Can KC be called to testify based on her affidavit?

[manatee]

(Mods feel free to move this if you feel it's more appropriate somewhere else)

Since KC made a notorized statement in rebuttal to the SA asking for answers to who is paying for her defense. Can she be called to testify today in open court about her statements? in particular that she was offered a plea deal?
I've been reading and hearing (NG) mixed messages on this.
thanks you all!

 

[Dejablue]

I don't think so because that statement has nothing to do with the motions filed to stop the release of the videos. I don't think Strickland cares one Iota if KC thinks that the SA's office is mad at her for not accepting the PLEA that was on (and off) the table MONTHS ago.

 

[manatee]

Not today I guess. but will she be called when the hearing is held to determine or find out if the defense has to reveal sources of payment...JB requested that this hearing not be held but it will certainly be.
Can she be questioned then since she submitted a written notarized affidavit against it. Can she not be cross-examined? She stated there that the motivation for the SA case was that she would not accept a plea deal which the SA denies they ever offered her.

 

[Bakersmom]

The only plea deal that I recall was prior to the Grand Jury indictment, and that was offering her limited immunity for her assistance in locating Caylee. Once the Grand Jury came back with a true bill, then no offers to my knowledge have been offered.

 

[manatee]

The only plea deal that I recall was prior to the Grand Jury indictment, and that was offering her limited immunity for her assistance in locating Caylee. Once the Grand Jury came back with a true bill, then no offers to my knowledge have been offered.

Yes, I know. this is my point and others have made it as well. She "lied" on the affidavit discussing why she would not reveal the sources of payment for her attorneys. Can she not be cross-examined since she has made a statement to SA? I feel she has given up her rights to remain silent on this.

 

[Bakersmom]

To me it brings up an interesting small detail in the fact that she appears not to know what and when things have been offered, which is a scary possibility that she is NOT being represented with all the facts and the SA has every reason to believe that Jose is not accurately representing her, but only in it for the money and fame. If I were the SA I would enter into evidence her note, because it clearly represents her confusion and with the amount of time that she has had with her attorneys it points out that they are probably not talking much about stragedy of defense but more how to make some money and marketing deals.

 

[Clock's Tickin]

Her statement may be misleading, as it never gives reference to an ACTUAL offer for a plea deal, it just infers that KC is aware of the prosecuters feelings toward her and she THINKS the prosecuter feels that way because she THINKS the prosecuter KNOWS KC would never accept a plea deal. IMO, it doesn't mean an offer was actually made, it just means that JB and KC discussed the "what ifs" and that KC made it clear that no offer would ever be accepted.

I don't think calling KC to the witness stand would ever go far. She the kind that would place her right hand on the Bible while crossing the fingers of her left hand behind her back. Oh hell, who am I kidding, she wouldn't even go to all of that trouble, she'd just lie to God too.

 

[manatee]

To me it brings up an interesting small detail in the fact that she appears not to know what and when things have been offered, which is a scary possibility that she is NOT being represented with all the facts and the SA has every reason to believe that Jose is not accurately representing her, but only in it for the money and fame. If I were the SA I would enter into evidence her note, because it clearly represents her confusion and with the amount of time that she has had with her attorneys it points out that they are probably not talking much about stragedy of defense but more how to make some money and marketing deals.

So you think she could be called to the stand when they have this hearing on defense payment?

 

[Bakersmom]

I think it would be a good way for the Judge to know if she truely knows what is going on and if her lawyers are really being counsel or marketing pro's. If they are really concerned they will call her up.
The only question they should ask is: What month were you aware of the possibility of a plea deal? If she answers after the Grand Jury date then the SA can answer:
"Calling you up was a waste... a HUGE waste!" Ha, sorry I could not resist!

 

[MiraclesHappen]

I realize this is the first affidavit we have seen from the defendant and attached to a pretrial motion.


That said, the shock factor for me is not that there is an affidavit from Casey, but that this is the first one we have seen. And the means of doing it, is a real "head-shaker."


It is common practice & procedure for certain types of motions that are used in Criminal Cases, to absolutely require that an affidavit from the Defendant be attached to the defense layer's motion. Some states insist that the affidavit must be from the actual client and that an affidavit from the lawyer is not sufficient to satisfy the rule.

The lawyer for example, could not sign an affidavit that a search was in violation of the Constitution of the particular state and the US Constitution as well, even though, it is a bunch of legalese and the defendant quite often takes away from the paper work , nothing more than :
"Oh God I hope This gets my case dismissed & the evidence tossed out."


