Legal Research Memorandum - Essay Example

Steve Me 10 October On the issues surrounding the trial of Adam INTRODUCTION: I am writing this memo as per your request for an overall assessment of the chances of Adam with regard to being able to avoid being convicted of burglary. As well, this memo addresses the points you wanted addressed in the last memo you sent me. To wit, you want me to discuss the following: (1) Adam’s being identified by Andrew; (2) Issues surrounding Adam’s wife being compelled or choosing to give evidence; (3) Om whether prosecution can get Adam’s previous burglary and assault convictions in as evidence; (4) On whether there is anything in the conduct of the police during the arrest that we can use to defend Adam; (5) On how to deal with the pawnshop owner Mr. Irrich; (6) Recommendations on trial tactics EXECUTIVE SUMMARY: The case against Adam can be undone with a careful defense centering on the disputation of the validity of the positive identification testimony of Andrew. That testimony can be dismissed on grounds that it is based on a conclusion and a speculation and not on first-hand knowledge. Another leg of the defense is based on questioning the validity and legality of the initial search of the car of Adam, and subsequent arrest based on flimsy grounds. The testimony of the pawnshop owner can likewise be challenged and dismissed because it is likewise based on speculation. These are the basic components of a defense strategy aimed at acquitting Adam of the crime of burglary. DISCUSSION: (1) On Adam being identified by Andrew The fact of the case is that Andrew made a positive identification of Adam as the one who entered his house and tried to burgle it, on the same night that the crime occurred. His exact words were, “You got him, I reckon that’s the guy!”On the other hand we have the word from Adam that he had certainty with regard to Andrew making a false identification, one because he was wearing a beanie, and two because he had gloves on, implying that he did not leave any hand prints in the house. The question is whether those are enough to avoid identification, and if there are other things about Adam, such as his overall build, his clothes, his smell, or any identifying marks that could have led Andrew to say that indeed, the person behind the police car that night, Adam, was the perpetrator of the burglary. On the other hand, there are key aspects of that identification that we can attack. One is that we can make a distinction between whether Andrew actually saw Adam, or whether Andrew made the conclusion based on what he could make out of Adam’s circumstances during the time of the crime. The statement that Andrew made that night when Adam was seated at the back of the police car is ambiguous, and open to various interpretations. For one, the use of the phrase ‘I reckon’ can be interpreted as meaning that Andrew concluded that Adam must have been the perpetrator of the crime, owing to Adam’s being arrested that night, being driven back to him, the way he looked, and that they apprehended Adam near the scene of the crime, under suspicious circumstances. It remains to be determined in further detail what happened during that crucial exchange and positive identification by Andrew of Adam as the culprit. The distinction to be made with regard to the identification being either something that Andrew concluded or based on something that he actually saw is crucial, I believe to making our case against the validity of this testimony and piece of evidence. i You seem to be on the right track as far as sensing that this may be the weakest part of the whole case of the prosecution. The rules of evidence in Western Australia are that testimonials based on conclusions rather than the actual witnessing by sight and hearing cannot be admitted as evidence in court. We may have a valid point to raise with regard to whether the positive identification was the result of a conclusion or of actual witnessing. If it is true, for instance, that Adam was wearing a beanie and was likewise wearing gloves, it could not be possible that Andrew could make a positive identification based on what Adam looked like that night. Of course we have to be careful about how we attack this particular vein of defense, given that we cannot tell the court nor the prosecution that Adam was wearing the gloves and the beanie. What we can probably do is to press Andrew to reveal what he saw during that night when the burglary was happening, and then to compare what he saw then with what he saw when the police brought Adam back to the scene of the crime. How did he come to the positive identification? It may be that he made the identification based on a faulty conclusion, and if so, then we can move to have Andrew’s testimony considered inadmissible, as per the rules of evidence in Western Australian courts. ii Applicable case law includes Toohey J. Pollitt v. The Queen (1992) 66 ALJR 613, 635. iii Indeed this testimony by Andrew has the potential to be the case’s weakest link as far as the prosecution goes, and if we can have this testimony junked in court we have a chance to have the case dismissed altogether, as this testimony is the key testimony in the trial. Add to this the fact that Adam has an alibi for being where he was when he was picked up by the police, and the case can easily crumble if this piece of evidence is not admitted in court. (2) Issues around Andrew’s wife either choosing or being compelled to give evidence Case facts are that Adam had made a confession to his wife about the burglaries that he had committed, one time when the wife asked him about his nocturnal activities. Now that the wife is upset and furious, and thinking of abandoning Adam, there is the risk of the wife being compelled by the authorities to testify against Adam, or else out of that anger to volunteer to testify and tell the court about Adam’s confession. The question is can the wife be compelled to testify against his husband is the question, and under Australian