[sierramadre44]

Originally Posted by ClarkGrisowld

What is your point already? You're asking people's opinion on an incomplete set of facts. Incomplete facts = indeterminate answer. What are you hoping to prove?

Okay, okay, since you are the only one that stuck your neck out and played the game. The LEGAL answer is #1. The charges should be dismissed because of reasonable doubt. The neighbor witness did not witness the entire incident therefore that testimony should not be considered. Then it goes back to your reasonsing of he said/she said. Without clear & convincing evidence the case should be dismissed.

The point is folks here, even from a law firm it seems, said this senario could go all different kinds of ways. Wrong. There is only one clear answer. Dismissed.

Thanks for playing.

[ClarkGrisowld]

Originally Posted by sierramadre44

Okay, okay, since you are the only one that stuck your neck out and played the game. The LEGAL answer is #1. The charges should be dismissed because of reasonable doubt because the neighbor witness did not witness the entire incident therefore that testimony should not be considered. Then it goes back to your reasonsing of he said/she said. Without clear & convincing evidence, the case should be dismissed.

The point is folks here, even from a law firm it seems, said this senario could go all different kinds of ways. Wrong. There is only one clear answer. Dismissed.

Thanks for playing.

And you're wrong. It's not a clear answer as already mentioned. There is enough to charge the gf with battery. Whether she is found guilty depends on the merits of a self-defense case. You're assuming facts that you did not present to us. And, by the way, mere merit to a self-defense case does not and should not preclude charges being filed. That's for a jury to decide.

If the bf denies hitting her, there is no evidence that he did, and he wants to press charges #1 is likely NOT the answer.

[dashboardangel]

Originally Posted by sierramadre44

Okay, okay, since you are the only one that stuck your neck out and played the game. The LEGAL answer is #1. The charges should be dismissed because of reasonable doubt. The neighbor witness did not witness the entire incident therefore that testimony should not be considered. Then it goes back to your reasonsing of he said/she said. Without clear & convincing evidence the case should be dismissed.

The point is folks here, even from a law firm it seems, said this senario could go all different kinds of ways. Wrong. There is only one clear answer. Dismissed.

Thanks for playing.

You are wrong. This is your opinion based on your own assumption of the law. The case wouldn't be dismissed because of the neighbor's flawed "eye-witness" account. There is evidence for the jury to examine, testimony of both parties and the testimony of the police officers at the scene, along with all the discovery that comes with a case. The neighbor is just one cog in the wheel, and not exactly a very important one considering it's highly likely her testimony would not even be heard in court after her deposition was taken.

There are many, many cases where there is no "clear and convincing evidence" and the case is still tried and the defendant is still found either guilty or innocent. Your lack of a separate witness to the domestic abuse means nothing in the long run and her testimony probably would never be heard by the jury because a court would (more likely than not) rule it inadmissible.

Again, what is your point? Do you even have one?

[sierramadre44]

Originally Posted by ClarkGrisowld

And you're wrong. It's not a clear answer as already mentioned. There is enough to charge the gf with battery. Whether she is found guilty depends on the merits of a self-defense case. You're assuming facts that you did not present to us. And, by the way, mere merit to a self-defense case does not and should not preclude charges being filed. That's for a jury to decide.

If the bf denies hitting her, there is no evidence that he did, and he wants to press charges #1 is likely NOT the answer.

No, dear, that is NOT the law. The burden of proof is upon the prosecution to PROVE the case; not on the defense to prove it didn't happen. I assumed nothing. I gave a simple senario and you all assumed a lot. Remember the presumption is "innocent until proven guilty." Who said anything about a jury? This could be a bench trial. See the assumptions you've already made that have nothing to do with the facts? I'm just saying.

The bf might WANT to press charges, but he has to PROVE his case. He must prove beyond a reasonable doubt with clear and convincing evidence that she initated the physical violence. This is not rocket science.

[sierramadre44]

Originally Posted by dashboardangel

You are wrong. This is your opinion based on your own assumption of the law. The case wouldn't be dismissed because of the neighbor's flawed "eye-witness" account. There is evidence for the jury to examine, testimony of both parties and the testimony of the police officers at the scene, along with all the discovery that comes with a case. The neighbor is just one cog in the wheel, and not exactly a very important one considering it's highly likely her testimony would not even be heard in court after her deposition was taken.

There are many, many cases where there is no "clear and convincing evidence" and the case is still tried and the defendant is still found either guilty or innocent. Your lack of a separate witness to the domestic abuse means nothing in the long run and her testimony probably would never be heard by the jury because a court would (more likely than not) rule it inadmissible.

Again, what is your point? Do you even have one?