The affidavits are generally standardized language, TYPED & signed by the Defendant, under the pains & penalties of perjury.

This was as bad as it gets.

I would have expected a full page (minimum) affidavit, typed up in "professional" language, signed by the Defendant, and then attached to the body of the Motion, as prepared by Defense Counsel.
Of course, there is no need to ponder whether to attach the affidavit before or after the memorandum of law in support of the motion, since once again, there isn't one.

In decades of having the opportunity to read these motions, this is the first handwritten affidavit I have seen. It is unwise for so many reasons on so many levels.

So it's not that the concept of an affidavit with a motion is bizarre. Quite frankly I would have thought we'd see more affidavits by now, with so many motions behind us & so many to go.
It will not trigger the forfeiture of rights or force anyone to get on the stand.
Again, it's standard operating procedure.
But how it was done leaves much to question.
Above is just my Humble-Opinion:wolf: as the picky old lady. :grandma::Banane23: that I already admitted to being.

 

[faefrost]

"For a crime that I did NOT commit!"

She directly addressed and gave a statement to the SA and the courts regarding the crime (instead of dealing with the specific motion at hand). It is in her own handwriting and notorized. So she has chosen to give a statement to authorities directly. They most certainly can call her to ask her for clarification.

 

[debs]

"For a crime that I did NOT commit!"

She directly addressed and gave a statement to the SA and the courts regarding the crime (instead of dealing with the specific motion at hand). It is in her own handwriting and notorized. So she has chosen to give a statement to authorities directly. They most certainly can call her to ask her for clarification.

Which leads me to wonder whether her attorney(s) deliberately incited their client's fury in order to get her to determine she was going to write it, and then submitted it knowing that it had the potential to force Casey to the stand which then makes it an even more sensational trial and an even more lucrative deal afterward.

 

[cjm11]

I'm far, far away from knowing the law, but it seems to me that KC writing on the legal docs, in her own handwriting, helps to prevent a mistrial due to negligent representation. The more she spouts off and "shows herself" the more damning it is to her. It shows she will do what she wants and thus no retrial because my attorney is a dunce.

Of course, I guess it could work completely the other way also.

MOO and this whole case just makes my blood boil :furious:

 

[MiraclesHappen]

"For a crime that I did NOT commit!"

She directly addressed and gave a statement to the SA and the courts regarding the crime (instead of dealing with the specific motion at hand). It is in her own handwriting and notorized. So she has chosen to give a statement to authorities directly. They most certainly can call her to ask her for clarification.

Which leads me to wonder whether her attorney(s) deliberately incited their client's fury in order to get her to determine she was going to write it, and then submitted it knowing that it had the potential to force Casey to the stand which then makes it an even more sensational trial and an even more lucrative deal afterward.

Casey's handwritten blurb is no so explosives as to override the US Constitution. It is standard for defendant's to sign affidavits which proclaim their rights were violated for a gazillion reasons.


She proclaimed her innocence by entering a not guilty plea. That no more erased the Constitution than this subsequent proclamation.

By way of authority I would
cite the US and Florida Constitutions which maintain that the defendant has a right to maintain her silence no matter what type of idiotic note is superimposed on a motion.

I'm really quite open-minded but I would love to see some authority for these viewpoints. I am speaking just from what I have observed and learned over the years. :blowkiss:
If I am wrong, I'd love to know why. :help:


Humble-Opinion:wolf:

 

[amethyst221]

Just one opinion: The situation here is not typical, the motion by the State is not typical, and the response by the defense is bizarre. Given the competing legal interests and concerns, I have no idea how the court will deal with it. A judge likes to be guided by intelligent briefs from the parties, addressing the legal issues. So much for that here. Judges are pretty protective, especially when dealing with a criminal defendant, of A/C privilege. In a notorious case like this, the court is likely, despite defense bumbling, to bend over backward to protect the defendant (really, to protect any ultimate verdict in the case, which is going to cost the taxpayers a lot of money and resources).

That is what the state says this motion is all about. They suspect a conflict of interest, and want to make sure the the defendant fully understands it and knowingly consents NOW, so it won't be a post-trial appellate issue. Talk of a mistrial is premature, BTW, because we aren't in trial yet, making a mistake that can be corrected no other way.

As far as testimony by Casey, it seems the State contemplates some revelation of the terms of the retainer agreement or other possible business agreements between Casey and her lawyers, to see if there is a conflict of interests. Then they seem to expect some on the record waiver by Casey, a statement that she understands and is fine with it all. It's similar to when the court asks her other questions in court, whether she understands, waives her rights, etc. I don't think anyone expects wide-ranging questioning of her, certainly not about the merits of the murder charge. They only want to hear enough to preclude her from complaining about being exploited or duped later.

