I was listening to a radio programme Law in Action, and it mentioned this curious piece of US legislation, which you will find here

http://www.ussc.gov/2008guid/gl2008.pdf
The relevant part is here


Bruce Zagaris, an attorney in international criminal law in Washington DC, explained that this legislation means (or rather, it is interpreted to mean) that if you are tried for, say, five offences, found not guilty of four and guilty of one, you will be sentenced for all five. Your previous acquittals can be used to count against you when sentencing your first guilty verdict (as compared to a conviction for a first-time offender with no acquittals).

It appears to be a legislation along the lines of "we know you done it and we're gonna get you for it somehow", allowing a sentence to reflect some sort of mob mentality.

This legislation is unprecedented in modern times, and quite frankly ****ing absurd. Innocent until proven guilty, but when found guilty sentenced for being found innocent the first time! **** me.

The most I could figure out in a couple of minutes was that it looks like sentencing judges can only consider acquitted conduct if that conduct can be proven by a preponderance of the evidence. I have serious doubts about whether that's desirable or even acceptable, but it's not quite as bad as sentencing judges being able to consider any offense you've been charged with regardless of evidence, which was my initial impression of what had happened here.

Do you guys think you can keep this thread going for a week until I get done with finals? This really interests me and I'd be quite happy to read through all the cases cited to try and figure out what the hell is going on, but I can't do it this week because the Federal Sentencing Guidelines are not on my Property or Civ Pro tests.

That was my understanding as well- similar to how you can lose in civil court, yet be found not guilty in a criminal trial.

Sounds like it is easier for you to have the "book thrown at you."

In reality I think we need strong minimum sentences for serious crimes. For murder 1 it should be a minimum of life in prison w/o parole. Rape should be a minimum 25y in prison.

I don't pretend to understand Brannigan's Law, I merely enforce it.

The problem is that it IS possible for people to change, in which case parole would be legitimate. It's just unlikely, and very difficult to determine if the person has changed.

The current parole system assumes that people change, but the number of repeat offenders says otherwise. Of course, it's not like a person who spends time in prison is released with the proper skills to live a normal life either. It's a messed up catch 22 in a lot of cases.

hmm... just from reading the text it does not seem like you are able to be sentenced FOR any crimes you were acquitted on, it looks more like if the judge has reasonable evidence for bad ANY behavior, it can be used in considering what sentence is issued for the the crime your HAVE BEEN convicted of.

still seems kind of iffy though...like someone could easily interpret it to mean something else.

Yes, but the judge can take an acquittal as evidence of bad behavior. That's ****ed up.

That's not what it says.

If it 'did not result in conviction', how can it be considered 'prior criminal conduct'? There was no conviction!

Just because you get a not guilty verdict does not mean there was no criminal conduct.



Example- if some evidence was thrown out due to some technicality, said evidence still may be perfectly good. I have a defense attorney making motions to throw out one of my field sobriety tests because the book says to conduct it on a flat/dry/level surface or whatever, and I did it on a slight grade with snow. Well, guesswhat, it was winter! The guy was intoxicated. 0.15 BAC via blood. If the FST's get thrown out on a technicality, that doesn't change the fact that my evidence was still good. See?

Innocent until proven guilty is a pretty simple principle, and this legislation flies in the face of that principle and replaces it with a "we know you did it we just couldn't prove it!" mentality that is very dangerous and open to abuse. Police could repeatedly arrest a suspect with insubstantial, or illegally obtained, evidence knowing that the suspect will not be convicted knowing that once they do collect enough evidence for a guilty verdict the suspect will be sentenced based on the illegally obtained evidence in prior cases.



But if the evidence is thrown out, then it clearly isn't good. If wasn't good for the first case, then it can't be good for the second case. The evidence hasn't magically gotten better over time. There can't be two sets of standards. If evidence isn't good enough for a conviction the first time, it can't be good enough for sentencing a second time. The evidence is either good, or it isn't.

Technicalities are there for a reason. They might seem to fly in the face of common sense, but they protect against police falsifying or planting evidence. If the proper procedure is not followed then all sorts of systematic abuses might follow.
'Getting off on a technicality' is understandably frustrating for law enforcement, when they 'know' subjectively that the defendent is guilty, but legal proceedings are guided by evidence as best they can. If the evidence is faulty then, quite rightly, there is no case. The guy is found innocent. That evidence shouldn't be used in sentencing for a future guilty verdict, because that evidence is still faulty and couldn't be used to prove anything.

For your particular example, that 'technicality' makes perfect sense. I assume your sobriety test is the thing where they walk in a straight line, and touch their nose, and recite the alphabet backwards and stuff? If that's done on an incline, on a slippery surface, then the guy could easily be slipping and falling over the place and the officer might interpret him to be drunk when he actually isn't.
The blood test is obviously objective, and that's good evidence against him. Does that alone make a case? I presume it should, but do you need both the blood test and the sobriety test to make a case?

