I know that Maquis Lawyer is truly a lawyer (or at least a serious student of the law, and I am sure there are probably other nitpickers who are lawyers. This thread is to allow us to ask them questions.

My first question is about intent. As I understand it, when the State presents a case against someone, they need to prove that the suspect fulfilled all of the "elements" of the case.

The factual elements are straightforward, he did enter Jones Market; He does not own Jones Market, but rather Jones owns it. He did take items A,B,C, and D and did not recompense Jones for them. But did he "intend" to deprive Jones of his property?

In this case, it is difficult to imagine a situation in which a suspect would complete all the factual elements and not "intend" to do so.

On Crime and punishment shows, the only time "intent" is even mentioned is in the case of mental incompetence (Can he form the requisite intent?) or when innocent bystanders are injured or killed ("Intent follows the bullet" -- You may not have intended to shoot Mary Smith, but you did intend to shoot someone)

But what if intent is part of one of the factual elements? Transporting minors across state line for immoral purposes (a real law would have to be more specific about the immoral purposes, but this is a hypothetical on a family site.) is a more serious charge than simply transporting minors without parental approval. Suppose little Mary is rescued and the suspect arrested before he executes the "immoral purposes." How do you show that he intended to execute them?

TomM: Although intent is an element of many criminal offenses, the law recognizes that it may be impossible to determine what a defendant thought or intended at the time the crime was committed. Thus, the general rule is that intent may be inferred from actions because a person is presumed to intend the logical and probable consequences of his conduct, and a person's state of mind may be inferred from actions preceding and following the charged offense. Thus, in a murder prosecution, intent to kill may be inferred from the fact that the defendant aimed a gun at the victim's head and fired. Likewise, premeditation can be proven by the steps taken before and after the crime.
In your "Jones Market" example, robbery consists of the use or threatened of force against another person with the intent to accomplish a theft (meaning an unlawful taking of another's property). Defendant enters Jones' Market armed with a gun, demands money from the cash register while threatening the clerk with the gun. The facts that defendant entered the store with the weapon, and used the weapon during the course of demanding the money can be use to infer that the defendant used or threatened the use of force with the intent to accomplish the theft. As you note, it is hard to imagine that the defendant didn't intend the results of his actions.
However, the law also recognizes different kinds of mental states which bear on the issue of intent. As discussed above, some crimes require proof that the defendant acted intentionally. In addition, other statutes may require proof that the defendant acted "knowingly" (such as when a defendant knowingly possesses cocaine or other drugs, or "knowingly" operates a vehicle without the owner's permission); "wantonly" (when a person is aware of and conciously disregards a substantial and unjustifiable risk. For example: An arsonist who sets fire to an occupied building, or a person who randomly shoots into a crowded room acts "wantonly" in disregard of the danger); and "recklessly" (when a person negligently fails to percieve the risk that his action will create - For example, a person who drives drunk may not specifically intend to kill some, but he is acting "recklessly" with respect to that possibility and may be convicted of reckless homicide.
BTW - I am a lawyer and a serious student of the law. I do research and writing for a state appellate court.

Maquis Lawyer,

Is there a thing as intentless robbery? I read your example and the intentless version seemed $tupid. (A man goes to the store he usually goes to for milk but sees the clerk fooling around with his wife and decides that the clerk should give him all the money in the register. Like I said, it is a $tupid example.) Just curious, can there be a robbery of passion? (robbery two)

Here's a thought; why can't there be degrees of perjury like there is of murder? I mean, lying about a blow job and lying to protect a murderer are two VERY, VERY, VERY different things.q

Thanks Maquis. That's the sort of information I was looking for.

My second question involves "the fruit of the poisonous tree."

Hypothetical: A uniformed patrol cop tells a robbery/homicide detective what he overheard a suspect talking about on his cell phone The information is sufficient grounds for requesting a search warrant. The detective swears out an affidavit and the judge signs the warrant.

Both the detective and the judge believe that the patrol cop was just in the neighborhood when the suspect was on a public street, and he heard the conversation because of "cell yell."

It comes out later that there may be a problem with the cop's tip. Some circumstance turns up where the suspect's "right to privacy" should have still been intact. [Please answer both if the patrol cop should have realized that he was violating the suspect's R-o-P and if the "eavesdropping" was apparently legitimate, and some circumstance unknown to the cop changed its status (the other party in the phone conversation was his lawyer, perhaps?)]

My question is: is the search warrant still valid?

As far as the detective's affidavit is concerned, nothing has changed. He recieved a tip from an informant he considered to be reliable and so swore in his affidavit. But the informant was an agent of the government, subject to certain guidelines which were not met.

And I've got a question, too (for a story I'm considering writing):

If someone owns a business and is sent to prison for a crime, what happens if their business was sold by the state (or whoever it is who gets control of seized businesses and propery) while they were in prison, and it turns out that they were innocent (incompetent investigators and\or lawyers, or someone did a perfect frame-job)? Can the victim recover his business, since it was essentially stolen (by the law) from him?

I assume that if the person lost the business because the victim of the crime that the person went to prison for committing, or the victim's family, sued and got the business, they'd have to give it back. But what if they (or the person who bought it after it was seized in the above example) sold it to someone else?

