Some random legal thoughts on the JJ trial

[PlayerRep]

Actually, it is classic hearsay - An out of court statement given to prove the truth of the matter asserted. But it could be used as a prior inconsistent statement: "I'd do you anytime" vs "I said no." The problem is that you have to get the witness to "own" the previous statement or deny it, in which case it is offered not to prove the truth of the matter but the credibility of the witness.

This was not classic hearsay that would prevent the statement from being admitted. It wouldn't have been presented to prove the "truth of the matter" (what do you think that would be in this situation, by the way); it would have been presented to show state of mine, as well as that it was a statement she said at the time. The defense could have asked the accuser if she said it. If she denied it or said she said something a bit different, the witness could have testified as to what he heard her say.

 

[grizfromhel]

Where the person who hears an out-of court utterance can testify to his own knowledge about hearing the statement, and is available in court to be cross-examined about it, it is not hearsay. Hearsay is when someone is testifying in court about an utterance that he did not personally hear and he gained knowledge of it from a person who is not in court to testify for it or be cross-examined about it. You don't need to rely on one of the execeptions to the hearsay rule, of which there are many, to get in to evidence a statement from a witness who actually heard the statement.

Now there may be other reasons that the judge could deny the testimony, such as relevance, recency, or even its potential for prejudice----that is, the potential for the prejudicial effect of the utterance to substantially outweigh its probative value.

Am curious about the basis for the judge's ruling on the motion in limine.

 

[Geddes]

Since this thread is probably mostly legal beagles, maybe someone can enlighten me on an aspect of the case that has been bothering me since I first heard it mentioned six months ago, and that is the role of the private attorney who donated his time and effort to the prosecution. I am a former prosecutor and I just have never heard of the state using donated, "pro bono" counsel in a criminal prosecution. And I have to say, it rubs me the wrong way.

With all the other resources the state has to throw at the defendant and his family (who is financially supporting his legal defense), and then the state gets donated services??? Already in the case, the Missoula County Attorney brought in the big gun from the Attorney General's Office in Helena to take an active and direct role in the prosecution, and then they pile on with a private attorney.

Would the donated services qualify as "pro bono" under State Bar Association rules??? Just curious.

Wondering what other attorneys (or non-attorneys for that matter) think of this arrangement.

Perhaps the inspiration of this?

 

[tnt]

Key word is easily. There are several levels of administrative "courts" and hearings before tax court or federal appeals court. There isn't much protection till then. College students can appeal court too.

You're referring to the IRS Office of Appeals, I assume.

That is an administrative body that gives taxpayers the opportunity to resolve an adverse audit with the IRS without going to court. It's not mandatory, though; if a taxpayer doesn't want to go through that process, he can simply wait for the IRS to issue a 90-day-letter, and then file a petition with the Tax Court.

I do agree that it's not an "easy" process, but I don't think the administrative options make it any more complicated. Going to a U.S. District Court to litigate a tax case against the government isn't exactly "easy," either.

Lets us not forget the liens levys and penalties or the audit procedures. or even their ability of siezure. All of which can be done by administrative action. They can be appealed of course.

 

[Geddes]

Are you insinuating that one is guilty until proven innocent in the eyes of the IRS!?

 

[argh!]

About the time I was going to college there was a song by the John Mayall Blues Band called "The Laws Must Change" which was perceived as supreme philosophy and wisdom to the hemp and chemical addled brains of the day. Just about any self-respecting hippie who amounted to anything freely quoted the phrase ad nauseum.

I have never seen a case of people's lived so senselessly devastated by sheer mob hysteria as it has happened in this case. If there ever was a case of corrupt big brother needing to be overthrown, as the call was back then, it is now and for absolutely crazy cricumstances like this.

you putting down any other human being seems rather comical after your pathetic eric holder 'joke'

 

[br fan]

Where the person who hears an out-of court utterance can testify to his own knowledge about hearing the statement, and is available in court to be cross-examined about it, it is not hearsay. Hearsay is when someone is testifying in court about an utterance that he did not personally hear and he gained knowledge of it from a person who is not in court to testify for it or be cross-examined about it. You don't need to rely on one of the execeptions to the hearsay rule, of which there are many, to get in to evidence a statement from a witness who actually heard the statement.

Now there may be other reasons that the judge could deny the testimony, such as relevance, recency, or even its potential for prejudice----that is, the potential for the prejudicial effect of the utterance to substantially outweigh its probative value.

Am curious about the basis for the judge's ruling on the motion in limine.

