Paoli's train defense

[Fortpeckgriz]

Not sure, but my guess is that Dave Paoli will argue JJ is being railroaded. When I originally heard he was holding up a train picture, I didn't like it. When I found out he was using it to put his voir dire notes on it, I thought it was pretty clever. Things like that won't win trials, but if you can come up with a way to convey your theme early and often, it helps with communication. If the jury knows your theory, you can still lose, but it is hard to win if the jurors DON'T know it.

As to the complainant's texts, I don't do criminal work, but it seems to me that they would not be hearsay, at least if the complainant testifies. They can be used to impeach her under Rule 801(d)(1), unless there is some criminal law or rape shield exception. FortPeckGriz?

Another person familiar with the law!?! I feel like I can let my inner nerd shine through. Yes, these texts could be used to impeach her (cast doubt on the veracity of her statement) when she is on the stand. I'm pretty sure extrinsic evidence is allowed for impeachment in this situation. I would think that they have to put her on the stand to prove her case, then again, I do not know the inner details. What I was referring to earlier in this thread is if they called one of her friends first to testify as to what the declarant said. If/after the claimant testifies I think they can get most of this in to impeach, except of course, not for character or reputation evidence.

I think you hit the nail on the head about the train. I may have read the paper wrong, but did Paoli even mention the train? I thought only the opposing counsel mentioned it to the paper? And he wondered aloud what it meant? If so, brilliant move by making the opposing counsel make your point for you.

Cats2506,

That really depends, the state would have the option of retrying the case in the event of a hung jury. Double Jeopardy will not attach because a judgment was not reached on the merits. They could very well charge him again like what happened to Jimmy Wilson. The state could also drop the charges against him, so no felony would be attached to him. It is a fine line of the prosecutor doing his job, doing nothing, and malicious prosecution. You can bring a malicious prosecution action against the prosecutor but it is rare, hard to prove, and there must be no probable cause for the first trial. Think the Duke Lacrosse case.

 

[granitegriz]

If it is a hung jury with 7 or more voting for acquittal then the county attorney would not likely re-prosecute, but he hasn't shown much sense yet. These numbers would show that JJ should be allowed to play. I still think JJ will have to bring a lawsuit against UM to get reinstated if there is a hung jury and no retry. An outright acquittal means JJ is back on the team IMHO. All speculation though but you have to assume the worst against this university president.

 

[bigskylaw]

FortPeckGriz, I don't think the prosecution can prove their case without putting the witness on the stand. In that event, I think all her prior statements, oral or written, are fair game. (Again, unless there is some rape shield exception I do not know about: no criminal work here).

If there is a hung jury, that's a mistrial. I think speedy trial concerns would require the prosecution to decide fairly quickly if they are going to re-try him. I don't think they can just leave it hanging forever. I would hope that, if they decide not to retry him, they would dismiss the charges out of simple decency.

My prediction is that Paoli will use a 'railroaded' argument. Someone who is familiar with the criminal defense 'scene' in Missoula says that there is almost no way they can convict this gentleman beyond a reasonable doubt given the complainant's many, varied, and ambiguous statements. Nevertheless, the local County Attorney's office is under great pressure to prosecute due to the DoE and DoJ investigations/pressure.

 

[grizpack]

Sounds like the accuser is the first witness called by the prosecution.

 

[granitegriz]

Good analysis BigSky...

 

[MissoulaMarinerFan]

Wait, wait, "go4two" is all upset because "tnt" is posting on Egriz...when go4two is doing the exact same thing? Gee whiz. Smh.

Uh...go4two has been a member since 2003. tnt seemingly joined right after the JJ stuff came to light.

So?...your point is? The way I was reading it was that go4two was all bent outta shape because "tnt" is "posting stuff" about being at the trial, when he's doing the exact same thing. I could be wrong though...and stuff like this, I usually am. :mrgreen:

My bad...I thought go4two was saying that tnt joined just to talk about the trial and you were saying that go4two did the same thing. My apologies.

I see what you meant. Totally makes sense. Hooray communication!

 

[msuhunter]

As to the complainant's texts, I don't do criminal work, but it seems to me that they would not be hearsay, at least if the complainant testifies. They can be used to impeach her under Rule 801(d)(1), unless there is some criminal law or rape shield exception. FortPeckGriz?

They're hearsay regardless if she testifies or not. Out of court statements for the the truth of the matter asserted. Would have to come in through some exception.

 

[spider]

As to the complainant's texts, I don't do criminal work, but it seems to me that they would not be hearsay, at least if the complainant testifies. They can be used to impeach her under Rule 801(d)(1), unless there is some criminal law or rape shield exception. FortPeckGriz?

They're hearsay regardless if she testifies or not. Out of court statements for the the truth of the matter asserted. Would have to come in through some exception.

No, pursuant to Rule 801 (prior statements of a witness or, maybe, admission by party opponent), they're probably not hearsay. If they're not hearsay = no exception needed.

 

[msuhunter]

As to the complainant's texts, I don't do criminal work, but it seems to me that they would not be hearsay, at least if the complainant testifies. They can be used to impeach her under Rule 801(d)(1), unless there is some criminal law or rape shield exception. FortPeckGriz?

They're hearsay regardless if she testifies or not. Out of court statements for the the truth of the matter asserted. Would have to come in through some exception.

