I don’t know what state Lord Ashtar lives in, so I’ll play the percentages and quote California law (if you wish me to find the law for another state, I’ll probably be able to do so):
602.5 (b)
So the cop remained in the house while LA (presumably authorized to be in the dwelling) was there, and without consent of the owner. So unless the cop was “ acting within the course and scope of his employment in performance of a duty imposed by law”, he is guilty of aggravated trespass.
You’ll probably respond with something like “Well, he was acting within the course and scope of his employment in performance of a duty imposed by law”. Well, fine, but he’ll have to establish that by presenting some evidence.
Hey, Bricker. Aren’t there limits to ‘search incident to arrest’? I was told, perhaps erroneously, that if a man is arrested in his living room, then the ‘search incident to arrest’ would cover the living room, being in his immediate control (and where he could lunge for a weapon). But it would not cover any of the other rooms in the house.
There are limits to a search incident to arrest. Although they may vary slightly from state to state, the classic case for this issue is Chimel v. California, a 1969 Supreme Court decision, limits a full-blown search to the arrestee’s person and the areas that were in his immediate control - areas in which he may have secreted a weapon or disposed of evidence.
This would not permit a full-on search of the entire house.
Maryland v. Buie, however, says that officers may also conduct a protective sweep of a home in which they’ve just made an arrest – not a search, but they could “…as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces…” from which some danger or attacke could come.
In Buie, officers had an arrest warrant for Buie, an armed robbery suspect that had been wearing a red running suit during the crime. They went to Buie’s home and arrested him in his back yard after he emerged from the house. Officers entered the home without a search warrant to conduct a protective sweep and saw, in plain view, a red running suit. They seized this evidence and it was admitted against Buie. The Maryland Court of Appeals reversed the conviction, holding that the Fourth Amendment prohibited the entry and seizure. The Supreme Court reversed the reversal, saying that the the Court of Appeals had applied an incorrect standard and that officers were permitted to conduct a protective sweep, and that since they were legally in the room, the red suit was in plain view and its evidentiary significane was obvious.
No. In order to reach a finding of guilt, the evidence must establish each and every element of the crime beyond a reasonable doubt. The evidence must exclude every reasonable hypothesis of innocence.
If, as you say, the evidence merely establishes that he could have been so acting, then it’s insufficient as a matter of law to convict.
So suppose the following testimony were introduced into a murder case:
“I saw the defendent point the gun at the victim. The defendent pulled the trigger. I saw the victim die as a result of the gunshot wound.”
Would the charges be dropped, because there’s a possibility the defendent was acting in self defense?
Are you saying that if there’s any reasonable chance that the defense can present evidence that would establish that the defendant is innocent, then the charges must be dropped? If so, what’s the point of the trial? Especially a bench trial. “Well, I’ve determined that there’s no reasonable way the defendent can be innocent. So why don’t you both present your cases, and then I’ll rule”.
And wring, the preceding is not so much arguing as saying “Wow! This makes no sense to me. Can you explain how this works?” I realize that there is a good chance that it’s true that charges could not be brought. I’d like to understand why this is. My understanding is that juries are allowed to make conclusions based not only on evidence, but on lack of evidence. If the defendent provides no evidence that he was following orders, it’s reasonable to assume that he was not doing so. Perhaps I am mistaken.
But if we’re keeping score, I don’t know of any statement I have made in this thread that Bricker has shown to be false (although I may very well be forgetting something). His objection to my statement “the situation as described is trespassing” has simply been a nitpick as to what “as described” means; he seems to think that it means that the OP rules out any possibility of the cop not trespassing, while I simply meant that my statement could not be countered without introducing something beyond the OP (eg the cop was probably involved in a search, so it wasn’t trespassing). So this isn’t a matter of legal specifics, it is a matter of English.
All I was trying to do was correct Ethilrist’s implication that at worst the cop was loitering. And I get jumped on. Okay, so this is the Pit.
Putting aside things like a failure to establish jurisdiction, which isn’t really relevant to our discussion here, the above testimony is sufficient for a fact-finder to reach a guilty verdict. Not the slightest scintilla of evidence concerning self-defense is introduced. Self-defense is an affirmative defense: the burden is on the defense to show, by preponderance of the evidence, that self-defense was warranted.
But in our hypothetical criminal trespass case, the evidence, from Lord Ashtar’s testimony, established that the police officer was present in the home as a result of arresting Lord Ashtar’s brother, pursuant to a valid warrant. That establishes the officer was acting within the course and scope of his employment in performance of a duty imposed by law.
Unlike the affirmative defense, the California law you quoted includes the aspect of ‘being an officer acting within the course and scope of his employment in performance of a duty imposed by law’ as an element of the crime. It must be proved by the prosecution.
In other words, the burden is on the accused to prove self-defense. The burden is on the prosecution to show, beyond a reasonable doubt, that the acused is NOT an officer was acting within the course and scope of his employment in performance of a duty imposed by law.
Lord Ashtar’s testimony is uncontradicted evidence. While the fact-finder has the right to weigh evidence and assign weight to it, they cannot draw inferences unsupported by any evidence. There is nothing in the record to support the conclusion beyond a reasonable doubt that the officer was not acting in the scope and performance of his employment.
Once again: based solely on Lord Ashter’s “testimony,” the evidence is insufficient, as a matter of law, to convict the officer of criminal trespass.
Really? Admittedly, it’s been several months since I took the Mass Bar, so a whole lot of stuff has leaked back out of my brain (especially since I don’t practice criminal law), but I thought that once the defendant had raised a credible allegation of self-defense (or other affirmative defense) at the appropriate stage of the prosecution, the burden then shifted back to the prosecutor to disprove it beyond a reasonable doubt. Does this vary from state to state? Do you have a cite?
