Legal Questions for our Verified Lawyers #4

[MsMacGyver]

Hope someone can answer my question...Please
While listening to the CM trial...TH were discussing the jurors and taking notes. Said taking notes while witness is testifying could distract from watching body language.
I thought I heard them say that the jurors will receive a daily transcript of witness testimony.
My question is...Is this common practice in most trials, receiving daily transcripts of witness testimony?...Thanks!

OK, I realized how stupid this question was. They won't get anything until they go into deliberations and then they can ask for testimony to be read back...Nevermind....:giggle:

 

[MiraclesHappen]

Hope someone can answer my question...Please
While listening to the CM trial...TH were discussing the jurors and taking notes. Said taking notes while witness is testifying could distract from watching body language.
I thought I heard them say that the jurors will receive a daily transcript of witness testimony.
My question is...Is this common practice in most trials, receiving daily transcripts of witness testimony?...Thanks!

OK, I realized how stupid this question was. They won't get anything until they go into deliberations and then they can ask for testimony to be read back...Nevermind....:giggle:

:sheesh:

:therethere:

I don't realize how stupid this question was. It's a great question. :skip:...No kidding:yes:

The subject of what juries can and cannot do, what juries are allowed to do during trial is not at all a settled matter.

It varies greatly from state to state.
I was not familiar with the transcript notion. But note taking by jurors to preserve thoughts as the trial goes along is an area in flux. :rollercoaster:
Again, it varies regionally and it is not allowed in some states. Change comes slowly.
My personal outlook is that the provision of actual transcripts to a jury is not a good idea.
I believe the effect of such a practice produces the opposite of the concept by which we reread classic works of literature expecting to experience the :idea: aha!!! moment where the symbolism and meaning becomes apparent.
The more that jurors reread testimony, I think the more they'd lose their original and most reliable interpretations of honesty, reliability , character and truthfulness of a witness.
The transcript inately suffers from the same deficits as an email vs a live conversation.
There is no intonation; There is no body language, no hesitating , deflecting, no discomfort and no genuineness;
You lose the intonations that go with thoughts. You lose emotion.
Oops... I digress.

It's a perfectly reasonable question about an area under study and an area experiencing reform.

Great question.:star1:

See Article: "The Verdict on Juries"
http://www.abajournal.com/magazine/article/the_verdict_on_juries/


My opinion :wolf:
MH

 

[MsMacGyver]

:sheesh:

:therethere:

I don't realize how stupid this question was. It's a great question. :skip:...No kidding:yes:

The subject of what juries can and cannot do, what juries are allowed to do during trial is not at all a settled matter.

It varies greatly from state to state.
I was not familiar with the transcript notion. But note taking by jurors to preserve thoughts as the trial goes along is an area in flux. :rollercoaster:
Again, it varies regionally and it is not allowed in some states. Change comes slowly.
My personal outlook is that the provision of actual transcripts to a jury is not a good idea.
I believe the effect of such a practice produces the opposite of the concept by which we reread classic works of literature expecting to experience the :idea: aha!!! moment where the symbolism and meaning becomes apparent.
The more that jurors reread testimony, I think the more they'd lose their original and most reliable interpretations of honesty, reliability , character and truthfulness of a witness.
The transcript inately suffers from the same deficits as an email vs a live conversation.
There is no intonation; There is no body language, no hesitating , deflecting, no discomfort and no genuineness;
You lose the intonations that go with thoughts. You lose emotion.
Oops... I digress.

It's a perfectly reasonable question about an area under study and an area experiencing reform.

Great question.:star1:

See Article: "The Verdict on Juries"
http://www.abajournal.com/magazine/article/the_verdict_on_juries/


My opinion :wolf:
MH

Thanks much for your reply. The day I was listening to the CM trial, they were discussing the autopsy and the levels of meds in MJ after death. I was of course putting myself in one of the jurors shoes and trying to imagine how I could retain the information presented. I understood completely what the witness was explaining until the defense got up to bat and confused the issue to the point the witness himself was confused, in regards to what the heck the defense was asking...:floorlaugh:

I was able to hang onto the first explaination and could have jotted down some quick notes. I know myself well enough that when the next day came I would be lost....:waitasec:

Your point makes absolute sense, watching and listening during testimony are most important, body language, facial expressions would be priceless to me. When it comes to medical evidence, it would benefit me to have that part in writing to go over during deliberation....but...

