Procedure and legal questions

[Searchfortruth]

I am a bit worried about Orange County's policy of destroying "bench notes", even if their content has been transferred to the computer. Does anyone think this might be a problem ? I am trying to find information on bench notes, but have not found anything that answers my question yet.

 

[MADJGNLAW]

When Casey Anthony's trial starts Oct. 12th, her family will be legally required to be ready to take the stand against her.
My question is can they take the 5th? It seems that is what people do when they don't want to tell the truth most of the time.
And if they do take the 5th what happens then?
Is there anyway the SA can make them take the stand?
Please and Thank You..

 

[Marina2]

When Casey Anthony's trial starts Oct. 12th, her family will be legally required to be ready to take the stand against her.
My question is can they take the 5th? It seems that is what people do when they don't want to tell the truth most of the time.
And if they do take the 5th what happens then?
Is there anyway the SA can make them take the stand?
Please and Thank You..

They can only invoke their fifth amendment rights to avoid self incrimination. That is, if their testimony will implicate themselves in a crime, they can plead the fifth. They can't take the fifth just to keep from testifying against KC. They can tell the truth or they can lie, that's all.

 

[Searchfortruth]

After searching for an answer to the "bench note" question, the only thing I have been able to find is related to Rule 16, Federal Rules of Criminal Procedure, and it is concerned mostly w/ bench notes being discoverable...obviously this article is written from the defense point of view.

Rule 16 of the Federal Rules of Criminal Procedure makes all "results and reports" of scientific tests discoverable to the defense. But who says such a report has to be written? Even if a scientific test is performed, even if dozens of scientific tests are performed, no written report is obligatory. And oral reports are not discoverable. That is a loophole the FBI and other crime labs have proved adept at exploiting.


Rule 16 says nothing about the bench notes, the findings, calculations, or records made during testing. There is no mention of the graphs or printouts that basic forensic tools like chromatographs or spectrographs produce. Court after court has ruled that these are not discoverable, despite the fact that it is these, rather than the reports, which are often deliberately perfunctory and conclusory, that allow other experts to assess and check the scientific work carried out. "The crime lab controls everything -- results, tests, samples," says Professor Thompson. "As a defense attorney you’re lucky to get a two-page lab report saying it’s your guy, he’s guilty, thank you very much."

http://www.campusactivism.org/phpBB3/viewtopic.php?f=29&t=1028&start=90&st=0&sk=t&sd=a

 

[TURBOTHINK]

don't know about mucinex but sudafed is a stimulant...she may have been taking it to keep herself awake or a buzz....that is common now....

Sudafed is used in making meth also.

 

[butwhatif?]

Why are jail visits and phone calls recorded and released, and letters are not? Could they legally use a letter written by or to KC as evidence at trial?
TIA

 

[amethyst221]

I don't know if bench notes, or investigator handwritten notes, are required to be kept under any general "industry" standard. It seems that the local standard is the procedure described by the CSI guy who testified. So long as he always follows the same procedure of note destroying and didn't do it only in this case, that's all good. The defense will try to make it look bad no matter what, so I guess the state should just be prepared.

 

[ThoughtElf]

I don't know if bench notes, or investigator handwritten notes, are required to be kept under any general "industry" standard. It seems that the local standard is the procedure described by the CSI guy who testified. So long as he always follows the same procedure of note destroying and didn't do it only in this case, that's all good. The defense will try to make it look bad no matter what, so I guess the state should just be prepared.

I think that was the direction LKB was heading in when she asked for the notes from the computer analyst. She mentioned a standard and we were thinking she will be looking close at those bench notes based on some 'industry standard."

There was a good discussion about all of this on this thread: http://www.websleuths.com/forums/showthread.php?p=3447925#post3447925

(If you start at page 27 and work to the end much about bench notes and possible defense strategies is discussed.)

 

[JSR]

No, Judge Strickland would be replaced by a trial judge where the trial was moved.

Nope, actually the presiding judge, his court clerk, law clerk, and court reporter all move with the case to the new jurisdiction.

 

[JSR]

Why are jail visits and phone calls recorded and released, and letters are not? Could they legally use a letter written by or to KC as evidence at trial?
TIA

Yes, any correspondence written (if LE gets their hands on it) by Casey could (if admitted as evidence) be used against her. The only cavenet is that she seems to be communicating with her family via her atty. Which isn't collected or reviewed.

Any letters collected by LE as possible evidence would be made public after being given to JB in the discovery process. It should be interesting to see if any correspondence from Casey was collected by LE from the Anthony home. Although I tend to think Mallory would have destroyed it before letting LE in to secure the house before the Search Warrant could be executed. But then again I didn't see that LE was allowed to collect any correspondence based on the Search Warrant.

