Can a judge consider recent events in an older case? Bob likes fast cars. Two months ago, he was unfortunately caught for excessive speeding. Both his car and his driving license were confiscated immediately. By law (SVG Art 16c, Abs 2 a_bis and Art 90) he now expects a jail sentence of at least one year. But since this was the first incident of this kind, he will probably get away with a suspended sentence. Today is his trial. To get to court, Bob does something very stupid: He steals a car and drives to court, again at excessive speeds and again, he is caught. Can the judge, based on the second incident, change his sentence because he now knows that the suspended sentence probably won't hold Bob from speeding? The judge of course knows that there will likely be a second trial involving Bob (for speeding again, but also for stealing a car and driving without a license). Answers for different jurisdictions are welcome. Also, I'm interested basically in &quot;can the judge use evidence from a new case&quot;, rather than the exact sentencing in this example. Question based on a true story.
canada Evidence of offences other than the one for which the accused is being sentenced is admissable at a sentencing hearing, even evidence of untried offences. R. v. Edwards, 2001 CanLII 24105 (Ont. C.A.): [39] There are statutory provisions that do permit the use of evidence about the offender, even though that evidence also discloses the commission of other crimes. First, s. 718(c) and (d) of the Criminal Code set out as two of the objectives of sentencing: (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; [40] Neither of these objectives can be fairly achieved through sentencing without knowing something, and perhaps quite a bit, about the background and character of the offender. The Crown, in this case, in effect put its case for admission of this evidence on the need to separate this respondent from society. The sentencing judge can consider such evidence of untried offences. (R. v. Jordan, 1991 CanLII 203 (B.C.C.A.)) When there is a dispute about any fact that might aggravate the sentence, the Crown (prosecution) must establish that fact by proof beyond a reasonable doubt. Criminal Code, s. 724(3)(e). See also R. v. Roopchand, 2016 MBCA 105: The first ground [of appeal] is whether the sentencing judge erred by taking into account the accused’s pending charge for an untried offence when imposing sentence. The use to be made of evidence will be informed by the purpose for which it is to be admitted. With respect to what use can be made of evidence of untried offences at a sentencing hearing, the case law is clear: while such evidence cannot be used for the purpose of punishing the accused, it is admissible when its purpose is limited to shedding light upon some aspect of the accused’s character and background which is relevant to the objectives of sentencing being considered by the judge R. v. Angelillo, 2006 SCC 55: The fact that Mr. Angelillo had been charged with two new counts of fraud, both of which were allegedly committed while he was waiting to be sentenced, was obviously relevant to the assessment of the danger his release would represent for the community. In Angelillo, the judge could even have &quot;postponed the sentencing hearing to a date after the interim release hearing regarding the new charges in order to be better informed of the risk resulting from the subsequent act.&quot;
canada Or would I still be charged with his murder since it’s a different criminal instance? Yes, this is the correct intuition. Different instance/wrong; different basis for the charge; not precluded by double-jeopardy. In Canada, the term of art is autrefois convict. Section 609 of the Criminal Code lays out the standard for what it means for the count to be the same: the matter on which the accused was given in charge on the former trial is the same in whole or in part as that on which it is proposed to give him in charge The later charge for murdering Bob would be a wholly different circumstance or &quot;wrong&quot; or &quot;delict&quot; than the first conviction was based on. The later charge would not be precluded.
An affirmative defense is a way of avoiding conviction by acknowledging you did the act claimed, but that such act was among the exceptions provided by the law which makes such acts otherwise an offence. That is, you affirm (acknowledge, admit) your action of using the device, but you are claiming that your use of the device (handsfree as a GPS guide) is okay, and therefore you should not be convicted. For all intents and purposes in this situation, your "2" and "3" are the same thing. The device is supported by something other than you holding it, and you are able to keep both hands on the wheel while using it in this way. Finally, a plain language reading of the definition for "hands-free accessory" suggests that using an object in the car to support the device where it can be seen, or using a feature of the device that speaks directions which you can hear, neither of which requires moving your hands off the wheel, will be considered such an accessory. It is also worth pointing out that such usage of a device (placed in a cradle or on the dashboard or turned up so it is heard) will be well-known to the legislators, and there is a reasonable interpretation of the law that would allow such usage. If this ever went to court, and somebody used this defence for this situation, they would probably be okay.
