Yes, I understand that. But they'd have to first know/suspect that there were forum postings in the first place. Prosectuors/detectives can't go on blind treasure hunts. In the hypothetical situations you listed, it may have been suspected that there was some communication that had taken place on the computer in order to accomplish/attempt the listed crimes. In a spur of the moment self-defense shooting, there is no premeditation and no reason to think there would be anything related to a self-defense shooting gone wrong on the defendant's computer.
Gun Forums and Prosecution......?
- Thread starter (BH)
- Start date
Yes, I understand that. But they'd have to first know/suspect that there were forum postings in the first place. Prosectuors/detectives can't go on blind treasure hunts. In the hypothetical situations you listed, it may have been suspected that there was some communication that had taken place on the computer in order to accomplish/attempt the listed crimes. In a spur of the moment self-defense shooting, there is no premeditation and no reason to think there would be anything related to a self-defense shooting gone wrong on the defendant's computer.
I spent 12 years as the investigator for a prosecuting attorney.
A. Let's say you shoot somebody. Heck, it's even self defense and the facts and witness statements support it.
You're not getting charged. No search warrant will be applied for. Nobody at the PA Office gives a damn if you used reloads. Unless Castle Doctrine prohibits it, you might get sued. It is by no means guaranteed that you will- but if you do, nobody's going to get a 'search warrant' on a civil case. Opposing counsel will have to earn their bucks to prove that you are 'Zoro_MS13' on an internet forum.
B. Let's say you shoot somebody. This time it's over a parking space, pinochle game, hooker or whatever. The other guy did nothing which justifies your use of deadly force and your big sack of lies has a hole in it. You get arrested. The cops may (even should) ask for consent to search your premises but your 3rd cousins next door neighbor is a title attorney and he says to keep your mouth shut and sign nothing. (Not bad advice for a real estate guy
)
No diff...it's a homicide investigation so the coppers get their search warrant, get your computer an the lab peels the hard drive. Wow, this guy posts on all kinds of weapons-related forums. (Do you know how SQUARE that is? What we REALLY want to see is emails between accomplices, game diagrams for robberies/gang hits, etc.) So they log into your account and see where you asked what the best self-defense gun/load/etc is and you got 14 stupid answers, replied two more times and apparently went to sleep in the middle of typing a reply. Great. Oh, and you have 3,716 posts on that forum alone and you belong to 6 others. Like I'm gonna read through that crap...I'd use the search function on each to look for MO, intent, premeditation, accomplices etc.
I wouldn't spend a lot of time on it however because the best evidence of a homicide is that which is obtained from the scene, witness/suspect interviews and the morgue. But I'm an old street cop. Some of these new hotshots practically live in cyberspace. Me? I'm just trying to avoid becoming roadkill on the information superhighway
A. Let's say you shoot somebody. Heck, it's even self defense and the facts and witness statements support it.
You're not getting charged. No search warrant will be applied for. Nobody at the PA Office gives a damn if you used reloads. Unless Castle Doctrine prohibits it, you might get sued. It is by no means guaranteed that you will- but if you do, nobody's going to get a 'search warrant' on a civil case. Opposing counsel will have to earn their bucks to prove that you are 'Zoro_MS13' on an internet forum.
B. Let's say you shoot somebody. This time it's over a parking space, pinochle game, hooker or whatever. The other guy did nothing which justifies your use of deadly force and your big sack of lies has a hole in it. You get arrested. The cops may (even should) ask for consent to search your premises but your 3rd cousins next door neighbor is a title attorney and he says to keep your mouth shut and sign nothing. (Not bad advice for a real estate guy
)No diff...it's a homicide investigation so the coppers get their search warrant, get your computer an the lab peels the hard drive. Wow, this guy posts on all kinds of weapons-related forums. (Do you know how SQUARE that is? What we REALLY want to see is emails between accomplices, game diagrams for robberies/gang hits, etc.) So they log into your account and see where you asked what the best self-defense gun/load/etc is and you got 14 stupid answers, replied two more times and apparently went to sleep in the middle of typing a reply. Great. Oh, and you have 3,716 posts on that forum alone and you belong to 6 others. Like I'm gonna read through that crap...I'd use the search function on each to look for MO, intent, premeditation, accomplices etc.
