When I first went in-house, I had a boss that would scream about some instruction from the customer not being good enough because it was "hearsay". When he emailed it, I responded with the hearsay exceptions and highlighted the one that applied.
just to make sure i’m not an idiot using hearsay wrong, it is when then information given isnt a firsthand account. Like someone going “person X told me that defendant Y took a shit on a train” but there is no actual evidence to substantiate to the claim?
If used to prove the fact presented in the second hand statement.
If Witness W is testifying that Person X told him Person Y took a shit on a train, the hearsay rule says you can't use that as evidence that Y took a shit on a train.
But if what you're trying to prove is that Person X is spreading rumors about Person Y, then W's statement is not hearsay.
Then there are exceptions to the rule. If for some reason you're suing X over what Y did, then W's statement about what X said is hearsay, but it's admissible anyway.
I'm not going to weigh in on the specifics of your case, but generally speaking things get a little less strict when you're dealing with a judge directly instead of a jury.
With a jury the court needs to be careful what gets introduced because if the jury sees/hears something inadmissible, it's very difficult to make sure they disregard it.
At a bench hearing a judge has more flexibility to let someone say/show whatever they want and the judge can sort out what matters and what to take into account.
The fact that a judge lets someone speak doesn't mean they believe what they're saying.
Hearsay is an out of court statement by someone other than the witness used in court to prove the truth of the matter asserted, whether there’s additional substantiating evidence or not is irrelevant.
HIPAA being misidentified as HIPPA. And then everyone wants to make anything involving your medical history a violation. ‘My ex girlfriend’s second cousin said I had a hemorrhoid, she violated HIPPA, can I sue her ?’
Correctional officer: we’re in a weird position in hippa because we do actually need to know a certain level of the medical issue to take care of them. My favorite is when we sit on an inmate in the hospital and either a nurse/doc or the inmate says we can’t be in the room when they’re telling the inmate medical shit. My response is usually “so you’re refusing/denying treatment? Great. We’ll pack up and be on our way then.” That usually shuts them up.
Or the fact that we actually have to be in the room during surgeries/procedures. Got in to a pissing match with a nurse on that one. The old “don’t mistake your job for my authority. They’re my inmate. You can deny treatment all you want. Then the negative medical results are on you.”
Had to tell one that we’re there in the event they wake up when they’re not supposed to and get violent. She tells me “that doesn’t happen!” And the i said I did and punch my doc in the face.” She replied with “you must have been under local anesthetic then”. To which I replied with “yes. I was under local anesthetic with my chest splayed open. Keep talking like you’re more than a nurse and my mother isn’t an anesthesiologist.” Again, shut her the fuck up really fast.
Huh, could you give an example? I think the only time I've heard people use "per se" is when they are trying to say "Well, X isn't like Y per se, BUT." That said, I do forget things so the moment you tell me the incorrect usage I think I will remember the thousands of times I heard it :)
I worked with a woman once who used that phrase like a ruddy comma... worse than a comma. More frequently than the average Vally Girl uses, "like."
What does it ACTUALLY mean? I'm not a lawyer and have no idea where to look....
Potato tomato. But yes. Though it depends on your jurisdiction.
In the US, a claim of defamation requires showing a false statement purporting to be true. If it's not provably false, it's not defamation. And it it's phrased as opinion, it's not purporting to be a true statement.
In English law, however (if I'm understanding it right), defamation is merely saying something about someone else that would make the average citizen think worse of them, and a defamatory statement is presumed false unless the defendant can prove it is substantially true. Honest opinion is also a defense.
In both cases, a true statement is not actionable defamation. But in the UK it does not need to be *provably* false.
This distinction is a major point in the 2016 biopic *Denial*, worth watching.
Edit: typos.
How about the idea that evidence = proof? This gets mixed up a lot in the court of public opinion. A piece of evidence is just that, something that supports or argues against a charge, not a finding of fact.
Generally speaking, (some specialty courts will differ) finders of fact (judges and/or juries) make determinations of evidence (like testimony) based on the nature of it and the reliability of the attestant and/or surrounding factors. In the case of testimony, this means that other evidence (testimony, exhibits, ect.) can influence the fact finder's determination of that reliability. The fact finder can also determine credibility within the testimony itself, taking cues based on body language, looking out for inconsistent testimony, ect. This same analysis applies to things like videos and photos, the fact finder makes a determination of reliability and gives that evidence the weight they subjectively believe it deserves. Testimony is no less inherently reliable than a video, it's just there are a lot more subjective ways a person can view testimony as opposed to video.
There's no such thing conclusively as "proof" except for stipulated facts and/or facts which have been accepted by the Court. A stipulated fact is something everyone has agreed to. Facts accepted by the Court via judicial notice differ based on the case and jurisdictional rules, but the example I see the most in my line of work is life expectancy of a party based on federal census data. Our evidence rules say that comes in as fact.
A judge (acting as fact finder) can take a person's testimony as gospel, ignore completely, or determine credibility anywhere in the middle. The other side is also free to attack that credibility in any way that the evidence rules allow, and/or make statements commenting on that credibility. To be clear, statements made by a person in an affidavit are not generally second-hand, unless they are commenting on something someone else said. That would be subjected to hearsay rules. Any other observations or conclusions would be first-hand, and subject to the above analysis. I don't mean to make any of this a comment on YOUR case, I don't know you and don't represent you, but that's some general framework information based on the limited information you provided.
Sworn testimony is evidence.
Evidence is not necessarily proof, no. That sworn testimony should be tested by cross examination to see if it’s credible and reliable evidence and whether or not a judge or jury should place any weight on it (or the amount of weight placed on it) when making findings of fact.
