Free Republic
Browse · Search
News/Activism
Topics · Post Article

To: Cboldt

You are correct. The actual proof or lack of same comes at trial. It is at the trial the State must prove their allegations. According to the Constitution, the defendant is not required to prove or disprove anything.


30 posted on 07/03/2015 6:48:54 AM PDT by sport
[ Post Reply | Private Reply | To 28 | View Replies ]


To: sport
My point was that the government has a burden well before trial, that being to recite allegations that it intends to prove at trial. If the allegations don't make a crime, then the judge is supposed to release the accused.

In this case, the allegation is deficient, obviously so. The only contentions made are that there is an organized criminal conspiracy statute (yes there is), and this guy probably violated it. That's not enough. The police and prosecutor have to make specific allegations as to each element of the offense, associated with the accused.

Another point I made is that even though the law requires a judge to perceive the connection between the elements in the allegation and the elements of the offense, in practice they don't.

This DA and judge are worse than Nifong, in that Nifong at least had an allegation - albeit he knew, at some point, it was a false allegation, but at least he had an allegation. The allegation in this case is naked - there isn't even a lying witness or victim.

32 posted on 07/03/2015 6:57:23 AM PDT by Cboldt
[ Post Reply | Private Reply | To 30 | View Replies ]

To: sport
-- The actual proof or lack of same comes at trial. --

One other point, and this is pretty common actually. Sometimes lack of evidence (which is not the same as deficiency of allegation) results in a case being dismissed well ahead of trial.

Not so common, but not unheard of, are cases where the accused is released for deficiency in allegation. If the trial court drags its feet long enough, it becomes quicker to appeal this type of due process violation before it is exposed in the pretrial process.

35 posted on 07/03/2015 7:06:41 AM PDT by Cboldt
[ Post Reply | Private Reply | To 30 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson