Legal Questions for our VERIFIED Lawyers #3

[SyraKelly]

Let me see if I understand this..2nd MUST be presented in the instructions-if its not they just can t come back and say 2nd?

 

[AZlawyer]

Let me see if I understand this..2nd MUST be presented in the instructions-if its not they just can t come back and say 2nd?

Correct. But if there is any basis at all for a verdict of 2nd degree, the instruction will be given.

 

[SyraKelly]

Correct. But if there is any basis at all for a verdict of 2nd degree, the instruction will be given.

great..thank you so much!

 

[Peliman]

Lawyer question if I may and thanks to all the lawyers answering questions on this forum, quite helpful to my brain

Today in his asking for a directed acquittal CM mentioned the word hypothetical which somewhat indicated to me this maybe where we're headed in the defense (hypothetically speaking)

Now I thought hypotheticals were reserved for expert witnesses. (far as I know)

It appears to me this is a plan B hypothetical defense with GA being the plan B.

Will the jury know the defense is a hypothetical defense? I know experts will be asked hypothetically but if the entire defense is just hypothetically speaking, will the jury know this?

Can the SA in closing tell the jury this is a hypothetical defense? Sorry for the multiple question.

 

[Dr.Fessel]

One more thing about the cans. They are not the air samples. They are the pieces of carpet from the trunk so you would think they could look at them.

 

[RedSoxFan]

First I want to say "Thank you" to all the Lawyers on this thread! Each and every day I learn something new about our Judicial System. I have a question about the OS by the Defense. Are they restricted to what the defendent has told them, and base their OS on that? Or can they come up with their "own theory/story" of what happened? How much of the OS has to be based on what the defendent has told them? I guess I am just wondering if the Defense just dreamed up this story or if this is what ICA told them to say.

 

[allycat1208]

I thought the argument of whether KC should have been given her miranda rights was resolved in a pre-trial court meeting and was decided resolved. Yet it was brought up again today among other issues by CM when he argued for an acquittal. I've also heard the subject of her miranda rights discussed on tv and it was said that KC's case can be acquitted since her miranda rights were never give by law enforcement. I thought this issue was basically simple until now. Isn't there a standard answer on when exactly the miranda rights should be read and if so why hasn't it been resolved already?

 

[AZlawyer]

Lawyer question if I may and thanks to all the lawyers answering questions on this forum, quite helpful to my brain

Today in his asking for a directed acquittal CM mentioned the word hypothetical which somewhat indicated to me this maybe where we're headed in the defense (hypothetically speaking)

Now I thought hypotheticals were reserved for expert witnesses. (far as I know)

It appears to me this is a plan B hypothetical defense with GA being the plan B.

Will the jury know the defense is a hypothetical defense? I know experts will be asked hypothetically but if the entire defense is just hypothetically speaking, will the jury know this?

Can the SA in closing tell the jury this is a hypothetical defense? Sorry for the multiple question.

Bumping this for any lawyers who might have heard the argument. I didn't bother since it was obviously going to be denied.

One more thing about the cans. They are not the air samples. They are the pieces of carpet from the trunk so you would think they could look at them.

Good point. Why should the jury be prevented from looking at physical evidence just because it smells?? :waitasec:

First I want to say "Thank you" to all the Lawyers on this thread! Each and every day I learn something new about our Judicial System. I have a question about the OS by the Defense. Are they restricted to what the defendent has told them, and base their OS on that? Or can they come up with their "own theory/story" of what happened? How much of the OS has to be based on what the defendent has told them? I guess I am just wondering if the Defense just dreamed up this story or if this is what ICA told them to say.

They don't have to base the opening statement on what the defendant told them.

I thought the argument of whether KC should have been given her miranda rights was resolved in a pre-trial court meeting and was decided resolved. Yet it was brought up again today among other issues by CM when he argued for an acquittal. I've also heard the subject of her miranda rights discussed on tv and it was said that KC's case can be acquitted since her miranda rights were never give by law enforcement. I thought this issue was basically simple until now. Isn't there a standard answer on when exactly the miranda rights should be read and if so why hasn't it been resolved already?

The question was resolved by HHJP in the pretrial motion stage, yes. But lots of issues will be raised over and over again to make sure that they are preserved for appeal. And certainly the question has not been resolved by the appellate court yet!

The issue of whether the Miranda warnings should have been given and when was not an easy, black-and-white legal issue in this case. Legal experts on WS and elsewhere strongly disagreed on the answer. You can find many posts about it in the forum if you do a search for "miranda" and "universal," for example.

 

[Coldpizza]

I would like to pose at this stage of the game IF JB is changing the story obviously he loses his credibility. Is he not supposed to relay to the court what his client has told him? How could who GA called be relevant to CAYLEE ACCIDENTALLY DROWNING. Could he get in trouble with the Bar if he is fabricating?