If you were moving "with the flow of traffic" but over the limit, you were still breaking the law, and the cop can choose which car or cars to stop on any basis or none (except ones forbidden, such as racial in the US). This is almost surely not a valid defense, not in any jurisdiction that I know of at least. If you can show that to slow to the speed limit would have actually been unsafe, you might have a defense, but that is going to be hard to get a court to accept.
The life sentences were based on counts 2 and 4, distribution of narcotics by means of the internet and continuing criminal enterprise. In reviewing the sentencing hearing, all of the evidence indicates that the sentence was based on the nature of his acts, and not anything he did after his arrest. There is no way to know if prosecutors would have been amenable to a plea bargain.
In the US, obscenities, insults, racial slurs and so on are legal, owing to the First Amendment. An actual, believable threat to maim you would not be legal, under Cal. Penal 422, but "I oughta punch you" would not be a criminal threat. Some forms of aggressive driving constitute reckless driving, if they are driving "in willful or wanton disregard for the safety of persons or property". It is also against the law to follow too close (you must follow reasonably and prudently). Exceeding the speed limit is a violation of Veh. Code 22352, even if it's to pass a guy on a bike. Of course, we can't tell if you are obeying the law, but even if you were doing something illegal in your biking such as blowing away a stop sign, "the other guy was bad" is not a defense against a citation for illegal driving.
Texas and California are actually what are called Presumed Speeding states, unlike most others which are Absolute Speeding states. (There is a little known third category called Basic, but this is uncommon). In a presumed speeding state, a speed-limit violation offers someone in your shoes far more flexibility in building your defense than the more common absolute state. In states that use this presumed system, such as California and Texas, it is not illegal to drive over the posted limit as long as you are driving safely and this can be established. For example, if you are driving 50 mph in a 40-mph zone, you are "presumed" to be speeding, yes. However, despite this prima facie evidence (meaning "on its face") of speed in excess of the posted limit, if you can show you were driving safely you may be able to mount a pretty decent defense. Just because you got a ticket is not prima facie evidence beyond a reasonable doubt that you were speeding. You are presumed innocent. If they prove you were speeding this is all they need to make their case, unless you rebut it. But there is a lot of room to rebut this presumption &ndash; and that is if they prove it. They must (as with all criminal cases) prove you did what you are accused of beyond a reasonable doubt &ndash; the highest standard of proof in the U.S. So, if everyone was going 80 MPH in a 70MPH zone, you would argue that the road was (I'm assuming) dry, unmarred, you were traveling in heavy enough traffic that to slow your speed to the posted limit would actually be less safe than traveling with the flow of traffic. You can talk about the state of your vehicle (repair, handling, etc.), how you stayed in one lane, and you can describe your skill at driving &ndash; especially if you have no other tickets and you have been driving for a long time. If you were weaving in and out of traffic, riding someone's bumper, if it was pouring rain, the road was bumpy or under construction, or if you admitted speeding (if you did this you can still rebut with a showing of safe driving, but ignore all info regarding challenging radar or other means of determining speed), or if any other evidence exists that the officer would testify to that shows you were not driving safely, this will not be successful. A successful example of a speeding defense in Texas: on a clear, dry morning with no other cars on a wide, straight road, a man is pulled over for being clocked going 50 mph in a 40 MPH zone. He had a perfect record and had been driving 22 years. He was driving a 2-year-old car. He convinced a judge that this was driving safely given those conditions and was acquitted. That's because facts presented were sufficient to "rebut the presumption" that by going over the posted limit he was driving at an unsafe speed. NOTE: Never bring up your driving record unless it is spotless. Unless you are a habitual offender it cannot be used against you or be brought into evidence at all, unless you open the door. You can also mount a defense based on the radar detection device, if one was used. You can seek records as to when the calibration fork was last checked, when the last time it was professionally calibrated (rather than self calibrated). You can ask, in a leading way (only if you know) how close the car behind and in front of you were (you don't want to be too close to the car in front of you, however if the cars were tightly grouped it is more likely the radar