Legal issues for investigators

1. Legal issues for investigators \Video projects\Michael Jackson\Evidence\Prior bad acts.wmv...\Michael Jackson\Mom welfare cheat.wmv...\Juan Alvarez\Train wreck.wmv

2. “Reasonable Suspicion” Investigative stop Probable Cause Preponderance of the evidence Arrest, search, complaint Civil judgment Clear and convincing evidence Beyond a Reasonable doubt (PC 1096) Civil commitment Criminal conviction Nothing Guess, hunch Continuum of Proof

3. Crime/public offense (Calif. P.C. §15-19) • “An act committed or omitted in violation of a law forbidding or commanding it” • Carries punishment of death, imprisonment, fine, removal or disqualification from public office • Types of crimes: • Felony: Punishable by imprisonment in State Prison (normally not less than 1 year) • Misdemeanor: All lesser punishments • Infraction: Not punishable by imprisonment

4. Elements of a crime • Each component of an offense that must be proven beyond a reasonable doubt • Examples • Burglary (P.C. 459) • Robbery (P.C. 211)

5. Types of evidence • Direct(‘Lectric Law) • Proves a fact without inferences or presumptions • Often eyewitness testimony – what a witness personally heard or saw • Circumstantial • Inferences drawn from established facts • Opinion evidence • Usually only from expert witnesses

6. Hearsay • Facts or circumstances outside the personal knowledge of a witness, offered to prove the matter stated • Deprives a defendant of the right to confront their accuser • Inadmissible at trial with many exceptions: • Confessions, statements against interest • Official and business records

7. Admissibility of prior bad acts -Sex crimes anddomestic violence • Evidence Code sec. 1101 makes prior conductgenerally inadmissible to prove that a defendantcommitted the present offense. • For example, evidence of past burglaries isusually inadmissible against someonecharged with a new burglary • BUT evidence that shows “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident” is admissible • So, if the new burglary is done in a very similar way to the old, then how the old was done may be admissible (i.e., “pattern evidence”) • Past conduct need not have resulted in arrest or prosecution • Evidence Code section 1108, passed in 1995, allows prosecutors to introduce evidence that a sex crimes defendant has committed sex offenses in the past, even if they were never prosecuted or convicted. Evidence Code sec. 1109 does the same in cases of domestic violence

8. Parties to a Crime • Principals: Directly involved in the commission of a crime • Aiders and abettors: California law makes everyone who in any way promoted the commission of a crime liable as a principal • Accessories (after the fact): Those who help conceal a crime after its commission are liable as accessories

9. ...another reason you don’t want to live in Florida You are a Pensacola homicide detective. On November 26, 2001 you arrive at the scene of a residential fire. Inside the home, lying dead on a recliner, is a 40-year old father of two. His head has been brutally caved in. You interview the dead man’s teenage sons the next day. Both extensively confess to the murder, on tape, providing many details that you confirm. They say they snuck up on their sleeping father and one boy beat him to death with a baseball bat. Your investigation reveals:

10. One boy told his former foster mother that he and his brother were going to murder their father. • One boy and a male adult neighbor were having a sexual affair. The neighbor was known as a “squirrel” but not as a violent person. • You arrest the boys, who recant their confession. Now they insist the neighbor killed their father while they hid in the neighbor’s car.

11. The neighbor strongly denies having anything to do with the murder. After telling different stories, he admits that he hid the boys after they killed their father. He also washed their bloodstained clothing.But the killing was not his idea or doing. What do you do?

12. Believe it or not! • The boys testified before a Grand Jury that the neighbor committed the murder while they hid in his car. • The same prosecutor: • Charged the boys with the murder (as adults), accusing them of caving in their father’s head in with a baseball bat. • Charged the next door neighbor with the murder, accusing him of caving in the dead man’s head with a baseball bat while the boys hid. • The neighbor went to trial first. A jury returned a verdict, which was sealed.

13. One week later the boys went to trial. They were convicted. The neighbor’s verdict was then read. He had been found innocent. (The boys’ confessions were played at both trials.) • The prosecutor later said it was up to the juries whether to believe the neighbor, and whether to believe the boys. • Detectives agreed there had been a near-total lack of evidence against the neighbor. One said that he never felt the neighbor was the killer. Both were “uncomfortable” that the neighbor was charged with 1st. Degree murder.

14. Here’s what law professors said (Los Angeles Times, 9/7/02): • “Christopher Slobogin, a law professor at the University of Florida, told Associated Press that, while it is rare to convene separate trials for the same crime based on differing prosecutorial theories, it does occur:” “It happens when the prosecution has probable cause that both sets of defendants are involved, but isn’t positive which set of defendants is responsible and leaves it up to the juries to decide.” • “Mark Seidenfeld, associate dean at Florida State University Law School, disagreed, saying prosecutors should have made up their minds about who they believed was guilty and tried only that case.” • US Attorney’s Manual, sec. 9-27.220: “The attorney for the government should commence or recommend Federal prosecution...if he/she believes that the person's conduct constitutes a Federal offense...and that the admissible evidence will probably be sufficient to obtain and sustain a conviction....”

15. On 10/17/02 the Judge who presided over the boys’ trial threw out their convictions. Jurors had said they believed that the neighbor actually committed the murder, but that the boys let him in the house. • At a courthouse rally for the boys the forewoman at their trial said the jury “never” thought the boys committed the crime. She said “we always thought that there was going to be some kind of rehabilitation, that the boys were going to be taken somewhere where they could have a new life and learn to be productive citizens.“ • According to the judge, the prosecutor said that if everyone had been convicted the State would have asked for the neighbor’s conviction to be set aside. He thought that was ridiculous. • Through a special mediation procedure, the boys were later given terms of six and seven years in a juvenile prison. • The neighbor was later tried and convicted of child imprisonment (he was accused of molesting the boys) and of being an accessory after the fact in the murder. He got 30 years… • Court TV coverage

16. Is Justice Done in 2 Versions? A California murder case in which two juries were tolddiffering accounts of events raises concerns about fairness,ethics and tactics. Los Angeles Times, 3/2/05 In 1990 an L.A. County D.A. argued to a jury thatTauno Waidla used a hatchet to kill a woman. Sincethis is a “special circumstance”, Waidla got death. Several months later, in a separate trial of Waidla’s accomplice, Peter Sakarias, the same prosecutor told another jury that Sakarias used a hatchet to kill the victim. Sakarias also got the death penalty. Although the evidence revealed that Waidla delivered the death blows, while Sakarias only struck the victim after she was dead, the prosecutor argued at Waidla’s trial that he struck all the hatchet blows, while at Sakarias’ trial he suggested that Sakarias struck all the blows. On appeal, the Calif. Supreme Court agreed that the theories were inconsistent and set aside Sakarias’ death sentence, but not his murder conviction. As to Waidla, who admitted striking the victim with a hatchet before she died, the Court ruled that attributing all hatchet blows to him was harmless error and his death sentence was allowed to stand.

17. Conspiracy • Webster’s definition: • to join in a secret agreement to do an unlawful or wrongful act or an act which becomes unlawful as a result of the secret agreement • to act in harmony toward a common end • California law • Two or more persons • Normally requires an overt act – something done in furtherance of the conspiracy by one of the conspirators • Punishable just like the intended crime

18. Intent • General: A person intended to commit the acts that constitute a crime • Not necessary to show they intended to break the law • Also described as “knowing” conduct • Examples: Possessing/selling drugs; machinegun • Specific: There was a “particular purpose” in mind • “Willfully” usually means a specific intent to break the law • Examples: Theft ; Auto theft; Burglary

