Probable Cause

How are they going to prove rape changes against people like Harvey Weinstein? Are accusation and hearsay the standard?

The accusation is enough for some. But the legal standard is evidence. Testimony is evidence. All the accusers have to do is take the stand and testify that he raped them.

It becomes Weinstein's burden to prove it wasn't rape but consensual sex or false testimony or...

In the present political climate, a rape defense is nearly impossible. Has been since the Duke Lacrosse team accusations that turned out to be false.

Especially in cases where the alleged offense occurred decades ago, it really boils down to "She said/He said". If you have to decide, bias is the only possible basis for a decision. Who gets the benefit of the doubt?

Hmm. Tough call. I'll have to side w/Arpy on this one.

The problem here is no one really doubts the hearsey.

HisArpy said:

The accusation is enough for some. But the legal standard is evidence. Testimony is evidence. All the accusers have to do is take the stand and testify that he raped them.

It becomes Weinstein's burden to prove it wasn't rape but consensual sex or false testimony or...

In the present political climate, a rape defense is nearly impossible. Has been since the Duke Lacrosse team accusations that turned out to be false.

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You're not citing English law are you? (https://fullfact.org/crime/factcheck-men-accused-rape-dont-have-prove-woman-said-yes/)?

I'd be shocked if you can cite an active U.S. legal caselaw precedent that supports the idea that the burden of proof of innocence rests with the defendant in a rape case.

Statistics refute your assertion re: an "impossible" rape defense. (https://opsvaw.as.uky.edu/sites/default/files/07_Rape_Prosecution.pdf).

I'm not making a value judgment here in sympathy with victims of criminal assault. In fact, I AM sympathetic to their plight. At the same time, ANY criminal conviction is SUPPOSED to be difficult to obtain. Our Constitution is specifically written that way.

I just have a problem reconciling anything the entertainment left wants to promulgate knowing that for as long as there has been an entertainment industry, there has been a casting couch and the knowledge that you have to 'pay to play.'

I know, I know, I know..., rape and the victims always have to be believed and have sympathy, but the hypocrisy of an entire industry that had the power, for decades, to end the casting couch custom, but instead put career before offense just makes me a lot less sympathetic.

Ever been to an after-the-show cast party?
It's a hedonistic bacchanal where everything goes and the willing cannot be raped.

I just do not know if I could convict Harvey over something that had become an ingrained, and accepted, custom.

Talk is cheap until it is your mother/wife/daughter.

I am with Col Hogan. It should be tougher to prove than an accusation. Are seventy accusations proof?

I predict there will be solid evidence in the future.

HisArpy said:

The accusation is enough for some. But the legal standard is evidence. Testimony is evidence. All the accusers have to do is take the stand and testify that he raped them.

It becomes Weinstein's burden to prove it wasn't rape but consensual sex or false testimony or...

In the present political climate, a rape defense is nearly impossible. Has been since the Duke Lacrosse team accusations that turned out to be false.

Click to expand...

Wow. You're as shit a lawyer as you are an internet guru, Tim.

Colonel Hogan said:

You're not citing English law are you? (https://fullfact.org/crime/factcheck-men-accused-rape-dont-have-prove-woman-said-yes/)?

I'd be shocked if you can cite an active U.S. legal caselaw precedent that supports the idea that the burden of proof of innocence rests with the defendant in a rape case.

Statistics refute your assertion re: an "impossible" rape defense. (https://opsvaw.as.uky.edu/sites/default/files/07_Rape_Prosecution.pdf).

I'm not making a value judgment here in sympathy with victims of criminal assault. In fact, I AM sympathetic to their plight. At the same time, ANY criminal conviction is SUPPOSED to be difficult to obtain. Our Constitution is specifically written that way.

Click to expand...

Once the prosecution makes it case the burden of proof shifts to the defense.

Generally speaking, the party that filed the action (be it a criminal complaint by the state’s attorney, or a civil law suit by a private party), has the burden of proof to establish, through evidence, all the requisite elements of a prima facie case. . .

If that burden is met, the burden of proof then shifts to the defendant in the case, who now has to plead and prove any defense...
Shifting of the burden of proof

Click to expand...

Ramone45 said:

Especially in cases where the alleged offense occurred decades ago, it really boils down to "She said/He said". If you have to decide, bias is the only possible basis for a decision. Who gets the benefit of the doubt?

Click to expand...

There are standards which control who wins. In criminal cases, it's beyond a reasonable doubt. If the defense can cast enough doubt about the prosecution's case, the defense wins.

Here's the real head twister - most jurisdictions have statutes that say in the case of a "tie" the defense wins because any and all question on the sufficiency or veracity of the evidence must be weighted for the benefit of the defense. So, if it comes down to; "he said, she said", and both are equally believable and there's nothing else to go on, the defense wins.

HisArpy said:

Once the prosecution makes it case the burden of proof shifts to the defense.

Click to expand...