I wouldn't spend a lot of time on it however because the best evidence of a homicide is that which is obtained from the scene, witness/suspect interviews and the morgue. But I'm an old street cop. Some of these new hotshots practically live in cyberspace. Me? I'm just trying to avoid becoming roadkill on the information superhighway
OldMarksman
Staff
I listed no hypothetical situations at all. And no, there's no requirement at all to suspect such communication. Everything you have is subject to discovery.
In the case of a shooting, that includes your gun collection, your reloading bench and data, your targets, your bookshelf, and yes, your computer.
I don't know if you have ever received a subpoena, but I have.
One: How is anyone to conclude that a shooting is a "spur of the moment self defense shooting"? That's the question. Any shooting could involve negligence, an accident, consensual combat, premeditated murder, whatever. That is what the investigators and he judicial system will try to determine. If the field evidence is clear and supports a claim of self defense, fine. If not, that's where the fun begins.
By the way, premeditation is not a prerequisite for conviction for a crime.
Two: What do you think constitutes a "self defense shooting gone wrong"?
There's a shooting. The shooter claims self defense. Maybe there's clear evidence to support his claim. Maybe not. If not....it's all open to investigation. Everything.
Someone shoots another person. Claims he fired in self defense. No witnesses. Why would anyone believe the story? Wouldn't anyone make that claim?
I really do not think you read the information on the link that pax provided.
Read it. Heed it.
If that doesn't help, contact an experienced criminal trial lawyer.
In the mean time, understand that everything you put in the mail or in email or on the internet is discoverable and is permanent and cannot be retracted.
I would hope that my lawyer and I can convince the presiding judge that my computer is not relevant to a SD/HD shooting case. Without my actual hard drive I am a pretty transparent individual as far as basic online search engines go. My only hope is that I can get all of my online posts dismissed as the fiction that they are... You see I am just a 10 year old North Korean kid in my 3rd year of med school that dreams of one day tasting the freedom ya'll Americans take for granted everyday.
P.S. My TFL action on my hard drive is the very least of my worries...
Brent
P.S. My TFL action on my hard drive is the very least of my worries...
Brent
OldMarksman
Staff
And the question is, was it an SD/HD shooting case? If the evidence is clear that it was---consistent witness testimony, security camera evidence, the alleged assailant had a gun, maybe he fired first, your door or car window had been smashed, whatever-- you might well have a very good chance--should the question come up at all. But with all of that , one would hope no one would be that interested in your records or hard drive to start with. It's when sufficient exculpatory evidence is lacking that the issue presents itself.
Exactly. But the defendant may have an uphill struggle arguing that he was just joking when he posted that anyone who tries to steal his truck is a dead man, when he has shot someone next to his truck.
Harder yet when limited to yes or no for the answer.
Best strategy is to take care in what you commit to indelible "ink", electronic or otherwise.
Frank Ettin
Administrator
Let's say you shoot somebody and claim it was self defense. But the evidence is equivocal and one of the eye witnesses contradicts your story. The grand jury indicts you for manslaughter, and you're claiming that you were justified. Now it's not a good shoot until the jury says so.
The Internet is a public place.
The Internet is a public place.
Just a minor point here...it is not the 'lack of exculpatory evidence' that gets people charged with crimes, indicted etc.
It is not the statement of a single witness that gets people charged or indicted. The credibility of each witness, their allegiance to anyone related to the matter under question and the accuracy of their statement is carefully weighed as a part of the charging decision.
What gets people charged or indicted is the proof, via the investigation, of probable cause that a specific person(s) committed specific, codified crime(s).
Grand juries are not stupid. I have testified before them on matters such as these and they ask a LOT of questions.
It is also worth mentioning that the reasonable doubt standard plays a big role in the charging decison and is often the final, and tallest, hurdle before a case is filed.
Now, back your regularly scheduled Legal Boogeyman Thread.
Best advice so far is to not post anything on the Internet, which you wouldn't want attributed to you in open court.
It is not the statement of a single witness that gets people charged or indicted. The credibility of each witness, their allegiance to anyone related to the matter under question and the accuracy of their statement is carefully weighed as a part of the charging decision.
What gets people charged or indicted is the proof, via the investigation, of probable cause that a specific person(s) committed specific, codified crime(s).
Grand juries are not stupid. I have testified before them on matters such as these and they ask a LOT of questions.