Blue Berry It is almost impossible to have an intentless robbery, since the whole object of robbery is the use or threat of the use of force to accomplish a theft. The degrees of robbery (Robbery I, or Robbery II) vary depending on the type of force used, or if someone was injured or killed (Robbery II merely requires proof that a person used or theatened the use of physical force upon another person with the intent to accomplish the theft; Robbery I requires proof that the person was armed with a deadly weapon, used or threatened the use of a dangerous instrument upon any person who is not a participant in the crime; or caused physical injury to any person who is not a participant in the crime).
However, a person who did not actually participate in the robbery could be convicted of complicity or facilitation of the crime. For example - "Homer" gives "Bart" a ride to the Kwik-E-Mart. Homer sees that Bart has a gun, and Bart talks to Homer about holding up the Kwik-E-Mart. Bart goes in, holds up the store, runs out with the money, and tells Homer to floor it. When they are caught, Homer can be charged with complicity to robbery I, and faces the same time as Bart. Now suppose the same facts, except that Bart doesn't tell Homer that he plans to hold up the Kwik-E-Mart. While Homer doesn't face the same time as Bart, he still faces a conviction for facilitation to robbery I, because his actions actually aided Bart in committing the crime. In this way, I suppose that it is possible to be convicted of a robbery-related crime even if you didn't intend to take part in the robbery.
TomM: I doubt that the warrant would be thrown out. There is no expectation of privacy in a public place, so if the police officer overhears the suspect talking on his cell phone on the street (even to his lawyer), the suspect cannot later complain that his right to privacy was invaded. Furthermore, a search-warrant affidavit based upon a tip must also contain information explaining why the officer thinks that the information is reliable. If the detective states that he recieved the information from another police officer, and the source of that information is reliable and recent, the search warrant will stand. (Hearsay can be used to support a search warrant). Finally, even if the search warrant was invalid, the fruits of the search are still admissible if the officer who served the warrant reasonably believed that he had a right to rely on it.
BF I'm not quite sure about your question. Most states and the Federal government have laws which allow forfeiture of property which was involved in a crime or was obtained through criminal activity. Forfeiture proceedings are separate from a criminal trial and are regarded as civil in nature (leading to case names like "United States versus $100,000"). Once the property is forfeited, the government has a right to sell the property and it keeps the proceeds. Even if the conviction is overturned or set aside, the defendant still has to go back, re-open the forfeiture action and have the forfeiture set aside. And if the property has been sold, the purchaser takes the property free and clear from any claims with the original owner might have. The government merely has to pay be the value of the property.
If the victim of the crime brought a civil action, all the victim would get would be a judgment for a certain amount of money. The victim would then have the "execute" the judgment, by attaching property or bank accounts in the defendant's name. The property would then be sold by the police to satisfy the judgment. Even if the criminal conviction were set aside, the civil judgment would still be there, and the defendant would have to try to have that set aside as well. Assuming the defendant could get a new civil trial (which is not very likely), and won the second civil trial (which is even less likely), all the defendant would be entitled to is a monetary judgment against the original "victim".
I hope that answered your questions.
BTW - Your local laws may vary, so check this out before you rely on anything I say here

I thought that the facts in my hypothetical might not stand up to the likelihood of an actual expectation of privacy challange, but I could not think of a situation that might; the actual events I had in mind involved a claim of "in plain view" that is in dispute, but I was trying to generalize it. I'm glad that you chose to answer about what would probably happen to the warrant anyway.

I suspected that the warrant would hold up in any case, but I really needed to know for sure. Thanks


I started reading my state's stautes and court rules lately. It started out as research in a couple of specific problems, but I've become strangely facinated by the strange read: One page will have an almost unreadible mixture of legal jargon an cross-citations, and the next will not only be in language a third-grader can understand, but it will repeat the same simple statement over and over in different words. (I know: the reason for the repeat is because there are clear, if subtle, differences in the three conditions described. Discovering them is part of the fascination)

I found it rather interesting that New Jersey threw out most of the old Common Law terms (for example there is no "Statutory Rape" in New Jersey: it's "Sexual Assault upon a Person under 16.")

A few of the old terms still hang around, however, and it is sometimes difficult to match their "everyday" definitions to their legal usage.

I think I understand what a "presumed fact" is, but I could use some confirmation.

In the Rules of Evidence [Rule 301] it states:
Except as otherwise provided in Rule 303 or by other law, a presumption discharges the burden of producing evidence as to a fact (the presumed fact) when another fact (the basic fact) has been established.

If evidence is introduced tending to disprove the presumed fact, the issue shall be submitted to the trier of fact for determination unless the evidence is such that reasonable persons would not differ as to the existence or nonexistence of the presumed fact.

As I understand it, a presumed fact is a logical inferrence based on an underlying "basic fact." the logic of the inferrence may be nearly unassailable, but the presumed fact can still be rebutted.

A basic fact might be that an empty vodka bottle and an empty bottle of Bloody Mary mix are found in my trash. The presumed fact would be that someone in my house has been drinking Bloody Marys.

A rebuttal might be that the vodka was used to make screwdrivers, and the Bloody Mary mix was used to make soup. (True story. I like a rich broth to my soups, so I add V8 juice to the stock pot when I start the soup. Not long ago, my market was out of V8, so I was going to use plain tomato juice, until I saw the Bloody Mary mix. It had celery and spices as well as tomato juice, and was cheaper. My brother-in-law saw the two bottles together in the trash and asked when I'd started drinking Bloody Marys)

In other words, the rule seems to be saying that if one party establishes the basic fact, that side can claim to have established the presumed fact until and unless the other side rebuts it.

The rule also seems to say, unless I'm mis-reading it, that a presumed fact stands unless it is actively proven false. An hypothetical rebuttal is not enough. That makes sense, since the same word "presumed" is used in the cornerstone of the justice system: a defendant is presumed innocent. The prosecution must prove "beyond all doubt," or a plaintiff must prove "by a preponderence of the evidence" that the defendant is liable.

Just as i begin to learn the ins and outs of "intent," I learn that it is not really the mental "element" of a crime. The real mental element is "a guilty mind" or, in Latin "mens rea."

Apparently mens rea means the considered willingness to do something that society in general considers to be evil. 99 time out of 100, when coupled with actually performing acts that are proscribed by some law it is identical with "intent" as described earlier.

But there are times when you can perform a proscribed act, and there is the presumption (my other legal word of the night) that you formed the intent to perform the proscribed act, but you still lacked the mens rea to be found guilty. At such times you can put on an affirmative defense to show that you lacked the mens rea.

For example self defense, or defense of others. Yes, you performed certain proscribed actions. Yes you were mentally sound and could form the presumed intent. But no, you were not doing something evil, you were trying to prevent or minimize the evil someone else was perpetrating.