detector could have read another vehicle): e.g., "Isn't it true that the car behind me was only 1.5 car lengths behind me?" Only do this if you know, but if you can get the officer to admit that the car behind you was close, that can be used to rebut the radar detection and goes to the argument that driving slower would have been dangerous and you were driving safely with the flow of traffic. You should be prepared to put on an entire trial if you fight the ticket. In Texas, I believe speeding is considered a Class C criminal offense (rather than a civil offense as in most absolute states); hence, they have to build the prima facie case against you and prove it beyond reasonable doubt. If you can afford one, get a good traffic violation attorney. Always choose a jury in this type of case. Everyone speeds a little and you are far more likely to be acquitted by a jury than a judge. You should also ask to have the case assigned to the county seat; request this in writing ASAP. If you are trying the case, be prepared to go after the officer. Note any distinguishing marks on your car (if any), recall what you wore, what time of day, the lighting, all that. Even go back to the scene at the same day and time and take video showing the flow of traffic, (hopefully) the straightness of the road, etc. Cross-examine him on all facts with confidence and in a leading manner. Always ask for the calibration reports and you will get all evidence against you in discovery. This thing about 10mph being the minimum they can give a ticket for: ignore that, it's rubbish! It's meant to get you to admit to him that "you were only going 8 or 9 over." Also, that whole percentile argument is not relevant and will not work at all. You must show that you were driving safely given all the facts and circumstances to rebut the presumption that you were driving unsafely by speeding. It is worth fighting as you will also incur surcharges, increased insurance rates, and points on your license that are cumulative and stay for 3 years &ndash; a certain amount of which gets you suspended if you get (or have) more violations.
There may be two questions sort of embedded in here: How long does the government have before it violates Speedy Trial; and How long does the government have to turn over its evidence? Unfortunately, they're probably both impossible to answer at this point. Question 1 Under the Speedy Trial Act (18 USC 3161): In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs. If a defendant consents in writing to be tried before a magistrate judge on a complaint, the trial shall commence within seventy days from the date of such consent. IRA was indicted on February 16, 2018, so 70 days later would be April 27, 2018, which has obviously already come and gone. But their initial appearance wasn't until May 9, 2018, which pushes the time back to July 18, 2018. That would be the default latest date for a trial to begin, but the Act also allows delays for a variety of factors. Among them are delays "resulting from other proceedings concerning the defendant," which includes time the court spends considering the defendants' motions. So if IRA moves to dismiss the case, all the time spent fighting over that motion would "toll" speedy-trial time, meaning that it would stop the clock until the motion was decided. Another provision of potential relevance is 18 USC 3161(h)(8): Any period of delay, not to exceed one year ... [if] an official request .. has been made for evidence of any such offense and that it reasonably appears, or reasonably appeared at the time the request was made, that such evidence is, or was, in such foreign country. So if there's evidence somewhere in Russia linking these guys to the crimes they're accused of, that might push speedy trial back by a year just to deal with that issue alone. So the short answer to Question 1 is that Speedy Trial requires the trial to begin on July 18, but that practically speaking, that probably won't happen. Question 2 The timing of discovery, the process of each side turning over its evidence to the other side, varies based on the kind of evidence involved, so there are usually multiple disclosures of evidence between the time of indictment and the actual trial. Under current DOJ guidelines, prosecutors are encouraged to provide "broad and early discovery." More specifically: Exculpatory evidence available under Brady v. Maryland should be turned over "reasonably promptly"; Impeachment evidence available under Giglio v. United States should be turned over "at a reasonable time before trial to allow the trial to proceed efficiently"; and Material available under Rule 16 should be disclosed "as soon as is reasonably practical." As you can see, these aren't really hard deadlines. The defense will ask for the documents, the government will turn over documents, and then they'll probably both fight about turning over some other documents, and then they'll wait for the court to decide what to do. So when does Mueller have to turn over his evidence? Probably the best answer we have right now is: "When a judge tells him to."