WK, you have said nothing that supports your contention that the trial judge erred in applying the rules of evidence by allowing the postings to be made known to the jury.
Proof you need to watch what you say online
- Thread starter Jeff White
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You might want to look up what NYC did recently by classifying illegal immigrant as hate speech. Make no mistake, freedom of speech is under attack as a principle and as a legal right just as the 2nd Amendment is.
I saw that. It's likely unconstitutional and it would seem inevitable that it will be challenged. In the meantime: "It's important to note that this guidance does not affect all kinds of speech: The law covers workplace harassment, tenants' rights, and public accommodation. Merely calling someone an illegal alien on the street, or threatening to call Immigration and Customs Enforcement on them, would not be illegal."
I can't find any instances of someone being fined or jailed under that law, so still would be interested in seeing any recent examples that would prove @Zoogster 's point about not having freedom of speech as it pertains to 1A.
It was a meme with a picture of a soldier on it:
That kind of meme is widely shared in certain communities and especially by younger soldiers and cops. This kind of image makes its way onto coffee mugs, posters that hang in offices and lockers, t-shirts, morale patches that go on gear etc.
In this case she shared the image on social media.
Not good given the facts in her case. I can see why the prosecution fought to get this in as this goes directly to state of mind at the time of the shooting. For the defense, I would argue that it was prejudicial but unless she created it that it merely showed that she viewed it. Not sure if the ruling was also tied in with other statements etc. but generally speaking, if there was a pattern of behavior indicating a likelihood of the defendant's actions at issue then it would be admissible in almost every case.
Law was just passed but if you follow the trend of trying to criminalize "hate speech" in the law reviews then I personally am not that sanguine that courts will try to tamp down on speech to avoid public discord and a precedent of sorts already exists, see Chaplinsky v. NH. Purely speech has frequently been prosecuted under disorderly conduct, inciting a riot, etc. using Chaplinsky v. NH as precedent (it dealt with NH disorderly conduct state law). Arguably it conflicts with the later Brandenburg decision but the court did not overturn Chaplinsky but rather distinguished the facts in Brandenburg from those in Chaplinsky. Guy in Michigan was charged and convicted for swearing in front on children but he did not challenge the decision probably due to bad publicity.
That is truly scary considering how widespread memes like that are throughout the military and LE community. I don’t see how it goes to her mindset at the time of the shooting unless she shared it immediately prior to the shooting.
Words like that are routinely used in training settings even by trainers who primarily instruct in the civilian sector in order to instill a “survive and win the fight” mindset.
Ironicaintit
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Could someone explain to me, how the 5th Amendment of the Constitution does not apply to statements made, well prior to the incident?
How is it that she is unwittingly made to incriminate herself?
I've said all kinds of things that could be used against me, but if they are misconstrued to represent an unrelated context, and though they have zero bearing on a supposed incident?
I was going to ask about 4th amendment facets as well, but with a warrant, they're gonna violate the hell out of your papers
How is it that she is unwittingly made to incriminate herself?
I've said all kinds of things that could be used against me, but if they are misconstrued to represent an unrelated context, and though they have zero bearing on a supposed incident?
I was going to ask about 4th amendment facets as well, but with a warrant, they're gonna violate the hell out of your papers
Ironicaintit
Member
unrelated but on topic nonetheless....
Brandt Jean is a much bigger and wiser man than I think I am, or could be.
Brandt Jean is a much bigger and wiser man than I think I am, or could be.
The 5th Amendment does not apply to statements made completely voluntarily under no coercion. When you post something online, the 5th Amendment doesn't enter into it unless you can prove that the government forced you to make the posts.
The 5th Amendment says that they government doesn't have the right to force you to testify against yourself and that you have the right not to testify against yourself. But if you voluntarily make incriminating public statements, there's nothing in the Constitution that allows you to take them back or tell the government that they can't read them and use them against you.
When you make public statements, or post things on the internet, etc. it is wise to think about the content, what it says, and how it could be interpreted. Once it's out there, you can't take it back and you don't get to stand over every reader's shoulder and tell them what you really meant when you posted that comment.
XtremeConditions
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Not to get into the semantics of it, but "intent" doesn't mean what you think it means there.
There are two components to a crime (aside from strict liability crimes, but that's besides the point).
Actus Reus (basically the "guilty act") and Mens Rea (basically the "guilty mind") eg negligence, recklessness, knowing, purposely/intentionally.
"Intent" is not that she pointed the gun at him and killed him. Intent here actually means that she (intentionally) MURDERED him. Her "Mens Rea" here fits more closely with negligence (essentially "She should have known better, but didn't in this case being on the wrong floor, not checking apartment numbers and so on), and not "purposely/with intent" or whatever language might be used in different jurisdictions.
If you are referring to the public media postings, they were not used to incriminate her. Rather, they were admitted into evigence for the purpose of helping the jury reasonably decide wither she met all of the required elements of a self defense defense.
Exaclty.
In this context, and in that jurisdiction, means that she purposely aimed the gun and fired it at the victim. The act became murder when he died.
There are defenses against the charge. The defendant tried to mount a defense, and she failed.
Ironicaintit
Member
Well call me obtuse, but that seems a distinction without a difference
BIG difference.
Self incrimination means saying that one committed a crime.
