Can hypothesis-publishing make one liable for defamation? It is understandable that if Bob says &quot;Rob murdered Alice&quot;, Bob will be liable for defamation unless he can prove that Rob indeed murdered Alice on the preponderance of evidence (this is true even if Rob has been acquitted of murdering Alice — because the standard of proof in the criminal trial would have been much higher than in the defamation case). But what if Bob instead publishes a hypothesis that Rob murdered Alice: he analyses the well known facts about Rob, Alice and the circumstances of her death, and concludes that those facts are consistent with Alice being murdered by Rob? Would Bob be still liable for defamation? Or does the form of hypothesis reasonably based on facts (vs outright accusation) save him from that trouble? (Any jurisdiction)
canada The aspects of a defamation claim that seem to be in issue are the following: is the publication defamatory in the sense that it tends to lower the reputation of the subject in the eyes of a reasonable person does the statement fall within a defence to defamation, specifically fair comment or truth Your statement of the scenario is somewhat ambiguous for the purposes of the above analysis: But what if Bob instead publishes a hypothesis that Rob murdered Alice: he analyses the well known facts about Rob, Alice and the circumstances of her death, and concludes that those facts are consistent with Alice being murdered by Rob? It matters whether Bob: simply publishes &quot;Rob murdered Alice&quot;, Bob's hypothesis publishes &quot;Rob murdered Alice&quot; accompanied with language or context that communicates that it is merely a hypothesis publishes the underlying facts, the analysis, along with the conclusion of consistency Your description is ambiguous because despite talking about Bob's methodology in arriving at his conclusion, you don't clearly say that he publishes that along with the hypothesis. The plaintiff's threshold burden: Is the statement defamatory? Depending on the precise content of the published statement it may meet the low threshold of tending to lower the reputation of the subject in the eyes of a reasonable person. If it does, then the burden will flip to the defendant to establish a defence, such as truth or fair comment. Of these, based on the methodology you have described, I view fair comment as the more directly applicable defence, but it does really depend on what the content of the publication is. Fair comment defence The test for fair comment is: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts? (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice. For a fair comment defence, the receivers of the impugned statement must be able to identify the underlying facts on which the statement is based. Therefore, it would not be enough for the hypothesis to be &quot;reasonably based on facts&quot;; those facts need to be also published to the listeners/readers and a reasonable listener/reader needs to be able to associate the impugned statement as being based on those. Another component of the fair comment defence is that the statement must be one of opinion, not fact. If the statement, considered in its full context, is not amenable to empirical verification or falsification, then it is a statement of opinion.
Yes and no. There are numerous cases where criminals, upon breaking in to somewhere, find evidence of a worse crime and notify authorities. This will provide reasonable suspicion enough for entering the scene. Generally, in testimony, Statements against Interest are more believable because a burgler wouldn't admit to breaking and entering if he had a way to explain why he was there in the first place. (Example: Alice breaks into a Warehouse and sees a mutilated body and blood everywhere. Alice immediately stops her theiving ways and calls 911 to let them know about the scene. Whether or not Alice stays, a dead body is enough probable cause to secure the crime scene without warrant. Its in Alice's interests to stay and help as there is trace of her at the scene and she would be pegged as a suspected murderer. If she's picked up and admits to calling the cops, it's good, but staying and helping out after the call will likely get her off on the charges related to the murder.). It could also work if they are persuing one crime and discover evidence of a second unrelated crime. (i.e. Alice robs the factory and gets away. The Factory Foreman calls the cops to investigate the crime scene, which at this point, does not need a warrant. While investigating, the Cops find security footage that Bob, the night guard, killed Chuck, a late night worker, removed his body, and cleaned the scene, all before Alice broke into the factory. The outcome of the case being made against Alice does not affect their need to prosecute Bob, as they obtained that evidence while looking for Alice in a valid investigation, not Bob, thus it is legal). Under these situations a crime that leads to a separate valid crime involving a different party is admissible. There are two possible reasons that the attorney might think this: Fruit of the Poisonous Tree: This is the obvious element... the kids committed a crime with the hopes that the cops would use the evidence found by them in their commission of a crime to get the real bad guys. The attorney parent thinks this is stupid because the kids broke in specifically to do this and thus any evidence is now tossed out of court. This isn't usually the case in how this scenario will play. Generally the cops are more than happy to look at evidence obtained by criminals that points to another crime. In fact, this is how a lot of gang enforcement units and drug enforcement units operate... pick up a small fish and cut a deal for evidence against a bigger fish (turning state's in the criminal lingo, as the witness is becoming State's Evidence to another crime). As long as it's given to the cops as part of legitament evidence seeking, the cops can follow the leads where ever they... er... lead... Chain of Custody: This is probably, if