 

[MiraclesHappen]

Nope, actually the presiding judge, his court clerk, law clerk, and court reporter all move with the case to the new jurisdiction.

Unless it is agreed somebody new will hear it....mutually agreed:wink:

Humble-Opinion:wolf:

 

[MiraclesHappen]

When Casey Anthony's trial starts Oct. 12th, her family will be legally required to be ready to take the stand against her.
My question is can they take the 5th? It seems that is what people do when they don't want to tell the truth most of the time.
And if they do take the 5th what happens then?
Is there anyway the SA can make them take the stand?
Please and Thank You..

Yes there is a way!

Actually, the invoking of the 5th is not treated that casually at trial. If it were readily available to avoid testifying or to avoid telling the truth, hardly anyone would be testifying. Not that people have ever lied under oath in Court.
Anyway, yes they can attempt to take the 5th, for being subpoenaed as a witness, or getting on the stand, does not trump the Constitutional Rights of the individual.

However, because nothing can ever be simple in the law:gavel:
Florida has a Statute (914.04) which specifically addresses the situation in this great question.


Once they invoke the 5th, on the grounds that whatever they say will incriminate them, the State can counter that with the granting of limited immunity.
At that time, the witness who is trying to use the 5th Amendment Privilege to avoid testifying can be granted immunity and then ORDERED to testify without regard to whether it is going to incriminate the witness or not, as the witness will not be charged with any crimes using that specific answer or answers.
Caveat:
This immunity, if granted, so that the question is asked again & answered by the witness, does not shield the witness who has been granted immunity regarding the testimony, from perjury charges, if that testimony is found to be false at a later date.

They can only invoke their fifth amendment rights to avoid self incrimination. That is, if their testimony will implicate themselves in a crime, they can plead the fifth. They can't take the fifth just to keep from testifying against KC. They can tell the truth or they can lie, that's all.

Yes , You are right But the Florida laws give the State a way to "Uninvoke the 5th Amendment" so to speak. Puts some folks in a bad situation.:boohoo:

Hunble-Opinion:wolf2:

Title XLVII
CRIMINAL PROCEDURE AND CORRECTIONS Chapter 914
WITNESSES; CRIMINAL PROCEEDINGS View Entire Chapter

914.04 Witnesses; person not excused from testifying or producing evidence in certain prosecutions on ground testimony might incriminate him or her; use of testimony given or evidence produced.--No person who has been duly served with a subpoena or subpoena duces tecum shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of the person may tend to convict him or her of a crime or to subject him or her to a penalty or forfeiture, but no testimony so given or evidence so produced shall be received against the person upon any criminal investigation or proceeding. Such testimony or evidence, however, may be received against the person upon any criminal investigation or proceeding for perjury committed while giving such testimony or producing such evidence or for any perjury subsequently committed.

 

[MiraclesHappen]

Miracles, do you have a feel for how long this trial will take? The longest criminal trial I covered was about two or three weeks but I know in some states they can drag out high profile trials for months.

Ya know, it's anybody's guess really. :crystal ball:

Just the Voire Dire alone will go on & on & on......the security will be an issue, the media, all of it. It's not just the amazing amount of evidence & witnesses.

If this really works,-----------> :crystal ball:

I'll amend my answer.:blowkiss:

Humble-Opinion:wolf:

 

[ThoughtElf]

Ya know, it's anybody's guess really. :crystal ball:

Just the Voire Dire alone will go on & on & on......the security will be an issue, the media, all of it. It's not just the amazing amount of evidence & witnesses.

If this really works,-----------> :crystal ball:

I'll amend my answer.:blowkiss:

Humble-Opinion:wolf:

TY for all of the helpful answers and posting the applicable laws, then explaining then for us.

(Crystal ball? All this time I though you used a Ouija board. Who Knew?) :square:

 

[MiraclesHappen]

TY for all of the helpful answers and posting the applicable laws, then explaining then for us.

(Crystal ball? All this time I though you used a Ouija board. Who Knew?) :square:

Glad to help. :blowkiss:

I thought the Sparkly Ball was prettier.:Banane35:

Either one works though. :wink:

 

[Manny]

If they are witnesses and say something totally different to wht they said in taped intrview, their credibility can be called into account in the form of perjury. If the witness lies about material evidence, the jury is free to ignore anything they say - which could make Cindy's testimony useless for the defense. People forget things, but whene they say something totally opposite of their original official statements, that's considered perjury IF they are called on it. Anyathing they say in any TV interview can also be used against them. The lies that Scott Peterson told to the media helped convict him.