I beg to differ. I gave a simple example and others made their own assumptions. Without witnesses to an event and tangible evidence, all you have is the bf & gf saying one or the other battered the other. Without clear and convincing EVIDENCE to prove beyond a reasonable doubt who initiated the battery and who was defending one's self there is no case. To say otherwise is just foolish.

You have made assumptions with no basis for such. Police didn't exist in the example. Who said a deposition was taken? Who said there was a jury? There is no discovery. Why would a defendent's testimony be ruled inadmissible? She has direct knowledge of the event and has the right under law to testify. That's just bull.

This was how we got here: Preference is supposed to be given to the preponderance of the EVIDENCE in some cases and ruled under the fact of law. Also, the plaintiff is supposed to have the job of PROVING their case which is seldom done because why? Because of the attitude that if a plaintiff brought a case well then the defendant must have done something wrong. That, of course, is not always the case.

Hence the point. Being the Plaintiff or the Defendant does not automatically assume that either is on the 'right' side of the law.

[stingraynm]

Originally Posted by sierramadre44

No, dear, that is NOT the law. The burden of proof is upon the prosecution to PROVE the case not on the burden of the defense to prove it didn't happen. I assumed nothing. I gave a simple senario and you all assumed a lot. Remember the presumption is "innocent until proven guilty." Who said anything about a jury? This could be a bench trial. See the assumptions you've already made that have nothing to do with the facts? I'm just saying.

The bf might WANT to press charges, but he has to PROVE his case. He must prove beyond a reasonable doubt with clear and convincing evidence that she initated the physical violence. This is not rocket science.

I've got nothing on most of this debate, but this is a good point for me to point out that "innocent until proven guilty" is a lot like "to protect and serve". It's an ideal that is hopefully upheld by all means, but there is nothing in actuality that guarantees those tenets will be followed. In reality, rulings throughout history (especially infamous ones in the South and West in the 1800s, but up into post-modern times) have demonstrated it's really all subject to what is fiscally and/or politically convenient/popular at the time of the trial. Sadly and applicably to the scenario described, this is notably demonstrable in domestic cases in particular over the last 30 years.

[sierramadre44]

Originally Posted by stingraynm

just adding to this discussion why we have the "heat of passion" defense for leniency (not a clean slate or slap on the wrist, mind you, but just an understanding that some forms of sentiment can overwhelm otherwise steadfast reason/morality without a contest).

One of the best stories I ever read about was Never Plead Guilty. Jake Ehrlich defended a woman for killing her husband and she was acquitted because she literally "loved him to death."

"Never plead guilty" Never Plead Guilty.com Welcome Home
"Out of 63 Clients that were charged with having committed Murder in the First degree 59 were acquitted and the other four were reduced to manslaughter."

[sierramadre44]

Originally Posted by stingraynm

"innocent until proven guilty" is a lot like "to protect and serve". It's an ideal that is hopefully upheld by all means, but there is nothing in actuality that guarantees those tenets will be followed.

Unfortunately, you're right. Unless you have a good defense attorney and he has a cocky paralegal who just won't let the judges do what they feel is politically correct.

[ClarkGrisowld]

Originally Posted by sierramadre44

I beg to differ. I gave a simple example and others made their own assumptions. Without witnesses to an event and tangible evidence, all you have is the bf & gf saying one or the other battered the other.

Actually, no, you gave an incomplete set of facts and made your own assumptions that the DA couldn't prove the case. As mentioned there is testimony, physical evidence, priors and other factors that go to character.

Also, you've confused yourself. You're saying the case would/should be dismissed because the burden of proof is on the prosecution. That is correct, but the evidence is for the jury to weigh. You've made an assumption that the DA can't prove its case based on the testimony and physical evidence and other factors.

You have a witness to an assault. The lack of tangible evidence is now another fact you've just introduced. Let me say again - with a corroborating witness to her punching him and no other "tangible evidence", she's guilty of assault. If there's no evidence he touched her and he denies doing so, her "self-defense" case is on shaky ground. That alone is enough for the case to go to trial. Everything else you've said are assumptions of facts not introduced in your little hypothetical.

[stingraynm]

Originally Posted by sierramadre44

One of the best stories I ever read about was Never Plead Guilty. Jake Ehrlich defended a woman for killing her husband and she was acquitted because she literally "loved him to death."

"Never plead guilty" Never Plead Guilty.com Welcome Home
"Out of 63 Clients that were charged with having committed Murder in the First degree 59 were acquitted and the other four were reduced to manslaughter."

Yup, on a metaphysical note concerning wrath, it never ceases to amaze me that outright hate and malice have got nothing on betrayed love and broken dreams.