I think the Judge determined it fell under the rape shield statute, where evidence of the accuser's sexual history prior to the incident is inadmissible; i.e. evidence from her past showing that the accuser is "loose" is not appropriate when determining her veracity as to the specific accusation of rape

 

[TxGriz]

About the time I was going to college there was a song by the John Mayall Blues Band called "The Laws Must Change" which was perceived as supreme philosophy and wisdom to the hemp and chemical addled brains of the day. Just about any self-respecting hippie who amounted to anything freely quoted the phrase ad nauseum.

I have never seen a case of people's lived so senselessly devastated by sheer mob hysteria as it has happened in this case. If there ever was a case of corrupt big brother needing to be overthrown, as the call was back then, it is now and for absolutely crazy cricumstances like this.

you putting down any other human being seems rather comical after your pathetic eric holder 'joke'

Suck me bitch.

 

[fencer24]

Are you insinuating that one is guilty until proven innocent in the eyes of the IRS!?

Actually, in Tax Court you don't have the protections you have in a criminal case, so yes, you are guilty until proven innocent.

 

[grizfromhel]

thanks for your comment br. I'm not greatly familiar with the rape shield statute and it makes sense to me that evidence of prior sexual conduct with other parties and at different times would be "shielded" by the statute; it doesn't make sense to me that a statement by the accuser to the defendant on the day before the alleged crime which tends to evidence the mental state of the accuser would come within the shield. It seems to me that that kind of statement would be highly relevant to the ultimate issue in the case, i.e. that of consent.

 

[br fan]

thanks for your comment br. I'm not greatly familiar with the rape shield statute and it makes sense to me that evidence of prior sexual conduct with other parties and at different times would be "shielded" by the statute; it doesn't make sense to me that a statement by the accuser to the defendant on the day before the alleged crime which tends to evidence the mental state of the accuser would come within the shield. It seems to me that that kind of statement would be highly relevant to the ultimate issue in the case, i.e. that of consent.

I tend to agree. It's my understanding that the exclusion of the statement as well as some texts by the accuser would have been appealed for the reasons you state had Johnson been found guilty

 

[UMGriz75]

thanks for your comment br. I'm not greatly familiar with the rape shield statute and it makes sense to me that evidence of prior sexual conduct with other parties and at different times would be "shielded" by the statute; it doesn't make sense to me that a statement by the accuser to the defendant on the day before the alleged crime which tends to evidence the mental state of the accuser would come within the shield. It seems to me that that kind of statement would be highly relevant to the ultimate issue in the case, i.e. that of consent.

I tend to agree. It's my understanding that the exclusion of the statement as well as some texts by the accuser would have been appealed for the reasons you state had Johnson been found guilty

The rule in Montana is quite frustrating; a statement out of court by a party or a victim, may have probative value and be admissible under the hearsay rule. However, District Court judges are allowed to make a determination that such probative value is "outweighed" by the prejudicial effect that such a statement may have on a jury, and therefore be inadmissible.

Sooooo, the more outrageous and incriminating the statement is for the accuser, and the more likely it would be to inflame the jury, the more likely the judge will be to bar any reference to the statement.

The threshhold standard is "does the probative value outweigh the prejudice?"

In this case, does the statement have any relevance to what actually happened?

The argument is that it was a generic statement, made in the alcohol-induced euphoria of arriving alone at the Forester's Ball to confront JJ and Kelly, and had nothing of probative value as to whether JJ raped or assaulted Jane Doe the next night since the behavior charged is JJ's, not the alcohol-fueled, enraged, charging Doe.

Had JJ said it, you betcha.

But he didn't, she did, and she isn't charged with anything.

The Court's ultimate decision is based, then, on the prejudicial effect that the statement would have on the jury's perception of the alcohol-fueled, enraged, charging Doe, and the fact that they might have actually seen her as an alcohol-fueled, enraged, charging Doe. Wellll, it would be VERY prejudicial under these standards, of course, and therefore anything that a judge thinks will distract the jury because of that prejudice is inadmissible. The fact is, she was not charged with being an alcohol-fueled, enraged, charging Doe and so there was no probative value and lots of prejudicial effect.

Fair?

Well, many feel that the jury is supposed to be the trier of fact -- that's the whole point of the jury system -- but that the judge in these instances gets to weigh the effect of certain facts on the court's perception of the jury's perception of the facts, and filter those facts in favor of certain outcomes.

It is, in essence, a finger -- some might say the equivalent of at least an entire Volkswagen -- placed on the scale of justice that judges in Montana are allowed to put there.

 

[grizfromhel]

appreciate your good comments UM 75 and you are clearly more conversant with the rape shield statute and the way that Montana courts have interpreted it than I am.

I guess the "problem" with the statement at the Forester's Ball by the accuser is that it is too probative. If the jury heard that statement the trial would essentially be over. Does that make it prejudicial ?? Have we tipped the scales of justice so far over to the accuser's side in a rape prosecution, via the rape shield statute, that the jury does not get to hear true and factual statements by the accuser that clearly bear on the ultimate issue in the case (consent)?? Seems so to me.

 

[Grisly Fan]

From my point of view, saying "I'd do you any time" does not give the target of the statement the right to rape the person who said it -- had a rape actually occurred in this case. It strongly suggests that any sex that occurred subsequently would be consensual which may indeed not be the case. I think the judge was right in not allowing it. Certainly after the trial knowing the prosecution couldn't really convince anyone, it serves to amplify the accused's innocence.

 

[mcg]

I guess I see that this case is all about consent and it seems reasonable to me that 'I'd do you any time' might have been interpreted by the defendant as consent.

 

[UMGriz75]

I guess I see that this case is all about consent and it seems reasonable to me that 'I'd do you any time' might have been interpreted by the defendant as consent.

Jane Doe's remarks were clearly part of the res gestae (Latin "things done") which is part of the overall "act" and is an exception to the hearsay rule for statements made spontaneously or as part of an act.

"Under the Federal Rules of Evidence, res gestae may also be used to demonstrate that certain character evidence, otherwise excludable under the provisions of Rule 404, is permissible, as the events in question are part of the "ongoing narrative," or sequence of events that are necessary to define the action at hand."

This runs headlong into the aggregating presumption of American law that alleged victims of rape constitute a special political and legal class, with special rules of evidence pertaining to their claims. The net result, as we already see in case after case, is to make false accusations more likely to occur, and more likely to produce erroneous convictions.

This has resulted in the conviction rate errors (convictions of demonstrably innocent men) as high as 15%, which is an unconscionable error rate in a criminal justice system and far higher than for any other class of crime.

http://davisvanguard.com/index.php?option=com_content&view=article&id=5464:new-study-places-wrongful-conviction-rate-at-5-for-murders-higher-for-sexual-assault&catid=74:court-watch&Itemid=100" onclick="window.open(this.href);return false;

And since that study the rules "protecting" accusers have increased immeasurably compared to the ordinary rules of evidence applicable to other accusers in other crimes. In essence, we now have a separate set of rules of criminal procedure for rape and sexual assault trials, designed to assist in achieving convictions.

A more recent study, by the Department of Justice, shows that "every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI where results could be obtained, the primary suspect has been excluded by forensic DNA testing. Specifically, FBI officials report that out of roughly 10,000 sexual assault cases since 1989, about 2,000 tests have been inconclusive, about 2,000 tests have excluded the primary suspect, and about 6,000 have "matched" or included the primary suspect."

At the time of the study the percentages had remained constant for 7 years, and "the National Institute of Justice's informal survey of private laboratories reveals a strikingly similar 26 percent exclusion rate."

If the foregoing results can be extrapolated, then the rate of false reports is roughly between 20 (if DNA excludes an accused) to 40 percent (if inconclusive DNA is added). https://www.ncjrs.gov/txtfiles/dnaevid.txt" onclick="window.open(this.href);return false;

Those results are simply extraordinary and show an extraordinarily high rate of false reporting by alleged victims, although other surveys show false reports at "only" 8-10% based on methodologies other than scientific evidence. Based on the number of reported rapes in recent years, even the lower level of reported false rapes means that 20,000 reported rapes per year never happened.

Since statistics also show that most alleged victims know their perpetrator, the scientific evidence is compelling since the false allegation is unlikely to have resulted from the claim that "it was dark, I couldn't really see his face." Rather, in most cases of false reporting a specific woman chose to fabricate a specific lie -- the worst kind -- about a specific man.

There is no other crime in which false reports constitute such a high percentage of claims made, and no other crime in which the rules of criminal procedure specifically encourage the likelihood of false reports.

What is more remarkable is that there is no other class of crimes in which alleged victims are so willing to lie under oath, even anxious to lie under oath, and that the class of alleged victims that have been found willing to specifically lie under oath in a legal proceeding is entirely gender specific.

The average time in prison served for those later exonerated by scientific evidence and found "innocent" of the crime charged has been seven years. If rape is a horrible crime, and it is, what can the false accusation of rape be?