Judge S was a great example of what can happen when speech is transfered to paper. After I thought about it I could see how many problems it might cause so as far as the medical, technical issues, a video of that part of the testimony would be a lifesaver to me as a juror....:twocents:

Thanks for the information! :seeya:

 

[askfornina]

@MattMorganESQ Matt Morgan
We will file #CaseyAnthony depo when opposing counsel agrees not to file motion to have it sealed. Hopefully, the public will see it soon!
10 minutes ago

what does this mean? why would DT agree to that? posted this in another thread but i figure a lawyer could help. thanks in advance

 

[Katprint]

@MattMorganESQ Matt Morgan
We will file #CaseyAnthony depo when opposing counsel agrees not to file motion to have it sealed. Hopefully, the public will see it soon!
10 minutes ago

what does this mean? why would DT agree to that? posted this in another thread but i figure a lawyer could help. thanks in advance

In many jurisdictions, if a lawyer files a frivolous motion - for example, a motion to seal something that does not legally qualify for being sealed - then the court can make that lawyer reimburse the other side for their attorneys fees and costs in opposing the frivolous motion. This happens A LOT in civil cases where money is the only reason for litigating. The purpose is to discourage attorneys from wasting the court's time and resources.

So, that is one reason why Casey's civil defense team might agree i.e. to avoid possibly being sanctioned for filing a frivolous motion.

Katprint
Always only my own opinions

 

[logicalgirl]

Okay - I think our awesome lawyers have not been pestered for awhile - and here's one that may have you ullhair: or :laughcry: but since we're almost at :slapfight: in a couple of threads - we really need your wise words..

In the OS of the OCA trial, Baez said two things. First that GA abused OCA, and that Caylee drowned on June 16/2008.

HHJP did not allow JB as we know, to use the abuse angle, but he did allow the drowning statement into the body of the trial.

JB stated a number of times after the OS was completed and in the trial, that Caylee died from drowning on Day one. So is this a statement of fact acknowledged as such by the court, or did this continue to be a theory and up to the jury to accept.

Then when the jury came back with a not guilty verdict, did the drowning then become fact? And is OCA in her upcoming civil trials going to be held to this "fact" as "real" or can she go back to saying she doesn't know if Caylee was alive or dead on June 16th?

It may be a simple answer to you - but to those of us who have no freaking idea - it's very confusing. Thank you in advance and I :bow:to your superior knowledge... and could I offer you a little refreshment :martini: for your trouble? :innocent:

 

[AZlawyer]

Okay - I think our awesome lawyers have not been pestered for awhile - and here's one that may have you ullhair: or :laughcry: but since we're almost at :slapfight: in a couple of threads - we really need your wise words..

In the OS of the OCA trial, Baez said two things. First that GA abused OCA, and that Caylee drowned on June 16/2008.

HHJP did not allow JB as we know, to use the abuse angle, but he did allow the drowning statement into the body of the trial.

JB stated a number of times after the OS was completed and in the trial, that Caylee died from drowning on Day one. So is this a statement of fact acknowledged as such by the court, or did this continue to be a theory and up to the jury to accept.

Then when the jury came back with a not guilty verdict, did the drowning then become fact? And is OCA in her upcoming civil trials going to be held to this "fact" as "real" or can she go back to saying she doesn't know if Caylee was alive or dead on June 16th?

It may be a simple answer to you - but to those of us who have no freaking idea - it's very confusing. Thank you in advance and I :bow:to your superior knowledge... and could I offer you a little refreshment :martini: for your trouble? :innocent:

Nothing JB said in argument counted as evidence. Also, the not guilty verdict did not establish any fact as being true. So Casey can adopt any factual theory she wants for purposes of the civil case with Z not-F G.

 

[logicalgirl]

Nothing JB said in argument counted as evidence. Also, the not guilty verdict did not establish any fact as being true. So Casey can adopt any factual theory she wants for purposes of the civil case with Z not-F G.

Oh dear. I was afraid you would say that. Hmmm....I fear more unrest among us natives - and we still have a bigger :worms: than I thought. But thank you.

And I had no idea lawyers can lie their butts off in a criminal murder case and get away with it....silly me.:banghead:

 

[LambChop]

Nothing JB said in argument counted as evidence. Also, the not guilty verdict did not establish any fact as being true. So Casey can adopt any factual theory she wants for purposes of the civil case with Z not-F G.

Thank you AZlawyer. I think we established that in our discussion. The question we had was in JB's opening statement and during the trial he kept referring to Caylee as having died on June 18th by drowning. He also told the jury what happened how KC cried and cried and cried, and what GA said. We know it was never proven as a fact but JB told the story not in theory but as if KC had told him. He never said Caylee could have drowned, he said she did.

If KC never told JB Caylee drowned wouldn't he have to present it to the jury as a theory and not mislead them into thinking KC told him what happened. Conclusions were drawn on the fact that JB seemed to have the whole story he could have only gotten from GA or KC. GA denied the story was true, so that leaves KC.