As far as the affidavit, I think she is trying to offer up their own version of what I've described above, to satisfy the court and stop the hearing. I don't think it's adequate for that, but we'll see. Putting "story" in quotes, sarcastically, probably wasn't the best idea. The handwritten stuff about the SA is just superfluous and should be stricken. Yes, she used her affidavit, which is by definition a one-sided sworn statement, for a little "I'm innocent" PR, but that isn't going to waive her 5th amendment rights. It's offensive as all get out, absolutely, and it's so frushtrating that she got her little tantrum on the record, we can hardly talk. But she won't waive her 5th amendment rights unless she chooses to testify at trial. This really is no more than she has already said in her not guilty plea.

I'm really interested to see what the court does with this, and today I'm really glad not to be Judge Strickland.

 

[Themis]

Casey's handwritten blurb is no so explosives as to override the US Constitution. It is standard for defendant's to sign affidavits which proclaim their rights were violated for a gazillion reasons.


She proclaimed her innocence by entering a not guilty plea. That no more erased the Constitution than this subsequent proclamation.

By way of authority I would
cite the US and Florida Constitutions which maintain that the defendant has a right to maintain her silence no matter what type of idiotic note is superimposed on a motion.

I'm really quite open-minded but I would love to see some authority for these viewpoints. I am speaking just from what I have observed and learned over the years. :blowkiss:
If I am wrong, I'd love to know why. :help:


Humble-Opinion:wolf:

Granted a criminal defendant has a right to remain silent under the US Constitution 5th Amendment, and applied to the States through the US Constitution 14th Amendment.

Have you considered that she did not remain silent because she made a sworn statement and voluntarily, with advice of counsel, submitted it to court in support of a motion. I think she waived it for purposes of the motion, maybe more. I haven't done research into Florida or federal case law, but it doesn't seem that any declarant on a SWORN statement should be able to testify in favor of a motion and be able to avoid examination on it. Although usually motions are not evidentiary hearings, all the prosecution has to do is give notice of an intent to take evidence and it can be an evidentiary hearing. I'm not saying they will do this, but they could. I would think that at least on the motion, she could be called for cross-examination or her statement could be ordered stricken.

The practice of requiring an affidavit (from the defendant) is probably to prevent the defense counsel from having to testify and motions need to be supported by some evidence. At the motion stage, no evidence has yet been taken or admitted; hence, the affidavit, in plain vanilla legal assertions and devoid of facts. Here, KC went to the merits of the case!

Oh, she also included confidential information in the affidavit -- discussion of a plea deal. There's clearly some waiver issues going on here.

 

[okiedokietoo]

I know this might be a small point but what is odd to me is that it is numbered, as if actually one of the points in the motion for the court to consider -

 

[lawlady84]

Granted a criminal defendant has a right to remain silent under the US Constitution 5th Amendment, and applied to the States through the US Constitution 14th Amendment.

Have you considered that she did not remain silent because she made a sworn statement and voluntarily, with advice of counsel, submitted it to court in support of a motion. I think she waived it for purposes of the motion, maybe more. I haven't done research into Florida or federal case law, but it doesn't seem that any declarant on a SWORN statement should be able to testify in favor of a motion and be able to avoid examination on it. Although usually motions are not evidentiary hearings, all the prosecution has to do is give notice of an intent to take evidence and it can be an evidentiary hearing. I'm not saying they will do this, but they could. I would think that at least on the motion, she could be called for cross-examination or her statement could be ordered stricken.

The practice of requiring an affidavit (from the defendant) is probably to prevent the defense counsel from having to testify and motions need to be supported by some evidence. At the motion stage, no evidence has yet been taken or admitted; hence, the affidavit, in plain vanilla legal assertions and devoid of facts. Here, KC went to the merits of the case!

Oh, she also included confidential information in the affidavit -- discussion of a plea deal. There's clearly some waiver issues going on here.

My understanding is that prior, sworn statements can be introduced as evidence if the declarant is available for cross-examination. Here, if she invokes her right against self-incrimination, she'd be technically "unavailable" for cross-examination. Its easier when the declarant is not the accused, because if you subpoena a witness with immunity, then there is no self-incrimination claim- so they have to talk.

It might be allowed in under admissions by party opponent, but I really don't think there's any way to force her to talk.

MAYBE the prosecutor could call people from the SA office to testify that there was no plea deal, to show the defendant lied under oath. But I'm honestly not sure how far they allow impeachment if the person doesn't testify.