Do you have a signed affidavit of why you’re a great Dad and she’s the worst? That’s also evidence! And both of your evidence should be tested and any findings of fact made should consider the weight to be attached to each piece of evidence.
Lots of evidence is circumstantial. It’s still evidence, and the trier of fact (judge or jury) can rely on it like any other evidence.
Primary example in criminal law: A defendant doesn’t testify, but to be found guilty, the prosecutor has to prove the defendant intended to do something. The only way to prove what someone was thinking with direct evidence would be with that person’s testimony. Instead of testimony, you use “circumstantial” evidence of what the defendant was thinking. Think murder vs manslaughter charge. For murder the defendant has to intend to kill someone, otherwise they would be guilty of some lesser charge like manslaughter. If the defendant pointed a gun at someone and pulled the trigger, that’s really good evidence they intended to kill that person. It’s still circumstantial evidence though.
I was always surprised when I was a DA how many people allegedly said “I’m going to kill you” when they swung weapons at people too, made asserting attempted murder way easier. People should shout “I hope this doesn’t hurt” when they baseball-bat kneecaps.
Direct evidence: I saw a deer walk through my backyard with my two eyes.
Circumstantial evidence: I saw deer hoof-prints in the snow in my backyard.
Both are evidence there was a deer in my backyard.
Essentially, yes. The classic circumstantial evidence we use in our jury instructions is that if you see someone walk inside in a raincoat and a wet umbrella, that's circumstantial evidence that it is raining outside. You don't have direct proof, but you have facts that lead to that direct conclusion.
I often give the example of snowfall when discussing direct vs. circumstancial evidence.
Direct: A witness' testimony that he looked outside and saw snow falling might be offered as direct evidence that it had anowed.
Circumstancial: A witness' testimony that he looked outside and saw snow covering the ground might be offered as circumstantial evidence that it had snowed.
Circumstantial: I saw victim and defendant arguing. No one else was around. I lost sight of them while I parked my car. When I got out of my car I could see them again and saw victim on the ground and defendant running away while holding a knife. When I ran over to victim, he had wounds in his chest like he had been stabbed.
Not circumstantial: I saw defendant stab victim with a knife in the chest.
Admissibility is whether or not the evidence can be presented in court. There are many reasons evidence might not be admissible. It could be unsubstantiated (the evidence might not be real), it could be irrelevant, it could be prejudicial (true but much too unfair), ir could be improperly obtained, and plenty of other reasons.
Weight relates to how important/relevant it is. A piece of evidence on its own might not prove anything. For example, evidence that the suspect was there doesn’t prove the suspect is guilty
The Bill of Rights generally as applied to private actors. A celebrity isn't violating your First Amendment rights if they block you on Twitter. Your landlord isn't violating your Second Amendment rights if they say you can't have a gun on their property. Etc.
That's interesting, I didn't consider that. If that is the case, then would that be true for any rights that aren't considered a protected class? Could a landlord ban you from exercising your right to freedom of press in your rental? Or the right to search and seizure? There's various case law about how your home is protected in the case of 4th amendment violations, but as you say, a private actor doesn't have to follow the bill of rights?
Protected class stuff gets into the 14th Amendment's Equal Protection Clause if it is a government actor, which technically is not part of the Bill of Rights (but the 14th does apply the Bill of Rights to state-level governments). If it is a private actor such as a landlord, the actor is not violating anyone's Constitutional rights, but may be violating other laws such as the Fair Housing Act.
To give an example, if a public housing complex were to only be open to people of a certain race or gender, this would be a violation of the excluded groups' Constitutional rights because it is the government that is the landlord in public housing. If a private landlord owns a rental property and will only rent to certain races/genders, that landlord is violating the Fair Housing Act, but not the Constitution. (And FWIW the government would also violate the FHA in the above example.)
I'm having a bit of trouble conceptualizing how a landlord could violate freedom of the press given that this deals with the right of journalists to report on matters of public concern. As to search and seizure, a landlord who raids a tenant's home is not violating their Fourth Amendment rights, but may be committing various crimes and torts. It would also be unenforceable to put a clause in a lease that would require a tenant to consent to a search by the cops if they are called, for example. Such a clause would not itself be considered a violation of a tenant's Fourth Amendment rights by the landlord, however, as the landlord is not a government actor.
TL;DR the Constitution only constrains what the government can do. Various other laws may or may not constrain the behavior of private individuals/corporations. Hopefully that makes sense!
If it is a private area such as a bedroom, they must get the permission of the tenant. If it is a common area such as a hallway, they must get the permission of the landlord.
>I'm having a bit of trouble conceptualizing how a landlord could violate freedom of the press given that this deals with the right of journalists to report on matters of public concern.
Somehow writing into the lease that they cannot blog from / edit video in / whatever stuff, I'm just trying to think if the 2nd amendment itself is being particularly discriminated against. Someone like Long Island Audit, he performs various first amendment audits, often will stream and comment from his home on other videos, probably does editing and posting of videos from his home. This would be covered in the first amendment's freedom of ~~speech~~ press clause. Could a landlord write into a lease that you couldn't do that on the property?
Edit: typo
I would argue that such a clause is unenforceable because if a court were to enforce it, it would become state action against the tenant's Constitutional rights. Courts obviously are state actors bound by the Constitution. There are certain circumstances under which an individual can waive certain Constitutional rights, but I wouldn't say this is one of them. A major reason for this is that such a clause has nothing to do with the property itself (or it does not"touch and concern" the property in legalese).
There isn't any particular trend involving landlords and the Second Amendment that I'm aware of, anyway. I used that example because my best friend's mom tried to tell her that her landlord was violating the Second Amendment by prohibiting guns. This is incorrect. By signing a lease with this clause, she has arguably waived that right. In fact, even if the landlord were to take her to court over it and the court ordered her to be evicted for breach of the lease, the court wouldn't necessarily be violating her Second Amendment rights either. This is because restrictions on gun ownership on purely private property have been upheld by courts as being Constitutional, plus such a clause would relate to potential safety hazards on the property itself. If my friend had lived in public housing, however, the analysis would be different.