If this case gets thrown out on the faulty evidence, then the guy is found innocent. There's no two ways about it. If the guy is arrested again and found guilty of drink driving, there's no reason why his prior acquittal should be used against him in sentencing. A first-time offender is someone that has been convicted of an offense for the first-time, not accused of an offense for the first time.

Is simply too strong a statement.



Does not reflect a mob mentality. It reflects that the jury of peers (legal lay people) make their decision on conviction, there is a higher standard of evidence. It does not mean that there is no standard of evidence or that technicalities no longer matter. It just reflects that some evidence that was not strong enough to warrant conviction is strong enough to have an effect on sentencing.

Now correct me if I'm wrong, but there are other guidelines for sentencing too that would prevent a judge from taking an acquittal for murder as evidence to send a shoplifter to prison for life.

Innocence means you did absolutely nothing wrong whatsoever.

When could this possibly be acceptable? If it's strong enough to have an effect on sentencing, it should be strong enough to overturn the previous acquittal. The strength of the evidence was already determined in the trial. Why should the judge be able to completely ignore that when sentencing another case?



Well, maximum prison sentences, I imagine. But it does mean that someone found guilty for the first time may not be treated as a first-time offender, if they were found innocent of a previous crime.

You need to prove guilt, not prove innocence.

Agreed, but when you start throwing out valid and damning evidence because of some legal loophole (illegal taps and video is what I usually hear of) it becomes a game of "how can I get away with it".

It's always been a game of "how can I get away with it" or "how can I get away with less of it." JLee's case is a perfect example of it. The defense is trying to exploit loopholes so that Mr. DUI can escape a DUI conviction. Don't tell me you wouldn't try to get away with it too.

These 'loopholes' are legitimate legal protections against systematic abuses. If evidence is obtained illegally, it isn't valid and should never considered as such. This legislation allows illegal, invalid evidence to be considered in sentencing.

No it doesn't.

REMEMBER OJ

So if someone kills a loved one, and you have the only evidence being illegally-obtained audio/video, it shouldn't even be considered? Nevermind the fact that someone is dead and this evidence proves 100% who does it, just because of a technicality you're perfectly fine with it getting thrown out and letting the killer walk?

i am drinking a delicious glass of it right now!

Because a judge supposedly has expertise that gives him a finer ability to discern the quality of the evidence than a jury of lay people.

Also, the nature of sentencing is different than the nature of finding someone guilty or not guilty. The purpose of sentencing is to establish not just the correct justice in terms of giving the correct amount of penalty, but also to recommend a path of rehabilitation.

This leads me to...




If there is a range of penalties for a crime, then this evidence simply helps a judge place the person within the range. For example, the minimum penalty for shoplifting might be 1 probation. The maximum penalty might be 1 year in prison. If there is a ton of evidence that the person killed the clerk and committed armed robbery, but the only crime that stuck was shoplifting because an officer bungled up the procuring of evidence... then a judge should be able to look at that and say, maybe we should give him the upper end of the spectrum for this because it appears that it was an egregious case of shoplifting at best.

Now you may say, but this person is as innocent as a first time offender since he wasn't convicted of any crime other than shoplifting. The point is that the judge cannot penalize the person *for* murder. The penalty is still lawfully a penalty for shoplifting, falling within the range of sentences for shoplifting (and not murder, armed robber, etc). It provides the judge with more material in order to apply finer granularity in making the decision.

That said, maybe it'd be better just to automatically give a sentence based on the person's past record. First offense is 1 year probation. Second offense is one year in prison. However, the justice system uses the judge's expert discretion in making sentences, and as such, this guideline merely allows the judge to use that extra information in making the decision. Otherwise, the decision would be even more arbitrary OR it would be automatic.

I take it you prefer automatic sentencing, then?

No that is something different. Suppose this audio/video is obtained without a warrant. This breaches one of the HIGHEST laws of our nation and it is written in plain English. If the prosecution failed to obtain a warrant then, honestly, they're a bunch of bumbling idiots. What I'm getting at is more of (ridiculous) minutae. You get a warrant, follow proper procedure but you don't check off box 3A and your key piece of evidence is thrown out and said killer walks.

No. If the evidence was bungled, then that fault lies with the arresting officer and his inability to follow proper protocol. The judge should not be able to give sentences based on what the evidence might have proven if it wasn't bungled. This only gives the judge more leeway to give harsher sentencing based on his personal prejudices, rather than the evidence given in court. This legislation only opens the doors for the sort of systematic abuses that the civil rights movement worked so hard to counter.

law is arbitrary and should be treated as such

Try to give "proper" field sobriety tests in a snowstorm in New Hampshire.