If JB made up the story as a theory shouldn't the judge have instructed the jury to disregard the drowning theory because it, too, had not been proven? The only proof would have been an eye witness which would have been KC.

 

[MaryAnn]

Nothing JB said in argument counted as evidence. Also, the not guilty verdict did not establish any fact as being true. So Casey can adopt any factual theory she wants for purposes of the civil case with Z not-F G.

This is horrible news! Can the state of Florida still re-coup the money she owes them for trying to find Caylee then?

 

[AZlawyer]

This is horrible news! Can the state of Florida still re-coup the money she owes them for trying to find Caylee then?

I think HHJP already ordered her to pay those costs, correct?

She was found guilty beyond a reasonable doubt of lying about certain things, which is the basis for the order to pay costs. Being found guilty of lying doesn't mean the alternative presented by the defense ("Caylee drowned") has been proved beyond a reasonable doubt, though.

I can no longer recall the 4 specific lies she was convicted of, but I think one of them was "I left my daughter with ZFG at Sawgrass Apt. No. ---." So I suppose she can't maintain a defense in the civil trial that is inconsistent with that conviction--but she could still say, e.g., "ZFG knocked me down in JB Park and grabbed Caylee."

 

[AZlawyer]

Thank you AZlawyer. I think we established that in our discussion. The question we had was in JB's opening statement and during the trial he kept referring to Caylee as having died on June 18th by drowning. He also told the jury what happened how KC cried and cried and cried, and what GA said. We know it was never proven as a fact but JB told the story not in theory but as if KC had told him. He never said Caylee could have drowned, he said she did.

If KC never told JB Caylee drowned wouldn't he have to present it to the jury as a theory and not mislead them into thinking KC told him what happened. Conclusions were drawn on the fact that JB seemed to have the whole story he could have only gotten from GA or KC. GA denied the story was true, so that leaves KC.

If JB made up the story as a theory shouldn't the judge have instructed the jury to disregard the drowning theory because it, too, had not been proven? The only proof would have been an eye witness which would have been KC.

HHJP was generous in allowing the drowning theory to be referenced in closing argument, based on some pretty thin threads of evidence.

But the fact that JB said it was NOT one of the threads of evidence upon which HHJP relied. JB's statements were not evidence.

Whether or not JB might have violated some ethics rule by presenting a theory of the defense that he pulled out of his...I mean, out of thin air, is not really the point. The point is that his statements in opening (or closing) argument regarding his theory of the defense are not binding upon Casey as admissions of fact.

 

[chefmom]

HHJP was generous in allowing the drowning theory to be referenced in closing argument, based on some pretty thin threads of evidence.

But the fact that JB said it was NOT one of the threads of evidence upon which HHJP relied. JB's statements were not evidence.

Whether or not JB might have violated some ethics rule by presenting a theory of the defense that he pulled out of his...I mean, out of thin air, is not really the point. The point is that his statements in opening (or closing) argument regarding his theory of the defense are not binding upon Casey as admissions of fact.

Thank you for helping us to understand. :blowkiss:

Now, suppose KC was to go into the ZG civil case and testify that she really did give Caylee to a babysitter, that she told JB to do whatever he could to save her and that he came up with the OS story, and this ZG was not her babysitter. Would there be any ramifications to either KC or JB? TIA!

 

[LambChop]

LDB is going after KC for the costs of searching for a missing child and the judge has ruled on this already, I believe. What basis is LDB using to go after KC if it was not established in court that KC claimed Caylee drowned?

 

[AZlawyer]

Thank you for helping us to understand. :blowkiss:

Now, suppose KC was to go into the ZG civil case and testify that she really did give Caylee to a babysitter, that she told JB to do whatever he could to save her and that he came up with the OS story, and this ZG was not her babysitter. Would there be any ramifications to either KC or JB? TIA!

Casey would never be forced to answer the question about what she told JB, because it's attorney-client privileged information. So no, there would be no ramifications.

LDB is going after KC for the costs of searching for a missing child and the judge has ruled on this already, I believe. What basis is LDB using to go after KC if it was not established in court that KC claimed Caylee drowned?

The basis is that Casey was found beyond a reasonable doubt to have LIED about four specific statements of fact. None of those statements had anything to do with whether or not Caylee drowned. Casey claimed that she left Caylee at Sawgrass with ZFG, that she enlisted the help of some fake people to find Caylee, etc. The jury found that those statements were false, but that would have been an easy decision even without any mention of the drowning theory.

 

[RR0004]

Casey would never be forced to answer the question about what she told JB, because it's attorney-client privileged information. So no, there would be no ramifications.



The basis is that Casey was found beyond a reasonable doubt to have LIED about four specific statements of fact. None of those statements had anything to do with whether or not Caylee drowned. Casey claimed that she left Caylee at Sawgrass with ZFG, that she enlisted the help of some fake people to find Caylee, etc. The jury found that those statements were false, but that would have been an easy decision even without any mention of the drowning theory.