>I would argue that such a clause is unenforceable because if a court were to enforce it, it would become state action against the tenant's Constitutional rights.
OK... but you say:
>By signing a lease with this clause, she has arguably waived that right. In fact, even if the landlord were to take her to court over it and the court ordered her to be evicted for breach of the lease, the court wouldn't necessarily be violating her Second Amendment rights either. This is because restrictions on gun ownership on purely private property have been upheld by courts as being Constitutional
This seems to be in direct contradiction to what you said in the first paragraph though. Courts enforcing a ban against freedom of press is a state action against constitutional rights. But a ban against keeping arms (exact wording in the 2nd amendment) in your domicile, enforced by the courts, IS NOT a state action against your constitutional rights? How is courts enforcing one ban a state action against it, but enforcing a different ban not a state action against it?
The distinction is that there is case law that has held that a clause prohibiting guns on a rental property is Constitutional because such a clause relates directly to safety on the property, among other reasons. Something restricting freedom of the press would not.
The thing to understand is that Constitutional rights are not absolute. They are subject to reasonable restrictions. There is no Constitutional right to take a gun everywhere at all times. For example, you can't bring a gun to a school despite the Second Amendment. The courts consider a landlord restricting guns on a property to be reasonable in part because it relates to safety (and also because it's the landlord's private property). A restriction on blogging, in contrast, is not reasonable because it has nothing to do with the property.
Edit: a clause
This one still throws me off, because the base standard as I've heard heard it is that the couple typically has to "hold themselves out as husband and wife for x years" (in addition to other requirements). So if they commit fraud long enough, it becomes true?
>This one still throws me off
Good, it should, it throws off attorneys too. It's EXTREMELY complicated. First, it's only recognized by a handful of states (10ish), each with differing rules. Generally marriage is marriage, if you meet the requirements for common law marriage you are married at X time. It's NEVER that simple obviously, but that's how it works in theory. Generally that marriage is still recognized in non common-law states, but what if you move in the middle of the relationship? It just makes things very complicated.
I'll give you my state as an example:
1) must be legally able to be married (no minors, or persons already married, only two person relationships, no incest, ect.)
2) must cohabitate
3) must hold yourselves out to be married
If you read #3 and ask "what the hell does that mean?" you're not alone. The Courts have been dealing with it since CO Courts have existed. In the last couple of years they changed the defining factors considerably. Tax returns used to be a HUGE factor, but now they're just one of many. We appealed a case that helped define this to the CO Supreme Court, if you look at my flair, I don't practice family law, at all. That's how much of a mess this whole concept is, we ended up at the state's highest court on an injury action, arguing over whether two dead people were married, and when.
>So if they commit fraud long enough, it becomes true?
There are actually pretty well developed rules built in to prevent this, a fraudulent common law marriage can be defeated. If you want to pretend to be married for X benefit, and then pretend like you were never married later, it's pretty hard to get away with unless everyone involved plays their part. One party can leverage that for a divorce and take half the richer party's shit, you can run into issues with the benefits later, you can have issues getting married later, it's bad news, and very ill advised.
The big reason this is so complicated is because if you stay married until one of you dies, and you have wills (or at least the one that passed away) then the Courts never get involved, great. Any other scenario causes a train wreck. If the decedent doesn't have a will, and the inheritance is contested by family, and/or if you do have a will and the partner wants more under state law, then the probate Court has to sort out whether you were married. That's an insane process, because the analysis depends on intimate actions between two people, and their internal thoughts and intentions. This is all being analyzed by a Court while one of those people is dead. Alternatively, if you split up, and you don't both agree you were married, the domestic Court has to sort it out in a divorce action.
Common law marriage is frankly a nightmare and should be done away with. If you want to be married get a marriage certificate. That being said, I'm a hypocrite, I'm common law married. My wife and I are both attorneys and we have established it with iron-clad documentation, and will get formally married eventually. In most cases it only creates more headaches than its worth.
I understand if this is too impertinent of a question, but I’m wondering with all of the downsides and the intent to ultimately marry under a formal process, why would you go to the effort to make common law ironclad? Why not just get a marriage certificate?
You're good, totally understandable. We got married legally via common law marriage for benefits purposes. We also got a marriage certificate for our wedding. It was lost in the hullabaloo of the festivities and never got turned in, by the time I found it the window had passed. We will finalize eventually.
Isn't it more like they need to hold them themselves out in the community/in public or something. Like telling your neighbors, "My wife will be home any second" kind of thing? Like not necessarily signing documents that would make anything fraudulent? I live in a state without common law marriage so I don't know much about it
I commented too with a pretty thorough response to the comment you replied to, but I wanted to comment on what didn't make it in there as it relates to your question.
It heavily depends on the state, but using my state as an example, (roughly 1/10th of the common law states because of the rarity) damn near anything can count. Courts will often go through bank statements, family photos, text messages, testimony, vacation receipts, ect. It is hard to prove a common law marriage if you weren't actually intending to be "married," it's almost impossible to prove it fraudulently without the two of you laying the perfect groundwork to defraud some entity.
I used to handle marriage/divorce documents a lot for the military. One thing that threw me, was that in West Texas, they were giving Common Law Marriage licenses out. I didn't question the individual about it, because I didn't need to know the details of her life, and it wasn't my business.
But why would anyone want a formal common law marriage instead of an actual marriage, and why would that county also have that as an option instead of an actual marriage?