 

[MiraclesHappen]

Granted a criminal defendant has a right to remain silent under the US Constitution 5th Amendment, and applied to the States through the US Constitution 14th Amendment.

Have you considered that she did not remain silent because she made a sworn statement and voluntarily, with advice of counsel, submitted it to court in support of a motion. I think she waived it for purposes of the motion, maybe more. I haven't done research into Florida or federal case law, but it doesn't seem that any declarant on a SWORN statement should be able to testify in favor of a motion and be able to avoid examination on it. Although usually motions are not evidentiary hearings, all the prosecution has to do is give notice of an intent to take evidence and it can be an evidentiary hearing. I'm not saying they will do this, but they could. I would think that at least on the motion, she could be called for cross-examination or her statement could be ordered stricken.

The practice of requiring an affidavit (from the defendant) is probably to prevent the defense counsel from having to testify and motions need to be supported by some evidence. At the motion stage, no evidence has yet been taken or admitted; hence, the affidavit, in plain vanilla legal assertions and devoid of facts. Here, KC went to the merits of the case!

Oh, she also included confidential information in the affidavit -- discussion of a plea deal. There's clearly some waiver issues going on here.

Yeah, I thought about those possibilities, but it is an unsettled issue , it seems, in Florida.

From the link to Florida's Supreme Court:

Although we have found no case law in Florida deciding whether the
filing of an affidavit can constitute a waiver of the Fifth Amendment
privilege, other courts have held that it can.


http://www.floridasupremecourt.org/clerk/briefs/2003/1201-1400/03-1271_JurisIni.pdf


It appears as well, that in Florida, the Courts are in conflict and the issue is not settled.

I would think though, that in light of the new issues that holding it to be a waiver of her 5th Amendment Rights will open, Strickland would bend over backwards to maintain Casey's rights.
If Casey is deemed as having forfeited rights, that will result in the whole:

Baez NEVER ADVISED ME ABOUT THIS, I never would have signed it, line of further bs.

I think the Judge will strive to avoid that, but as we know in Criminal law,
the more we know, the more we don't know.:blowkiss:
:wolf: Humble-Opinion

 

[lawlady84]

Just one opinion: The situation here is not typical, the motion by the State is not typical, and the response by the defense is bizarre. Given the competing legal interests and concerns, I have no idea how the court will deal with it. A judge likes to be guided by intelligent briefs from the parties, addressing the legal issues. So much for that here. Judges are pretty protective, especially when dealing with a criminal defendant, of A/C privilege. In a notorious case like this, the court is likely, despite defense bumbling, to bend over backward to protect the defendant (really, to protect any ultimate verdict in the case, which is going to cost the taxpayers a lot of money and resources).

That is what the state says this motion is all about. They suspect a conflict of interest, and want to make sure the the defendant fully understands it and knowingly consents NOW, so it won't be a post-trial appellate issue. Talk of a mistrial is premature, BTW, because we aren't in trial yet, making a mistake that can be corrected no other way.

As far as testimony by Casey, it seems the State contemplates some revelation of the terms of the retainer agreement or other possible business agreements between Casey and her lawyers, to see if there is a conflict of interests. Then they seem to expect some on the record waiver by Casey, a statement that she understands and is fine with it all. It's similar to when the court asks her other questions in court, whether she understands, waives her rights, etc. I don't think anyone expects wide-ranging questioning of her, certainly not about the merits of the murder charge. They only want to hear enough to preclude her from complaining about being exploited or duped later.

As far as the affidavit, I think she is trying to offer up their own version of what I've described above, to satisfy the court and stop the hearing. I don't think it's adequate for that, but we'll see. Putting "story" in quotes, sarcastically, probably wasn't the best idea. The handwritten stuff about the SA is just superfluous and should be stricken. Yes, she used her affidavit, which is by definition a one-sided sworn statement, for a little "I'm innocent" PR, but that isn't going to waive her 5th amendment rights. It's offensive as all get out, absolutely, and it's so frushtrating that she got her little tantrum on the record, we can hardly talk. But she won't waive her 5th amendment rights unless she chooses to testify at trial. This really is no more than she has already said in her not guilty plea.

I'm really interested to see what the court does with this, and today I'm really glad not to be Judge Strickland.

If I was Judge Strickland, I would probably grant the SAs motion but order the defense to produce the documents in camera - or at least sealed from sunshine law. I'd say in this case the court can't defer to the defendant's swearing she didn't sell her story, since she has admitted lying under oath and filing a false police report. So, Strickland should himself look at the information and just make sure its hunky-dory.