19. Insanity defense • Insanity means that at the time of the offense the accused was incapable of: • Knowing or understanding the nature and quality of the act and • Distinguishing right from wrong (P.C. 25b) • Insane acts must be the product of mental disease or defect • Voluntary intoxication is not a defense • “Personality disorders” are not enough • Defendants usually plead not guilty and not guilty by reason of insanity • Separate trials are held, usually in front of the same jury • If a defendant is found guilty of the offense at the first trial, where sanity is presumed, the second, sanity trial takes place • To prevail at this trial, the defendant must demonstrate by a preponderance of the evidence that he/she was insane • Unanimous verdicts are required for both trials

20. Cary Stayner – The Yosemite Killer Was he insane? (From the Los Angeles Times, 9/16/02) On 9/16/02 jurors rejected the argument thatStayner was legally insane. One month earlier the same jury convicted Stayner of the 1999murders of Carole Sund, 42, her daughter, Juli, 15 andSilvina Pelosso, 16. The three had been staying at a lodgewhere he was a handyman. At the time of his conviction Staynerwas serving a life term for beheading a park tour guide,Joie Armstrong. Prosecutors said that Stayner was obviously abnormal, but thathis confession, in which he admitted burning a car and doingother things to cover up the crimes, demonstrated that he knewthe difference between right and wrong. The defense contended that Stayner’s family had a history ofmental disorders and Stayner claimed that “voices” told him to kill.One expert said that Stayner was psychotic, while two othersdisagreed. Stayner got the death penalty and is presently on death row.

21. Train derailment and collisionJanuary 26, 2005 Extract from L.A. Times 1/27/05 Juan Manuel Alvarez faces 11 counts of murder under "special circumstances" according to L.A. County Dist. Atty. Steve Cooley.Alvarez stabbed himself in the chest with a knife and tried to slit his wrists. Under state law, he could face the death penalty if convicted, but the decision whether to seek it has not been made. Alvarez, described as "deranged" by Glendale Police Chief Randy Adams, was under a suicide watch. “This man had a wanton and willful disrespect for the lives of others. [He] is now going to be held accountable by the justice system," Cooley said."The fact that he was distraught or distressed isn't a defense here — that is no excuse for endangering so many lives...He is not as distraught as the next of kin of 11 murder victims and more than 100 people injured” Cooley said. Cooley added that pursuing an insanity defense would "very, very difficult."

22. Attempts • Elements (P.C. 21a) • Specific intent to commit a crime, and • Direct “but ineffectual act” to commit the crime • Some attempts are separately defined in the statutes • Where not, an attempt is punishable by one-half the crime’s penalty • For murder, by life imprisonment (P.C. 663-5)

23. Privileged communications • Purpose: In some relationships, honesty serves a public purpose greater than law enforcement • Privilege attaches only to things said • Privilege can be invoked or waived by the speaker • No privilege when planning to commit a crime • Marital (E.C. 980) • During and after relationship • Attorney-client • Exception to prevent death or serious bodily injury • Reporter’s shield (P.C. 1070) • Source of information, whether or not published • “Unpublished” information, incl. notes

24. Impeachment:all witnesses • An attack on the credibility of awitness • Can be done by either party tolitigation • Basis • Unpardoned felony conviction • Reputation for honesty and veracity • Unable or not in position to see, hear, etc. • Other inconsistent statements • Bias, self interest or other “improper motive”

25. Impeachment: peace officers • California rule: “Pitchess” motion (P.C. 1045) • Access to officer personnel records for the prior five years • To get an in-camera review petitioner must show that “scenario of alleged officer misconduct could or might have occurred” (Warrick v. Superior Court, CA Supreme Court, no. S115738, 6/2/05) • More than just “saying so” – need some evidence • If dishonesty claimed, must relate to prior dishonesty • If brutality claimed, must relate to prior use of excessive force • Federal rule – applies everywhere:Brady v. Maryland • Due Process clause of Fourteenth Amendment • Prosecution must disclose all evidence relating to guilt or innocence that may be favorable to the accused • Includes grounds for impeaching prosecution witnesses • No time limits