Thanks for the link. And, citing from it:

In contrast to the rare circumstances where a burden of proof may shift in a criminal trial, there are several applications of such a concept in civil matters.

Generally speaking, the party that filed the action (be it a criminal complaint by the state’s attorney, or a civil law suit by a private party), has the burden of proof to establish, through evidence, all the requisite elements of a prima facie case. For example, in a case for the offense of tortious battery, the complainant has the burden of proof to establish (1) that there was a specific intent to make contact with the person of another (2) in a harmful or offensive manner, (3) without consent, and (4)a harmful or offensive contact occurred.

If that burden is met, the burden of proof then shifts to the defendant in the case, who now has to plead and prove any defense, by a preponderance of evidence.

Click to expand...

So, what I take from that is that, in criminal cases, the burden of proof shifts to the defense only when "requisite elements" of a "prima facie case" have been established. And, not being versed in procedural matters, I would think that a motion of some sort would be necessary at trial to established that a shift of burden had taken place. True? Otherwise, how would the defense know that it has an increased legal responsibility?

And, furthermore, in a criminal case, even if and when that burden has shifted to the defense, the "burden" of proof is to prove nothing more than a "reasonable doubt" that ANY of the requisite criminal elements, in fact, occurred.

Am I close?

Yeah, I don't think, legally, a "burden" ever shifts to the defense. That's like saying a defendant has to prove her innocence. It may be beneficial for a defendant to present exculpatory evidence, but I don't think there is any legal requirement. Is there?

In all cases, the complainant (prosecutor or plaintiff) has to produce all the evidence to satisfy every element of the claims made. In criminal cases, that means evidence proving each and every element of the offenses charged.

Take the crime of "battery" for example. For battery to be shown the prosecutor has to prove:

There was a touching;
The touching was offensive;
The touching was to the victims person;
The touching was intentional or deliberate;
AND that the touching caused harm.

Thus, the prosecution lays out all the evidence through records, testimony, and any applicable expert opinion that the above elements of the offense are supported by facts.

At that point the Prosecution rests its case. With no other evidence than the above being shown, the jury would have no choice but to convict because all of the evidence produced at that point indicates guilt.

So, once the prosecution rests, the burden shifts to the defense to prove that one or more of the elements aren't satisfied by either offering different evidence which contradicts that of the prosecution, discrediting the testimony of witnesses, or offering expert opinions that have different interpretations of evidence/testimony/records/etc., or there are other lawful reasons that prevent conviction on the charges (Immunity, Good Samaritan laws, Statutory exemptions and so on).

The jury determines which version of facts and events is more likely the truth.

It comes down to each side having to prove their side of the argument. The Prosecution says "The evidence proves you did it!" The defense says "No, I didn't. And here's why." And the jury says "You damn lecher! Guilty on all counts!"

Applying the above to rape allegations against Weinstein, it's very difficult to discredit a series of tearful women who all cry and testify on the witness stand that Weinstein raped them.

Even if they're all lying, it's very difficult to discredit them when the alleged perpetrator sits at the defense table and never personally denies anything because he never takes the witness stand.

And, society is predisposed to believe the woman over the man. Again, the Duke Lacrosse team rape allegations are a shining example of how easily the claim is made, even when it's false, and the public will automatically believe the allegations are true.

Ramone45 said:

Yeah, I don't think, legally, a "burden" ever shifts to the defense. That's like saying a defendant has to prove her innocence. It may be beneficial for a defendant to present exculpatory evidence, but I don't think there is any legal requirement. Is there?

Click to expand...

Let's take a simple example:

Victim: "It was him! HIM! He grabbed me from behind. He held on and pulled me backward so hard he left bruises on my arms."
Prosecutor: "Here are some pictures. Are they pictures of the bruises on your arms?."
Victim: "Yes. Those are my arms and the bruises are from when HE grabbed me."

Is that enough to convict someone of battery? Yes.
Is it "hearsay"? No. Because the victim is the one who is testifying about what happened.

At that point if the defense doesn't do anything the defendant is going to be convicted. If he doesn't want to be convicted he has to come up with a reason why not. That is where the burden shifts.

Defendant: "I admit I grabbed her. She was jumping off the bridge. She kept on trying to jump so I pulled her back and held on until the police arrived."

- Or -

Defendant: "It wasn't me. I wasn't there and she's misidentified me."
Witness for defense: It's true. The defendant was in bed with me at the time in a motel across town."
Defense attorney: "Is this a receipt for the motel?"
Defense witness: "Yes."
Defense attorney: "And is this you and the defendant on this video from the motel security camera?"
Defense witness: "Yeah, that's us."


Are either of those sufficient to nullify the prosecutions case? Isn't it the burden of the defense to produce those arguments and evidence?

HisArpy said:

Let's take a simple example:

Victim: "It was him! HIM! He grabbed me from behind. He held on and pulled me backward so hard he left bruises on my arms."
Prosecutor: "Here are some pictures. Are they pictures of the bruises on your arms?."
Victim: "Yes. Those are my arms and the bruises are from when HE grabbed me."

