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#113002 - 06/02/17 08:40 PM Re: Due process [Re: SIN3]
XiaoGui17 Offline
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Registered: 10/21/09
Posts: 1362
Loc: Austin, TX
 Originally Posted By: MA
I also think that any witness should be able to expose an attorney for a stacked-deck question, not be threatened into yes/no responses.

That's opposing counsel's job, not the witness's.

If a question is loaded ("Is it true that you stopped beating your wife?"), opposing counsel had better object to the underlying assumption built in.

A witness can honestly answer that they don't know, can't remember, or don't understand the question without being cornered into yes/ no, and should have been coached by counsel (if they're a witness for that side) or the judge (if they're here on a subpoena) to know this.

If a question strings together many different details, some of which may be true and some of which may be false, opposing counsel should object that the question is compound. Yes/ no questions have to be in a "one at a time" format.

If the answer to a yes/no question is anything other than "yes" ("maybe," "it depends", "sometimes", "not really", "kinda"), say the opposite of what you know they want you to say ("yes" if they want a "no", "no" if they want a "yes"). (Again: should have been coached for this.) This will force counsel to back up and ask more specific, detailed questions in an attempt to build a foundation for the answer they were seeking, and in so doing contextualize and qualify the facts.

And finally, opposing counsel's job on redirect is to ask further questions to qualify and contextualize what was raised in cross. They should know the facts well enough to know the context they're digging for, but it is possible to do on the fly when surprised.

For instance, from a hearing (in which my side prevailed):

Opposing counsel (OC): Is it true that you were fired for "not showing up to work"? (I was not expecting this.)

My poor witness kept trying to qualify his answer and got browbeaten into a "yes."

On redirect:
"Did you ever fail to show up when you were scheduled to work?" No.
"Were you ever late to work?" No.
"What did you mean when you said you were fired for not showing up?" They got sick of me asking for time off, so fired me.

 Quote:
In no uncertain terms did I tell them that the CA's tactics were to keep asking the same question in a number of ways until I gave a specific answer. One he would not get because it didn't happen, that he was looking for the Win, not the facts.

You don't think the jury could figure that out without you announcing it?
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#113018 - 06/04/17 01:59 AM Re: Due process [Re: XiaoGui17]
Creatura Noptii Offline
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Registered: 01/02/16
Posts: 950
*

But what about religion and the legal process? How much does religion play into it? I wonder how much is rooted in dogma.


Edited by Creatura Noptii (06/04/17 02:04 AM)
Edit Reason: *

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#113028 - 06/05/17 10:53 AM Re: Due process [Re: XiaoGui17]
SIN3 Offline
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Registered: 05/14/13
Posts: 7204
Loc: Virginia
 Originally Posted By: XiaoGui17

You don't think the jury could figure that out without you announcing it?


I set the bar low. The CA's other strategy was to demonize me as a witness, even though I was summoned for the Commonwealth. My statements further explained this to the jury.

This was shortly after the Patriot Act passed and the 'acts of terrorism' such as "Threaten to Bomb or Burn..." carried harsher penalties. I wasn't there because the defendant was mad and said "I'll burn your fucking house down bitch!" That was a charge added later. I was there for an attempted manslaughter case. Those charges were dropped in favor of the 'Act of Terrorism' charge.
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#113055 - 06/06/17 09:30 AM Re: Due process [Re: Creatura Noptii]
XiaoGui17 Offline
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Registered: 10/21/09
Posts: 1362
Loc: Austin, TX
 Originally Posted By: Creatura Noptii
But what about religion and the legal process? How much does religion play into it? I wonder how much is rooted in dogma.

When it comes to procedure, there's of example that comes to mind for me.

There's an exception to the hearsay rule where a person's last words (if they knew they were dying) can be admitted. The theory was that, in order to ensure salvation/ grace, a person wouldn't lie on their deathbed. Theoretically the immediacy of death made the threat of damnation as compelling as the threat of perjury charges would be, were the person under oath.

Personally, I would think that the sheer impracticality of subpoena'ing a corpse would warrant that exception.
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#113105 - 06/08/17 07:57 AM Re: Due process [Re: XiaoGui17]
Michael A.Aquino Offline
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Registered: 09/28/08
Posts: 2721
Loc: San Francisco, CA, USA
 Originally Posted By: XiaoGui17
That's opposing counsel's job, not the witness's.

That's a nice textbook answer, but in effect limits the argument to how the attorneys want to manipulate it. And when [not "if"] attorneys lie and the judge ignores it, the witness and/or plaintiff and/or defendant is screwed.

Legal proceedings are choreographed ballet dances between the attorneys and the judge, in which "justice" is irrelevant.

As a kid I watched Perry Mason and thought that the legal profession and process were admirable. It didn't take much observation of and exposure to the reality to puncture that balloon. I could even have made reasonable allowance for honest error and imperfection; Perry is obviously an idealization.

But what I have seen, as the overwhelming rule, not the exception, is flagrant unconcern with "justice" and "truth" as long as the ballet dance is performed.

