California law. But yes, they would have to prove beyond a reasonable doubt that the killing was illegal. If, for example, the evidence even remotely suggests circumstances in which self-defense may have applied, the defense is entitled to a jury instruction on self-defense, which means that the question of self-defense must be resolved, beyond a reasonable doubt, by the jury. If the evidence suggests circumstances which would otherwise remove culpability, such as accident, the jury must find beyond a reasonable doubt that those circumstances were not present. - Rick ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 27, 2003, 4:15pm UTC](https://boards.straightdope.com/t/so-my-brother-was-just-arrested-a-rant/159427/102 "2003-03-27T16:15:06Z")
I think this is the jury instruction in California in cases involving self-defense: > [@](#): > > “Upon a trial of the charge of murder, a killing is lawful if it was excusable or justifiable. The burden is on the prosecution to prove beyond a reasonable doubt that the homicide was unlawful, that is, not excusable or justifiable. If you have a reasonable doubt that the homicide was unlawful, you must find the defendant not guilty.” In People v. Rios, the Court said: > [@](#): > > The court also instructed the jury that the killing of another person is justifiable and not unlawful when the person acts in reasonable self-defense. (CALJIC Nos. 5.12 and 5.30.) Read together, these instructions informed the jury that Rios was not guilty of murder or manslaughter if he acted in reasonable self-defense and that it was the prosecution’s burden to establish, beyond a reasonable doubt, that Rios did not act in reasonable self-defense. However, it is still up to the defense to show, either in the State’s case in chief or with their own evidence, that the murder may have been in self-defense. They must raise at least a modicum of evidence before they will get a self-defense instrucition. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 27, 2003, 4:42pm UTC](https://boards.straightdope.com/t/so-my-brother-was-just-arrested-a-rant/159427/103 "2003-03-27T16:42:31Z")
Thanks for the supporting documentation, Hamlet. ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [March 27, 2003, 11:27pm UTC](https://boards.straightdope.com/t/so-my-brother-was-just-arrested-a-rant/159427/104 "2003-03-27T23:27:26Z")
> [@](#): > > \*Originally posted by Bricker \* > Because in order to convict, the jury must have some evidence to rely upon that shows each and every element of the crime beyond a reasonable doubt. So for first degree > [@](#): > > When the prosecution finishes its case, it has typically presented evidence that, if believed by the jury, would prove each and every element of the crime beyond a reasonable doubt. The defense then presents its evidence, which typically contradicts the prosecution’s evidence. My understanding is that while it certainly is common for the defense evidence to contradict the prosecution’s, **most** of the evidence does not contradict. **Most** of the facts are undisputed. If the prosecution claims that: 1. A towel was found at the murder scene 2. It had blood on it 3. Analysis of the blood found that it matched the defendant The defense probably won’t dispute any of that. They may claim that the blood wasn’t the defendant’s, and that the analysis is in error, but they probably won’t claim that the lab technician is lying about the results of the tests, or that the police planted it (although they might). Most of the dispute is what conclusions should be drawn from the evidence, not the evidence itself. Is it your position that if there were any case where the defense were to not present any evidence, and the jury were to acquit, then either the judge must be in error for allowing the case to go to the jury, or the jury must be in error for acquitting? > [@](#): > > The prosecution must present some evidence showing that this officer was not acting within the scope of his duties. Sorry if this sounds like a nitpick, but what does “showing” mean in this context? In a murder trial, would the fact that the defendent owns a car of the same description as one seen leaving the scene “show” that the defendent is guilty? IOW, is “show” a synonym for “proves beyond a reasonable doubt”, or does it simply mean “provide some reason for believing”? > [@](#): > > Now, could the jury simply infer that this action was outside the scope of his duties? No. Because in order to reach a finding of guilty, the evidence must be strong enough to exclude reasonable hypotheses of innocence. The “testimony” of Lord Ashtar, taken in its entirety, does not do that. What if the jury believes the evidence is strong enough to do so? > [@](#): > > But for the purposes of our hypothetical, it’s “established” in the sense that it’s uncontradicted by any evidence, and thus not a possible finding for a jury to make. As I said, we must have very different ideas of what the word means, because I consider “established” and “uncontradicted” to be very different terms. ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [March 27, 2003, 11:35pm UTC](https://boards.straightdope.com/t/so-my-brother-was-just-arrested-a-rant/159427/105 "2003-03-27T23:35:04Z")