common law, it was the case that husbands and wives cannot be forced to testify against each other in a court of law. But that has changed recently with rulings essentially saying that under common law, spouses do not have the right to silence, meaning that theoretically, the High Court has allowed the courts or the prosecution in this case to compel the wife to testify about what she knows of the activities of her husband Adam. This is a recent High Court ruling, made in 2011, and has implications on how well we can defend ourselves from the prosecution’s assault. The implications of that ruling on our case are immense. Adam has already stated that he has confessed to the wife about committing some burglaries in the recent past, as the key cause of his nocturnal going about. That the wife is now very upset with Adam does not help our case further. She can even volunteer to testify against his husband. For sure the prosecution will not let this lead pass, and will most probably compel the wife to appear in court and to testify against the husband. She may be compelled under oath to tell the truth, and so in this case the prosecution may be able to get this testimony in. On the other hand, this testimony alone may not be enough to convict Adam, given that he has confessed to burglary in general, but not necessarily to entering the house of Andrew in particular. iv Moreover, with regard to the wife, that she may refuse to give testimony may be used against her in court by the prosecution, given that under the new law she has no right to privacy, and under the law too being an accessory to a serious offense means that that accessory is as guilty of the serious offense for which the primary offender is to be convicted or tried.v Meanwhile, case law exists that state that the prosecution may not compel a wife to testify against her husband, except in some identified exception circumstances. Such includes Hoskyn v. Commissioner of Police for the Metropolis (1978). vi (3) On the previous burglary convictions and assault charges The facts are, according to Adam, that he has two previous convictions for burglary, and a number of assault charges filed against him, even as he has claimed to have been clean for the past decade. This is easily verified by a records check. This also makes Adam a repeat offender, and under Australian law, may be subject to more serious punishment as a result. Now the question is how does this fact of Adam’s two prior convictions of burglary impact the current case? Looking at the law on repeat offenders, the burglary act for which Adam is to be tried falls under the category of a serious offense, and is under the jurisdiction therefore of laws that deal with serious offenses. On the other hand, looking at the law, there are serious consequences tied to the length of prison terms for repeat offenders, but there is a minimum number of convictions for the person to be deemed as a repeat offender for a crime. In the current case Adam has had two convictions. In Australian law a person has to be convicted at least three times to be considered a repeat offender. For the purposes of defending Adam from the charge this has no immediate consequence. On the other hand, the fact that Adam has done it before, and has been charged with assault too a couple of times in the past, does not help his case at all. The thinking may be that since he has done it in the past, he has the capability to do it again. Mitigating this argument somewhat though is the fact that he has been clean and out of trouble with the law for the past decade. This mitigating fact somewhat negates the previous convictions, and can be used by the defense to argue that the previous convictions no longer matter in terms of proving either guilt or innocence. If anything, the clean record over the past ten years is an indication that Adam has been successfully reformed, and that therefore the previous convictions could no longer be used as evidence to bolster the case of the prosecution. Meanwhile, it is up to the defense to argue that in case of a conviction, the laws on repeat offenders and the sentencing relating to repeat offenders cannot apply to Adam, given that he has not met the threshold number of convictions for the same crime to be given the kind of harsher sentences reserved for repeat serious offenders under the law. vii On the other hand, case law exists that mete out relatively harsh sentences to repeat offenders who have had prior convictions for burglary, similar to current case. Such case law includes Joslin v. The State of Western Australia, where a repeat offender convicted of burglary, with prior convictions, was meted a relatively harsh prison sentence in comparison to similar convicts without prior convictions.viii (4) On the conduct of the police, on whether there is anything there that we can use The case facts are that the police did a search of the car and found the crowbar then. The pretext for the car search had been that Adam was considered as being “rude and unhelpful” when they approached him. That search yielded the crowbar, which they then combined with the other circumstances surrounding Adam and the call of a burglary coming through, to pick Adam up and bring him to the scene of the crime, where he was identified positively by Andrew. The case can be construed as one where the police made an arrest on questionable grounds, and that the search of the car itself is made on dubious grounds, and can be considered illegal. Common law, does not have exact provisions that grant the police power to search personal property, including cars, and that may be used as a defense to argue that the police did not have the right to search the car of Adam. On the other hand, precedents do occur where the police, on suspicion that a person has committed a crime, or is in possession of a weapon or of stolen merchandise, can perform a search. The fine line to determine is whether Adam and his circumstances merited the search, and the defense can argue that