I think they have to be under oath if they are going to be charged with perjury. When they are on the stand or they are in front of a Grand Jury panel they are under oath. I think I recall them swearing in Cindy after they took her statement and so whatever she said at that time should have been the truth. I remember her being shocked that she had to swear to what she had just said. Surprise, surprise.

 

[MiraclesHappen]

http://www.leg.state.fl.us/Statutes...TM&Title=->2008->Ch0090->Section 952#0090.952

I've got another one that might sound dumb....but who cares, right?


Are the documents that have been released, copies of the actual originals? Is what we are seeing the same as what the jury will see at trial?

That is a really good question!
Each State has its own version of the "Best Evidence Rule" created by statutes & case law.

Traditionally, the defense gets copies; The Jury will see the real thing. If it isn't "the real thing" then you need some sort of foundation based in law, to get it in.
That is standard procedure to maintain authenticity or to prevent alterations as well as accusations of impropriety.

Usually, the State does not have to hand over the actual :rubberducky: but can copy it, so as to preserve all their :rubberducky:s in a row, for the trial.

Florida's Evidence Code, Contained in Chapter 90 of its laws includes this:

90.952 Requirement of originals.--Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph.

As well as this:



(3) An "original" of a writing or recording means the writing or recording itself, or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print made from it. If data are stored in a computer or similar device, any printout or other output readable by sight and shown to reflect the data accurately is an "original."

There are so many statutory variances, it's best to look up things for any particular item of evidence.
If the side offering it has concerns about its admissibility, they should be prepared to argue for admission. This area has become further complicated by progress aka technology.

Humble-Opinion:wolf2:
This is an older question but it seems it was waiting for an answer and yes, we care:wink:

 

[gardenhart]

Ya know, it's anybody's guess really. :crystal ball:

Just the Voire Dire alone will go on & on & on......the security will be an issue, the media, all of it. It's not just the amazing amount of evidence & witnesses.

If this really works,-----------> :crystal ball:

I'll amend my answer.:blowkiss:

Humble-Opinion:wolf:

Thanks, Miracles. I'm sure voire dire will consume a lot of time. I'm sure too the prosecution case will take a long time because they have a lot of chain of custody to establish on a lot of evidence, a lot of experts to call and who knows what we don't know about yet. Defense I'm assuming will also have a slew of experts. And I think we can safely assume JB will set a new world record on objections.

If courthouse security is efficient, that shouldn't add a lot of time, but I've found that can vary widely from jurisdiction to jurisdiction. As far as media goes, in all the big cases I covered there was a certain amount of space set aside for media and if you didn't get there plenty early to get a seat or get cameras set up you were stuck out in the hallway for the day, so hopefully that won't add a lot of time. You'll just have a lot of sleepy reporters working long hours on not much sleep.

I have gotten the impression from appearances on NG that some of the local media aren't actually physically covering the hearings but are watching them live on TV. That should cut down a little bit on the media mob. Of course all the majors will have people inside, people outside, etc.

 

[sarah7855]

Thanks, Miracles. I'm sure voire dire will consume a lot of time. I'm sure too the prosecution case will take a long time because they have a lot of chain of custody to establish on a lot of evidence, a lot of experts to call and who knows what we don't know about yet. Defense I'm assuming will also have a slew of experts. And I think we can safely assume JB will set a new world record on objections.

Respecfully snipped and bolded by me. Unless the defense amends their witness list, which is of course entirely possible, they won't have a slew of experts. Their list is surprisingly short. Of course, this is not to say that the defense cannot do its job with these experts, but compared to the Prosecution's vast number of experts and witnesses, the defense's list does seem short.

Larry E. Daniel
Dr. Larry Kobilinsky
Dr. Henry Lee
Dr. Kathy Reichs
Dr. Werner Spitz
Dr. Timothy Huntington
Dr. Scott Fairgrieve

info taken from this site:
http://www.cayleemarieanthony.net/witness_list_for_the_defense.html

 

[gardenhart]

Respecfully snipped and bolded by me. Unless the defense amends their witness list, which is of course entirely possible, they won't have a slew of experts. Their list is surprisingly short. Of course, this is not to say that the defense cannot do its job with these experts, but compared to the Prosecution's vast number of experts and witnesses, the defense's list does seem short.

Larry E. Daniel
Dr. Larry Kobilinsky
Dr. Henry Lee
Dr. Kathy Reichs
Dr. Werner Spitz
Dr. Timothy Huntington
Dr. Scott Fairgrieve

info taken from this site:
http://www.cayleemarieanthony.net/witness_list_for_the_defense.html

I don't consider seven to be a small number of expert witnesses. I've covered capital trials where the defense only had one or two. But we certainly don't know now what their final witness list will look like anyway.