properly thinking, what the attorney parent is thinking that's a bit more probable. Lets say these kids found a dead body with a sword in it and take the sword to the police... this could get dicey as the kids have contaminated the evidence in possible ways that the killer's lawyer could get thrown out. One thing CSI doesn't always show (though there are a few episodes where it comes up, but not many) is that when something is taken in as evidence, it is carefully documented, sealed, and tagged with a check in/check out list. Every time the seal is broken, the person breaking the seal notes the time, date, and reason and when does, reseals it with a new seal, and signs the time and date of the seal again. This is so at trial, the attorneys know exactly who opened up the evidence, what they did, and what possible contaminants were introduced. You even have to sign into a crime scene before you go up to the yellow tape. A good defense lawyer would call into question any evidence from anything the kids handled to get the evidence tossed (i.e. Your honor, these Meddling Kids handled the sword without following the chain of evidence. They even let their dog handle it. They had already harrassed my client earlier today by insunuating that he was involved with a hoaxed paranormal activity to scare people away from the factory. Since they claim they found the sword, but did document it at the scene, we don't know anything about it prior to the police's chain of custody. I motion that the evidence be dismissed.) If this is successful, anything from the sword is now no longer admissible as if the sword had never been found (including blood of the victim on the blade and finger prints of the suspect on the hilt)... in effect the evidence was prossessed as best the police could but the veracity of the story of it's discovery is too questionable to be considered. The defense does not have to be right, he just has to show there could be another explanation for the sword and the evidence linking his client to the crime committed by it. In short, without specific details, the attorney parent could be right or could be wrong, or more humorously, right, but for the wrong reasons. Edit: U.S. only. See other answers for other jurisdictions.
If it was for a criminal case, the jury would have to decide if they believed the person who claimed he/she cracked the code. Really, any evidence is interpreted by the jury if it is regarding facts. 1) An issue of fact, not law. A question of fact is resolved by a trier of fact, i.e. a jury or, at a bench trial, a judge, weighing the strength of evidence and credibility of witnesses. Conversely, a question of law is always resolved by a judge. https://www.law.cornell.edu/wex/question_of_fact
Specifically, the threatened action is about stalking and implicit threats to his family. I'm not suggesting that there is a lot of merit to the claim, but that is how he is presenting the argument. The question would be where there is an intentional, repeated following of a person for the purpose of harassing the person with express or implied threats of violence or death. The jury would have to decide whether the implicit threat is credible (somebody plans to blow him or his family out of the sky), a decision would probably turn on the number of death threats he receives.
Yes, but that doesn't make the theft not theft At the time of the crime, Joe committed theft. The state can prosecute Joe for that theft. Alice's subsequent gift does not change this although it would prevent her from suing for recovery. As a practical matter, if Alice was willing to lie and say that the gift preceded the theft or she had given permission for the item to be taken, this would almost surely create reasonable doubt in any prosecution. However, on a pure &quot;these are the facts&quot; basis, the theft is a theft.
The most innocent of your scenarios is "against the rules", so less innocent acts fair worse. The idea behind researching legal theory and precedent (presumably not presidents) is that surely it is good for a juror to know what the law is. But that thinking is wrong. The judge will instruct you as to what the law is, and will also instruct you that "the law" is limited to what he says it is. I will draw on the instructions for an antitrust case, Best Buy v. Toshiba, HannStar. The core instruction is: It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. The preliminary instructions (the pattern instructions for California civil trials) say the same basic thing: At the end of the trial, I will explain the law that you must follow to reach your verdict. You must follow the law as I explain it to you, even if you do not agree with the law. The judge instructs the jury that: When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true. Your research might find alternative statements of the law out there, which seem entirely plausible. That doesn't matter: you have to set aside whatever ideas (about the law) that you've gotten from anybody besides the judge. In fact, if the judge makes a (serious) mistake and rules against a party in a manner that is contrary to established law, and you know this (it doesn't matter how), you are supposed to apply the law (including rulings during trial as to admissibility) as given to you by the judge. As for a case of a juror knowing that the judge was mistaken (specifically, knowing based on his pre-existing knowledge of statutes and case law – not based on forbidden research during a trial), we can get the "should" from the absolute instruction to follow the judges instructions. Additionally, if you read transcripts of voir dire (not a trivial task), you can observe judges probing attorneys who happen to be in the prospective pool, asking questions to determine whether that person can just do as they are told. But it would be difficult to establish a "hard rule". There never will be an instruction that says "You must follow my orders even if you know for a fact that my orders are wrong" – jury instructions never admit the possibility of judicial error.
