peterkirk at qaya.org
Sat Aug 28 06:31:05 EDT 2004
On 28/08/2004 00:58, J. Raymond Kelley wrote:
> 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.
Thank you, Ray. It was not me who introduced the criminal/civil
distinction into this discussion. As you will see from the archives I
was well aware from the start that criminal cases involve precedent etc
as well as determination of facts. I mentioned the issue of whether a
defendant in a shooting could claim self-defence as a defence. It was
Marianne, the claimed student of law, who confused the issue by trying
to claim that precedent did not apply in criminal cases, when she wrote:
>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.
I realised that this distinction was simplistic but replied within the
terms which Marianne had put forward. After all, in history etc it is
the facts which matter more than how they fit with precedent; if they
conflict with precedent i.e. well-established interpretations, so much
> ... (Thanks for the rest, snipped)
> 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").
It seems to me about the admissibility of evidence. Marianne seems to
argue that Rohl's evidence should not even be admitted until he has
proved himself worthy. My contention, as I think would be the position
of any court on a factual matter, is that evidence is evidence and
should be admitted regardless of who is presenting it, although the
court might wish to judge some witnesses more reliable than others. I am
not suggesting that Rohl should be the judge.
> 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.
> Ray Kelley
> J. Raymond Kelley, Attorney at Law
> California State Bar # 92772
> P.O. Box 3070
> Riverside, CA 92519
What was that Marianne said about
>This is not a forum for legal
>discussion and one would not expect it to be populated by lawyers.
? Marianne, it's a good thing you didn't take on Ray the way you took on
me. But I'll take Ray's advice and yours and leave these matters to him.
peter at qaya.org (personal)
peterkirk at qaya.org (work)
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