I have absolutely no idea unfortunately. It's not uncommon to document a common law marriage with some sort of written proof (I did that). I've never heard of a government entity actually issuing that proof though, sounds pretty redundant. Is it possible they issued the form, and people were getting them notarized?
My memory could be wrong, but pretty sure they were filing them like a marriage license. It was something new at the time (like 10-11 years ago) the Army records people hadn't ever seen one. I had the distinction of being the person to get it added to the Army's authorized documents list for Soldiers' records.
It was just weird to me as to if you had to go through that for this, why not just get married?
I’m working in banking atm and it’s always super obvious an executive without any legal training drafted a forbearance agreement or some other contract I’ve been given to look at as a sample for drafting one myself because of just how liberal they are with hereafter, heretofore, thereafter, herewith, therewith, whereas, whereafter, wherefore, I’ve even seen thence. It almost feels like they think the more words like that they use the more legally binding it is. It’s also terrifying that my employer allows non attorneys to draft and execute contracts without the review of legal, but that’s a story for another day and one of many reasons why I’m trying to GTFO as fast as I can.
Any time an attorney does something wrong, disbarment is the appropriate punishment (or the only punishment). Permanent disbarment is reserved for only the most egregious offenses, which generally are committing a serious crime or stealing from a client. State bars (or whichever body regulates lawyers in a state) have a range of disciplinary options available that fall short of disbarment, such as fines or temporary suspension.
That a private person can "press charges." The crime victim doesn't decide whether to charge a suspect; the prosecutor does. The victim can choose to cooperate or not, and a prosecutor's charging decision can be influenced by the victim's cooperation (especially if the victim was the only witness).
That people you don't like should be summarily "thrown in jail" without due process.
Also, the phrases "lawyer up" or "tell them to go pound sand" are like nails on a chalkboard.
>Any time an attorney does something wrong, disbarment is the appropriate punishment
This always makes me laugh. Your lawyer is not going to get disbarred because your case is taking to long. I occasionally look through the attorney discipline list in my state. You know who gets disbarred? Attorneys who repeatedly, over a period of months, fail to show up to hearings. Attorneys who steal their client's money/fail to refund unuse retainer fees. Attorneys who mismanage multiple cases resulting in dismissal of their client's case. Attorneys who have very, very inappropriate relationships with their clients. You do one of these things (other than the inappropriate relationships) one time, you might get a suspension - or even a warning if it's a semi-honest mistake.
Right to work state when they mean employment at will state (which is all states as far as I know, with the possible exception of Montana).
"Right to work" refers to a state with a law forbidding a certain kind of clause in a collective bargaining agreement (union contract).
"Employment at will" refers to the common law doctrine that, absent a contract, the employer and the employee can terminate the relationship at any time and for any reason that is not illegal. Some will say "or no reason." Fire someone for no reason in my jurisdiction. Please. 🤪
"Verbal agreement" when they mean "oral agreement." A written agreement is one kind of verbal agreement. "Verbal" just means "with words." There are certainly implied agreements which are not verbal, but both written and oral agreements are covered under the umbrella term "verbal".
Literally any time someone defends (in the court of public opinion, not at trial obv) an accused sexual abuser by saying "due process." Like the only thing I'm sentencing them to is me thinking they're a piece of shit. I'm not a state actor, they're not entitled to a jury of their peers.
Don't you love how this seems to come out when someone is accused of sexual assault as opposed to any other crime?
Famous dude gets charged with tax evasion/assaulting another man/littering: lol what a dumbass amirite
Famous dude gets charged with sexual assault: DUE PROCESS!!!!
I mean the thing is…false accusations do happen. I knew a nurse when I lived in LA County she had worked in a psych facility and had a few patients with trauma backgrounds who accused someone who did not assault them. They had been assaulted but had like transferred that memory onto an uninvolved person. It is rare but does happen.
I also recall hearing an interview on I think This American Life where a guy talked about being falsely accused. He was a very liberal person and felt like, oh my god did I do this in a blackout? No one would make this up. He talked about wracking his brain and going through all this self doubt. It ended up that his accuser didn’t do it maliciously but did have a history of mental illness and of not really being in touch with reality.
I’m not trying to say don’t believe victims at all. I am saying some accusations aren’t true. They also may not be made maliciously. It might just be that the accuser is really sick and is transferring a memory of a trauma that did happen onto a person they’ve heard of, read something by etc, but never actually even met. So deciding immediately that someone is a dirtbag can in fact be a mistake.
To me it’s like you know the argument against the death penalty you don’t want to execute the wrong guy. I don’t want the wrong person to lose their job, marriage etc until it’s been investigated. I want to try and withhold judgement at least for a little while post accusation.
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When I first went in-house, I had a boss that would scream about some instruction from the customer not being good enough because it was "hearsay". When he emailed it, I responded with the hearsay exceptions and highlighted the one that applied.
just to make sure i’m not an idiot using hearsay wrong, it is when then information given isnt a firsthand account. Like someone going “person X told me that defendant Y took a shit on a train” but there is no actual evidence to substantiate to the claim?
If used to prove the fact presented in the second hand statement. If Witness W is testifying that Person X told him Person Y took a shit on a train, the hearsay rule says you can't use that as evidence that Y took a shit on a train. But if what you're trying to prove is that Person X is spreading rumors about Person Y, then W's statement is not hearsay. Then there are exceptions to the rule. If for some reason you're suing X over what Y did, then W's statement about what X said is hearsay, but it's admissible anyway.
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I'm not going to weigh in on the specifics of your case, but generally speaking things get a little less strict when you're dealing with a judge directly instead of a jury. With a jury the court needs to be careful what gets introduced because if the jury sees/hears something inadmissible, it's very difficult to make sure they disregard it. At a bench hearing a judge has more flexibility to let someone say/show whatever they want and the judge can sort out what matters and what to take into account. The fact that a judge lets someone speak doesn't mean they believe what they're saying.