My first sentence was meant to be “so for first degree murder, must the prosecution present evidence specifically proving premeditation, or can that be inferred from the other elements?” ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 28, 2003, 1:16am UTC](https://boards.straightdope.com/t/so-my-brother-was-just-arrested-a-rant/159427/106 "2003-03-28T01:16:53Z")
> [@](#): > > \*Originally posted by The Ryan \* > Is it your position that if there were any case where the defense were to not present any evidence, and the jury were to acquit, then either the judge must be in error for allowing the case to go to the jury, or the jury must be in error for acquitting? Not at all. It may merely mean that the jury didn’t believe, beyond a reasonable doubt, in the particular evidence that would have established one of the elements of the crime. In other words, if the prosecution’s case contains evidence that could, if believed, prove each element of the crime beyond a reasonable doubt, the case can propoerly go to the jury. If the defense presents no evidence, the jury is still free to disbelieve the evidence and acquit. But if the prosecution’s evidence does not even address an element of the crime, the case cannot go to the jury. > [@](#): > > Sorry if this sounds like a nitpick, but what does “showing” mean in this context? In a murder trial, would the fact that the defendent owns a car of the same description as one seen leaving the scene “show” that the defendent is guilty? IOW, is “show” a synonym for “proves beyond a reasonable doubt”, or does it simply mean “provide some reason for believing”? > > What if the jury believes the evidence is strong enough to do so? > > As I said, we must have very different ideas of what the word means, because I consider “established” and “uncontradicted” to be very different terms. The fact that the defendant owned a similar car would not be enough, standing alone, to establish anything beyond a reasonable doubt. But juries consider all the relevant evidence they hear. Evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the verdict more probable or less probable than it would be without the evidence. If you’re hung up on “established”, then let me withdraw it. I shouldn’t have used the term. If you were on a jury for the trial in which the officer Lord Ashtar described was being charged with criminal trespass, and the only evidence the prosecution presented was what Lord Ashtar posted, the jury would not have a chance to vote, because Lord Ashtar’s testimony, even if believed totally, doesn’t contain enough evidence to prove beyond a reasonable doubt that the officer was not acting in an official capacity. How much is enough? The evidence must exclude every reasonable hypothesis of innocence. This means that you have to be able to point to the piece or pieces of evidence that, if believed, prove that the officer was not acting in an official capacity. For example, another officer could testify that the first officer was not on duty. Then the jury would have a piece of evidence that, if they believed, would do the trick. Lord Ashtar’s testimony suggests that the officer was on duty – that he came to the house to arrest his brother, an official function. The jury doesn’t have to make that inference. But they cannot make the contrary inference unless there is some support in the record for it. They have to be able to point at some positive piece of information and say, “I believe this.” And that piece of evidence, or any reasonable inference from it, must show beyond a reasonable doubt that the officer was not acting in the scope of his employment. > [@](#): > > My first sentence was meant to be “so for first degree murder, must the prosecution present evidence specifically proving premeditation, or can that be inferred from the other elements?” It can be inferred, as long as the inference is reasonable and excludes any reasonable interpretation other than premediation. But it must be SOMETHING. The jury must be able to point to some fact or facts that they believed, and show how those facts give rise to the inference of premeditation. Any sort of planning, or actions taken ahead of time, will do. But they cannot say, for example, that although there is no evidence of premeditation, people don’t just snap, therefore it must have been premeditated murder. In fact, they won’t get the chance. If the only charge in front of the jury is premeditated murder, and the prosecution has failed to present any evidence of premeditation, the judge will enter a directed verdict and discharge the jury. - Rick ---