It is not necessary that the circumstances actually have been so dire. You can be mistaken about the intents and actions of someone else as long as the circumstances as you understood them to be led you to the reasonable conclusion that your actions were necessarry. This is what allows you to defend yourself against a "loaded" wallet.

It seems to me that this principle might also be used to justify jury nullification. In this case, the jury, as society's representatives, decide that you did not have a mens rea because they, again as society's representatives believe that in this one particular instance, the act was not evil.

TomM You seem to understand the concept of presumptions pretty well, but there are three additional concepts which may help explain it better: burden of proof; burden of going forward with evidence; and risk of nonpersuasion. As a general rule, the burden of proof is always on the proponent of a proposition. The party with the burden of proof always bears the risk of nonpersuasion: that is; the trier of fact (the jury or a judge sitting without a jury) is always free to disbelieve the evidence presented by the plaintiff. However, once the plaintiff presents evidence of facts which give rise to a presumption, the presumed fact stands as a matter of law unless and until evidence has been introduced which would support a contrary finding (or a basic fact giving rise to a contrary presumption has been established).
In other words, the fact is presumed as a matter of law to be true unless there is evidence which would challenge the presumption. However, a presumption does not shift the ultimate burden of proof. It merely shifts to the opposing party the burden of presenting evidence which would rebut the presumption. Once the other party presents but evidence which would support a contrary finding (or a basic fact giving rise to a contrary presumption has been established), then the presumption disappears, and the burden of proof (and the risk of nonpersuasion) returns to the plaintiff.
Note: This is the approach taken in the Model Code of Evidence, upon which the Federal Rules of Evidence and a number of state rules of evidence are based. New Jersey's phrasing of Rule 301 is slightly different from the Model Code or from the Federal Rules. I don't think that would change how the courts apply the rules, but I'm not very familiar with New Jersey law.

Dude There are lesser degrees of perjury. To prove perjury in the first degree, the state must show that a person made a material, false statement, which he did not believe, while he was under oath; or a material false statement in a written document which is required to be signed under oath and with the intent to mislead a public servant in theperformance of his official duties (The latter would punish lying in a search-warrant affidavit). Perjury in the second degree merely requires proof that a person made a material false statement which he does not believe in a written document which is required to be signed under oath, with the intent to mislead a public servant in the performance of his official duties (Lying in any other affidavit or document signed under penalty of perjury).
The difficult question is whether the statement was material If the false statement under oath would not affect the outcome of the proceeding or involves an irrelevant matter, then it is not perjury. Some states interpret the materiality requirement narrowly, requiring proof that the false statement directly affected the outcome of the proceeding. Other states read the requirement broadly, as merely requiring a finding that the false statement could have affected the outcome of the proceeding, regardless of the actual effect or admissibility of the statement. (In my state - Kentucky - first degree perjury is a felony punishable by up to five years. Second degree perjury is a misdemeanor punishable by up to twelve months in jail). However, to discourage people from making false statements under oath, there is also a crime of "false swearing", which merely requires proof that a person made a false statement which he did not believe while under oath. False swearing is a misdemeanor punishable by up to 90 days in jail.
BTW - Bill Clinton admitted that his testimony to the independent counsel about Monica Lewinsky was false. He argued that it was not perjury because it wasn't material to the Paula Jones matter which Ken Starr was investigating.

NEW QUESTION:

If there is a dispute whether the statute of limitations has expired, is the burden on the State or on the defendant, and what level of persuasion is necessary (preponderence of the evidence, "clear and convincing", "beyond a reasonable doubt, etc.)?

As a layman I would assume that the burden would be on the state, as it could be considered to be part of the "jurisdiction" element. But that is just an off the top of the head opinion. Has there ever been any case law covering this situation?

ANOTHER QUESTION:

Often in the Statute books there are some sections that just define terms or conditions that are assumed or just mentioned in sections of more substantive law. For example near the beginning of New Jersey's Criminal Statutes (Title 2C of the New Jersey Statutes, Annotated) there are sections that define the culpability levels of intent (negligently, recklessly, knowingly, purposely) (N.J.S.A. 2C:2-2), possession (N.J.S.A. 2C:2-1), what we know as "double jeopardy" (N.J.S.A. 2C:1-9 through 1-11), etc.

Sometimes there is a sub-paragraph (a) at the beginnining saying that a general or default rule (defined in sub-paragraph (b) ) applies except where the later subparagraphs provide an alternative. (for example, the statute of limitations law gives a five year term for "crimes" (felonies) but a later sub-paragraph specifically exempts the sections which describe homocide, kidnapping, sexual assault (rape), etc.)

I am looking at a situation that is odd, to say the least. A strict reading of the law would seem to indicate that a particular exception of the defined condition should apply, but it would make more sense if the general or default condition were applied.

The law in question was relatively recently signed (last 10-15 years). In the Statute book it became a paragraph added to to the end of a section with related laws. The earlier laws all fit a pattern where the exceptional condition makes sense. The sub-paragraph simply exempts the entire section.

Presumably, at the same time the newer law was signed, there should have been another law which modified the language of the sub-paragraph in the conditions law to allow the default condition to be applied to the new law instead of the exception, but it was overlooked.

In a case like this which prevails: the letter of the law, or common sense? I can't find any court challenges to either interpretation.

No responses in a week. Does that mean this thread is dead?

I found the answer to the Statute of Limitations question. The statutes list several elements that must be proved beyond a reasonable doubt in a criminal case. Besides the material elements (the guilty mind and the guilty act) they include proving juresdiction and negating a defense based on the Statute of Limitations.

Sorry, TomM, but things have been kind of busy at work. I'll try to find an answer for you in a day or so.

No, I should probably be the one to apologize. In some ways I'm beginning to feel like the idiot who corners a doctor or a lawyer at a party.

I really had hoped that there would be others knowledgeable about the reading of the law and this thread would be more like a round-table forum.

So this will be my last question, unless another lawyer and/or student of the law shows up.