 

[AZlawyer]

I would like to pose at this stage of the game IF JB is changing the story obviously he loses his credibility. Is he not supposed to relay to the court what his client has told him? How could who GA called be relevant to CAYLEE ACCIDENTALLY DROWNING. Could he get in trouble with the Bar if he is fabricating?

I don't think he is changing the story--I think he's just expanding the cast of characters. George, Kronk and Vasco T are the new Axis of Evil in JB's mind. :banghead:

 

[Peliman]

Bumping this for any lawyers who might have heard the argument. I didn't bother since it was obviously going to be denied.

Thanks AZ, I may have my cart ahead of my horse here. lol

I've heard tonight that CM called the states case a hypothesis, which is what led me to believe they would be presenting their hypothesis in their mind. Guess I'll have to be more patient.

 

[1tasha]

What is the likelihood that Vasco Thomas will be approved as a witness given the information AZ rooted out on him? My concern would be that JB would sneak in subsequently overruled comments to witnesses like "Were you aware of George Anthony's association with convicted kidnapper Vasco Thomas."

Also, like everybody else I'm so grateful for all the professional posters on this site!

 

[krt]

Does the dt have to list ica as a potential witness taking the stand if they are going to have her take the stand (because she is adamant to do so) or can that be requested on a whim and allowed if agreed by all parties? TIA

 

[AZlawyer]

What is the likelihood that Vasco Thomas will be approved as a witness given the information AZ rooted out on him? My concern would be that JB would sneak in subsequently overruled comments to witnesses like "Were you aware of George Anthony's association with convicted kidnapper Vasco Thomas."

Also, like everybody else I'm so grateful for all the professional posters on this site!

IMO it will all be worked out outside the presence of the jury. God help JB if he says anything like what you posted above!

Does the dt have to list ica as a potential witness taking the stand if they are going to have her take the stand (because she is adamant to do so) or can that be requested on a whim and allowed if agreed by all parties? TIA

No, she does not have to be listed, and the SA does not have to agree.

 

[beeshie]

What would happen if Casey takes the stand, negates the defense's opening statement and tells yet another story? Mistrial?

 

[AZlawyer]

What would happen if Casey takes the stand, negates the defense's opening statement and tells yet another story? Mistrial?

Nope. The jury could listen to her story #5 or whatever it would be and decide if they believe her or not.

 

[technicalconfusion]

What would happen if Casey takes the stand, negates the defense's opening statement and tells yet another story? Mistrial?

And what if...she got on the stand...and confessed? To everything - duct tape, murder. Hypothetically.

 

[AZlawyer]

Maybe because of unfair prejudice or because the jurors are not qualified witnesses. I"m not a lawyer but I'm guessing there could be an issue. We've seen people on the stand who have experience with decomposing human bodies and know what they smell like. The smell is described as distinctive and different from other decomposing animals and such. But the jurors can't be expected to know those things from experience. If they get a whiff of those cans and they stink horribly they could automatically think that they are smelling a dead human even though they've never smelled one before.

The determination that a dead human was in the trunk is supposed to come to the jury by way of expert testimony (scientific) as evidence not their own subjective and unqualified determination using their nose. "If it smells awful it must be a dead human"... is probably not a good thing to have jurors arriving at.

I'm just guessing.

Oh, I agree they need expert testimony to tell them it is the smell of decomp. But I think they can use their NON expert noses to tell them it is NOT the smell of paper boxes and empty soda cans.

Just like they need expert testimony to tell them that the dark band on the hair is a death band. But they can use their layperson eyes to say, "Well, obviously that's not Cindy's hair."

And what if...she got on the stand...and confessed? To everything - duct tape, murder. Hypothetically.

It would make it a lot easier to convict her, I guess. I assume you mean if she confesses on cross--her attorneys would, of course, not put her on the stand to confess.

 

[Katprint]

One more thing about the cans. They are not the air samples. They are the pieces of carpet from the trunk so you would think they could look at them.

Good point. Why should the jury be prevented from looking at physical evidence just because it smells?? :waitasec:

Because the only legal relevance of the cans containing pieces of carpet removed from Casey's car trunk is to establish chain-of-custody as foundation for the expert tests/analyses/opinions? Because the jurors are not supposed to experiment with the evidence?

Florida criminal attorney Richard Hornsby's May 15, 2011 blog entry "That Smell" http://blog.richardhornsby.com/2011/05/casey-anthony-a-review-of-week-one/ discussed the appellate decisions concerning this issue. In a nutshell, the appellate courts have said NO in similar situations (albeit whiskey and marijuana, not human decomp.)

The most persuasive reason why not: Because Judge Perry said no.

Katprint
Always only my own opinions

 

[cluciano63]

In the case of Michael Fletcher, convicted of murdering his wife Leeann,an appeal was based on jury experimenting by reenacting what he said happened. The verdict was not overturned...would smelling the can be like that, maybe?

http://www.mlive.com/news/detroit/index.ssf/2009/12/court_wont_overturn_michael_fl.html