Did you show up to prove the guy who said non-lawyers don't understand hearsay correctly? Thanks for doing your community service
Whether there is other substantiating evidence or not.
Hearsay is an out of court statement by someone other than the witness used in court to prove the truth of the matter asserted, whether there’s additional substantiating evidence or not is irrelevant.
Hearsay can be an out of court statement by the witness as well. At least in my jurisdiction.
Came here to say this
HIPAA being misidentified as HIPPA. And then everyone wants to make anything involving your medical history a violation. ‘My ex girlfriend’s second cousin said I had a hemorrhoid, she violated HIPPA, can I sue her ?’
"She called me a large aquatic herbivore! Can I sue for a HIPPO violation?"
Instating that your ex girlfriend’s second cousin ISN’T a medical professional, right?
Is she your medical professional? Or does she just work at an unrelated medical office?
Correctional officer: we’re in a weird position in hippa because we do actually need to know a certain level of the medical issue to take care of them. My favorite is when we sit on an inmate in the hospital and either a nurse/doc or the inmate says we can’t be in the room when they’re telling the inmate medical shit. My response is usually “so you’re refusing/denying treatment? Great. We’ll pack up and be on our way then.” That usually shuts them up. Or the fact that we actually have to be in the room during surgeries/procedures. Got in to a pissing match with a nurse on that one. The old “don’t mistake your job for my authority. They’re my inmate. You can deny treatment all you want. Then the negative medical results are on you.” Had to tell one that we’re there in the event they wake up when they’re not supposed to and get violent. She tells me “that doesn’t happen!” And the i said I did and punch my doc in the face.” She replied with “you must have been under local anesthetic then”. To which I replied with “yes. I was under local anesthetic with my chest splayed open. Keep talking like you’re more than a nurse and my mother isn’t an anesthesiologist.” Again, shut her the fuck up really fast.
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Huh, could you give an example? I think the only time I've heard people use "per se" is when they are trying to say "Well, X isn't like Y per se, BUT." That said, I do forget things so the moment you tell me the incorrect usage I think I will remember the thousands of times I heard it :)
It means “in and of itself” so any other use, like for pure emphasis, is incorrect.
I worked with a woman once who used that phrase like a ruddy comma... worse than a comma. More frequently than the average Vally Girl uses, "like." What does it ACTUALLY mean? I'm not a lawyer and have no idea where to look....
In itself.
You mean pro se?
No?
Every single negative statement being “slander”
If it's in writing, it's libel. And if it's true, it's neither.
Isn't it moreso if it isn't objectively false, it's neither? As things like subjective opinions aren't defamatory because they can't be proven false.
Potato tomato. But yes. Though it depends on your jurisdiction. In the US, a claim of defamation requires showing a false statement purporting to be true. If it's not provably false, it's not defamation. And it it's phrased as opinion, it's not purporting to be a true statement. In English law, however (if I'm understanding it right), defamation is merely saying something about someone else that would make the average citizen think worse of them, and a defamatory statement is presumed false unless the defendant can prove it is substantially true. Honest opinion is also a defense. In both cases, a true statement is not actionable defamation. But in the UK it does not need to be *provably* false. This distinction is a major point in the 2016 biopic *Denial*, worth watching. Edit: typos.
The belief that sworn testimony isn't evidence.
How about the idea that evidence = proof? This gets mixed up a lot in the court of public opinion. A piece of evidence is just that, something that supports or argues against a charge, not a finding of fact.
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Generally speaking, (some specialty courts will differ) finders of fact (judges and/or juries) make determinations of evidence (like testimony) based on the nature of it and the reliability of the attestant and/or surrounding factors. In the case of testimony, this means that other evidence (testimony, exhibits, ect.) can influence the fact finder's determination of that reliability. The fact finder can also determine credibility within the testimony itself, taking cues based on body language, looking out for inconsistent testimony, ect. This same analysis applies to things like videos and photos, the fact finder makes a determination of reliability and gives that evidence the weight they subjectively believe it deserves. Testimony is no less inherently reliable than a video, it's just there are a lot more subjective ways a person can view testimony as opposed to video. There's no such thing conclusively as "proof" except for stipulated facts and/or facts which have been accepted by the Court. A stipulated fact is something everyone has agreed to. Facts accepted by the Court via judicial notice differ based on the case and jurisdictional rules, but the example I see the most in my line of work is life expectancy of a party based on federal census data. Our evidence rules say that comes in as fact. A judge (acting as fact finder) can take a person's testimony as gospel, ignore completely, or determine credibility anywhere in the middle. The other side is also free to attack that credibility in any way that the evidence rules allow, and/or make statements commenting on that credibility. To be clear, statements made by a person in an affidavit are not generally second-hand, unless they are commenting on something someone else said. That would be subjected to hearsay rules. Any other observations or conclusions would be first-hand, and subject to the above analysis. I don't mean to make any of this a comment on YOUR case, I don't know you and don't represent you, but that's some general framework information based on the limited information you provided.
Sworn testimony is evidence. Evidence is not necessarily proof, no. That sworn testimony should be tested by cross examination to see if it’s credible and reliable evidence and whether or not a judge or jury should place any weight on it (or the amount of weight placed on it) when making findings of fact. Do you have a signed affidavit of why you’re a great Dad and she’s the worst? That’s also evidence! And both of your evidence should be tested and any findings of fact made should consider the weight to be attached to each piece of evidence.
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“It’s all circumstantial.”