No protests of self-righteous indignation have ever been seen on the Higgins Avenue Bridge about that ongoing and complete miscarriage of justice by those who pretend they care about miscarriages of justice.

And they are obviously "just pretending." This was about, to them, a football player and an iconic representation of what they hate; Duke LaCrosse boys right here in Mizzoo, someone for whom that iconic symbolism is much important than truth or justice; a symbolism necessary to destroy and by any means. If it takes a lie, so be it. That tarnishes and degrades real victims, while creating a whole new class of other victims: guilty while playing football.

Here, despite the order of limine regarding key statements by Jane Doe, the State's case simply imploded on itself, in virtually every witness, where it was shown in the words of the State's own witnesses that Jane Doe was a willing liar, did so repeatedly across the board, manipulated those closest to her and in particular those designed to assist with a prosecution of rape, and her own contrasting behaviors -- smiley faces and gleeful text messages about the whole situation when her guard was down, contrasting with supremely overacted simulations of depression and trauma on display before notably key players, and all of that combined with testimony about her threats to key witnesses if they "did not get on board" -- simply left the Jury with no choice.

This was not a close case. This was not a case about insufficiency of evidence to convict. This was a case about a false claim.

 

[Geddes]

Are you insinuating that one is guilty until proven innocent in the eyes of the IRS!?

Actually, in Tax Court you don't have the protections you have in a criminal case, so yes, you are guilty until proven innocent.

Yes, I know. Was just being an asshole..

 

[montanaguy]

I guess I see that this case is all about consent and it seems reasonable to me that 'I'd do you any time' might have been interpreted by the defendant as consent.

Jane Doe's remarks were clearly part of the res gestae (Latin "things done") which is part of the overall "act" and is an exception to the hearsay rule for statements made spontaneously or as part of an act.

"Under the Federal Rules of Evidence, res gestae may also be used to demonstrate that certain character evidence, otherwise excludable under the provisions of Rule 404, is permissible, as the events in question are part of the "ongoing narrative," or sequence of events that are necessary to define the action at hand."

This runs headlong into the aggregating presumption of American law that alleged victims of rape constitute a special political and legal class, with special rules of evidence pertaining to their claims. The net result, as we already see in case after case, is to make false accusations more likely to occur, and more likely to produce erroneous convictions.

This has resulted in the conviction rate errors (convictions of demonstrably innocent men) as high as 15%, which is an unconscionable error rate in a criminal justice system and far higher than for any other class of crime.

http://davisvanguard.com/index.php?option=com_content&view=article&id=5464:new-study-places-wrongful-conviction-rate-at-5-for-murders-higher-for-sexual-assault&catid=74:court-watch&Itemid=100" onclick="window.open(this.href);return false;

And since that study the rules "protecting" accusers have increased immeasurably compared to the ordinary rules of evidence applicable to other accusers in other crimes. In essence, we now have a separate set of rules of criminal procedure for rape and sexual assault trials, designed to assist in achieving convictions.

A more recent study, by the Department of Justice, shows that "every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI where results could be obtained, the primary suspect has been excluded by forensic DNA testing. Specifically, FBI officials report that out of roughly 10,000 sexual assault cases since 1989, about 2,000 tests have been inconclusive, about 2,000 tests have excluded the primary suspect, and about 6,000 have "matched" or included the primary suspect."

At the time of the study the percentages had remained constant for 7 years, and "the National Institute of Justice's informal survey of private laboratories reveals a strikingly similar 26 percent exclusion rate."

If the foregoing results can be extrapolated, then the rate of false reports is roughly between 20 (if DNA excludes an accused) to 40 percent (if inconclusive DNA is added). https://www.ncjrs.gov/txtfiles/dnaevid.txt" onclick="window.open(this.href);return false;

Those results are simply extraordinary and show an extraordinarily high rate of false reporting by alleged victims, although other surveys show false reports at only 8-10% based on methodologies other than scientific evidence. Based on the number of reported rapes in recent years, even the lower level of reported false rapes means that 20,000 reported rapes per year never happened.

Since statistics also show that most alleged victims know their perpetrator, the scientific evidence is compelling since the false allegation is unlikely to have resulted from the claim that "it was dark, I couldn't really see his face." Rather, in most cases of false reporting a specific woman chose to fabricate a specific lie -- the worst kind -- about a specific man.

There is no other crime in which false reports constitute such a high percentage of claims made, and no other crime in which the rules of criminal procedure specifically encourage the likelihood of false reports.

