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Bart wrote:[youtube]http://youtube.com/watch?v=i8z7NC5sgik[/youtube]

Okay. I've listened to part of this so far and I have one question. If nothing you tell the police can be used to help you in court because it is hearsay, why is everything you tell them not hearsay? He points out that when someone is arrested and read their rights they are told that everything they say can and will be used against you, but he emphasizes that nothing you say can be used to help you. Why is it like this? This doesn't make any sense to me.

C-dub wrote:Okay. I've listened to part of this so far and I have one question. If nothing you tell the police can be used to help you in court because it is hearsay, why is everything you tell them not hearsay? He points out that when someone is arrested and read their rights they are told that everything they say can and will be used against you, but he emphasizes that nothing you say can be used to help you. Why is it like this? This doesn't make any sense to me.

Anything you say that could prove your innocence are just "Lies" that you are telling to get off. If you werent the scum of the earth why would they arrest you? Anything the cops say or claim they saw is Gospel because the police would never lie, or be mistaken.
The reason they tell you "anything you say can be used against you" is because of the Miranda case, where basically the idiot didnt know that everything he was saying was evidence.
Basically its a messed up world, and we live in it

srothstein wrote:Actually, in Texas, he would not own the guns, his wife would. As I understand the laws on community property, if she owned them before the marriage (her claim in the article), they are hers and not part of the communal estate.

In the link to the article, it mentioned that he did not have to own the guns, only be in possession of them (prosecutor gave the analogy of renting a DVD...you don't own it, but it is in your possession). They didn't have to be his personal property to be in violation of the law.

03Lightningrocks wrote:

rm9792 wrote:I was told by an attorney that felons can be around guns but cant have control, ie I have a couple friends with NV felonys and they can be with me and ride in my car but cant be alone with the firearms. It doesnt seem to be much of an issue.

That situation would make sense. But if a felon lives in the house....do all in the house lose the right to have a weapon in the house? He or she is going to be alone with the guns at some point. It seems the answer is yes in the case posted above. I wonder what the law is in Texas regarding this issue.

That's my understanding. No guns allowed in the house where a felon lives. I seem to recall a case not long ago about that very thing. A felon moved in with his parents, and his parents had to remove their firearms from the house.

C-dub wrote:Okay. I've listened to part of this so far and I have one question. If nothing you tell the police can be used to help you in court because it is hearsay, why is everything you tell them not hearsay? He points out that when someone is arrested and read their rights they are told that everything they say can and will be used against you, but he emphasizes that nothing you say can be used to help you. Why is it like this? This doesn't make any sense to me.

The logic goes like this: if I make a statement to another person against my own interest, I must be telling the truth, otherwise, I would not say it. So, those sorts of admissions are admissible. It's an exception to the heresay rule.

But, If I give you information that is exculpatory, you can't testify to that statement in court because it is heresay and there is no exception to the rule for such statements. I can testify to what I said, but others can't testify to what I said. Why? Because everyone will claim innocence--including bad guys. So denying guilt isn't a reliable means of establishing guilt. Wereas admitting guilt is a reliable way of establishing guilt.

That's why "anything you say can and will be used AGAINST you," but none of it will be used by the police to establish your innocence.

C-dub wrote:Okay. I've listened to part of this so far and I have one question. If nothing you tell the police can be used to help you in court because it is hearsay, why is everything you tell them not hearsay? He points out that when someone is arrested and read their rights they are told that everything they say can and will be used against you, but he emphasizes that nothing you say can be used to help you. Why is it like this? This doesn't make any sense to me.

Good question, C-dub, as we would expect from you. Many a law student would be stumped by your question. Let me hasten to add that I have not looked at the video up above, but I can address the dilemma you raise.

The quick and dirty truth is that an admission against one's interests to the police is generally considered to be not an exception to the hearsay rule in a criminal trial, but rather, it simply is not hearsay. With your forgiveness I will avoid the temptation to dwell on this at personal length, and instead take the easy way out and quote some language from Wikipedia, since I think it addresses your question quite well:

'The hearsay rule operates to exclude extra-judicial assertions as untrustworthy because they cannot be tested by cross-examination. When an assertion is offered into evidence against the defendant and the defendant objects, “hearsay,” the defendant is in essence saying “I object to this statement as untrustworthy because I am not afforded an opportunity to cross-examine the person who made it. How can we trust what he said?” But what if the defendant is the person who made the statement that is now being offered against him? To object, “hearsay” in this circumstance would be as absurd as to argue, “This statement is unreliable because I cannot cross-examine myself; therefore, how can I trust what I said?” In this situation the objection of the Hearsay rule falls away, because the very basis of the rule is lacking, viz. the need and prudence of affording an opportunity of cross-examination. Another way of looking at it is that a defendant who faces his own statement being used against him has an opportunity to cross-examine himself – he can take the witness stand and explain his prior assertion, so the rule is satisfied.'

I trust this helps to make sense of the distinction here. This is not one of those situations where lawyers and judges count the number of angels on the head of a pin, although there are many of those elsewhere. This is not a case of hearsay of one kind being admissible, and hearsay of another kind being inadmissible.

Contrast the exculpatory statement -- a criminal defendant in the US cannot be compelled to testify, and if he chooses to not testify he is therefore not subject to cross-examination, and the out-of-court statement is plain old-fashioned inadmissible hearsay.

Early on in our Constitutional history it was argued by a prosecutor that the judge should let that pretrial exculpatory statement into evidence if the defendant wanted it in, consider it to be testimonial in nature, and rule that the defendant thereby waived his right to remain silent and off the stand. Ingenious, but it did not fly.