In a review of a search warrant (such as at a motion to suppress hearing) in determining probable cause, if the objective facts are different from what was sworn to in the affidavit, does the reviewing judge go by the facts or by the record? Does it matter whether, objectively, there should have been no probable cause at all?

I'm not talking about perjury, but about misperception and/or human error in communication (the "telephone" effect -- after the children's whispering game).

For example, if a witness told the investigating officer that she saw marijuana growing in her neighbor's backyard, and the officer requests a search warrant based on that (and possibly other weak evidence), but it turns out that the plants are not marijuana, but some other, perfectly legal, splayed-leaf plant.

IANAL, but wouldn't that be Probable Cause (emphasis on the word probable)? It was good faith.

Like you, I figure that it most likely will hold up as good faith, but like you, IANAL, and I am not certain, especially in the case where the objective facts show no true probable cause, and due to new probable cause found during the search, the neighbor is now being investigated on some other charge.

Very few of us live such spotless lives that a thorough police search won't turn up some evidence of something; that is one of the reasons for the fourth amendment's prohibition of general warrants.

Not quite on point, but I found a New Jersey case where the officer's perceptions at the time are the prime consideration, despite the objective facts.

The case, State v. Ercolano, 79 N.J. 25 (1979), is not on point for two reasons: it involved a warrantless search, so the review was the first time a judge looked at the issue, and while objective facts may or may not have shown there to be probable cause, the officers could not explain a suitable cause for their search, and the court held that: "Saving the validity of the police action on a court-devised theory of justification would not deter future unconstitutional [conduct]..." Id. at 37-38.

In other words, this is different from my question in two regards: The judge is not in the position of second-guessing a previous judge, and going by the record, rather than by the objective facts, favors the suspect.

More importantly, the whole point of exclusionary rules would be called into question if the court were to "save" the police search, which is not a consideration in my question.

TomM: No problem. I actually kind of enjoy chasing down the answer when I have some free time. You have obviously done a fair amount of reading on some of these issues already. I have found a lot of legal-research resources available on the internet either for free or at marginal cost. The most well-known web site is Findlaw.com. Findlaw has links to all state statutes, Federal court opinions (including the US Supreme Court), and a wide variety of other materials. Findlaw also has some good articles and columns on various legal subjects, as well as some legal discussion forums. If you’re looking for state court cases, check out Versuslaw.com. Versuslaw is a pay site, but for $9 a month, you get access to a database of state and federal court cases which is almost as extensive as what you find on Lexis or Westlaw. I use it for a lot of my independent research.
----In your first question, you asked about statutes which set out a general rule up front only to contradict it later with another rule. Welcome to the world of statutory construction. In theory, laws (particularly criminal laws) should be clear enough so that anyone can understand and apply them. In practice, well, let’s just say that most legislators don’t think that far ahead. So it’s up to the courts to figure out what the legislature meant. In New Jersey’s case, Title 2C of the criminal code actually spells out the rules for construing the statutes. However, these rules can be superceded if more specific rules are set out in a specific statute. This fits in with the common-law rules that that the provisions of a specific statute will prevail over a general statute. Kingsley v. Wes Outdoor Advertising Co. , 55 N.J. 336, 339 (1970); and that more recent statutes prevail over older ones. Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318(2000).
---- In your second question, you ask whether a search warrant remains valid even if the information used to obtain it is shown to be incorrect. Before issuing a warrant, the judge must be satisfied that there is probable cause to believe that a crime has been committed, or is being committed, at a specific location or that evidence of a crime is at the place sought to be searched. State v. Laws, 50 N.J. 159, 173 (1967). The term “probable cause” is never precisely defined, but in general terms, it "means less than legal evidence necessary to convict though more than mere naked suspicion." State v. Mark, {46 N.J. 262, 271 (1966)}. Probable cause exists if at the time of the police action there is "a well grounded' suspicion that a crime has been or is being committed." State v. Waltz, 61 N.J. 83, 87 (1972). "In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 338 U.S. 160, 175, 176, 69 S. Ct. 1302, 1310, 93 L. Ed. 2d 1879 (1949).
----When a warrant is based on information provided by an informant, there must be a substantial basis for crediting that information in order for probable cause to exist. State v. Smith, 155 N.J. 83, 92 (1998). The judge or magistrate who issues the warrant must "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity' and basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983). On a review after the fact, the warrant will be upheld unless the court determines that the issuing judge or magistrate lacked any substantial basis for concluding that probable cause existed. See State v. Sullivan, 169 N.J. 204 (2000) for a further discussion.
----In other words, the validity of the search warrant is not determined by whether the information is ultimately proven to be correct, but by whether the magistrate or judge at the time the warrant was issued had reason to believe that the information provided was trustworthy and credible. In your example, the question would be whether the information provided by the neighbor is sufficiently trustworthy to amount to probable cause. When a police officer’s search-warrant affidavit relies on information provided by an informant (particularly an anonymous informant), the affidavit must also explain why the officer believes that the informant is credible. If the affidavit did not contain this information, then probable cause does not exist and the warrant is invalid.
----Nevertheless, the US Supreme Court has upheld searches based on defective search warrants where the officers who served them had a good faith belief that they were entitled to rely on the warrant. Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987). So, returning to your example, let’s say that the affidavit supporting the warrant failed to explain why the neighbor is credible. Let’s further say that the search established that the plants in question were just garden-variety ferns. However, during the search the police found a pipe sitting on a table, and the pipe has marijuana residue in it. Even if the search warrant is later thrown out, the pipe can still be introduced as evidence so long as the officers who served the warrant had a good-faith belief that they were entitled to rely on that warrant.
---- Hope that I answered your questions.

Thanks. Your answer to the warrant question was quite clear, and pretty much what I expected.

I'm not sure whether you answered the other question or not. I suspect that I was being a little too vague in the question, so you had no choice but to be overly general in your answer.

To get more specific: N.J.S.A.2C:24-4 defines several degrees and types of Endangering the Welfare of a Child (What used to be called "corrupting the morals of a minor").