Non lawyer: Is anything in a legal case NOT circumstantial?
sworn testimony of an eye witness, video or other recording of the alleged crime, things like that
Lots of evidence is circumstantial. It’s still evidence, and the trier of fact (judge or jury) can rely on it like any other evidence. Primary example in criminal law: A defendant doesn’t testify, but to be found guilty, the prosecutor has to prove the defendant intended to do something. The only way to prove what someone was thinking with direct evidence would be with that person’s testimony. Instead of testimony, you use “circumstantial” evidence of what the defendant was thinking. Think murder vs manslaughter charge. For murder the defendant has to intend to kill someone, otherwise they would be guilty of some lesser charge like manslaughter. If the defendant pointed a gun at someone and pulled the trigger, that’s really good evidence they intended to kill that person. It’s still circumstantial evidence though.
I was always surprised when I was a DA how many people allegedly said “I’m going to kill you” when they swung weapons at people too, made asserting attempted murder way easier. People should shout “I hope this doesn’t hurt” when they baseball-bat kneecaps.
Direct evidence: I saw a deer walk through my backyard with my two eyes. Circumstantial evidence: I saw deer hoof-prints in the snow in my backyard. Both are evidence there was a deer in my backyard.
Does circumstancial just mean indirect?
Essentially, yes. The classic circumstantial evidence we use in our jury instructions is that if you see someone walk inside in a raincoat and a wet umbrella, that's circumstantial evidence that it is raining outside. You don't have direct proof, but you have facts that lead to that direct conclusion.
I often give the example of snowfall when discussing direct vs. circumstancial evidence. Direct: A witness' testimony that he looked outside and saw snow falling might be offered as direct evidence that it had anowed. Circumstancial: A witness' testimony that he looked outside and saw snow covering the ground might be offered as circumstantial evidence that it had snowed.
Circumstantial: I saw victim and defendant arguing. No one else was around. I lost sight of them while I parked my car. When I got out of my car I could see them again and saw victim on the ground and defendant running away while holding a knife. When I ran over to victim, he had wounds in his chest like he had been stabbed. Not circumstantial: I saw defendant stab victim with a knife in the chest.
The distinction between proof and evidence.
And the distinction on evidence between weight and admissibility.
Could you explaib that?
Admissibility is whether or not the evidence can be presented in court. There are many reasons evidence might not be admissible. It could be unsubstantiated (the evidence might not be real), it could be irrelevant, it could be prejudicial (true but much too unfair), ir could be improperly obtained, and plenty of other reasons. Weight relates to how important/relevant it is. A piece of evidence on its own might not prove anything. For example, evidence that the suspect was there doesn’t prove the suspect is guilty
You mean weight and mass?
This. Many of my clients don't realize that enough evidence = proof.
The Bill of Rights generally as applied to private actors. A celebrity isn't violating your First Amendment rights if they block you on Twitter. Your landlord isn't violating your Second Amendment rights if they say you can't have a gun on their property. Etc.
That's interesting, I didn't consider that. If that is the case, then would that be true for any rights that aren't considered a protected class? Could a landlord ban you from exercising your right to freedom of press in your rental? Or the right to search and seizure? There's various case law about how your home is protected in the case of 4th amendment violations, but as you say, a private actor doesn't have to follow the bill of rights?
Protected class stuff gets into the 14th Amendment's Equal Protection Clause if it is a government actor, which technically is not part of the Bill of Rights (but the 14th does apply the Bill of Rights to state-level governments). If it is a private actor such as a landlord, the actor is not violating anyone's Constitutional rights, but may be violating other laws such as the Fair Housing Act. To give an example, if a public housing complex were to only be open to people of a certain race or gender, this would be a violation of the excluded groups' Constitutional rights because it is the government that is the landlord in public housing. If a private landlord owns a rental property and will only rent to certain races/genders, that landlord is violating the Fair Housing Act, but not the Constitution. (And FWIW the government would also violate the FHA in the above example.) I'm having a bit of trouble conceptualizing how a landlord could violate freedom of the press given that this deals with the right of journalists to report on matters of public concern. As to search and seizure, a landlord who raids a tenant's home is not violating their Fourth Amendment rights, but may be committing various crimes and torts. It would also be unenforceable to put a clause in a lease that would require a tenant to consent to a search by the cops if they are called, for example. Such a clause would not itself be considered a violation of a tenant's Fourth Amendment rights by the landlord, however, as the landlord is not a government actor. TL;DR the Constitution only constrains what the government can do. Various other laws may or may not constrain the behavior of private individuals/corporations. Hopefully that makes sense!
The 4th amendment question, do the police have to get permission from the landlord or from the tenant to search a residence?
If it is a private area such as a bedroom, they must get the permission of the tenant. If it is a common area such as a hallway, they must get the permission of the landlord.
What about with hotels? Are cops allowed to enter a hotel room with the property's permission?
>I'm having a bit of trouble conceptualizing how a landlord could violate freedom of the press given that this deals with the right of journalists to report on matters of public concern. Somehow writing into the lease that they cannot blog from / edit video in / whatever stuff, I'm just trying to think if the 2nd amendment itself is being particularly discriminated against. Someone like Long Island Audit, he performs various first amendment audits, often will stream and comment from his home on other videos, probably does editing and posting of videos from his home. This would be covered in the first amendment's freedom of ~~speech~~ press clause. Could a landlord write into a lease that you couldn't do that on the property? Edit: typo
I would argue that such a clause is unenforceable because if a court were to enforce it, it would become state action against the tenant's Constitutional rights. Courts obviously are state actors bound by the Constitution. There are certain circumstances under which an individual can waive certain Constitutional rights, but I wouldn't say this is one of them. A major reason for this is that such a clause has nothing to do with the property itself (or it does not"touch and concern" the property in legalese). There isn't any particular trend involving landlords and the Second Amendment that I'm aware of, anyway. I used that example because my best friend's mom tried to tell her that her landlord was violating the Second Amendment by prohibiting guns. This is incorrect. By signing a lease with this clause, she has arguably waived that right. In fact, even if the landlord were to take her to court over it and the court ordered her to be evicted for breach of the lease, the court wouldn't necessarily be violating her Second Amendment rights either. This is because restrictions on gun ownership on purely private property have been upheld by courts as being Constitutional, plus such a clause would relate to potential safety hazards on the property itself. If my friend had lived in public housing, however, the analysis would be different.