It is also worth mentioning that the reasonable doubt standard plays a big role in the charging decison and is often the final, and tallest, hurdle before a case is filed.
Now, back your regularly scheduled Legal Boogeyman Thread.
Best advice so far is to not post anything on the Internet, which you wouldn't want attributed to you in open court.
OldMarksman
Staff
Ordinarily, true, but we have been discussing self defense, which would involve an affirmative defense, in which the lack of evidence justifying the use of deadly force would be damaging to the defense. Here's an excellent explanation, posted by Fiddletown on 23 July:
That post happened to apply to a discussion of the potential risks of one's having disabled the safety of a Model 1911 pistol, but it could apply to anything relevant that might influence a jury.
http://www.thefiringline.com/forums/showpost.php?p=3589464&postcount=72
You are certainly right on that! A fair number of people, some well known and some not, have ended up in very great difficulty indeed because they didn't follow that advice when it came to the use of email, and these days, the use of things like "Facebook" and "Youtube" are becoming fertile ground for the creation of such problems. There's nothing to exclude internet fora from that phenomenon.
Frank Ettin
Administrator
It's not one thing. It the cumulative total of all the evidence. Do you really want some of that evidence to be your intemperate postings on Internet forums?Sarge said:
'Ordinarily' nothing.
The only way any crime can be charged is for the defendant to have committed each one, of a rather specific set of overt acts ('elements'), any of which would make a person of average intelligence and morals cringe because they would know they were doing something wrong.
The 'burden of proof' for self-defense, which you so eloquently lay upon the shoulders of the defender, exists only if they get charged. It has in my experience been quite easily met by the preliminary police investigation into the matter.
Even in questionable self-defense cases, the investigation must prove each element of any crime that is to be charged. When someone is charged, and the case goes to an indictment or survives the preliminary hearing, those elements have been proven to the satisfaction of a grand jury or magistrate judge.
Those cases in which the elements are not proven, simply don't get filed or they get booted by the prosecutor, grand jury or in the absence of a grand jury, the judge at the preliminary hearing.
No prosecutor is going to go to a jury arguing "He couldn't prove himself innocent so he must be guilty!" The American system of justice is designed from the ground up to prevent it and to cause early exoneration of any person improperly charged.
My only point in posting to this thread is to remind everyone that each investigation begins and ends with equal attention to inculpatory and exculpatory evidence. Police and prosecutors are legally obligated to include both. Yes, the system is imperfect but it is nowhere near the-
"RUN, chillun'! They's lawmen and and persecutors in de bushes, lookin' to charge de innocent with crimes they didn't commit!"
-sentiment that seems to permeate these threads.
Jeez.
PS- Nowhere did I suggest that idiotic postings on the Internet were going to help anyone involved in a defensive shooting. Nowhere.
The only way any crime can be charged is for the defendant to have committed each one, of a rather specific set of overt acts ('elements'), any of which would make a person of average intelligence and morals cringe because they would know they were doing something wrong.
The 'burden of proof' for self-defense, which you so eloquently lay upon the shoulders of the defender, exists only if they get charged. It has in my experience been quite easily met by the preliminary police investigation into the matter.
Even in questionable self-defense cases, the investigation must prove each element of any crime that is to be charged. When someone is charged, and the case goes to an indictment or survives the preliminary hearing, those elements have been proven to the satisfaction of a grand jury or magistrate judge.
Those cases in which the elements are not proven, simply don't get filed or they get booted by the prosecutor, grand jury or in the absence of a grand jury, the judge at the preliminary hearing.
No prosecutor is going to go to a jury arguing "He couldn't prove himself innocent so he must be guilty!" The American system of justice is designed from the ground up to prevent it and to cause early exoneration of any person improperly charged.
My only point in posting to this thread is to remind everyone that each investigation begins and ends with equal attention to inculpatory and exculpatory evidence. Police and prosecutors are legally obligated to include both. Yes, the system is imperfect but it is nowhere near the-
"RUN, chillun'! They's lawmen and and persecutors in de bushes, lookin' to charge de innocent with crimes they didn't commit!"
-sentiment that seems to permeate these threads.
Jeez.
PS- Nowhere did I suggest that idiotic postings on the Internet were going to help anyone involved in a defensive shooting. Nowhere.