2C:1:6 defines Statutes of limitations. 2C:1-6b(4) exempts crimes under 2C:24-4 from the general 5 year limitation for "crimes" (felonies) and defines two separate "windows" in which the prosecution can press charges: up until five years after the victim reaches 18, and within two years of the victim "discovering" the crime as an adult.

(Note: since in the civil counterpart, both windows reflect the general two-year limitations, the language there is merely one of tolling the "clock," but the two year window here requires that the limitations be totally defined to be clear.)

So far so good, but when selling, and even just possessing child pornography were outlawed, it was done on the basis of Endangering actual children, so the laws were placed in 2C:24-4 [as 2C:24-4b(5)(a) and 2C:24-4b(5)(b)].

At that time 2C:1-6 should have been modified to allow the default 5 year limitation to control the new additions. But that detail was overlooked and still has not been corrected.

So, as things stand, the law reads that the limitations in 2C:1-6b(4) control the prosecution of child pornography. If that is true, then for every picture on which the prosecution wishes to base a charge, it is necessary to show that either the victim is still under 23, or that the victim has discovered in the last two years that the defendant sold or possessed the photo. This would make prosecuting the law almost impossible.

I believe that the issue has never been challanged. To restate my original question in terms of this specific example: if it were to be challanged, would the court be "forced" to follow the procedure in the last paragraph, or would it be free to declare that the default five year limitation holds?

When I said "the court" above, I meant the initial Superior Court judge. Of course the Appellate and New Jersey Supreme Courts have more freedom in interpreting the situation.

And thanks for those two links. For New Jersey law I've mainly been relying on New Jersey Law Network, which has links to an expapandable database with all of the N.J.S.A., and to the Rules of Court, the Rules of Evidence, and the Rules of Ethics, as well as a link to Rutgers Law School's Law Library database of Appellate and New Jersey Supreme Court decisions. Normally Rutgers' database is only available to Rutgers students and faculty, but linking through New Jersey Law Net allows anyone to access it. Unfortunately, it only includes cases decided in 1994 or later. For earlier cases, and cases from other states or the federal government I expect these sites to be very helpful.

TomM: Sorry that it took me a while to get back to you on this. After reading the statutes you referred to, I’m not sure that there is a conflict between the general five-year statute of limitations contained in N.J.S.A. 2C:1-6b(1) and the exception clause set out in N.J.S.A 2C:1-6b(4). Subsection 6(b)(1) states that “A prosecution for a crime must be commenced within five years after it is committed”. However, subsection 6(b)4 sets out an exception to this rule, providing that “A prosecution for an offense set forth in N.J.S.2C:14-3 or N.J.S.A. 2C:24-4, when the victim at the time of the offense is below the age of 18 years, must be commenced within five years of the victim's attaining the age of 18 or within two years of the discovery of the offense by the victim, whichever is later” Thus, as you point out, a prosecution for endangering the welfare of a minor under N.J.S.A. 2C:24-4 must be commenced by the time the victim turns 18, or within two years of the discovery of the offense by the victim.
---I think that your confusion arises over the odd way that the New Jersey legislature grafted the law criminalizing child pornography onto the endangering-the-welfare-of-a-minor statute. Rather than make these offenses separate crimes, the legislature amended 2C:24-4 to make the manufacture, sale and possession of child pornography a subcategory of endangering the welfare of a minor. Thus, a person is guilty of endangering the welfare of a minor if he either (1) engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm, or (2) causes or permits a child to engage in a prohibited sexual act or in the simulation of such an act if the person knows, has reason to know or intends that the prohibited act may be photographed, filmed, reproduced, or reconstructed in any manner; or (3) photographs or films a child in a prohibited sexual act or in the simulation of such an act or who uses any device, including a computer, to reproduce or reconstruct the image of a child in a prohibited sexual act; or (4) knowingly receives for the purpose of selling or who knowingly sells, procures, manufactures, gives, provides, lends, trades, mails, delivers, transfers, publishes, distributes, circulates, disseminates, presents, exhibits, advertises, offers or agrees to offer, through any means, including the Internet, any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act; or (5) knowingly possesses or knowingly views any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act.
---New Jersey law regards each of these actions as alternative means of establishing the same crime of endangering the welfare of a minor, although they are categorized as different degrees of the offense and they are subject to different punishments. Consequently, the exception to the general five-year statute of limitations, set out in N.J.S.A. 2C:1-6(b)4 applies to all of the subsections of N.J.S.A. 2C:24-4, including the child pornography sections. Thus, it wasn't necessary for the legislature to amend 2C:1-6(b)(4) to cover these offenses.
---Does this answer your question?

You are saying that 2C:1-6(b)(4) does govern 2C"24-4(b)(5), then?

So then the prosecutor does have to prove that the victim is still under 23(18 + 5)? Even for a picture where the identity of the victim cannot be positivly ascertained? It seems more reasonable that it should have reverted to the standard 5 years after the commision of the act which defines the offence (in this case the selling or possession of the photograph).

If defendant "A" sells a 25-year-old photograph today he is in the clear, but if defendant "B" downloaded a brand-new picture of a then 11-year-old seven years ago, he can still be prosecuted?

Now I see where you're going with this. As I mentioned before, it would have made more sense for the New Jersey legislature to set these crimes out in seperate statutes. 2C:24-4 works all right as written, but it is hard to reconcile the application of 2C:1-6(b)(4) to the different sections - hard, but not impossible.
---Under 2C:24-4, paragraphs (1), (3) & (4), the victim of the crime is the child. The crimes involve engaging in sexual contact with a child, allowing another person to engage in sexual contact with a child, or recording such contact. The child is directly the victim of these crimes. As a result, the exception to the statute of limitations set out in 2C:1-6(b)(4) applies to these sections. However, 2C:24-4, paragraphs (5) & (6) punish crimes which do not directly relate to the child-victim. Under paragraph (5), the crime is selling, or receiving for the purpose of selling, child pornography. Under paragraph (6), the crime is possession of child pornography. These crimes are completed by the act of receiving or possessing the pornography, without regard to the current age of the child. As a result, the default, 5 year statute of limitations, applies to prosecutions under these sections.
---So to answer your questions, in a prosecution under 2C:24-4(5) & (6), the prosecutor doesn't have to prove that the victim is still under 23 (or that it has been less than two years from the time the victim discovered the existence of the photos). The current age of the victim is not relevant to these offenses. Rather, the prosecutor must simply establish that the defendant has received, sold or possessed the pornography within the past 5 years.