So, if Morgan asks, "Did you know your daughter drowned on June 16th?" How would the answer affect the appeal? I mean, TM is basing his lawsuit on the assumption that Casey knew Caylee wasn't alive and missing, right? Couldn't his lawsuit skirt some of the issues that ZG's can't? Couldn't it go forward now as opposed to later?

 

[AZlawyer]

So, if Morgan asks, "Did you know your daughter drowned on June 16th?" How would the answer affect the appeal? I mean, TM is basing his lawsuit on the assumption that Casey knew Caylee wasn't alive and missing, right? Couldn't his lawsuit skirt some of the issues that ZG's can't? Couldn't it go forward now as opposed to later?

Her answer to the question you posed can't affect her appeal of the lying convictions. The appellate court can only consider information contained in the record from the criminal case.

TM's lawsuit and ZG's lawsuit can both go forward now, no problem. In fact, ZG's lawsuit has been going forward for a long time. But TM will have to actually prove Casey lied to him--he can't use JB's defense theory from the criminal case as "proof."

 

[Katprint]

Nothing JB said in argument counted as evidence. Also, the not guilty verdict did not establish any fact as being true. So Casey can adopt any factual theory she wants for purposes of the civil case with Z not-F G.

There is an outside chance Casey may be limited by application of the doctrine of Judicial Estoppel. I'm sure you are familiar with this doctrine but for those who are not, Judicial Estoppel basically prohibits a party from taking a position in a case which is contrary to a position they have taken in earlier legal proceedings.

I practice in California which is located within the federal Ninth District, which has a fairly recent decision concerning the availability of Judicial Estoppel. In my law and motion practice, I have been successful in persuading judges to follow the doctrine of Judicial Estoppel. My cases have involved judicial estoppel in situations such as a company taking a position (through the arguments of its attorneys) in defending a civil claim/lawsuit that it was not liable because is employees did nothing wrong but taking a contrary position in a related wrongful termination/employment discrimination or workers compensation case.

Katprint
Always only my own opinions

 

[AZlawyer]

There is an outside chance Casey may be limited by application of the doctrine of Judicial Estoppel. I'm sure you are familiar with this doctrine but for those who are not, Judicial Estoppel basically prohibits a party from taking a position in a case which is contrary to a position they have taken in earlier legal proceedings.

I practice in California which is located within the federal Ninth District, which has a fairly recent decision concerning the availability of Judicial Estoppel. In my law and motion practice, I have been successful in persuading judges to follow the doctrine of Judicial Estoppel. My cases have involved judicial estoppel in situations such as a company taking a position (through the arguments of its attorneys) in defending a civil claim/lawsuit that it was not liable because is employees did nothing wrong but taking a contrary position in a related wrongful termination/employment discrimination or workers compensation case.

Katprint
Always only my own opinions

Good point. But wouldn't that apply only if the jury necessarily adopted the drowning theory in order to reach the not guilty verdict?

I suppose the elements of judicial estoppel probably vary from state to state, though. I certainly have no idea if the doctrine is accepted in Florida or, if so, what the elements are.

 

[Katprint]

Good point. But wouldn't that apply only if the jury necessarily adopted the drowning theory in order to reach the not guilty verdict?

I suppose the elements of judicial estoppel probably vary from state to state, though. I certainly have no idea if the doctrine is accepted in Florida or, if so, what the elements are.

I have successfully used Judicial Estoppel even when the prior case didn't make it to trial, based on the contentions of the parties in the pleadings and discovery. If attorneys for Company A say in lawsuit #1 that the contract employee laboring on their premises under their direction and control was in fact an independent contractor and not their employee when that contract employee injures a bystander while acting within the course and scope of their contract employment (for example, falling from construction scaffolding and landing on a passer-by below), it doesn't matter that lawsuit #1 settled before trial. The doctrine of Judicial Estoppel can effectively be used to prevent attorneys for Company A from arguing in lawsuit #2 that the contract employee is indeed its employee thus the contract employee is limited to workers compensation and prohibited from pursuing a personal injury lawsuit against Company A for the dangerous condition existing on the scaffolding (loose bolts holding the safety rail which gave way, causing the contract employee's fall.) A good law and motion attorney ought to be able to get this resolved by motions in limine if not by summary adjudication.

I googled "Florida Judicial Estoppel" and a brief skimming of the results indicates that this doctrine is alive and well in Florida. If I were suing Casey Anthony, I would certainly be arguing that she should not be permitted to repudiate the statements of her attorney made in open court on her behalf in her presence.

Katprint
Always only my own opinions