Author Topic: Ask a Lawyer  (Read 157 times)

Sandra Craft

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Ask a Lawyer
« on: December 02, 2018, 07:34:13 AM »
I know we've got at least one on this forum.

Question:  is an accusation considered evidence?

This is for nothing more serious than a FB argument.  A claim has been made that an accusation is a form of testimony, which is evidence.  I don't see how this can be so, not least because it seems to me to be "guilty until proven innocent". 

I've been googling around, trying to get a handle on it, but thought I should try for an actual lawyer's opinion. 
Sandy

  
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xSilverPhinx

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Re: Ask a Lawyer
« Reply #1 on: December 02, 2018, 08:50:28 PM »
It doesn't make sense from a common sense perspective that an accusation could be considered evidence. Unless it's in Brazil, but then again Brazil doesn't make sense.

I'm also interested in what Bruce has to say, regarding the law in the US.
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jumbojak

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Re: Ask a Lawyer
« Reply #2 on: December 02, 2018, 10:27:14 PM »
I don't think that The Law makes sense anywhere. That's why we need lawyers.
 

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Re: Ask a Lawyer
« Reply #3 on: December 02, 2018, 11:17:18 PM »
I don't think that The Law makes sense anywhere. That's why we need lawyers.

That is true. :smilenod:
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Sherman Firefly

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Re: Ask a Lawyer
« Reply #4 on: December 03, 2018, 10:15:59 AM »
Well to my layman's eye an accusation is not evidence. One need evidence to support the accusation.
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Sandra Craft

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Re: Ask a Lawyer
« Reply #5 on: December 03, 2018, 11:30:40 AM »
Well to my layman's eye an accusation is not evidence. One need evidence to support the accusation.

That's what I said, but I got directed to a Wiki page about testimony.  The position of the guy I'm arguing with is that an accusation is testimony and testimony is evidence.  I think he's missing a step some where along the line but don't really understand it myself.
Sandy

  
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Ecurb Noselrub

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Re: Ask a Lawyer
« Reply #6 on: December 06, 2018, 08:42:36 PM »
I know we've got at least one on this forum.

Question:  is an accusation considered evidence?

This is for nothing more serious than a FB argument.  A claim has been made that an accusation is a form of testimony, which is evidence.  I don't see how this can be so, not least because it seems to me to be "guilty until proven innocent". 

I've been googling around, trying to get a handle on it, but thought I should try for an actual lawyer's opinion.

A mere accusation is not evidence.  However, it is often form that separates an accusation from eyewitness testimony, which is evidence in court, however flawed it may be.  "Bob murdered John" is an accusation.  "On July 12, 2018, I personally saw Bob kill John with a knife while John was working on his computer" is eyewitness testimony.  It is legal evidence.  Of course, on cross-examination it may be that the witness' evidence falls apart. 

Does this help?

Sandra Craft

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Re: Ask a Lawyer
« Reply #7 on: December 07, 2018, 02:09:14 AM »
I know we've got at least one on this forum.

Question:  is an accusation considered evidence?

This is for nothing more serious than a FB argument.  A claim has been made that an accusation is a form of testimony, which is evidence.  I don't see how this can be so, not least because it seems to me to be "guilty until proven innocent". 

I've been googling around, trying to get a handle on it, but thought I should try for an actual lawyer's opinion.

A mere accusation is not evidence.  However, it is often form that separates an accusation from eyewitness testimony, which is evidence in court, however flawed it may be.  "Bob murdered John" is an accusation.  "On July 12, 2018, I personally saw Bob kill John with a knife while John was working on his computer" is eyewitness testimony.  It is legal evidence.  Of course, on cross-examination it may be that the witness' evidence falls apart. 

Does this help?

Yes, it does.  Thanks.  The argument in this case was about rape accusations, and I can see where the line between accusation and testimony could be blurry for that.  So the accusation from a rape victim could count as legal evidence unless or until it falls apart under cross-examination?
Sandy

  
"I think this is the prettiest world -- as long as you don't mind a little dying, how could there be a day in your whole life that doesn't have its splash of happiness?"  from The Kingfisher, by Mary Oliver

Ecurb Noselrub

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Re: Ask a Lawyer
« Reply #8 on: December 07, 2018, 10:08:53 AM »

Yes, it does.  Thanks.  The argument in this case was about rape accusations, and I can see where the line between accusation and testimony could be blurry for that.  So the accusation from a rape victim could count as legal evidence unless or until it falls apart under cross-examination?

I want to try to be clear about the distinction.  The defendant has been indicted by a grand jury for rape. The allegation that John raped Mary is just an accusation at this point. At the trial, Mary testifies under oath that "on the night of September 12, 2017, John raped me at my house." If the judge allows her testimony to be admitted into the record, it becomes "evidence".  If nothing is done by the defendant, that could be sufficient evidence to convince a jury to convict him.  But let's say that the defense attorney gets Mary to admit on cross examination that on that night, she may not have been at home, but she may have been visiting her mother.  Mary gets confused and waffles a bit on her story.  While her testimony is still evidence, the jury might decide that it is not strong enough to convict John beyond a reasonable doubt.  Or let's say that the defense attorney introduces evidence in the form of a restaurant receipt that shows that on that night, John was 200 miles away.  Again, Mary's testimony remains "evidence" (unless the judge is so convinced otherwise that he strikes it from the official record), but the jury would probably not think it strong enough to convict John.

Does that make sense, or does it sound too technical?

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Re: Ask a Lawyer
« Reply #9 on: December 07, 2018, 10:24:07 AM »

Yes, it does.  Thanks.  The argument in this case was about rape accusations, and I can see where the line between accusation and testimony could be blurry for that.  So the accusation from a rape victim could count as legal evidence unless or until it falls apart under cross-examination?

I want to try to be clear about the distinction.  The defendant has been indicted by a grand jury for rape. The allegation that John raped Mary is just an accusation at this point. At the trial, Mary testifies under oath that "on the night of September 12, 2017, John raped me at my house." If the judge allows her testimony to be admitted into the record, it becomes "evidence".  If nothing is done by the defendant, that could be sufficient evidence to convince a jury to convict him.  But let's say that the defense attorney gets Mary to admit on cross examination that on that night, she may not have been at home, but she may have been visiting her mother.  Mary gets confused and waffles a bit on her story.  While her testimony is still evidence, the jury might decide that it is not strong enough to convict John beyond a reasonable doubt.  Or let's say that the defense attorney introduces evidence in the form of a restaurant receipt that shows that on that night, John was 200 miles away.  Again, Mary's testimony remains "evidence" (unless the judge is so convinced otherwise that he strikes it from the official record), but the jury would probably not think it strong enough to convict John.

Does that make sense, or does it sound too technical?

Spot on for me.
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Sandra Craft

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Re: Ask a Lawyer
« Reply #10 on: December 07, 2018, 09:38:24 PM »

Does that make sense, or does it sound too technical?

Makes sense to me.  This, in particular, was what I was trying to get at in the FB argument: "The allegation that John raped Mary is just an accusation at this point."  And an accusation is not evidence.

So to make sure I'm understanding what I think I'm understanding: an accusation made to the police is just a claim that X happened which they will investigate, to see if there's anything to it that the law can take action on.  The accusation doesn't become evidence under the law until the case goes to trial and Mary stands up in court and says "John raped me".
Sandy

  
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Icarus

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Re: Ask a Lawyer
« Reply #11 on: December 07, 2018, 11:30:15 PM »
Sandy that still may not be qualified as evidence.  It is only an allegation or claim until some substantial evidence is produced.  A rape kit for instance or a witness, some sign of injury that is recorded soon after the offense....

The deck is stacked against women who have been abused.  The whole damned thing is complicated and not at all easy to prove by the hapless woman.  What if the activity was consensual and she later discovered that the guy was a miserable opportunist bastard and she wants to take revenge................and so on. 

Good thing that we have lawyers and judges to sort these things out.  Sometimes the sorting process does not lead to actual justice,,,,alas.

Ecurb Noselrub

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Re: Ask a Lawyer
« Reply #12 on: December 08, 2018, 02:31:40 AM »

Does that make sense, or does it sound too technical?

Makes sense to me.  This, in particular, was what I was trying to get at in the FB argument: "The allegation that John raped Mary is just an accusation at this point."  And an accusation is not evidence.

So to make sure I'm understanding what I think I'm understanding: an accusation made to the police is just a claim that X happened which they will investigate, to see if there's anything to it that the law can take action on.  The accusation doesn't become evidence under the law until the case goes to trial and Mary stands up in court and says "John raped me".

It becomes evidence at that point. It may not be sufficient evidence to convict, but it is some evidence. Generally, prosecutors want more than "he said-she said".  They want some corroborating evidence.  But once admitted by a court into the record, the statement does become evidence.