That was my original question. 2C:1-6(b)(4) can be applied to to 2C:24-4b(5), but it does not make sense to apply it. However, there is no provision to revert back to 2C:1-6b(1) and the "default" 5 year limitation in this instance, though there probably should have been.

So do the current prosecutions of offenses under 2C:24-4b(5) simply ignore the law? Or are they done in ignorance of the cuurent state of the law. Or do they simply agree that the legislature meant to make (should have made) the change and "pretend" that it has? Is it necessary for the legislature to made aware of the discrepancy so they can clear it up?

I'm sorry that I misunderstood your original question. If you read 2C:1-6(b)(4) literally, it ought to apply to all of the subsections of 2C:24-4. But, as you correctly note, it doesn't make any sense to apply it to subsections (5) & (6). The legislature could have avoided this problem simply by codifying those sections under a separate statute. The other sections deal with conduct toward children, while (5) and (6) specifically relate to child pornography. While the latter subsections have a related goal - protecting the welfare of children by criminalizing the trafficking or possession of child pornography - it really deals with a separate issue.
---However, I stick by my earlier argument that 2C:1-6(b)(4) doesn't apply to subsections (5) & (6). The child is the victim of a crime under subsections (1), (3) & (4), but not under subsections (5) & (6). Like drug trafficking and possession offenses, subsections (5) & (6) criminalize trafficking and possession of child pornography without regard to where the contraband came from. As a result, there is no "victim" under these sections as contemplated by 2C:1-6(b)(4), so the default statute-of-limitations applies. I realize that this is a convoluted explanation (and I haven't found any published decisions by New Jersey courts adopting it), but this is probably why the legislature hasn't addressed this question already. It's an interesting question though, and I hope you let me know if the issue comes before the New Jersey courts anytime soon.

I'd already checked to see if the Appelate/State Supreme courts had addressed it, and like you found it apparently had not.

The legislature should have addressed it, but they apparently missed it at the time the bills were passed, and no one has pointed it out to them since. There was a similar problem with another bill that amended 2C:24-4. It combined two paragraphs, and inadvertantly re-numbered all of the subsequent paragraphs. This caused other laws that refered to provisions in 2C:24-4 by paragraph number to refer to the wrong offenses. Once this was pointed out to the legislature, they passed another bill amending 2C:24-4 which simply inserted a null paragraph and re-numbered the following paragraphs back to their original designations. Something similar could easily be done here.

Since PM is temporarily closed, I thought I'd ask this here.

Where is the definition for the Presidential line of succession past the Vice President?

I checked the Constitution as well as the 20th and 25th Amendments, and it only discusses the VP. I know that the current line is

• President,
• VP,
• Speaker of the House,
• President Pro-Tempore,
• Cabinet members (I believe Sec. of State is first),

Scott-

I e-mailed the Chief today, and if he approves my application, RM and PM will be back up shortly.

In the meantime: Presidential succession is defined by law. The latest revision was the Presidential Succession Act of 1947, signed by President Harry Truman.

link

Oh and the constitutional basis:

Article I, Section 8. The Congress shall have power to...

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. (emphasis mine)

Congrats, Tom! When you're all set up and ready to reopen RM and PM then just go into the Access Manager for either one first and then click to unselect the "All Posting Disabled" function to, of course, enable the posting function for all threads on each board, and then click the "Save Settings" button.

Thanks for the link, Tom. Oh and to add to that list, Tom Ridge (DHS) is now at the bottom.

Hey what do you know! I applied for the PM gig too! May the best man win Tommy.

It looks like the Chief has decided to go the Solomon route and cleave the baby in two. You get PM and I get RM. I'd like to think we can work together on this and make all the musings boards the best they can be.

Agreed! ALthough It's worth pointing that I didn't WANT RM anyway. I moderated it once, got into a row (is that how you Brits spell it?) with Peter and quit.

I have a general question: is it still forbidden by law to give people first aid unless you are qualified and they give their consent? There was a tv series in the 80s about a fire rescue squad who got EMT training, and everytime a child was injured, they had to wait to find the parent or guardian to give consent befor they were allowed to help. Same for unconscious adults, who couldn't sign the form of consent.

I've also heard that if the average joe, with normal first aid course of 8 hours, drives to an accident and stops to help the injured, they can later sue him if he made a mistake!

Now, was I mistaken in both of these instances, or has the law been changed, or how is the legal situation in these cases?

Just for comparison and why its hard for me to comprehend: In germany, everybody is by law ordered to help injured persons. When doing this, the helper is automatically insured against personal damage he might receive (blood on your coat - the cleaning bill will be paid by the state, or you sprain your wrist while lifting sb. out of a danger zone, the state will pay your sick time).

The police can also arrest gaffers for obstructing help (ambulance cars) and for not giving aid, as it is forbidden in the law.

And in every first aid class I've been into, the instructor always said: The first rule is to help. Its better to help and do sth. wrong than to stand and do nothing because of being afraid of doing wrong. If we do sth. wrong and cause injuries or aggrevate them, we (the helpers) do not need to worry, nothing legal will happen to us as long as we were trying to give first aid and acting to the best of our knowledge and conscience.

My wife is a nurse, so I have some info...

DISCLAIMER: MY DISCUSSION HERE IS US-CENTRIC, AND MORE SPECIFICALLY CALIFORNIA.