being rude and unhelpful alone, even if true, cannot be the basis for a search. ix Meanwhile, there are also precedents giving the police extensive stop and search powers in Australia, as a means to control the proliferation of firearms for instance and check the rise of assault crimes. These vast powers can be leveraged by the prosecution to argue for the appropriateness and legality of the search and the subsequent arrest of Adam. That said, the defense can counter-argue and say that the crowbar, in itself, cannot be deemed an assault weapon, or a weapon that has been used for a crime just in itself, and that Adam was arrested on the presence of the crowbar can be deemed as against the spirit of the law. Mere suspicion, while enough for a search, cannot be the basis for an arrest. At the time that Adam was picked up, he had not been charged with any crime. These are mitigating circumstances that the defense can leverage to make a case for the illegality of the initial arrest and search of Adam by the police. x (5) On how to deal with Mr. Irrich the pawnbroker Mr. Irrich has issued a statement that he had been buying laptops and jewelry from Adam, and that he believes those were stolen goods. That statement seems to be part of Mr. Irrich cooperation with the police in a deal for sentence reduction in exchange for that cooperation. Mr. Irrich himself is facing charges of receipt of stolen goods. The rules of evidence say that Mr. Irrich’s beliefs cannot form the basis of acceptable evidence, because they are based not on something that he knows from seeing or hearing the act of Adam stealing the goods, but that he merely speculated and concluded that those goods were stolen. This is easy enough for the defense to make an argument out of, that Mir. Irrich’s testimony is mere hearsay, and based on mere speculation. xi Case law that applies to Mr. Irrich and which bolsters the defense’s ability to take down the pawnbroker’s testimony by virtue of its being mere speculation and hearsay includes Toohey J. Pollitt v. The Queen (1992) 66 ALJR 613, 635. xii (6) Defense strategy, what to aim for as far as our cross of the prosecution witnesses From the preceding discussion a viable defense strategy emerges. The crux of the defense will be in having the testimonies of the key witnesses thrown out for being inadmissible in court. The focus is specifically on the testimony of Andrew, and on his positive identification of Adam as the perpetrator of the crime. To be specific, the defense can argue that Andrew made the identification not from a direct knowledge of Adam having done the burglary, but from concluding from the circumstances that Adam did it. The statement alone merits further , given that it is not definite with regard to the identification, but that the language used implies that Andrew made the conclusion that Adam did it, rather than made the statement of positive identification. The phrase “I reckon he did it” is loaded, and can be interpreted to mean that he did not see Adam, but is only concluding and speculating. On the end of the defense we know from the input of Adam that Andrew could not have seen him commit the burglary, given that he was wearing a beanie. The gloves on his hands guarantee that he did not leave any fingerprints that could pin him down to the crime. In this sense the rules of evidence can favor the defense, and the defense can definitely pounce on the vagueness of Andrew’s statement of identification, and the problems inherent in making the positive identification, given what Adam was wearing at the time of the crime making it difficult for Andrew to make a definite facial identification. xiii The aspect of the case relating to the circumstances of Adam’s arrest by the police officers, as well as the initial search, can also be probed further and can help the defense undermine the case of the prosecution. Doubts can be cast with regard to the legality of the search and the arrest, given that the crowbar for instance cannot per se deemed as a weapon of assault, and that Adam’s disposition towards the officers at the time cannot be deemed as a cause for the search automatically. That the officers did what they did under these circumstances can be deemed as a violation of the civil and privacy rights of Adam, and on these grounds the defense can argue for the dismissal of the case.xiv The positive identification of another witness, the ten year old Sumaiyah, can also be challenged in the same way as that of Andrew’s. If Adam was still wearing his gear when he was out of the house, then the positive identification must be faulty. Also, given that it was dark, and that the witness was peering from a window, making sight difficult, doubts can be cast as with regard to the accuracy of the positive identification by the child.xv Meanwhile, the testimony of the pawnshop owner can readily be dismissed and argued to be inadmissible as evidence, given that it is based on the conclusion and speculation of the owner as with regard to the goods sold to him being stolen, rather than something that the pawnshop owner knows firsthand. All these can be used to neutralize any testimony from the wife on Adam’s admission of guilt for burglaries, even as that testimony itself cannot be tied to the current case, being generalized and not specific to the burglary at Andrew’s house. RECOMMENDATIONS: Have the testimony of Andrew dismissed for being based on speculation and conclusion of the circumstances of Adam that night of the burglary, rather than being based on first-hand knowledge Challenge the legality of the initial search and arrest of Adam and his car by the police Challenge the validity of the testimony of the Mr. Irrich, on the ground that the testimony is based on speculation rather than first-hand knowledge Challenge the testimony of Amaiyah, on the ground of reasonable doubt due to the time of the crime, and problems with accuracy of vision Move to have the case dismissed based on the inadmissibility of the available evidence Read More