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7 Comments by eclipse


Defense seeks mistrial; Judge rejects motion

Joseph - I'm going to answer what you asked for - the difference between something being admitted into evidence and just for identification and why the items the jury asked for were not entered into evidence.

In a criminal trial, an item can only be admitted into evidence when the proper foundation has been laid (someone already basically said this). So what happens is first, the item is marked for identification - so that later that item can be referred to again but at least that item is preserved for appeal/the record. Once that item is marked for ID, it is shown to the witness and then certain questions are asked (depending on what the item is) in order to establish what has be established to have that item admitted into evidence and shown to the jury. There are however, many other reasons why an item will be marked for identification and I believe that 2 of those were used in this case.

With the autopsy report, that item will almost never be admitted into evidence. It is basically hearsay - it is a prior recorded statement of the witness. Instead of having the report entered into evdience, you call the medical examiner who did the autopsy and have them testify about the autopsy. The report is created for the police, the ADA and will be turned over to defense counsel but it can not be entered into evidence because it is not proper evidence. HOWEVER - many times, reports like this are marked for identification in order to refresh the recollection of the witness on the stand or to try and impeach the witness. If the medical examiner needed to have their recollection refreshed as to a specific fact, the prosecutor would mark the autopsy report for ID and then show it to the witness and allow the ME to read it and then answer the question. The other option would be the defense attorney trying to impeach (discredit) the ME by marking the report for ID and then trying to get the ME to admit that they testified to something different than what they wrote in the report.

This sounds exactly why the articles that were asked for were also marked for identification - to show them to the Medical Examiner in order to see if the ME was familiar with the medical principals that were in the articles. This could either be used later with the doctor put on the stand by the defendant or simply to discredit the victim's doctor for not being familiar with those principals. But again, those items are not in evidence because they are both hearsay and not relevant. They are simply used to show to the witness and then taken away.

I hope that helps." Dec 4, 09 12:10 PM

Seventh day of deliberations ends with no verdict in Oddone case

That is absolutely NOT true. the fifth amendment allows a defendant not to incriminate himself but once he chooses to take the stand, the People have the right to cross examine him on what he testified about, the night in question, his credibility and possibly his past criminal history. My guess, the Prosecutor made a Sandoval application before the trial began and would have been allowed to question him on his past convictions which he did not want to come into evidence.

a defendant can't take the stand, give his side of the story and then just take the 5th for the questions he doesn't want to answer. anyone who actually practices criminal law knows and understands that. " Dec 7, 09 8:57 PM

yes i have. my comment are from common practice. there is a case for everything and in certain situations the autopsy report can come in as a business record or under another EXCEPTION to the hearsay rule (like in the case mentioned where there were 12 autopsies and they had one medical examiner testify to all of the procedures or in the case of a medical examiner who died between autopsy and trial). but in almost every criminal trial the report of the police/state/prosecution scientist is not entered into evidence. Drug labs, DWI Urine/Blood tests, forensic tests. its all the same. the witness testifies to the scientific tests done and the results. only if there is something in the report that needs to come in or a particular situation does it come in.
" Dec 7, 09 9:11 PM

Im sorry, it just doesn't work that way. The prosecutor has every right to ask questions on cross examination so long as they are not beyond the scope of his direct examination. and there would most definitely have been a ruling on the admission of the defendant's prior criminal convictions and what the prosecutor could go into were the defendant to take the stand. that occurs BEFORE jury selection to give the defendant ample time to decide if he wants to take the stand.

a defendant can't take the stand in his own defense and then when the questions get hard and hes backed into a corner, take the fifth. once a defendant chooses to take the stand in his own defense, that ship has sailed. unless a new crime comes into play (like perjury) he has to testify on topics that are relevant and those that are within the scope of his direct examination. another witness can take the Fifth and choose not to incriminate him or herself but that's not the case we have here.

And practically speaking, if the defendant were to take the stand in his own defense, then try and assert his justification defense and then when the ADA started to poke holes in his story, take the 5th he would only be sealing his own fate. either he was justified, or he wasn't. if he was justified, there is no incriminating himself. if he did, then he would need to take the 5th. " Dec 7, 09 9:22 PM

you have every right to disagree. however, once the defendant chooses to take the stand, in every situation i have ever seen, he waives his fifth amendment right. a witness can be called to the stand and invoke the the right. but by getting out of his chair and swearing to tell the truth, a defendant has to answer the questions. i've never seen a defendant be allowed to take the stand in the middle of his testimony. and I have watched several hundred criminal trials." Dec 7, 09 9:47 PM

Assault requires intent to cause physical injury and causing physical injury to a person. or recklessly causing physical inujury to someone. or causing physical injury to another person with a deadly weapon or dangerous instrument with criminal neglegence.

and unfortunately i dont think any of those apply to a push/shove off a table by a bouncer. " Dec 9, 09 5:43 PM

Basically, yes you can. Intent is your conscious objective. So as far as I understand it, so long as when you do the act it is your conscious objective to have the result, you can have intent. You can then realize that you dont want to have that result. that is called renounciation. But its legally very difficult to undo what you do/intended on doing and started." Dec 11, 09 2:57 PM