**Author:** ![Lord\_Ashtar](https://avatars.discourse-cdn.com/v4/letter/l/7ea924/32.png) [@Lord\_Ashtar](https://boards.straightdope.com/u/Lord_Ashtar)\ **Post date:** [March 28, 2003, 4:39am UTC](https://boards.straightdope.com/t/so-my-brother-was-just-arrested-a-rant/159427/107 "2003-03-28T04:39:06Z")
I get the sudden urge to mention that my brother is not charged with murder. By the way, thanks **Bricker** for your comments in this thread. Very enlightening. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 28, 2003, 2:26pm UTC](https://boards.straightdope.com/t/so-my-brother-was-just-arrested-a-rant/159427/108 "2003-03-28T14:26:04Z")
Happy to help! Despite the prevalence of TV law shows, there are some topics that I think are kind of … impenetrable… to the general public. Everyone knows “beyond a reasonable doubt” but the actual mechanics of allocating the burden of proof and when a jury gets taken out of the picture are a bit more mysterious. With good reason - I think it’s much more dramatic to show the foreman standing up and delivering a verdict after Our Hero’s impassioned closing argument (which are always 3 minutes or less!) It would be much more boring to show a prosecutor’s office deciding not to seek an indictment, or a judge entering a directed verdict when the prosecution doesn’t meet its burden. - Rick ---
**Author:** ![Robb](https://avatars.discourse-cdn.com/v4/letter/r/a183cd/32.png) [@Robb](https://boards.straightdope.com/u/Robb)\ **Post date:** [March 28, 2003, 3:36pm UTC](https://boards.straightdope.com/t/so-my-brother-was-just-arrested-a-rant/159427/109 "2003-03-28T15:36:18Z")
**The Ryan** , if you don’t mind I’m going to wander in and see if I can help. I’d like to concentrate just on whether the unpleaseant officer (A.O.) committed a crime. For the sake of this, let’s assume we are in California and I am the prosecutor. Something tells me we should leave **Bricker** as the lawyer for the defense. We’ll assume that the offense you found is the one the officer will be charged with. We’ll skip most of the pre-trial matters, and jump straight to the trial where you are one of the jurors. The offence: 602.5 (b) > [@](#): > > Every person other than a public officer or an employee acting within the course and scope of his employment in performance of a duty imposed by law, who, without the consent of the owner, his or her agent, or the person in lawful possession thereof, enters or remains in any noncommercial dwelling house, apartment, or other residential place while a resident, or another person authorized to be in the dwelling, is present at any time during the course of the incident is guilty of aggravated trespass punishable by imprisonment in a county jail for not more than one year or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment. To charge A.O. with a crime, I need to create a charging instrument, which we will refer to as the indictment. I believe that it should read as follows: On or about Day **Lord Ashtar’s Brother** (LAB) was arrested, **A.O.** , as a public officer or employee **not** acting within the course and scope of his employment in performance of a duty imposed by law, without the consent of the owner, his or her agent, or the person in lawful possession thereof, entered or remained in any noncommercial dwelling house, apartment, or other residential place while a resident, or another person authorized to be in the dwelling was present at any time during the course of the incident in County of X, State of California. The offense and the indictment form the framework on which the trial will proceed. Notice how I had to change from the statutory language to the indictment. I had to add that A.O. was not acting in the scope of his duties, for the statute establishes that an officer is not guilty of trespassing when he acts within the scope of his duties. The indictment contains the elements of the crime that I must prove beyond a reasonable doubt in order to convict A.O. As I see it, this is the list of the elements: [ol] [li]On or about Day **Lord Ashtar’s Brother** (LAB) was arrested,[/li][li]A.O.[/li][li]as a public officer or employee **not** acting within the course and scope of his employment in performance of a duty imposed by law[/li][li]without the consent[/li][li]the owner, his or her agent, or the person in lawful possession thereof[/li][li]entered or remained[/li][li]in any noncommercial dwelling house, apartment, or other residential place[/li][li]while a resident, or another person authorized to be in the dwelling[/li][li]was present at any time during the course of the incident [/li][li]in County of X, State of California[/ol][/li]When I plan my case for trial, I know that I must have evidence on every element of the crime. Although the jury will only be asked the general question of guilty or not guilty, I must prove each element of the crime beyond a reasonable doubt. Remember, in a jury trial, the judge is the judge of the law, and the jury is the judge of the facts. Based on what I have read in this thread, the following will be my evidence: [ol][li] **Lord Ashtar** (LA) will tell the day the incident occurred.[/li][li]LA will identify A.O. as the person who wouldn’t leave, and point him out to the jury.[/li][li]LA can tell us he appeared to be an officer. I will have found the certification that made A.O. and officer. LA will tell the jury that A.O. came into his house after LAB was arrested. The jury will hear of the search, and that A.O. said he didn’t need a warrant. LA will say that LAB was arrested somewhere else. (on cross examination, **Bricker** will point out that LAB ran out of the house as soon as he learned the police where at the house and that another officer did have a search warrant)[/li][li]LA will say that no one gave the officer consent to enter or remain. Also, that A.O. was told to leave.[/li][li]LA will explain that he lives there.[/li][li]LA will explain that A.O. stood in his living room.[/li][li]LA will explain that it was a house.[/li][li]LA will explain that he is a resident of the house[/li][li]who was there the entire time that A.O. was there.[/li][li]LA will say the house is in County X, California.[/ol][/li]“The People rest.” As a juror, you now look to **Bricker** to see what he will do. You will be a bit disappointed as the judge ushers you out of the courtroom for a break. What you likely won’t see, is that **Bricker** will then ask the judge for a Directed Verdict. In essence, he is saying that the Defendant is already entitled to a Not Guilty. The standard, in essence, is that given all of the evidence that the State has put on, no reasonable jury could return a verdict of Guilty. As **Bricker** has been pointing out, the only element really at issue, is whether the officer was acting “within the course and scope of his employment in performance of a duty imposed by law”. The best that the jury has heard on this point is that A.O. is a public officer who had just been involved with the warranted arrest of LAB, and that LA didn’t see any reason for A.O. to stay in the house. Unfortunately, as a matter of law, A.O. was acting “within the course and scope of his employment in performance of a duty imposed by law”, even if LA disagrees with this notion. The judge gets to make this decision before he has to allow the jury to dleiberate. Therefore, the judge will grant the motion for Directed Verdict and enter a verdict of Not Guilty. The jury will be brought back from the break and informed that the trial is over. The way this statute is written, proving that an officer committed trespass requires proving that he wasn’t acting in the scope of his duties. It is something the prosecution must put in their case in chief before the defendant needs to do anything in a trial. Because he the law clearly establishes that A.O. was in the scope of his duties, there is nothing for a jury to decide on this matter, and therefore is no reason to ask a jury to decide Guilty/Not Guilty. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 28, 2003, 7:27pm UTC](https://boards.straightdope.com/t/so-my-brother-was-just-arrested-a-rant/159427/110 "2003-03-28T19:27:29Z")
> [@](#): > > \*Originally posted by The Ryan \* > What if the jury believes the evidence is strong enough to do so? Hopefully **Robb** ’s absolutely brilliant post answered this question… The jury doesn’t get a chance to try. If the evidence, as a matter of law, is insufficient to sustain a conviction, then the jury doesn’t get the case. But - and I pray I am not muddying waters that **Robb** made clear - what would happen if they did? Let’s say the judge is lazy, asleep, or corrupt, and he denies the defense motion for a directed verdict, and sends the case to the jury. Hopefully, the jury will be smart enough to realize that one of the elements is not proved beyond a reasonable doubt, and return a verdict of not guilty. If they do not, then my next move is to ask the judge to reconsider the earlier motion. Because he’s still lazy, asleep, and corrupt, he will deny the motion for reconsideration. My next move is an appeal. Having preserved the issue for appeal by timely motion during trial, I am entitled to ask the appeals court to decide if the judge’s decision to deny my motion was an error, and that my guy was convicted based on insufficient evidence. An appeals court will construe all the evidence during the trial in such a way that it’s consistent with the jury’s verdict. The recognize that the the jury is the finder of fact, so they will resolve all conflicts in favor of guilt. They will not re-weigh evidence. But they will require that the jury’s verdict be grounded in some evidence. As I’ve suggested above, they will do what the judge at trial should have done – ensure that the record contains some rational support for the jury’s verdict. Finding no support in the record for **Robb** ’s element #3, the appeals court will set aside the verdict of guilty and enter a finding of not guilty. Interestingly, unlike most reversals, this one will carry with it a double-jeopardy protection - the prosecution will be unable to re-try my guy. - Rick ---
**Author:** ![Lord\_Ashtar](https://avatars.discourse-cdn.com/v4/letter/l/7ea924/32.png) [@Lord\_Ashtar](https://boards.straightdope.com/u/Lord_Ashtar)\ **Post date:** [March 29, 2003, 4:43am UTC](https://boards.straightdope.com/t/so-my-brother-was-just-arrested-a-rant/159427/111 "2003-03-29T04:43:40Z")
Indeed, **Robb** , excellent post. I sense you and **Bricker** may have gone to school for this. ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [March 30, 2003, 2:33am UTC](https://boards.straightdope.com/t/so-my-brother-was-just-arrested-a-rant/159427/112 "2003-03-30T02:33:28Z")
Perhaps I am indeed relying too heavily on TV for legal information. One example is an episode of The Practice in which their client was facing murder charges for three serial killings. From what I gathered, the evidence against him was that there was video of him in a store with one of the victims, and witnesses had said that someone matching his description talked to the other two. Based on what you have said, I would expect this case to not have gone to the jury (although it did). Was the firm derilict in not asking for a Directed Verdict? Is there some difference between these cases that I am not grasping? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 30, 2003, 2:53am UTC](https://boards.straightdope.com/t/so-my-brother-was-just-arrested-a-rant/159427/113 "2003-03-30T02:53:24Z")
The Practice is not a sterling example of legal realism - and it’s a shame, because David E. Kelley is an attorney, and cut his teeth as a writer for “L.A. Law.” I don’t think I’ve seen the episode you mention. But I can very confidently say that if the only evidence for murder was a video placing the accused in a store with one victim, and a witness saying someone matching the description of the accused talked to the other two, then there’s not enough evidence to obtain an indictment. And if it did come to trial, there is not enough evidence to go to the jury. So, yes, the defense should have asked for a directed verdict, and should have gotten it, given the facts you mention. - Rick ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 2, 2003, 7:17pm UTC](https://boards.straightdope.com/t/so-my-brother-was-just-arrested-a-rant/159427/114 "2003-04-02T19:17:28Z")
Fresh with righteous fire over the GQ perjury business, and since this thread is in The Pit, I feel compelled to ask **The Ryan** : You spent all these days arguing with me over a point of legal procedure, and all this time your basis was a freakin’ TELEVISION show? Ahem. Sorry. Education is good, and all that. I’m not trying to discourage the exchange of ideas and strong debate; it’s the best way to nail down an idea or concept. But I kinda wish you’d said from the start that your understanding was derived from “The Practice,” because it might have made the debate go away a little sooner and a little smoother. - Rick [Previous page](https://boards.straightdope.com/t/so-my-brother-was-just-arrested-a-rant/159427.md?page=5)