Keep in mind the official manual is about as big as a textbook.

Let me know how that works out for you.

I don't see what's so hard to comprehend. Yes, it's frustrating when legal loopholes are exploited and whatnot, but that doesn't justify breaking the law as an officer/etc. exactly because of what Mort-Hog has been saying. Petition for better laws and rules, encourage wise judges in courts... we're not without options.

That is a compelling argument to review and modify the protocols, not to allow judges to give sentences based on previously dismissed evidence.

Patterns of behavior are considered and seem to fall under this guideline. Someone who has been arrested 10 times but not convicted of assault, for example, would have a pattern of behavior that would indicate the person is more likely to commit assault. In the 11th case, those prior ten arrests, despite convictions, could be considered for sentencing.

Yeah, like that's gonna happen...attorneys make way too much money to want to make things the way they should be.

NH state law says that a lay person is able to determine intoxication, and that "impairment to any degree" is DUI. Somehow, despite what the law says, people can pay $6k for an attorney to find any loophole possible to get them off.

Or they could simply indicate some inherent bias in arrests. Someone who has been arrested 10 times but not convicted of assault is simply more likely to be arrested.

Either way, it is absurd to sentence someone for something they specifically haven't been convicted of.

Yes. It's always arrest bias that leads to people being arrested multiple times.

It could. Police officers are still people, with prejudices and self-interests, and the whole point of protocol is so courts can evaluate evidence objectively as best as possible. Either way, the whole 'there's no smoke without fire!' premise flies in the face of the principle of innocent until proven guilty.

I like how you completely ignored my post.

I like how you resort to appeal to emotion. I was busy thinking about the actual logical, sensible, well-constructed arguments from JLee and Jedi Legend.



No, I wouldn't like it. If someone killed someone I loved, I'd want to ****ing kill the ****er. And that is precisely why deliberations are done by a jury of peers, not a jury of me. It is precisely why, in civilised society, justice is delivered by courts, not by victims, and it is arrived at by evidence, not by hearsay.

The illegally obtained evidence could easily have been doctored, falsified, staged, or otherwise circumstancial. Of course I would know, but justice doesn't like with me (and it shouldn't). Justice lies with the courts, and the courts require legally obtained evidence.

Yes. (sorry, I don't mean to be a dick... this was just for fun).

I don't care if you respond or not to me. But if you are compelled to do so, could you please explain why the standard of evidence for determining validity for evidence is the same in the two different contexts of determining guilt and assigning punishment? I am not as smart as other people on this board, so feel free to be explicit in responding to the portions that I quoted below. (some of this paragraph is a bit sarcastic, but I want to hammer home the point that I'm going on a fundamental assumption that these are two different decisions so they admit two different standards of validity).

Maybe some of my arguments rest on a misunderstanding of court procedure. If it's not the case that the judge has the final say on the punishment, then that would be a serious mistake on my part that I would really like to have corrected for me. I don't have a lot of time to read on it, so I have to roll with my law and order understanding of the court system.



[quote=Jedi Legend]
Because a judge supposedly has expertise that gives him a finer ability to discern the quality of the evidence than a jury of lay people.

Also, the nature of sentencing is different than the nature of finding someone guilty or not guilty. The purpose of sentencing is to establish not just the correct justice in terms of giving the correct amount of penalty, but also to recommend a path of rehabilitation.
[/quote]


[quote=Jedi Legend]The point is that the judge cannot penalize the person *for* murder. The penalty is still lawfully a penalty for shoplifting, falling within the range of sentences for shoplifting (and not murder, armed robber, etc). It provides the judge with more material in order to apply finer granularity in making the decision.[/quote]

The sentence is based on the conviction, and the evidence surrounding the conviction.

The evidence is either accepted by the court, or it isn't. There is no special little drawer for 'Not good enough for conviction, but still good enough for sentencing!'. Sentencing isn't some 'lesser task' where we can drop our standards and principles.

The nature of sentencing isn't different to the nature of conviction. Why would you possibly think it is? It is the next step in legal proceedings, and considers the evidence in the conviction and prior convictions to determine a sentence. This bizarre guideline allows judges to consider cases where the accused was not convicted in his sentence, and this is truly unique in the civilised world.

Imagine if you were convicted of some crime you'd committed, but sentenced for a crime you didn't. Not only that, but the courts ****ing agreed you didn't.
You would promptly escape from a maximum security stockade to the Los Angeles underground. Today, still wanted by the government, you survive as a soldier of fortune. If you have a problem, if no one else can help, and if you can find them, maybe you can hire...