Jim

Great. So, don't talk. I've been telling my wife this if anything were to ever happen, but I never knew exactly why or the depth of the reason why. Thanks guys.

I was thinking that the wife could have guns in the house, but the husband can't have access to them or something. If they were trigger locked or in a safe, they could claim only she has the combo or key. Tough to manage that I think.

The problem to me here is that the cops should have looked up his recent record and decided not to arrest the guy over this. It seems to me that cops ought to be able to use a little judgment here.

Of course, I find it hard to believe that he didn't know he was forbidden to possess guns after a burglary conviction. That is pretty common knowledge I thought.

MechAg94 wrote:I was thinking that the wife could have guns in the house, but the husband can't have access to them or something. If they were trigger locked or in a safe, they could claim only she has the combo or key. Tough to manage that I think.

The problem to me here is that the cops should have looked up his recent record and decided not to arrest the guy over this. It seems to me that cops ought to be able to use a little judgment here.

Of course, I find it hard to believe that he didn't know he was forbidden to possess guns after a burglary conviction. That is pretty common knowledge I thought.

" It seems to me that cops ought to be able to use a little judgment here. " The same judgement they use in arresting over blatantly invalid signs? I agree they should be able to use some judgement but unfortunately not all officers think alike and most dont seem to know the laws they are sworn to uphold.

"That is pretty common knowledge I thought." I would bet 2 months pay he knew that. Criminals know the law and this is pretty basic.

MechAg94 wrote:Of course, I find it hard to believe that he didn't know he was forbidden to possess guns after a burglary conviction. That is pretty common knowledge I thought.

In some states, burglary can be a misdemeanor under certain circumstances.

Edit to add: Washington does not appear to be one of those states.

C-dub wrote:Great. So, don't talk. I've been telling my wife this if anything were to ever happen, but I never knew exactly why or the depth of the reason why. Thanks guys.

There is another reason which could, in the right case, C-dub, argue in favor of your advice to your wife to not talk before speaking with her lawyer.

If she chooses to say "I didn't do it" to the police, and it is later either proven that she did do it, or, in theory, even if there is probable cause to believe that she did it, she is subject to arrest and prosecution in most, if not all, jurisdictions, for something like obstruction of justice, false statement to an LEO, or whatever a particular state or the feds call it.

Ask Martha Stewart.

(One might be well to keep in mind that when finding herself in this stressful emotional situation may not the best time for her and/or you to thumb through the yellow pages looking for a lawyer, or to grab some guy sitting in the courthouse corridor waiting for a prospective client to come along in handcuffs. Lawyers come in all kinds, as is true of any profession. I am not suggesting that everyone should keep a qualified criminal lawyer on a costly retainer. I only suggest that one might spend a few moments while everything is cool and quiet and have at least an idea who they would first call should a situation like this arise -- not necessarily in an effort to retain this individual, but at least someone who could be expected to give you good advice as to a lawyer you might consult.)

Jim

MechAg94 wrote:The problem to me here is that the cops should have looked up his recent record and decided not to arrest the guy over this. It seems to me that cops ought to be able to use a little judgment here.

There's no bonus in it for being a peace officer, but being a law enforcer scores points. The number of felony arrests leading to successful prosecution is part of an officer's performance evaluation, and this one was a gimmee that didn't even require any police work. The statutory and case law make it a slam dunk for everyone from the arresting officer to the prosecuting attorney to the sentencing judge.

Of course, I find it hard to believe that he didn't know he was forbidden to possess guns after a burglary conviction. That is pretty common knowledge I thought.

For people who don't follow firearms matters closely, it's a common misconception that someone who leads a clean life is legally exonerated after 5 or 10 years. Or, they trust the system to produce justice (like your first quote above), and are shocked when it doesn't.

Even when state law allows that, federal law doesn't. Someone who never serves a single day behind bars, if convicted for a crime which could have a maximum sentence of more than one year in prison, is barred for life from possessing a firearm of any type, a single round of ammunition, or "ammunition components". I've read cases where people who were highly respected upstanding citizens have been prosecuted by the feds for possessing a hunting rifle that was legal by state law, but illegal because of a criminal conviction decades earlier at age 18 or 19.

Most people have heard of G. Gordon Liddy saying "I don't own any guns, but my wife does. She just keeps them on my side of the bed." While that sounds good, in reality he could get sent back to prison for 5 years for each gun and each round of ammunition.

The original article cited above doesn't give the critical details we need to know if this was a case of actual possession, constructive possession, or neither. I might have missed it, but I didn't see any mention of the guns being secured. A reporter might not know or care about the significance of that detail, but it's critical to understanding if this was a legit conviction.

I feel sorry for the guy. By my understanding he broke into a school 20 years ago when he was 17 or 18. He obviously learned from the mistake and now he's taken away from his family because he called the cops for help. This is stupid.

marksiwel wrote:

joe817 wrote:

marksiwel wrote: Who said lying? I just want to plead the 5th or not answer at all if I dont have to

You did:

Do you legally have to tell the truth?

The opposite of telling the truth is telling a lie, at least in my book.

Your book and the law diverge

If I report a robbery, the cops come to the door and say "Do you have any guns in the house" amI legally required to tell them "Yes officer" or can I say "None of your business"?

If he wants to flat-foot it back with a warrant, he can come in and see for himself. Otherwise, don't let the door hit you on the way out.