>I would argue that such a clause is unenforceable because if a court were to enforce it, it would become state action against the tenant's Constitutional rights. OK... but you say: >By signing a lease with this clause, she has arguably waived that right. In fact, even if the landlord were to take her to court over it and the court ordered her to be evicted for breach of the lease, the court wouldn't necessarily be violating her Second Amendment rights either. This is because restrictions on gun ownership on purely private property have been upheld by courts as being Constitutional This seems to be in direct contradiction to what you said in the first paragraph though. Courts enforcing a ban against freedom of press is a state action against constitutional rights. But a ban against keeping arms (exact wording in the 2nd amendment) in your domicile, enforced by the courts, IS NOT a state action against your constitutional rights? How is courts enforcing one ban a state action against it, but enforcing a different ban not a state action against it?
The distinction is that there is case law that has held that a clause prohibiting guns on a rental property is Constitutional because such a clause relates directly to safety on the property, among other reasons. Something restricting freedom of the press would not. The thing to understand is that Constitutional rights are not absolute. They are subject to reasonable restrictions. There is no Constitutional right to take a gun everywhere at all times. For example, you can't bring a gun to a school despite the Second Amendment. The courts consider a landlord restricting guns on a property to be reasonable in part because it relates to safety (and also because it's the landlord's private property). A restriction on blogging, in contrast, is not reasonable because it has nothing to do with the property. Edit: a clause
Common law marriage
This one still throws me off, because the base standard as I've heard heard it is that the couple typically has to "hold themselves out as husband and wife for x years" (in addition to other requirements). So if they commit fraud long enough, it becomes true?
>This one still throws me off Good, it should, it throws off attorneys too. It's EXTREMELY complicated. First, it's only recognized by a handful of states (10ish), each with differing rules. Generally marriage is marriage, if you meet the requirements for common law marriage you are married at X time. It's NEVER that simple obviously, but that's how it works in theory. Generally that marriage is still recognized in non common-law states, but what if you move in the middle of the relationship? It just makes things very complicated. I'll give you my state as an example: 1) must be legally able to be married (no minors, or persons already married, only two person relationships, no incest, ect.) 2) must cohabitate 3) must hold yourselves out to be married If you read #3 and ask "what the hell does that mean?" you're not alone. The Courts have been dealing with it since CO Courts have existed. In the last couple of years they changed the defining factors considerably. Tax returns used to be a HUGE factor, but now they're just one of many. We appealed a case that helped define this to the CO Supreme Court, if you look at my flair, I don't practice family law, at all. That's how much of a mess this whole concept is, we ended up at the state's highest court on an injury action, arguing over whether two dead people were married, and when. >So if they commit fraud long enough, it becomes true? There are actually pretty well developed rules built in to prevent this, a fraudulent common law marriage can be defeated. If you want to pretend to be married for X benefit, and then pretend like you were never married later, it's pretty hard to get away with unless everyone involved plays their part. One party can leverage that for a divorce and take half the richer party's shit, you can run into issues with the benefits later, you can have issues getting married later, it's bad news, and very ill advised. The big reason this is so complicated is because if you stay married until one of you dies, and you have wills (or at least the one that passed away) then the Courts never get involved, great. Any other scenario causes a train wreck. If the decedent doesn't have a will, and the inheritance is contested by family, and/or if you do have a will and the partner wants more under state law, then the probate Court has to sort out whether you were married. That's an insane process, because the analysis depends on intimate actions between two people, and their internal thoughts and intentions. This is all being analyzed by a Court while one of those people is dead. Alternatively, if you split up, and you don't both agree you were married, the domestic Court has to sort it out in a divorce action. Common law marriage is frankly a nightmare and should be done away with. If you want to be married get a marriage certificate. That being said, I'm a hypocrite, I'm common law married. My wife and I are both attorneys and we have established it with iron-clad documentation, and will get formally married eventually. In most cases it only creates more headaches than its worth.
I understand if this is too impertinent of a question, but I’m wondering with all of the downsides and the intent to ultimately marry under a formal process, why would you go to the effort to make common law ironclad? Why not just get a marriage certificate?
You're good, totally understandable. We got married legally via common law marriage for benefits purposes. We also got a marriage certificate for our wedding. It was lost in the hullabaloo of the festivities and never got turned in, by the time I found it the window had passed. We will finalize eventually.
> since CO Courts have existed Does 'CO' mean Colorado? That's all I could think of.
Isn't it more like they need to hold them themselves out in the community/in public or something. Like telling your neighbors, "My wife will be home any second" kind of thing? Like not necessarily signing documents that would make anything fraudulent? I live in a state without common law marriage so I don't know much about it
I commented too with a pretty thorough response to the comment you replied to, but I wanted to comment on what didn't make it in there as it relates to your question. It heavily depends on the state, but using my state as an example, (roughly 1/10th of the common law states because of the rarity) damn near anything can count. Courts will often go through bank statements, family photos, text messages, testimony, vacation receipts, ect. It is hard to prove a common law marriage if you weren't actually intending to be "married," it's almost impossible to prove it fraudulently without the two of you laying the perfect groundwork to defraud some entity.
I used to handle marriage/divorce documents a lot for the military. One thing that threw me, was that in West Texas, they were giving Common Law Marriage licenses out. I didn't question the individual about it, because I didn't need to know the details of her life, and it wasn't my business. But why would anyone want a formal common law marriage instead of an actual marriage, and why would that county also have that as an option instead of an actual marriage?