There are all manner of reasons that evidence can be excluded at a trial, most of which are set forth in rules of evidence. If the evidence was not admitted on the grounds of relevance and the charge was speeding, I presume that the reason that it was found not be to relevant was that it was not possible from a video to determine how fast someone was driving and there was no dispute in the case over who was driving. If the defendant could have articulated some reason that the video was relevant to those points, perhaps it could have been admitted. But, as if often the case, pro se defendants are usually not articulate enough to set forth a legally relevant reason that evidence should be admitted. Unless the defendant could show that the video showed something allowing a jury to determine whether or not the law was violated, it probably wouldn't be relevant and I can't easily imagine how it would be relevant, but perhaps there was some special facts or circumstances that might show, for example, that the speed gun was actually picking up another vehicle.
Spoliation of evidence, once a suit is filed The reason Bob requests the video from Alice Corp is not that he is concerned about his GDPR rights, it is because he wants to file a lawsuit. In fact, it would be super helpful if Bob had filed the lawsuit and served it together with the GDPR request, so there is a pending case... and added a paragraph that he demands the preservation of all evidence at that point. In either case, the sudden deletion of the files by their DPO Charly, after Alice Corp was put on legal notice that they have to preserve evidence, is spoliation, indeed, it would be the very definition: The intentional destruction or alteration of relevant evidence in existing or pending litigation. 1 The main remedy for spoliation is the imposition of a rebuttable presumption of fact that the lost or destroyed evidence would have been unfavourable to the party that destroyed it. This presumption can be rebutted by evidence showing that the “spoliator” did not intend to affect the litigation by destroying the evidence (McDougall v. Black &amp; Decker Canada Inc., 2008 CarswellAlta 1686 (Alta. C.A.)). So, we have the DPO performing spoliation, and thus the lawsuit for the beating will assume that the destroyed video showed exactly what Bob alleged that Alice Corp's security team did to him. in england-and-wales DPO Charly can be further sued for destroying evidence under Section 2 (16) Criminal Justice Act 1987. Spoliation might even happen before the case begins with filing &amp; summons According to an article by Chris Dale, discussion spoliation in england-and-wales the case of Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009) was named as one of the best descriptions of spoliation in English law. That case indeed is illustrative, as it might be explicitly applicable to the case as described (emphasis mine): 28 [I]n this jurisdiction [Bermingham/England] as in Australia, there is no duty to preserve documents prior to the commencement of proceedings: British American Tobacco Australia Services Limited v. Cowell [2002] V.S.C.A. 197, a decision approved in this country by Morritt V.C. in Douglas v. Hello [2003] EWHC 55 at [86]. However, the leading text book in this area – Documentary Evidence by Charles Hollander QC- suggests in paragraph 10-06 of the 10th edition that &quot;there might be cases where it was appropriate to draw adverse inferences from a party's conduct before the commencement of proceedings.&quot; In my judgment there would have to be some clear evidence of deliberate spoliation in anticipation of litigation before one could legitimately draw evidential &quot;adverse inferences&quot; in those circumstances. There is no such evidential basis in this case. 29 After the commencement of proceedings the situation is radically different. In Woods v. Martins Bank Ltd [1959] 1 Q.B. 55 at 60, Salmon J. said &quot;It cannot be too clearly understood that solicitors owe a duty to the court, as officers of the court to make sure, as far as possible, that no relevant documents have been omitted from their client's list&quot;. 30 In the case of documents not preserved after the commencement of proceedings then the defaulting party risk &quot;adverse inferences&quot; being drawn for such &quot;spoliation&quot;: Infabricks Ltd v. Jaytex Ltd [1985] FSR 75. So, yes, we got it in a judgment from the High Court of Justice, Queens Bench Division, Birmingham District Registry, Mercantile Court: if it is extremely likely, that proceedings will begin shortly, destroying the video might be spoliation in anticipation of litigation, and thus be problematic even before proceedings started. As a remedy, an adverse inference might be drawn to the content of it. 1 - RESOURCE ID W-015-7809 © 2022 THOMSON REUTERS. ALL RIGHTS RESERVED.