Frank Ettin
Administrator
Okay, exactly what are those elements for the crime of manslaughter? I contend that, in the case of a homicide in which the person who committed the act may have a claim of justification, those elements have been firmly established. A homicide has been committed, and you did it. And there's no doubt that you did it.Sarge said:
The only question now is whether it was justified.
In many cases the investigation will established that a good claim of self defense exists. And in such cases, it will go no further (except that there could still be a civil suit in many jurisdictions).Sarge said:
But unlikely things have a way of nonetheless happening. Basically good people have used their guns in what they honestly thought was proper self defense and still found themselves on trial for aggravated assault or manslaughter. Some of the time they have won, and some of the time they have lost and gone to jail.
Everyone who has ever been on trial after a self defense shooting probably thought (at least somewhere in the back of his mind) as he pulled the trigger that he was right -- that he had no choice. But the fact that he wound up on trial shows that in the aftermath the prosecutor found good reason to challenge the claim of justification and to believe that he could get a jury to agree.
But again, what are those elements? A homicide has been committed, and there is no doubt that you did it and that you intended to do it. You will have effectively stated somewhere in the course of the investigation, "That man attacked me, and I shot him in self defense." By stating that you shot him, you have admitted the elements of a criminal homicide committed without malice. If the investigation shows sufficient vulnerability to your self defense claim, you will be charged; and supporting your self defense claim will be up to you. But the prosecution now doesn't have to prove that you shot him and that you intended to shoot him -- because you have admitted it.Sarge said:
Now, in a self defense case involving a homicide, the prosecutor may not be able to establish one of the elements of the crime of murder, i. e., that the homicide was committed with evil intent or malice; but there is no doubt that you committed the homicide, and that establishes a prima facie case of manslaughter -- unless the homicide was justified.
OldMarksman
Staff
Here's something worth reading on the subject, written by an attorney for attorneys:
http://www.nacdl.org/public.nsf/01c1e7698280d20385256d0b00789923/f587d7d10c34fff2852572b90069bc3c?OpenDocument&Click=
Some relevant excerpts:
The above describes the way an affirmative defense is brought to bear. The last sentence of the following points out the risks that might be created by the existence of evidence that the prosecutor could try to use to establish state of mind:
And, of course, there are risks that evidence might be introduced that could damage the actor's credibility--e. g., "dead men do not tell tales; the police will only have my side of the story."
I should think that the obvious existence of clear favorable evidence, such as supportive eyewitness testimony, security camera "footage", the fact that the decedent had a weapon and perhaps had fired it, maybe a 911 tape, etc. would likely preclude the filing of criminal charges, if not a civil suit.
When none of that exists it can a little more dicey. A person is out alone at night, and encounters someone. There is a shooting. The decedent turns out not to have had a weapon (younger, bigger, stronger, perhaps, but not armed). There are no witnesses, or if there are, their recollections are contradictory or inconclusive. The shooter claims self defense. But who would not make that claim? At that point, it is necessary to try to determine just what did happen.
If it goes to trial, that means that the state believes that they have a strong case, and it would be best for the defendant to not have created any baggage that could turn out to harm his defense.
http://www.nacdl.org/public.nsf/01c1e7698280d20385256d0b00789923/f587d7d10c34fff2852572b90069bc3c?OpenDocument&Click=
Some relevant excerpts:
The following describes the actor's need for favorable evidence (upon reflection, I think my earlier use of the term "exculpatory" was probably inappropriate):
The above describes the way an affirmative defense is brought to bear. The last sentence of the following points out the risks that might be created by the existence of evidence that the prosecutor could try to use to establish state of mind:
And, of course, there are risks that evidence might be introduced that could damage the actor's credibility--e. g., "dead men do not tell tales; the police will only have my side of the story."
I should think that the obvious existence of clear favorable evidence, such as supportive eyewitness testimony, security camera "footage", the fact that the decedent had a weapon and perhaps had fired it, maybe a 911 tape, etc. would likely preclude the filing of criminal charges, if not a civil suit.
When none of that exists it can a little more dicey. A person is out alone at night, and encounters someone. There is a shooting. The decedent turns out not to have had a weapon (younger, bigger, stronger, perhaps, but not armed). There are no witnesses, or if there are, their recollections are contradictory or inconclusive. The shooter claims self defense. But who would not make that claim? At that point, it is necessary to try to determine just what did happen.