Is that enough to convict someone of battery? Yes.
Is it "hearsay"? No. Because the victim is the one who is testifying about what happened.

At that point if the defense doesn't do anything the defendant is going to be convicted. If he doesn't want to be convicted he has to come up with a reason why not. That is where the burden shifts.

Defendant: "I admit I grabbed her. She was jumping off the bridge. She kept on trying to jump so I pulled her back and held on until the police arrived."

- Or -

Defendant: "It wasn't me. I wasn't there and she's misidentified me."
Witness for defense: It's true. The defendant was in bed with me at the time in a motel across town."
Defense attorney: "Is this a receipt for the motel?"
Defense witness: "Yes."
Defense attorney: "And is this you and the defendant on this video from the motel security camera?"
Defense witness: "Yeah, that's us."


Are either of those sufficient to nullify the prosecutions case? Isn't it the burden of the defense to produce those arguments and evidence?

Click to expand...

Florida State settles suit over Jameis Winston rape inquiry

SgtSpiderMan said:

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Florida State University agreed on Monday to pay $950,000 to settle a lawsuit filed by a former student who accused the former Seminoles football star Jameis Winston of raping her in 2012.

The settlement also commits Florida State to five years of sexual assault awareness programs and to the publishing of annual reports on those programs, although the university did not admit liability. Winston was never criminally charged in the case, in part, the local prosecutor acknowledged, because a number of shortcomings in the police investigation left him without the evidence needed to sustain a charge of rape.

Because of the publicity it generated, the Winston case became a centerpiece for a national debate over two intertwined issues: how universities handle allegations of sexual assault, and whether colleges and the police afford special treatment to athletes accused of misconduct. A New York Times examination — based on police and university records, as well as interviews with people close to the case, including lawyers and sexual assault experts — found that Florida State and the Tallahassee police had done little to determine what happened in the Winston case.

Click to expand...

https://www.nytimes.com/2016/01/26/...is-winstons-accuser-950000-in-settlement.html

WoundedKnee said:

I just have a problem reconciling anything the entertainment left wants to promulgate knowing that for as long as there has been an entertainment industry, there has been a casting couch and the knowledge that you have to 'pay to play.'

I know, I know, I know..., rape and the victims always have to be believed and have sympathy, but the hypocrisy of an entire industry that had the power, for decades, to end the casting couch custom, but instead put career before offense just makes me a lot less sympathetic.

Ever been to an after-the-show cast party?
It's a hedonistic bacchanal where everything goes and the willing cannot be raped.

I just do not know if I could convict Harvey over something that had become an ingrained, and accepted, custom.

Click to expand...

Its always political with you prairee nigger not republicans isnt it. You need to get over your butthurt.

Buccaneers' Jameis Winston faces suspension for first three games

SgtSpiderMan said:

Click to expand...

The NFL is planning to suspend Tampa Bay Buccaneers quarterback Jameis Winston the first three games of the season for violating the league's personal conduct policy, per league sources.

The planned suspension stems from an alleged incident with an Uber driver in Scottsdale, Arizona, in March 2016.

The league began its investigation in November 2017 when a woman, who identified herself as "Kate," told BuzzFeed that Winston reached over and grabbed her crotch while waiting at a drive-thru at Los Betos Mexican Food at 2 a.m.

Click to expand...

http://kwese.espn.com/nfl/story/_/i...ck-jameis-winston-suspended-first-three-games

HisArpy said:

In all cases, the complainant (prosecutor or plaintiff) has to produce all the evidence to satisfy every element of the claims made. In criminal cases, that means evidence proving each and every element of the offenses charged.

Take the crime of "battery" for example. For battery to be shown the prosecutor has to prove:

There was a touching;
The touching was offensive;
The touching was to the victims person;
The touching was intentional or deliberate;
AND that the touching caused harm.

Thus, the prosecution lays out all the evidence through records, testimony, and any applicable expert opinion that the above elements of the offense are supported by facts.

At that point the Prosecution rests its case. With no other evidence than the above being shown, the jury would have no choice but to convict because all of the evidence produced at that point indicates guilt.

So, once the prosecution rests, the burden shifts to the defense to prove that one or more of the elements aren't satisfied by either offering different evidence which contradicts that of the prosecution, discrediting the testimony of witnesses, or offering expert opinions that have different interpretations of evidence/testimony/records/etc., or there are other lawful reasons that prevent conviction on the charges (Immunity, Good Samaritan laws, Statutory exemptions and so on).
The jury determines which version of facts and events is more likely the truth.

It comes down to each side having to prove their side of the argument. The Prosecution says "The evidence proves you did it!" The defense says "No, I didn't. And here's why." And the jury says "You damn lecher! Guilty on all counts!"

Click to expand...

Doesn't that go to the heart of the adversarial system of justice?

Either way, I hope they nail the bastard.