In self defense, one admits to have committed the act, but presents evidence of lawful justification.
The triers of fact consider relevant evidence and decide whether they believe the act was justified. One essential aspect of justification relates to what the defendant believed at the time.
The trial judge decided that under the rules of evidence, the posts were relevant and admissible.
Surely you do not believe that the prohibition against self incrimination would block the introduction of evidence obtained via subpoena and search warrant.
If a warrant reveals the existence of a poster that warns people that anyone found in the house will leave in a box, the defendant will be in a heap o' trouble.
Self incrimination would involve saying what the defendant had done, if it had been without a sufficient basis for justification,
Ironicaintit
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Thank you Kleanbore, for the clarification.
ClickClickD'oh
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I will go tell the jury they were wrong then.
To everyone else, please know that in the State of Texas, if you point a gun at someone else and pull the trigger and it results in that persons death, it's called Murder. It's only manslaughter if you weren't intentionally shooting at a person.. Don't take my word for it, or any other random internet legal eagle... I mean,. it's not like there's some good recent case law on the mater or anything...
Here's the TX law regarding criminal homicides.
https://statutes.capitol.texas.gov/Docs/PE/htm/PE.19.htm
It does appear to say that if the act was intentional then it is murder and it does not fit the definition of manslaughter or negligent homicide.
There are two "levels" of "murder" in terms of punishment. It's possible to reduce it from a first degree felony to a second degree felony if there are circumstances under which the murderer would reasonably be enraged or afraid.
There is also an offense called "capital murder. It is pretty obviously not applicable to this case. It has more to do with who is killed and/or extenuating circumstances of the killing than to do with the intent of the killer. It covers things like murdering LEOs or on duty firemen, children, murder during sexual assault/kidnapping/robbery/burglary/etc., murder while escaping from a correctional facility, inmates murdering correctional facility employees/guards, murder for hire, multiple murders, and so forth.
https://statutes.capitol.texas.gov/Docs/PE/htm/PE.19.htm
It does appear to say that if the act was intentional then it is murder and it does not fit the definition of manslaughter or negligent homicide.
There are two "levels" of "murder" in terms of punishment. It's possible to reduce it from a first degree felony to a second degree felony if there are circumstances under which the murderer would reasonably be enraged or afraid.
There is also an offense called "capital murder. It is pretty obviously not applicable to this case. It has more to do with who is killed and/or extenuating circumstances of the killing than to do with the intent of the killer. It covers things like murdering LEOs or on duty firemen, children, murder during sexual assault/kidnapping/robbery/burglary/etc., murder while escaping from a correctional facility, inmates murdering correctional facility employees/guards, murder for hire, multiple murders, and so forth.
In the Supreme Court decision, Gregg v. Georgia (1976), that restored the death penalty, the requirement was that the death penalty could only be applied in special heinous circumstances specified in a statute and found that it applied to the defendant's case by the judge or jury (Ring v. AZ made that by a jury only). That is why capital murder is treated differently under the Texas criminal code.
The 5th Amendment was designed in part to prevent torture or threats thereof from being used to extract convictions which was quite common in civil law inquisitorial courts. At the same time, the presumption of innocence began to be applied in English Common Law in the century leading up to American Independence, See Coffin v. U.S. for a historical treatment but its roots date back to Roman law at the very least.
The idea of the presumption of innocence is that the state bears the burden of proving the charges but the defendant has no burden of proof to prove their innocence. However, the defendant in the case at hand used a justification defense--that is that I did it but it was justified under self defense. Thus, in such as case, the defendant is required to provide proof that their actions were justified and that another 'reasonable' person in the same circumstances would do as the defendant did. As a side note, once a defendant testifies one word in court as a witness, then the 5th no longer applies. At that point, the defendant is required to answer truthfully any and all questions from prosecution as well as the defense just as any other witness must.
The key word in the 4th is probable cause which is more likely than not standard. In this case, warrant or not, once the defendant told the police that she shot the person in self defense, then the question is not whether or not she did the alleged crime, but whether her actions were justified as self defense under Texas law. With that admission, probable cause has been more than satisfied for any warrants served on the defendant as long as general procedures for a search warrant were followed.
At our local matches, there was a guy who had a truck covered with such. A local instructor (who works with Mas Ayoob) posted a picture of the truck on his blog as a thing not to do. We have a shooting squad young member who does the same, telling him the risk and he has a young man testosterone hissy fit.
Guyger had admitted in court that she had intended to kill which is not cool in self-defense. You must intend to only stop the attack and there was no attack on the part of Botham Jean. Her flippant attitude via social media postings were used to unveil the true Amber Guyger and what she actually thought about minorities.
I wouldn't say I'm sanguine about it; I'm far too uneducated on the issue to even have an opinion that's half-baked. Chaplinsky was in 1940; I took @Zoogster to be talking about the modern "pc culture" movement, but since he hasn't responded it would be difficult to say.
Every state has disorderly conduct laws which courts have not overturned facially (as a statute) because Chaplinsky is still good law. Chaplinsky was narrowed in the Brandenburg decision by SCOTUS by narrowing the definition of what can be considered an "immediate" threat to public disorder or violence. Just recently, the court ducked a chance to define what was a "true threat" that was not protected by the 1st Amendment versus speech that is protected.
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