I don't tell or laugh at lawyer jokes any more. I fear and loathe the institution as a rabid animal to be avoided, period.

That said, the overall problem is that truth and justice are rarely if ever cut and dried. Even if everyone is sincerely trying. And the USA is not a Platonic philosopher-king state; it is, as Nietzsche observed, the tyranny of the stupid, venal, and gullible. I suppose we should be grateful that the ballet dance has discarded the rack and the iron maiden.
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#113107 - 06/08/17 08:31 AM Re: Due process [Re: Michael A.Aquino]
samowens84 Offline
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Registered: 09/29/16
Posts: 700
 Originally Posted By: Michael A.Aquino
I suppose we should be grateful that the ballet dance has discarded the rack and the iron maiden.


Human beings being what they are, injustice is in my mind an immutable fact of life from the top down. I suppose the best that can be hoped for is the other Nietzchian thought, which is that as societies get wealthier, the old harsh world is deemed barbaric in favor of a new "enlightened" age. We just live in the privilege of wealth and technical progress that allows society to pretend they have "evolved" ethically. Human beings are just as stupid as theyve always been. Its just that the privilege of wealth and power makes "goodness" easier to accept. https://youtu.be/SHta0rUBBxw

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#113110 - 06/08/17 03:28 PM Re: Due process [Re: samowens84]
Michael A.Aquino Offline
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Registered: 09/28/08
Posts: 2721
Loc: San Francisco, CA, USA
Point well-taken.

I try to relate 600C topics to Satanism generally, and to the 1966-75 Church of Satan where applicable.

In this regard Anton LaVey's concept of Satanism included a very strong and harsh sense of social cynicism, such that being a Satanist was more a personal program for survival despite it than a rosy reform of it.

 Originally Posted By: James Ellroy, Fallen Angels
Inside of seventy years ago some writers hatched a revisionist notion that, contrary to commonly-held gospel, America was the wrong place at the wrong time, led by the wrong leaders, feeding a wronged population a line of jive that sounded good but had to go wrong because the entire American venture was a freak curve ball arcing the wrong way; gathering power and veering out of control, held temporarily aloft by a pervasive corruption intrinsic to its momentum, but bound to hit the gutter anyway.

 Originally Posted By: William Burroughs, Naked Lunch
America is not a young land: it is old and dirty and evil before the settlers, before the Indians. The evil is there waiting.
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#113112 - 06/08/17 04:24 PM Re: Due process [Re: Michael A.Aquino]
XiaoGui17 Offline
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Registered: 10/21/09
Posts: 1362
Loc: Austin, TX
 Originally Posted By: Michael A.Aquino
 Originally Posted By: XiaoGui17
That's opposing counsel's job, not the witness's.

That's a nice textbook answer, but in effect limits the argument to how the attorneys want to manipulate it. And when [not "if"] attorneys lie and the judge ignores it, the witness and/or plaintiff and/or defendant is screwed.

Whoa-- we're talking apples and oranges. An attorney trying to pigeonhole an answer out of a witness and an attorney lying to the court are two very different things.

If attorney A pigeonholed a witness into a certain answer to party B's detriment, and attorney B (representing party B) just let it slide instead of addressing it as above, B has a malpractice/ ineffective assistance of counsel claim.

If an attorney lies to a judge, he can be disbarred for it. (I offer Texas as an example; most states have adopted the MPRC.) The witness's/ plaintiff's/ defendant's remedy is to file an ethical complaint.

I'm not saying the system is perfect and everyone always does what they ought. I could tell a number of horror stories about gross miscarriage of justice. What I'm saying is the solution is more robust enforcement of existing law, not alteration of the law.
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#113166 - 06/11/17 01:03 PM Re: Due process [Re: XiaoGui17]
XiaoGui17 Offline
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Registered: 10/21/09
Posts: 1362
Loc: Austin, TX
A note about witnesses, yes/no questions, and telling them to STFU:

A lot of times, witnesses feel the need to tell their life story or explain themselves when it isn't relevant, and cutting them off is literally the only way to get things going so they won't delay everything by LiveJournaling from the stand.

For instance, in a simple indigence hearing (i.e. does the defendant qualify for a court appointed attorney?), I asked him if he was working.

There is no wrong answer to this. He's free to say no. Nothing horrible is going to happen if he says no. He's not going to be in trouble if he's not working. I just need a yes or no so I can proceed with follow up questions.

And immediately, he began to ramble about why it wasn't his fault that he wasn't working, why his former bosses were all unreasonable tyrants, why the economy and personal issues and blah blah blah. (Spoiler: the answer was no.)

Or opposing parties often want to ramble on about each other. You're just trying to establish when (on what date) the spouses separated and you get a tirade about what a bitch the ex is, which legally has nothing to do with anything.
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#113177 - 06/12/17 05:19 AM Re: Due process [Re: XiaoGui17]
Knievel74 Offline
member


Registered: 05/18/10
Posts: 149
Loc: NY
My opinion on the justice system...

I would get rid of mandatory jury duty. I know the question becomes, "then, who will serve"? My answer is, that problem can be solved if it really needed to be. There are plenty of people who are willing to serve on a jury. Let them have it.

I would abolish private prisons. A lot of people are going to prison on bullshit charges just to pay the prison's bills, which in turn, leads to even more judicial corruption.
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#113201 - 06/14/17 11:29 AM Re: Due process [Re: XiaoGui17]
SIN3 Offline
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Registered: 05/14/13
Posts: 7204
Loc: Virginia
 Originally Posted By: V
The witness's/ plaintiff's/ defendant's remedy is to file an ethical complaint.


Telling lies is a given, the idea that any person involved in a proceeding has a civic duty to tell the truth is a farce. People tend to serve their own needs first before any ethical concern.

Keeping answers yes/no also has a tendency to omit information which is still a false sense of events.

 Originally Posted By: V
What I'm saying is the solution is more robust enforcement of existing law, not alteration of the law.


Swearing to tell the whole truth, has nothing to do with law.
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#113204 - 06/14/17 12:38 PM Re: Due process [Re: SIN3]
XiaoGui17 Offline
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Registered: 10/21/09
Posts: 1362
Loc: Austin, TX
 Originally Posted By: SIN3
Telling lies is a given, the idea that any person involved in a proceeding has a civic duty to tell the truth is a farce. People tend to serve their own needs first before any ethical concern.

I'm not talking about ethical complaints as a means of stinging the conscience of the liar. I'm talking about imposing sanctions for violating the law.

 Quote:
Keeping answers yes/no also has a tendency to omit information which is still a false sense of events.

As I said above, the opposing side has the chance to put things in context.

 Quote:
 Originally Posted By: V
What I'm saying is the solution is more robust enforcement of existing law, not alteration of the law.

Swearing to tell the whole truth, has nothing to do with law.

Yes it does. Lying under oath is perjury, even if it's an irrelevant lie. If the lie affects the outcome, it's aggravated perjury, a felony, punishable by ten years in prison. Swearing to tell the truth isn't just a spooky ceremony meant to psych out the witness: it does, in fact, have legal teeth.

If a lawyer knowingly allows a witness to commit perjury, he can be disbarred for it.

Lying in court is like driving drunk. People do it all the time, but that doesn't mean it's legal.


Edited by XiaoGui17 (06/14/17 01:32 PM)
Edit Reason: Typo
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#113209 - 06/14/17 04:31 PM Re: Due process [Re: XiaoGui17]
SIN3 Offline
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Registered: 05/14/13
Posts: 7204
Loc: Virginia
 Originally Posted By: V
but that doesn't mean it's legal.


My point was, criminality is rarely a deterrent nor is it effective.

Legal Teeth that aren't really that scary which is why so many do lie whether on the stand or on the bench. Harsher punishment wouldn't stop them either because it's about self-interest.
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#113212 - 06/14/17 09:35 PM Re: Due process [Re: SIN3]
XiaoGui17 Offline
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Registered: 10/21/09
Posts: 1362
Loc: Austin, TX
 Quote:
Harsher punishment wouldn't stop them either because it's about self-interest.

I'd hardly think a felony conviction with a ten-year sentence would be worth the self interest I could serve by committing perjury. I'm struggling to think of a civil case where the payout would be big enough and the odds of me being caught would be low enough to be worth risking that.

But concerning deterrence...

 Originally Posted By: SIN3
My point was, criminality is rarely a deterrent nor is it effective.

Legal Teeth that aren't really that scary...

Well, it depends. There's a bit of an availability heuristic, here: we know about the cases where deterrence didn't work (because we see the violation), but we don't know about the cases where deterrence did work (because it's hard to tell what people would have done otherwise).

The way I see it, there are three types: the impulsive, the principled, and the pragmatic.

The impulsive do what they want, either with the hubris that they'll get away with it, or the short-sighted failure to anticipate and account for consequences at all. They have poor gratification-deferral skills, and generally cannot be controlled (since they lack self control) in the absence of immediate restraint. The law only stops them after they get caught, but does not stop them before.

The principled will do what they think is "right" regardless of what the law says, which is helpful to the law when their values and the law happen to coincide, but nothing will stop them when they are convinced they are fighting for righteousness against power.

And then there are the calculating cowards--like me--who act in accordance with practicality in lieu of principle or impulse, who look to the law not as a guide for right and wrong, but as part of their cost-benefit analysis. To us, the law is a powerful deterrent indeed.

And it's not hard and fast categories. I imagine we're all a certain amalgamation of these traits in different ratios. And I imagine the severity and immediacy of the threat do have some effect on who deterrence reaches. There are those who break "little laws" but won't touch big ones. There are people who will speed and run stop signs, but not when there's a cop visibly sitting at the corner. For them, a little more making examples of perjurers, a little more stern warning about the potential consequences, may indeed help drive home deterrence.
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#113215 - 06/15/17 02:38 AM Re: Due process [Re: XiaoGui17]
Creatura Noptii Offline
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Registered: 01/02/16
Posts: 950
Justice system:

Whoever pays the most.

Fuck You.

Adjourned.

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