J. Raymond Kelley
jraykelley at prodigy.net
Fri Aug 27 19:58:03 EDT 2004
Peter Kirk wrote:
> On 27/08/2004 20:37, MarianneLuban at aol.com wrote:
>>>> So, Mr. Peter Kirk--where is the libel? And what does Rohl's
>>>> he has actually found a statue of Joseph have to do with Manetho?
>>>> Also, I suggest you give up "lawyering" as your previous posts have
>>>> shown that you
>>>> even know the difference between civil and criminal law.
>>> Now you are libelling *me* in a public forum.
>> No. I am not. Because when I wrote about "setting precedents" in a
>> previous post, you replied with an example of someone being shot or
>> stabbed or something. For that, the defendant would be involved in a
>> criminal case, in which caselaw and precedents do not apply--only the
>> facts of the case matter. The sole exception to this is a "wrongful
>> death" lawsuit--which is a civil matter and can be brought even when
>> the defendant in a criminal action is judged "not guilty".
> Well, thanks for the explanation. First let me explain that I am a
> British citizen and English law on these matters is not identical to
> American. But the whole point of my posting about law (although I
> didn't use the terms) was to say that a historical matter is not like
> a civil law matter as you suggested, in which the court decides based
> on precedents etc, but like a criminal law matter in which the court
> attempts to find the facts - and, even if the court makes a mistake,
> the facts are still the facts.
If the distinction you wished to make, Peter, is as you expressed it,
notwithstanding your profession of knowing law better than might be
supposed, your analogy appears strained if not misplaced.
The distinction between civil law based on the common law and equity and
criminal law is not a distinction wherein "facts" are determined in one
court but not another. .
I would admit that I would be only guessing as to your intention by
analogy now that I have heard this articulation.
Criminal law, being subject to codification and (hopefully) more
consistent application of the law to the facts so that every man gets
the same treatment is also subject to precedent through interpretation
of meaning of statutory language and precedent in application to
specifics to statutory language to determine whether there exists
violation of the law, defenses to alleged violation, or circumstances
acting in mitigation.
Factual determinations are made in civil cases as well as in criminal
cases. Where a dispute exists between parties as to the facts, the
civil court acts as trier of fact (whether the court acts solely through
the judge acting as a trier of fact or with an empaneled jury acting as
trier of fact). For example, a civil suit for libel could involve
factual determinations as to whether a falsehood was published (truth
being a possible factual determination), whether such publication was
negligent or willful, and what damages, if any, the party alleging the
libel may have suffered, and possibly whether the circumstances of the
publication even if containing falsehoods and causing some type of harm
are subject to defenses (such as whether facts exist supporting a
determination as to whether the publication of the falsehood fits within
one of the "hot news" exceptions recognized to protect the press).
"The law" does not get applied in a factual vacuum in civil cases any
more than in criminal cases.
To the extent that one seeks to establish the precedent of factual
determination, the primary difference is the standard of proof applied
to the evidence in arriving at a factual conclusion. In civil cases,
the standard of proof upon which the trier of fact is asked to make its
determination of the facts is generally less than in a criminal case.
In a criminal matters, the generally recognized standard that the trier
of fact is asked to apply is the "beyond a reasonable doubt" standard.
In civil matters, the generally recognized standard is a "preponderance
of evidence" standard (it is sufficient that the trier of fact believe a
specific set of facts exists more than another by 51%-49%) although in
some jurisdictions and in some cases there is a standard that is less
than "beyond a reasonable doubt" but more than mere "preponderance of
the evidence" -- however the distinctions which drive this standard are
usually subject to specific interpretation in those cases where that
standard is applied.
The precedential value of one court's determination of facts is not only
determined by the standard of proof of the respective courts (e.g., a
civil judgment can be had against someone on facts wherein a "not
guilty" determination was made in a criminal court) but also by a
determination as to whether the factual matters resulting in a judgment
in one matter had sufficient identity with the factual matters being
litigated in another -- same parties, same issues, same necessity in
determination to arrive at the judgment.
While there are further refinements and distinctions through which I
could draw analogy to the "court of history", my suspicion is that the
distinction being discussed here may be about the standard of proof used
in applying the evidence by those claiming to arrive at factual
conclusions about history -- but it may be about the process itself
(e.g., the standards used for determining "admissibility of evidence").
>> You might find yourself > needing a lawyer yourself.
>> Or you--if you continue to publicly assert that I am libeling
>> anybody. If you publicly accuse someone of that, you had better make
>> sure that it is the truth.
>> You have no idea whether or not I have > qualifications in law. You
>>> be careful before making such a statement publicly about someone who
>>> for all you know might be a practising libel lawyer who would
>>> certainly see what you write as a libel against himself. Such things
>>> could get very expensive for you.
>> LOL! Your previous post about the law would have tipped off anyone
>> who knows anything about it that you are no "practising libel
>> lawyer". And the one I am replying to erases all doubt entirely. If
>> you are no lawyer, as you state below, no claim by anyone that you
>> don't know the law could ever be construed as libel by a court of
>> law. Period. Because you would in no way suffer damages by such a
I suggest you both leave this type of discussion and return to your
respective areas of claimed expertise.
It's much more fun when I watch y'all argue about things which you
profess working expertise and which I enjoy as a hobby than about things
which are terms of art in a profession removed from yourselves.
J. Raymond Kelley, Attorney at Law
California State Bar # 92772
P.O. Box 3070
Riverside, CA 92519
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