Republican victories on November 3, 2009 in New Jersey and Virginia have been the subject of analysis. In light of all the attention given to these elections during the leadup, it is unsurprising to have found many commentators extacting messages from the results.
This article presents the straightforward facts. Christie rode suburban financial angst to victory . I like this article for two reasons. First, it presents the issues as local concerns, and does not mention the federal government. Property taxes, for example, are strictly a state issue. That is proper subject matter for a state election. Second, it spells out the issues on voters minds instead of speculating.
Another article expresses the view that widespread angst about the economy is shared by voters. Voters to pols: Give us jobs, results, not spats. With some 250 House Democrats and 16 Senate Democrats who will be up for re-election, this piece warns these candidates to take notice of these financial concerns, or else voters will give them the boot.
I have a problem with this view. It assumes, despite all the media coverage about the recession and unemployment, that Washington is oblivious. I am certainly not one to shift what I like to call the "burden of truth" away from politicians. But this viewpoint goes too far in its assumption that they are ignorant, illiterate, and isolated from reality (a view that I do not generally dispute). Nearly 16 million people cannot find jobs and employers have shed jobs across most industries. Currently unemployment is at 10.2%, with predictions it will reach 10.5% next year. Even I, the quintessential cynic, cannot imagine a congressman waking up to this news, scratching his head, and saying bemusedly, "The economy?"
One thought-provoking analysis, however, relates to conservative democrats. If they get the hint from the November 3, 2009 election results, they may design campaign platforms based on fiscal and social conservatism. This podcast provides more insight on this angle as to this week's changing of the guard.
"I disapprove of what you say, but I will defend to the death your right to say it."
The First Amendment protects speech and provides for freedom of expression, restraining government power in locations like public sidewalks, streets, and other publicly owned areas.
The Bill of Rights gives individuals in these places the freedom to distribute ideas either in writing or orally.
All laws concerning speech must be content and viewpoint neutral. This means statutes must not state, imply, or intend to regulate speech because of a disagreement with its message or idea.
Protecting spoken words, this does not prohibit laws that govern the surrounding circumstances in which the speech occurs. Put differently, the Constitution limits the power to regulate what people say, but it does not entirely curtail the police power in "the marketplace" of ideas.
Indeed, the law balances individual liberty with the government’s duty to protect the health and safety of its citizens. As a result, the government may regulate the time, place, or manner of protected speech. This means the government may regulate when, where, and how speech may occur.
Even so, this is not unbridled government power. On the contrary, freedom of speech is a fundamental right.
Even though the government may regulate as to time, place, or manner, these laws must be narrowly tailored to a legitimate, content-neutral government interest. Futhermore, they must be the least restrictive means of serving a given legislative goal while leaving open ample alternative channels for communication.
Brown v. Pittsburgh (3d Cir. 2009).
The Bill of Rights gives individuals in these places the freedom to distribute ideas either in writing or orally.
All laws concerning speech must be content and viewpoint neutral. This means statutes must not state, imply, or intend to regulate speech because of a disagreement with its message or idea.
Protecting spoken words, this does not prohibit laws that govern the surrounding circumstances in which the speech occurs. Put differently, the Constitution limits the power to regulate what people say, but it does not entirely curtail the police power in "the marketplace" of ideas.
Indeed, the law balances individual liberty with the government’s duty to protect the health and safety of its citizens. As a result, the government may regulate the time, place, or manner of protected speech. This means the government may regulate when, where, and how speech may occur.
Even so, this is not unbridled government power. On the contrary, freedom of speech is a fundamental right.
Even though the government may regulate as to time, place, or manner, these laws must be narrowly tailored to a legitimate, content-neutral government interest. Futhermore, they must be the least restrictive means of serving a given legislative goal while leaving open ample alternative channels for communication.
Brown v. Pittsburgh (3d Cir. 2009).
Character Evidence on Trial
In the same way the marketplace thrives on money, evidence is the currency in court. This is because courts have no basis to apply the law without evidence. Today New Jersey, like other jurisdictions, has codified its Rules of Evidence. In a criminal trial, the State carries the burden of proof. This means the State must prove all of its evidence beyond a reasonable doubt, showing the defendant is the one who committed the offense at a particular time in a particular place in a particular way. The accused, generally speaking, does not have to prove anything.
This article is about a Florida man, Edward Ates, on trial for homicide in New Jersey. The State alleges he shot the victim as an expert marksman. The defendant maintains this was impossible because he was too fat.
Getting the evidence of the defendant's girth in front of the jury requires both skill as a trial advocate, and knowledge of the law of Evidence. What follows is a rudimentary legal analysis.
First, all relevant evidence is admissible unless an exclusionary rule applies. "Relevant evidence" makes the existence of a disputed fact more likely or less likely. N.J.R.E. 401. The dispute in this trial is whether Edward Ates did, in fact, murder his son-in-law. The State wants to show Mr. Ates is the one who did it by firing a weapon at the victim. Mr. Ates wants to introduce evidence of his weight at the time his son-in-law was killed, 285 pounds, because it goes to the heart of the defense theory that he could not have run up a flight of stairs and accurately fired a weapon at a target. Therefore, this evidence is relevant because it makes it less likely Mr. Ates committed this crime. Relevance, however, is only the first step.