If it goes to trial, that means that the state believes that they have a strong case, and it would be best for the defendant to not have created any baggage that could turn out to harm his defense.
Wildalaska
Moderator
Rant:
The good old NACDL
Sharks. Bottom Feeders. Lets kill all the Lawyers and all the rest of the crap that gets posted here.
Remember their motto: Liberty's Last Champion. Bet Harold Fish loves his lawyer.
But I digress.
I have an easier way to explain it. Never put anything in writing that would make you squirm if someone read it to a buch of strangers....otherwise known as
A closed mouth gathers no foot.
WildthinkaboutitAlaska TM
The good old NACDL
Sharks. Bottom Feeders. Lets kill all the Lawyers and all the rest of the crap that gets posted here.
Remember their motto: Liberty's Last Champion. Bet Harold Fish loves his lawyer.
But I digress.
I have an easier way to explain it. Never put anything in writing that would make you squirm if someone read it to a buch of strangers....otherwise known as
A closed mouth gathers no foot.
WildthinkaboutitAlaska TM
Well, just about anything can be used against you if someone thinks it can help them against you. Are you a southern white male? Well, if the BG that tries to kill you is non-white, they might try to say that because you are a southern white male you have a inbedded hatred against minorities and try to use footage from the 1960's agaisnt you even if you weren't alive back then. I actually remember hearing about a home invasion where the homeowner shot the perp who was black, and he had a confederate battle flag hanging on a wall and they tried to get him indicted based upon that, saying if the perp was white he wouldn't have pulled the trigger.
Anything you say can also be taken out of contex. Anything about you can be re-arranged to try to make things seem different than they are. Not saying something can get you in the whole too.
It seems as though most people on these gun forums paint a picture of a trail where the prosecution sets the whole thing up, they choose the evidence, they choose the jury, they choose the judge, and get to present thier case unchecked, and can do whatever they want without penatly. This is WRONG. First of all, they have to prove you did something ILLEGAL first, and all evidence they will have to first prove it is relavant to the case. They want the trial, so when it comes down to it, the defense can put forth guidelines of thier own. The prosecuation can not insist on an anti-gun liberal jury... well they can but the defense can just keep dismissing jurers all day long because they will have probable cause to do so. It's the DA that wants to put you on trial, so he's going to have to compromise more if he wants that trial. Then they have to prove without reasonalbe doubt that your broke the law and that's next to impossible with off the wall crap evidence like that. Then he will have to explain to his superiors how he wasted god knows how much money on a dead end case. Lets not forget Kenneth Nifong, the DA of the Duke Rape Case. He tried everyhing he could in his power despite the evidence that said otherwise, but he pulled out little crap evidence and he ended up becomming the one on trial and ended up with a criminal conviction.
You know what will get you in boatloads of trouble? LIES, or just being untruthfull.
Anything you say can also be taken out of contex. Anything about you can be re-arranged to try to make things seem different than they are. Not saying something can get you in the whole too.
It seems as though most people on these gun forums paint a picture of a trail where the prosecution sets the whole thing up, they choose the evidence, they choose the jury, they choose the judge, and get to present thier case unchecked, and can do whatever they want without penatly. This is WRONG. First of all, they have to prove you did something ILLEGAL first, and all evidence they will have to first prove it is relavant to the case. They want the trial, so when it comes down to it, the defense can put forth guidelines of thier own. The prosecuation can not insist on an anti-gun liberal jury... well they can but the defense can just keep dismissing jurers all day long because they will have probable cause to do so. It's the DA that wants to put you on trial, so he's going to have to compromise more if he wants that trial. Then they have to prove without reasonalbe doubt that your broke the law and that's next to impossible with off the wall crap evidence like that. Then he will have to explain to his superiors how he wasted god knows how much money on a dead end case. Lets not forget Kenneth Nifong, the DA of the Duke Rape Case. He tried everyhing he could in his power despite the evidence that said otherwise, but he pulled out little crap evidence and he ended up becomming the one on trial and ended up with a criminal conviction.
You know what will get you in boatloads of trouble? LIES, or just being untruthfull.
Wildalaska
Moderator
No they wont, and cant.
Bullpucky
No they cant and probable cause is meaningless in the context of which you speak
You ever tried a criminal case? I have and I see little of what you are talking about.
WildstudyupAlaska TM