Nebraska: bastion of rationalityFollow

1. Because you phail at breaking the fUcking swear filter

2. It's a long skeeter story

Mistrial

The issue is if she was too drunk to "legally" consent to the sex and did the defendant know that.

Shockingly, that wouldn't make it not "rape."

The judge ruled that she could not use the words rape and sexual assault when describing what he did, since she did it willingly and decsribing it as such would be an inflammatory statement that might prejudice the jury against the defendant.

No, idiot. See if you can't work out why you're wrong here on your own.

The issue for the Jury to decide is (1) whether she was drunk and (2) whether he knew it, if they find against him on those two issues then he is guilty of the crime. Anything that distracts from those issues does not promote the course of justice. It is similar to an “if A then B “argument I got into with Gbaji a few month ago. The issue here is “f A and B then C,” arguing about C just distracts from the real issues of whether A and B are true. The Judge is trying to concentrate the trail on those two issues and if they find against the defendant he will get what he deserves.

A similar issue would be when a man passed counterfeit bills to buy a TV in a store, the store owner would not be allowed to testify that the defendant "stole" "rob" etc the TV from me, he would only allowed to testify that the defendant bought a TV and the bills he gave turned out to be counterfeit. If the jury found that the man did pass counterfeit bills to buy the TV he would be convicted of larceny (not to mention the federal charges he would later face for counterfeit passing) but the testimony should only be as to the actions of the defendant not the effects of the defendants actions. The victims get ample time to testify about those effects at the sentencing.

All that is needed for this guy to be found guilty is for the victim to testify for example "I was so drunk that I could not stand. The defendant knew I was so drunk that I could not stand and we had sex." Using rape in the description is not only unnecessarily inflammatory against the defendant, but could easily backfire against the State during the cross examination when jury would then hear the same victim testify that she consented to the sex, which in a jury mind might make her statement contradictory.

No, the issue for the jury to determine is whether or not she was raped. Her ability to give consent is one piece of evidence towards making that decision. But you don't go to court to prove consent, you go to court to prove the crime.

Likewise, if I was convincing senile old women to sign their checking accounts over to me and I went to court with the key question being the women's ability to consent, it is still a theft trial.

I have an even better example and had not thought about it until after I had posted. I served on jury where a defendant was charged with felony murder. The issues we had to decide was "Did the defendant have a gun in his possession during the break in to the house?" "Did the defendant intentionally break into the house with the intent to rob it?" We did not have to decide if the defendant killed the lady of the house, one of the people with him did that by suffocation. None of the testimony called the defendant a murderer, no one used murder to describe what he did at any point in the trial. The witnesses even specifically testified that it was someone else that did the killing. We decided that the state did prove that the defendant did the two elements of the crime and therefore he was guilty. We did not get involved with whether he was a murderer, only the issues that were elements of the crime, the crime itself is a matter of statute we did not have to involve ourselves in discussion of that. He was guilty of murder because he was guilty of the elements of the crime. The defendant in the Nebraska crime is guilty of rape if he is guilty of the elements of the crime, those elements should be the only issues on trail.

The murder and counterfiet cases are not presented as an analogy. Those cases are an example of the jury deciding the elements of the crime, not the crime itself. We knew it was murder because it was in the title of the crime, but we were not asked to decide if it was murder. We were specifically instructed by the Judge that if we find the state proved elements A and B we "Must find the defendant guilty." If you put some latin legal term in the crime description that noone in the jury understood, it would not have changed anything because the title of the crime was not an element at issue in the trail.

Thus in the Nebraska case the only elements of the crime that the jury must decide is whether the state proved the victim was too drunk and the defendant knew it. The sex was not disputed therefore not an issue at trail. The jury "must" find him guilty of the crime if they find those two elements are proved, and the title of the crime is not revelant to the jury's decision, you could put anything you wanted in the title, he would still be guilty if the state proves those two elements.

Edited, Jul 12th 2007 4:12pm by fhrugby

he would still be guilty if the state proves those two elements.

Yes. Of RAPE. Christ, you're slow.

So if what he did fits the definition of rape, he's guilty of rape. We're just not allowed to use the word rape.

Gotcha.

Nexa

Exactly, we'll make a lawyer out of you yet.

Exactly, we'll make a lawyer out of you yet.

Considering her understanding of the law relative to yours is about the same as Stephen Hawking's understanding of physics relative to yours, I'd be a little less concerned what "we'll" accomplish here. If "we" can get you to understand a pathetically simple legal concept after nine posts, it'll be like teaching a guy with Down's Syndrome to sing opera.