It may well vary from state to state, ENugent, and I shouldn’t have made it a blanket statement. And I may have been a tad too hasty about the burden of proof required. But I think you may be thinking of the standard that requires a jury instruction.
The general rule is that as long as the defense presents more than a mere scintilla of credible evidence, that’s is all that’s needed to require a jury instruction on self-defense. But for the claim to succeed, to take an example from my home state of Virginia, the jury must find that the accused proved self-defense by “…introducing sufficient evidence to raise a reasonable doubt about his guilt.” Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993). Admittedly, this is not quite the bar that preponderance of the evidence is.
A quick search hasn’t helped me get any answers for what the rule might be in California.
Of course, this neither hurts or helps my analysis in the above post to The Ryan. As I said above, his hypo about the murder contains no evidence that would raise a reasonable doubt about guilt. And the burden is still on the defense to raise evidence of some kind for an affirmative defense.
The criminal trespass charge doesn’t involve an affirmative defense at all, and I suspect this is at the heart of The Ryan’s confusion.
Thanks, Bricker - it sounds like Virginia uses the same standard that I thought I remembered Massachusetts using (or at least, I can’t readily distinguish between defendant being required to submit enough evidence to raise reasonable doubt and prosecution being required to rebut such evidence beyond a reasonable doubt). I would not be surprised to learn that this standard is constitutional and does not vary from state to state, although I don’t know one way or another.
I agree that it’s not germane to the discussion with The Ryan - I just saw “preponderance of the evidence” and it raised my eyebrows.
Suppose the testimony included the sentence “the victim was carrying a knife”. Would this affect your response?
I see how it provides an explanation for how he may have been so acting, but I don’t see how it establishes it. Are you saying that once a police officer legally enters a residence, it is impossible for him to act outside the scope of his duties?
And murder includes the words “unlawful killing”. So the prosecution must prove that the killing was unlawful, which includes the contention that it was not in self defense. When proving malice, if the prosecution is basing it on “It is implied, when no considerable provocation appears,” must they prove beyond a reasonable doubt that no considerable provocation appeared? (And wouldn’t “he tried to kill me” be a considerable provocation?)
In order to convict the police officer, the jury must hear evidence that PROVES BEYOND A REASONABLE DOUBT he was NOT acting in the performance of his duties. If there is no evidence one way or the other, they cannot convict.
I’m not saying it’s impossible for the police officer to have been acting outside his duties. I am saying there is not one piece of evidence that establishes he was. Your posts seem to keep pointing the finger back at me to establish his innocence. But it’s for the prosecution to prove each element beyond a reasonable doubt.
There is no evidence that does so.
For this reason, as a matter of law, the evidence is insufficient to convict.
I don’t even know where to begin with this question.
“Murder” is not defined (here, anyway) as “unlawful killing,” so your basic premise is flawed. Murder here is “The willful, deliberate, and premeditated killing of any person by another…” See Va. Code § 18.2-31 et seq.
There are affirmative defenses to murder, which must be proved by the defense. But the elements of murder must be proved by the prosecution. Perhaps you can re-frame your question with those definitions.
Rick: You forgot to mention that The Ryan just refuted his own assertion regarding the police officer and trespass. The police officer’s presences is what he was calling trespass.
Monty: As I understand The Ryan’s argument, he’s saying that the officer could have been there without official reason. I don’t see where he refuted that, precisely. Of course, I could be missing some point that ties everything in his argument together; heaven knows it would explain why The Ryan keeps posting after explanations that I thought would make everything crystal clear.
But I don’t see where he refuted his assertion, exactly.
Perhaps you and I have a different interpretation of the word “establish”, because I cannot see why there would be any requirement for the evidence to establish anything for the case to go to trial.
That’s because your posts keep incurring the burden of proof. You want to say that you don’t see the evidence as establishing that the cop wasn’t acting according to his duties? Fine. But when you say “That establishes the officer was acting within the course and scope of his employment in performance of a duty imposed by law,” that goes beyond claiming that guilt hasn’t been established, and into claiming that innocence has been established. There’s a reason why juries are told to choose between “guilty” and “not quilty”, not “guilty” and “innocent”. You’re not arguing “not guilty”, you’re arguing “innocent”, so the legal standards of burden of proof don’t apply.
Also, I’d like an answer to my question “If so, what’s the point of the trial?” (See post on 3-19 for context)
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?
No, it doesn’t. This conversation began because I said that if you were a juror in this case, you wouldn’t have a chance to vote “guilty” or “not guilty,” because the question would never get to you. As a matter of law, the evidence is insufficient to establish guilt. The judge would so rule at the close of the prosecution’s case.
You disagreed with that premise. You suggested that without any defense evidence, the charge of criminal trespass could be proven. Fine, said I, show me where.
You tried.
But you haven’t succeeded. 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.
This will hopefully answer your question about the purpose of a trial. When a charge is brought to trial, the prosecution and defense usually have different versions of the facts, which they hope to persuade the jury through the evidence. 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. The jury must then decide what weight to give to each piece of evidence it heard, and reach a conclusion.
In the case above, though, the prosecution would have failed to present enough evidence for a jury to possibly reach a finding of guilty. The prosecution must present some evidence showing that this officer was not acting within the scope of his duties. There is no such evidence. No testimony that remotely establishes it.
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.
When I say that this “…establishes the officer was acting within the course and scope of his employment in performance of a duty imposed by law…” I mean it does so within our hypothetical – of a jury not getting to vote on the case because the prosecution failed to make its case.
It doesn’t “establish” that fact in any proceeding for which I had the burden of proof, of course. If my officer were suing Lord Ashtar for assaulting him in the course of these events, for example, and as part of my suit I had to show that the officer was acting within the course and scope of his employment, the testimony above doesn’t even come close to establishing that.
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.