What is more remarkable is that there is no other class of crimes in which alleged victims are so willing to lie under oath, even anxious to lie under oath, and that the class of alleged victims that have been found willing to specifically lie under oath in a legal proceeding is entirely gender specific.

The average time in prison served for those later exonerated by scientific evidence and found "innocent" of the crime charged has been seven years. If rape is a horrible crime, and it is, what can the false accusation of rape be?

No protests of self-righteous indignation have ever been seen on the Higgins Avenue Bridge about that ongoing and complete miscarriage of justice by those who pretend they care about miscarriages of justice.

Here, despite the order of limine regarding key statements by Jane Doe, the State's case simply imploded on itself, in virtually every witness, where it was shown in the words of the State's own witnesses that Jane Doe was a willing liar, did so repeatedly across the board, manipulated those closest to her and in particular those designed to assist with a prosecution of rape, and her own contrasting behaviors -- smiley faces and gleeful text messages about the whole situation when her guard was down, contrasting with supremely overacted simulations of depression and trauma on display before notably key players, and all of that combined with testimony about her threats to key witnesses if they "did not get on board" -- simply left the Jury with no choice.

This was not a close case. This was not a case about insufficiency of evidence to convict. This was a case about a false claim.

Stunning and alarming summation of the issue

 

[Sportin' Life]

This runs headlong into the aggregating presumption of American law that alleged victims of rape constitute a special political and legal class, with special rules of evidence pertaining to their claims. The net result, as we already see in case after case, is to make false accusations more likely to occur, and more likely to produce erroneous convictions.

This has resulted in the conviction rate errors (convictions of demonstrably innocent men) as high as 15%, which is an unconscionable error rate in a criminal justice system and far higher than for any other class of crime.

http://davisvanguard.com/index.php?option=com_content&view=article&id=5464:new-study-places-wrongful-conviction-rate-at-5-for-murders-higher-for-sexual-assault&catid=74:court-watch&Itemid=100" onclick="window.open(this.href);return false;

And since that study the rules "protecting" accusers have increased immeasurably compared to the ordinary rules of evidence applicable to other accusers in other crimes. In essence, we now have a separate set of rules of criminal procedure for rape and sexual assault trials, designed to assist in achieving convictions.

Of course you fail to point out that the study you are quoting is of rape cases in Virginia between 1974 and 1987, and Virginia passed their 'rape shield' law in 1981, so your inference is complete bunk. I say that you failed to point that out, because you seem to be fairly clever and that fact surely crossed your mind but you decided to make your point anyways. But you know what people want to hear, and so you'll get some

Of course that study also had nothing to do with the JJ trial because in its nature the study says that DNA evidence exonerates the accused. But that is not the type of case that Johnson was involved in. There was no denial that sex took place, where those types of denials are seem to be cases of mistaken identity. That wasn't the type of situation of the Johnson trial. But again, being disingenuous is not something that you are too worried about.

This was a case about a false claim.

Of course this statement is no more provable in a court of law than the statement "Jordan Johnson is a rapist".

 

[UMGriz75]

Of course you fail to point out that the study you are quoting is of rape cases in Virginia between 1974 and 1987, and Virginia passed their 'rape shield' law in 1981, so your inference is complete bunk. I say that you failed to point that out, because you seem to be fairly clever and that fact surely crossed your mind but you decided to make your point anyways. But you know what people want to hear, and so you'll get some

Of course, in your typical clever style you neglected to point out:

1) I posted the link.

Pretty "clever" of me to hide the study like that, no?

2) I also specifically said "And since that study the rules "protecting" accusers have increased immeasurably ..." Gee ya think that "fails" to note that the "rape shield law" was passed? Really, do you think people are that dumb? By pointing out specifically that the law changed since the study? Are you that dense? Or did you just decide "to make your point anyway?" But what the heck, let's examine your logic: do you think the rate of false convictions fell after the rape shield laws gave more protections to those making false claims? Really? That is a marvelous piece of logic there!

3) Then, after that, I also specifically stated "A more recent study, by the Department of Justice, shows that "every year since 1989 ..." which brings the studies up to a more modern time frame.

Don't you suspect that objective readers will see you as trying to read too much into something thereby, in fact, intentionally misreading it or intentionally misrepresenting it yourself?

It's pretty clear on the face of the post.

You fabricated an argument that is facially false. It reinforces the findings of these studies that people feel a need to lie about rape; both in fabricated claims of rape, the high gender specificity of the people willing to lie under oath about rape, and fabricated arguments about the statistics that, if they can lie about those too, the unpleasant facts will somehow, "go away."