ATTORNEY QUESTION OF THE MONTH

With the generous help of our Network Affiliated Attorneys, this column helps our members understand the world our affiliated attorneys work in, and demystifies various aspects of the legal system for our readers. For the past several months, we’ve been discussing the below question with our affiliated attorneys, and it concludes with this edition of the eJournal:

If a Network member is involved in a self-defense incident, is charged with a crime and goes to trial, how likely is it that the prosecution will try to spin belonging to the Network as planning to shoot someone? What response would you make if you were defending a Network member and opposing counsel tried to discredit your client that way?

Jon H. Gutmacher, Esq.
Jon H. Gutmacher, P.A.
200 N Thornton Ave., Orlando, FL
407-650-0770
http://www.floridafirearmslaw.com/

What organizations you belong to–other than those with a dedicated violent agenda–are generally not permitted in a trial as the information is irrelevant, immaterial, and usually has only an unduly prejudicial effect on those jurors with disagreeing views. However, if you inject your membership into the trial, then it is normally fair game as the courts say you have “opened the door” to the issue. Therefore, most attorneys will not bring in the fact that their client is a member of the NRA, or whatever, because it usually hurts more than helps.

D. Eric Hannum
Attorney at Law
1025 1/2 Lomas Blvd., Albuquerque, NM 87102
505-842-6171
www.hannumlaw.com

While the prosecution might TRY to use membership in this or some other organization against a defendant in a criminal case, that effort is unlikely to succeed. Any competent defense attorney would oppose this. The argument is essentially that such evidence should not be admitted because the risk of unfair prejudice far outweighs any probative value.

That is, such evidence invites an unfair conclusion (that the defendant was looking for a chance to shoot someone) based on evidence that does not rationally support the conclusion (membership in an organization).

This kind of challenge is governed by Rule 403 of the Rules of Evidence, which requires the court to undertake a balancing of “probative” vs. “unfairly prejudicial” effects of evidence before allowing a jury to hear the evidence. This can sometimes be a close call (membership in a street gang, for example, where the alleged motive is gang-related), but generally our society places a high value on freedom of association. Thus courts are (and should be) generally reluctant to allow membership in an organization to be used as proof of some sort of motive for a crime.

Doug McMillan
McMillan Law Offices, P.C.
57 Franklin St. #115, Valparaiso, IN 46383-5669
219-464-9191
http://mcmillanlegal.com

After watching the video of the Texas case discussed in the July journal (see http://armedcitizensnetwork.org/our-journal/271-july-2012?start=8) and then hearing the court handed down a 40 year sentence, it is a tragedy all the way around, for Raul Rodriquez and certainly for his victim.

Basically, I see the issue as one of the standards of AOJ, having the ability, the opportunity, and the immediate jeopardy of serious bodily harm or death. The neighbors posed NONE of these threats up to the time that he left his doorstep. The carrying of a hand held video recorder (and “playing” his comments to the camera as well) only served to show a planned, if not premeditated effort to cause an escalation. In this case, it was Mr. Rodriquez who escalated the confrontation by his mere presence, not the supposed threats.

Considering that he had already contacted police, there was ample opportunity for him to retreat (the reasonable man standard) and let law enforcement deal with the situation.
 

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