No, pursuant to Rule 801 (prior statements of a witness or, maybe, admission by party opponent), they're probably not hearsay. If they're not hearsay = no exception needed.

Put your helmet back on and go sit at the retard table so you don't hurt yourself. She wasn't cross-examed on her texts so prior statements of a witness doesn't apply. And she's not a party opponent. The party opponent is the State. Holy hell you're dumb

 

[Ursa Major]

As to the complainant's texts, I don't do criminal work, but it seems to me that they would not be hearsay, at least if the complainant testifies. They can be used to impeach her under Rule 801(d)(1), unless there is some criminal law or rape shield exception. FortPeckGriz?

They're hearsay regardless if she testifies or not. Out of court statements for the the truth of the matter asserted. Would have to come in through some exception.

No, pursuant to Rule 801 (prior statements of a witness or, maybe, admission by party opponent), they're probably not hearsay. If they're not hearsay = no exception needed.

Put your helmet back on and go sit at the retard table so you don't hurt yourself. She wasn't cross-examed on her texts so prior statements of a witness doesn't apply. And she's not a party opponent. The party opponent is the State. Holy hell you're dumb

Right or wrong, you're a fucking asshole!

 

[firmgriz]

Dave's co-counsel mentioned at the end of her opening statement that JJs life had been hit by a train a year ago and hasn't been the same sense. I suspect the train/railroad theme will be revisited. It now has everyone thinking and talking about it, and when it reappears people (jury included) will make special mental note. Very nice strategy by Dave.

 

[bigskylaw]

They're hearsay regardless if she testifies or not. Out of court statements for the the truth of the matter asserted. Would have to come in through some exception.

Actually, that's not true. Look at the Rule:

(d) Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of subsequent fabrication, improper influence or motive, or (C) one of identification of a person made after perceiving the person; or
(2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of that relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

So, she could be examined regarding her texts while cross-examined (which is why I said "at least if the complainant testifies.") and they wouldn't be hearsay. I hope there's room at the "retard table!"

 

[msuhunter]

They're hearsay regardless if she testifies or not. Out of court statements for the the truth of the matter asserted. Would have to come in through some exception.

Actually, that's not true. Look at the Rule:

(d) Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of subsequent fabrication, improper influence or motive, or (C) one of identification of a person made after perceiving the person; or
(2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of that relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

So, she could be examined regarding her texts while cross-examined (which is why I said "at least if the complainant testifies.") and they wouldn't be hearsay. I hope there's room at the "retard table!"

You might want to actually quote the whole rule:
801(d)(1)(A): A statement that meets the following conditions is not hearsay: The declarant [the victim] testifies and is subject to cross-examination about a prior statement, and the statement is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.

... wow ... ... better get off the LegalZoom pal ... :shock:

 

[msuhunter]

They're hearsay regardless if she testifies or not. Out of court statements for the the truth of the matter asserted. Would have to come in through some exception.

Actually, that's not true. Look at the Rule:

(d) Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of subsequent fabrication, improper influence or motive, or (C) one of identification of a person made after perceiving the person; or
(2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of that relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

So, she could be examined regarding her texts while cross-examined (which is why I said "at least if the complainant testifies.") and they wouldn't be hearsay. I hope there's room at the "retard table!"

My apologies dude. I just checked the MT rule of evidence and the don't have the bolded part of my last post. That's very interesting and quite different than the FRE. My bad ...

I'm sure that little tidbit will make for some more interesting cases in MT than in federal court :lol:

 

[bigskylaw]

Yup. They're in state district court.

 

[granitegriz]

Attorney msuhunter...now that would bring in the clients. Imagine him defending every DUI in Bozeman? :shock: He would be citing the civil rules of procedure in JJ's rape case.

 

[spider]

... wow ... ... better get off the LegalZoom pal ... :shock:

He did cite the whole rule. You cited the federal rule, which is different than the Montana rule.

See State v. Meier, 1999 MT 51, P 28, 293 Mont. 403, 977 P.2d 298, for proof that prior inconsistent statements can be used as substantive evidence and are NOT hearsay. If her texts are at all inconsistent with her trial testimony, the texts are probably admissible as substantive evidence.

I respectfully disagree with you and will not call you a "retard".

 

[msuhunter]

... wow ... ... better get off the LegalZoom pal ... :shock:

He did cite the whole rule. You cited the federal rule, which is different than the Montana rule.

See State v. Meier, 1999 MT 51, P 28, 293 Mont. 403, 977 P.2d 298, for proof that prior inconsistent statements can be used as substantive evidence and are NOT hearsay. If her texts are at all inconsistent with her trial testimony, the texts are probably admissible as substantive evidence.

I respectfully disagree with you and will not call you a "retard".

Clearly should've after that one :thumb:

 

[msuhunter]

Attorney msuhunter...now that would bring in the clients. Imagine him defending every DUI in Bozeman? :shock: He would be citing the civil rules of procedure in JJ's rape case.

Nah, defending DUIs in Bozeman isn't a good way to make a living.

It seems like defending rape cases of UM football players in Missoula is a much more lucrative enterprise ...

 

[mtgrizrule]

I am 100% sure his train picture was how many egriz threads about this case will become train wrecks?