CA (and I belive most states) have what is known as a "Good Samaritan" law. If you assist someone in an emergency, you are covered. Of course, you'd better know what you are doing, and your situation of the "average joe", he's better off calling 911. A medical professional, however, should be OK.

ScottN: Of course, you'd better know what you are doing, and your situation of the "average joe", he's better off calling 911...

Well yes, that's of course always part of first aid: (the way we learned it as a chain):
- secure the site of the accident
- call emergency (usually by sending an onlooker to the next phone)
- give first aid
are the three first links of the rescue chain. The next ones are
- ambulance with EMT arrives and takes over
- hospital with doctors

But usually you assume an average of 10 min. between the call and the ambulance arriving (depending on where you are) and during that time, you put pressure on bleeding wounds, put unconscious people on their side, do CPR and so on.

So, should the average joe stand by after calling 911, if he is unsure about what he's doing? (10 mins would be enough to bleed to death, or asphyxiate, or to die from no CPR being done. But moving an unconscious person with a broken back can leave him in a wheelchair. And for someone who took a first aid class of 8 hrs. to suddenly remember everything important is very stressful).

Is it therefore mandatory for everybody who applies for a driving licence to have completed at least 8 hrs. of first aid course? (It is here in germany. Unfortunately, once is enough - people don't have to renew their knowledge after a certain time, and you can imagine how little sb. will remember after taking a course 20 years ago.)

In the US you can get a driver's licence after taking a short test (in GA it is 20 questions about road signs and 20 questions about traffic laws) and a short road test with the instructor. You don't need to take a class before the test, you just need to get a book from the DMV (department of motor vehicles) and read it. The test is so simple you usualy only have to read it about 1 or 2 times. As long as you don't move to another state or let your licence expire you don't ever have to take the test agian, you just go every 4 years before your licence expires and pay the money to renew it.

The passing of "Good Samaritan Laws" (laws sheilding those who offer first aid in emergency situations from lawsuits resulting from "doing it wrong") has been slow. I believe that in most states that have such laws they apply only to professionals (doctors, nurses, EMTs). I believe only one state (Vermont?) mandates that bypassers must help if they are able. I have not looked into this in many years, however, so my information may be outdated. Also, my memory may be wrong. In any case, take what I say with a grain of salt.

I believe only one state (Vermont?) mandates that bypassers must help if they are able

Was the final episode of Seinfeld set in VT?

Close, but no cigar. It was Massachusets. I couldn't tell you if they have a "good samaritan" law or not, though.

Related to this issue: I know that jehova's witnesses are against blood transfusion and consider it a sin. I don't know if there are other groups around which have similar reservations about certain medical practices. Would a malpractice suit apply to EMTs and nurses, when a child or an unconscious adult is given a blood transfusion?

Could they carry a card in their pocket which says "Since I belong to this church #insert name#, I'm against the following medical procedure in case of emergency #insert#" (like people carry an allergy pass) and would the EMTs be forced to obey the card even in life-threatening emergency? Or would a court accuse them of neglience, because it is standard medical procedure in some accidents to give blood (note: not the disputed medical procedures, like treating cancer, since these don't apply to emergencies)? Has one court (supreme court) ruled about how to handle the dilemma bodily well-being versus spiritual well-being, or must each court decide it anew?

(I have no idea how this would be handled in germany, either, since we don't have that many jehovas witnesses around that the problem of blood transfusions for them is a public theme, and I don't know any german lawyers. There have been cases in court over how to treat children with cancer, when the parents decided on alternative medicine rather than low-success chemotherapy/surgery. In one or two the court finally took custody away from the parents and ordered the child to be treated at a normal hospital, but the child died. Its still controversial.)

Can a person who intentionally infects another with AIDS, or any terminal illness, be tried for murder? I apologize if this question isn't on the level with the others of this board but I've just always wondered.

I'm not positive, but I think I may have heard it happen. Someone should do a Lexis Nexis search.

I'm not sure, but I think, especially in the case of HIV which can take years to develop into AIDS (years in which the victim can die of unrelated causes), that it would be easier to charge them with attempted murder.

Yes, in certain jurisdictions. Though I imagine that it would be easier to define this as a specific crime of its own by statute.

Wouldn't it come under "serious bodily harm" or (whatever the english legal term is) - harming somebody's physical health? Doesn't murder have to be quick and definite, like shooting, throttling, stabbing, poisoining somebody to death, while an illness/injury always has some chance element to it?

I think there was a dentist who infected some of his patients on purpose - maybe the story is on snopes/straightdope?

Yes constanze, in Florida I believe. He was homosexual and wanted to infect upper/middle-class heterosexuals to show society that AIDS was not just a "gay person's disease." I would like to think that everybody is now well aware that it isn't, but since this dentist was caught his intentions seems a little hypocritical.

I have not been to law school but I'm fairly certian that if a person dies due to injury obtained from assualt or negligence later in a hospital, the suspect can be charged with murder/manslaughter.

It makes sense to define this specificly under its own statute Mpatterson. Could it also be plausible to toll such a case until a victim dies from complications of the illness and then have the family take legal action?

Here is the first part and here the Followup to the Dentist story.

I have not been to law school but I'm fairly certian that if a person dies due to injury obtained from assualt or negligence later in a hospital, the suspect can be charged with murder/manslaughter.

It makes sense to define this specificly under its own statute Mpatterson. ..

Okay, so if I understand you right, you think the case of infecting people with AIDS is already covered under general manslaughter charge, but you still want a specific reference in a statute? Why? If you want to kill somebody, you can infect them with salmonella or botulism (or the pocks through bees) or ebola or whatever other virus/bacteria you can get your hands on. Would you want/need a statue for each of these specifically, or is the general manslaughter statue worded clearly enough, that if you assault sb. with the intent of harming, possibly killing him, and the other person really dies or is seriously injured, you are held accountable to the statue?

constanze, the problem is that deliberate infection might not necessarily count as assault under existing definitions. Particularly with something like HIV, which does not cause any significant health problems for quite some time, but can be detected soon after one contracts it.

You misunderstood me constanze. I was merely replying to your comments about murder being quick and definite, and Mpatterson's post about intentionally infecting somebody being easier to define as a statute. I have no idea if it is or not, it just sounded simpler to me. Growing salmonella, or stealing ebola, sounds like a lot of work for somebody with HIV/AIDS who just wants to target one person

I see. But have there been cases were one person has been specifically targeted? In the urban legends, people are singled out by chance (and pricked with a needle in some unbelievable way). In real-life cases, the Florida dentist didn't target one specific person to kill them, but wanted to infect several people in order to make AIDS more public aside from the "gay disease".

There are also several cases I've heard about (but don't have cites for, at the moment) where people knew they were infected with AIDS, but still had unprotected sex with several other people, because they were in denial, which makes it very difficult for the courts to handle.

As for growing salmonella ... I don't think that's hard to do. Just leave some raw eggs out of the fridge in the summer. Botulism: just knock same cans and wait till they bulge. Ebola might be more difficult - I guess the cultures are in the centers for Disease control, University labs and similar - but I don't know how difficult it is to pretend you are part of a research project and need some cultures of bacteria to start with. I do remember a guy some years ago (in Germany) who wrote to companies about restricted, highly dangerous pesticides and similar chemicals, which are normally sold by registering etc. But because he pretened to be doing research, he got samples without any further question or investigation of being legitimate.

If the law isn't worded as clearly as Mpatterson indicates, I think the wording should be more concise, but without listing AIDS specifically. Maybe just include "infecting with dangerous illness/bacteria and virus" in there.

Can a large amount of circumstantial evidence be enough to try a murder case? The defense would no doubt tackle that subject immediately, and this question was inspired by a movie I saw this weekend, but is there a difference between having a little circumstantial evidence and so much that most people would consider it beyond coincidence?

inblackestnight: Can a large amount of circumstantial evidence be enough to try a murder case?
Luigi Novi: Most murder cases are tried on circumstantial evidence. Ever hear of the O.J. Simpson case?

This question seems to stem from the notion that "circumstantial" evidence is somehow weak or anemic. But it isn't. If you leave a cherry pie out on your window sill, and a while later it disappears, and you see your next door neighbor with cherries syrup all over his mouth, that is circumstantial evidence that may lead to the conclusion that he ate it. If you come out of a building and the sidewalk and streets are wet and there are puddles everywhere, that it circumstantial evidence that it rained.

Vince Bugliosi goes into this point in Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder.

The movie I saw that prompted me to ask that question was "Zodiac," and it seemed to me that the way that case was portrayed in the movie that there was more than enough circumstantial evidence to take 'Lee' to court yet he wasn't because the only concrete evidence SFPD used was handwriting style. There were of course differences between the movie and the real case but not a whole lot, I researched this case a great deal in college.

A slightly different question I suppose would be if there is a significant amount of CE and one piece of evidence that could link a person to a crime that exonerates him/her, would the CE be canceled out?

That's why jury trials are unpredictable, and why the prosecution and the defense occassionally bargain a plea even after the jury is sequestered in deliberation.

I have a question about the end of the movie Fracture. The movie didn't have a board and this isn't really a nit for the movie so I thought here would be appropriate. SPOILERS to follow in case nobody here has seen it.

The main character (Hopkins) shoots his wife but the prosecuter couldn't find enough evidence to convict him of attempted murder; she's still alive but in a coma. After the suspect is acquitted, he pulls the plug on his wife and the prosecuter begins to figure things out, [Hopkins] dangles double jeopardy in his face, and the movie ends back in court but this time it's for murder not attempted. My question is if the wife had something in her will that allowed pulling the plug when in a coma couldn't the defense argue that since there was an acquittal for attempted murder, and the husband was just carrying out his wife's will, that all the previous evidence be stricken from record? If I'm not explaining the situation well enough for a response I apologize, but it was a pretty good movie so perhaps I'll spark some interest to (re)watch it.

The post is adequate for either board, night, but for future reference, if you want to post for a movie that doesn't yet have a board, just use the Create a New Conversation button. It's active in each of the Genre boards under Movies.

and if you're going to post spoilers, be sure to do

Spoilers!

* * *

* * *

(spoiled material)

or smoething like that so that one doesn't have to read the paragraph to know that it's going to contain spoilers. This will help prevent accidental learning from taking place... boy that sounds wrong hee hee

I was going to create a new conversation for the movie Luigi, but since the situation was a plausible, and law-related, one I thought here was the better choice so I could get a more specific response. Thanks for reminding me though

I should add that there will be new evidence submitted for the second (murder) trial, evidence that should've been used for the first, but I suppose my real question is if it would be defended that this new evidence would be allowed to convict for murder when the attempted murder was acquitted.

Disclaimer: IANAL.

Double Jeopardy shouldn't apply. Two separate incidents.

Otherwise, it's like saying, you can rob me, get acquitted, and then rob me with impunity forever after.

It is a seperate incident but he may not have murdered his wife, if there is something in her will that allows pulling the plug when in a coma. He was acquitted for attempted murder, which he really was guilty for, but would evidence concerning that first trial be allowed in the second?

If such a case were to happen it would probably set new legal precedent.

Disclaimer: IANAL (but I do watch a lot of L&O)

Even if the charges had been dropped before jeopardy set in, a defense lawyer would object to bringing up the circumstances of the first case as prejudicial. With the actual acquittal, it is almost certain that the judge will agree. Without that background, it is basically impossible to prove murder even without a "living will."

Tom, did you also stay at a Holiday Inn Express last night?

I have a question relating to last night's SVU Premiere- so be forewarned possible SPOILER ahead.


It was about someone who faked multiple personalities in order to be able to murder their abusive parents and get away with it. At the end the woman rightly said that double jeopardy had attached so they couldn't arrest her again, so Stabler and Benson arrested her sister as an accomplice. Even if they couldn't get the woman for murder, couldn't they arrest her for perjuring herself(claiming on the stand that she was sick when they can prove she wasn't)?