Second, character evidence, though relevant, is generally excludible. N.J.R.E. 404(a). As indicated above, relevant evidence is admissible unless an exclusionary rule applies. "Character" is evidence of a person's traits and it may be highly relevant. But as a general proposition it is not admissible. When a person has a general trait that the State wants to use for its case in chief, a jury might mistakenly reason from the general to the particular. As indicated above, the State has the burden of proof. Character evidence is extremely dangerous because the jury might erroneously determine that the person acted in a particular way on a particular occasion that conforms with a general trait. The defendant, on the other hand, does not have to prove he did anything, and the rules of evidence recognize this with an exception to the rule against character. That is, an accused may offer pertinent evidence of his own character for the jury to consider. N.J.R.E. 404(a)(1). This allows the jury to reason from the general to the particular and conclude the defendant did not do the act of which he is accused. Even though this might be erroneous, the court allows the jury to make a mistake.
In this case, Mr. Ates wants to introduce evidence of his weight. This is classic character evidence because he wants the jury to find his general character for obesity prevented him from committing the act of murder as the State has alleged. Since he is the accused the rules clearly allow this evidence to be presented to a jury, and he is introducing it in his defense. Therefore, this relevant character evidence is admissible.
Finally, judges must weigh the value of the evidence against other concerns for the jury. More specifically, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence. N.J.R.E. 403.
Here, the defense theory is factual impossibility. Namely, Mr. Ates could not possibly have killed his son-in-law. Due to his weight, he could not have run up the flight of stairs and accurately fired the weapon. The evidence of his weight, therefore, has tremendous weight, and there is no risk to its admission. Therefore, the evidence is admissible.
Obviously anyone who read the article already knows the jury heard this evidence. But those who do not know the law of evidence could not have known the analysis which the lawyers argued and the court engaged in before the evidence was presented.
State v. Edward Ates
[UPDATE #1: Closing arguments begin in NJ 'fat defense' case.]
[UPDATE #2: Jurors review evidence in NJ fat defense case.]
[UPDATE #3: NJ jurors convict Fla. man in 'fat defense' trial.]
This article is about a Florida man, Edward Ates, on trial for homicide in New Jersey. The State alleges he shot the victim as an expert marksman. The defendant maintains this was impossible because he was too fat.
Getting the evidence of the defendant's girth in front of the jury requires both skill as a trial advocate, and knowledge of the law of Evidence. What follows is a rudimentary legal analysis.
First, all relevant evidence is admissible unless an exclusionary rule applies. "Relevant evidence" makes the existence of a disputed fact more likely or less likely. N.J.R.E. 401. The dispute in this trial is whether Edward Ates did, in fact, murder his son-in-law. The State wants to show Mr. Ates is the one who did it by firing a weapon at the victim. Mr. Ates wants to introduce evidence of his weight at the time his son-in-law was killed, 285 pounds, because it goes to the heart of the defense theory that he could not have run up a flight of stairs and accurately fired a weapon at a target. Therefore, this evidence is relevant because it makes it less likely Mr. Ates committed this crime. Relevance, however, is only the first step.
Second, character evidence, though relevant, is generally excludible. N.J.R.E. 404(a). As indicated above, relevant evidence is admissible unless an exclusionary rule applies. "Character" is evidence of a person's traits and it may be highly relevant. But as a general proposition it is not admissible. When a person has a general trait that the State wants to use for its case in chief, a jury might mistakenly reason from the general to the particular. As indicated above, the State has the burden of proof. Character evidence is extremely dangerous because the jury might erroneously determine that the person acted in a particular way on a particular occasion that conforms with a general trait. The defendant, on the other hand, does not have to prove he did anything, and the rules of evidence recognize this with an exception to the rule against character. That is, an accused may offer pertinent evidence of his own character for the jury to consider. N.J.R.E. 404(a)(1). This allows the jury to reason from the general to the particular and conclude the defendant did not do the act of which he is accused. Even though this might be erroneous, the court allows the jury to make a mistake.
In this case, Mr. Ates wants to introduce evidence of his weight. This is classic character evidence because he wants the jury to find his general character for obesity prevented him from committing the act of murder as the State has alleged. Since he is the accused the rules clearly allow this evidence to be presented to a jury, and he is introducing it in his defense. Therefore, this relevant character evidence is admissible.
Finally, judges must weigh the value of the evidence against other concerns for the jury. More specifically, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence. N.J.R.E. 403.
Here, the defense theory is factual impossibility. Namely, Mr. Ates could not possibly have killed his son-in-law. Due to his weight, he could not have run up the flight of stairs and accurately fired the weapon. The evidence of his weight, therefore, has tremendous weight, and there is no risk to its admission. Therefore, the evidence is admissible.
Obviously anyone who read the article already knows the jury heard this evidence. But those who do not know the law of evidence could not have known the analysis which the lawyers argued and the court engaged in before the evidence was presented.
State v. Edward Ates
[UPDATE #1: Closing arguments begin in NJ 'fat defense' case.]
[UPDATE #2: Jurors review evidence in NJ fat defense case.]
[UPDATE #3: NJ jurors convict Fla. man in 'fat defense' trial.]
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