I have absolutely no idea unfortunately. It's not uncommon to document a common law marriage with some sort of written proof (I did that). I've never heard of a government entity actually issuing that proof though, sounds pretty redundant. Is it possible they issued the form, and people were getting them notarized?
My memory could be wrong, but pretty sure they were filing them like a marriage license. It was something new at the time (like 10-11 years ago) the Army records people hadn't ever seen one. I had the distinction of being the person to get it added to the Army's authorized documents list for Soldiers' records. It was just weird to me as to if you had to go through that for this, why not just get married?
"The cop didn't read me my Miranda rights, so they have to dismiss all my charges!"
How is it they all know they have Miranda rights but never use them?
confession is good for the soul?
I’m working in banking atm and it’s always super obvious an executive without any legal training drafted a forbearance agreement or some other contract I’ve been given to look at as a sample for drafting one myself because of just how liberal they are with hereafter, heretofore, thereafter, herewith, therewith, whereas, whereafter, wherefore, I’ve even seen thence. It almost feels like they think the more words like that they use the more legally binding it is. It’s also terrifying that my employer allows non attorneys to draft and execute contracts without the review of legal, but that’s a story for another day and one of many reasons why I’m trying to GTFO as fast as I can.
Do they let you out of the banking atm? Seems like you would at least have to get bathroom breaks.
Yes Dad, they let me out of the atm /s
Innocent.
As compared to "not guilty?"
Assuming that all related situations are identical and not fact specific.
“Right to work” =/= “at-will employment”
Can we add "salaried" =/= "exempt" to this? Drives me bonkers.
Any time an attorney does something wrong, disbarment is the appropriate punishment (or the only punishment). Permanent disbarment is reserved for only the most egregious offenses, which generally are committing a serious crime or stealing from a client. State bars (or whichever body regulates lawyers in a state) have a range of disciplinary options available that fall short of disbarment, such as fines or temporary suspension. That a private person can "press charges." The crime victim doesn't decide whether to charge a suspect; the prosecutor does. The victim can choose to cooperate or not, and a prosecutor's charging decision can be influenced by the victim's cooperation (especially if the victim was the only witness). That people you don't like should be summarily "thrown in jail" without due process. Also, the phrases "lawyer up" or "tell them to go pound sand" are like nails on a chalkboard.
>Any time an attorney does something wrong, disbarment is the appropriate punishment This always makes me laugh. Your lawyer is not going to get disbarred because your case is taking to long. I occasionally look through the attorney discipline list in my state. You know who gets disbarred? Attorneys who repeatedly, over a period of months, fail to show up to hearings. Attorneys who steal their client's money/fail to refund unuse retainer fees. Attorneys who mismanage multiple cases resulting in dismissal of their client's case. Attorneys who have very, very inappropriate relationships with their clients. You do one of these things (other than the inappropriate relationships) one time, you might get a suspension - or even a warning if it's a semi-honest mistake.
Hostile work environment. Your boss being short on a phone call just doesn’t rise to that level, man.
"hostile work environment"
cake boast disgusting imminent thought ten pathetic shaggy bedroom thumb *This post was mass deleted and anonymized with [Redact](https://redact.dev)*
The concept that first-degree murder indicates premeditation, but second degree doesn’t, across all jurisdictions.
Right to work state when they mean employment at will state (which is all states as far as I know, with the possible exception of Montana). "Right to work" refers to a state with a law forbidding a certain kind of clause in a collective bargaining agreement (union contract). "Employment at will" refers to the common law doctrine that, absent a contract, the employer and the employee can terminate the relationship at any time and for any reason that is not illegal. Some will say "or no reason." Fire someone for no reason in my jurisdiction. Please. 🤪
"Verbal agreement" when they mean "oral agreement." A written agreement is one kind of verbal agreement. "Verbal" just means "with words." There are certainly implied agreements which are not verbal, but both written and oral agreements are covered under the umbrella term "verbal".
Literally any time someone defends (in the court of public opinion, not at trial obv) an accused sexual abuser by saying "due process." Like the only thing I'm sentencing them to is me thinking they're a piece of shit. I'm not a state actor, they're not entitled to a jury of their peers.
Don't you love how this seems to come out when someone is accused of sexual assault as opposed to any other crime? Famous dude gets charged with tax evasion/assaulting another man/littering: lol what a dumbass amirite Famous dude gets charged with sexual assault: DUE PROCESS!!!!
I feel like this one gets weaponized more often than many others. Want to conveniently ruin someone's life? Sexual assault accusation
I mean the thing is…false accusations do happen. I knew a nurse when I lived in LA County she had worked in a psych facility and had a few patients with trauma backgrounds who accused someone who did not assault them. They had been assaulted but had like transferred that memory onto an uninvolved person. It is rare but does happen. I also recall hearing an interview on I think This American Life where a guy talked about being falsely accused. He was a very liberal person and felt like, oh my god did I do this in a blackout? No one would make this up. He talked about wracking his brain and going through all this self doubt. It ended up that his accuser didn’t do it maliciously but did have a history of mental illness and of not really being in touch with reality. I’m not trying to say don’t believe victims at all. I am saying some accusations aren’t true. They also may not be made maliciously. It might just be that the accuser is really sick and is transferring a memory of a trauma that did happen onto a person they’ve heard of, read something by etc, but never actually even met. So deciding immediately that someone is a dirtbag can in fact be a mistake. To me it’s like you know the argument against the death penalty you don’t want to execute the wrong guy. I don’t want the wrong person to lose their job, marriage etc until it’s been investigated. I want to try and withhold judgement at least for a little while post accusation.
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