Random Thoughts: Cease & Desist - Classy As Jack Daniel's

It is certainly understandable that the companies of today emphasize greatly on protection of their intellectual properties such as trademarks. This is especially so for retail products that hinge on their branding in the market place. The standard response for any trademark infringement would very likely invoke legal actions with threats to sue. However, the folks at Jack Daniel’s, one of America’s most iconic brands, proceeded with something which is quite extraordinary from the run of the mill legal perspective, opted instead for true southern hospitality toward Patrick Wensink, a Louisville-based author of a new satirical novel entitled "Broken Piano For President".

When lawyers of the popular whiskey brand spotted the cover of the book, it looked uncannily identical to the iconic black and white bottle labels used by Jack Daniel’s. But rather than issue legal threats, the company’s lawyers sent him what the author described as the perhaps the world’s most polite cease-and-desist letter.

The letter from Jack Daniel’s attorney Christy Susman reads: "We are certainly flattered by your affection for the brand, but while we appreciate the pop culture appeal of Jack Daniel’s we also have to be diligent to ensure that Jack Daniel’s trademarks are used correctly… As an author you can certainly understand our position and the need to contact you. You may even have run into similar problems with your own intellectual property."

It further states: "Because you are both a Louisville 'neighbor' and a fan of the brand we simply request that you change the cover design when the book is reprinted." Furthermore, Jack Daniels offered to pay "a reasonable amount towards the cost" if Wensink changed the art sooner than the reprinting, including the digital cover.

However, the most critical part of this legal letter was perhaps the fact that it was  written by a decent human being who cared about civility. The act was respectable and classy, just like the Tennessee Whiskey it sells, Jack Daniel's.

Patrick Wensink's, the author of "Broken Piano For President", original post entitled "Whiskey Rebellion" first published on 19 July 2012 can be found at the following link: http://brokenpianoforpresident.com/2012/07/19/jack-daniels-lawsuit-the-full-scoop/

Point of Law: If it ain't broke, don't fix it.

When the layman on the streets says:
"If it ain't broke, don't fix it";
The lawyer will say:
"Insofar as manifestations of functional deficiencies are agreed by any and all concerned parties to be imperceivable, and are so stipulated, it is incumbent upon said heretofore mentioned parties to exercise the deferment of otherwise pertinent maintenance procedures".

Point of Law: Hearsay Rule

The Hearsay Rule is an analytic rule of evidence that defines hearsay and provides for both exceptions and exemptions from that rule. Historically, the rule against hearsay is aimed at prohibiting the use of a person's assertion, as equivalent to testimony to the fact asserted, unless the assertor is brought to testify in court on the stand where he may be placed under oath and cross-examined. The theory of the rule against hearsay is that assertions made by human beings are naturally unreliable. It therefore becomes necessary to subject such forms of evidence to “scrutiny or analysis calculated to discover and expose in detail its possible weaknesses, and thus to enable the tribunal to estimate it at no more than its actual value”.

However, some statements are defined as hearsay, but may nevertheless be admissible as evidence in court. These statements relate to exceptions to the general rule on hearsay. Some exceptions to the hearsay rule apply only when the declarant is unavailable for testimony at the trial or hearing.

Hearsay exceptions that apply even where the declarant is available

1. Excited utterances: These are statements relating to startling events or condition made while the declarant was under the stress of excitement caused by the event or condition. An excited utterance does not have to be made at the same time of the startling event. A statement made minutes, hours or even days after the startling event can be excited utterances, so long as the declarant is still under the stress of the startling event.

2. Present sense impressions: These are statements expressing the declarant's impression of a condition existing at the time the statement was made. Unlike an excited utterance, it need not be made in response to a startling event. Instead, it is admissible because it is a condition that the witness would likely have been experiencing at the same time as the declarant, and would instantly be able to corroborate.

3. Declarations of present state of mind: Much like a present-sense impression describes the outside world, declarant's statement to the effect of of his or her emotions will be admissible to prove that the declarant was indeed in that state of mind. This is normally used in cases where the declarant's mental state is at issue. Present-state-of-mind statements are also used as circumstantial evidence of subsequent acts committed by the declarant.

4. Statements made in the course of medical treatment: These are statements made by a patient to a medical professional to help in diagnosis and treatment. Any statements contained therein that attribute fault or causation to an individual will generally not be admissible under this exception, unless it involves a small child as stipulated under the "Tender Years" doctrine.

5. Business records exception: business records created during the ordinary course of business are considered reliable and can usually be brought in under this exception if the proper foundation is laid when the records are introduced into evidence.

6. Guantanamo Bay exception: The military tribunals used to try some Guantanamo Bay prisoners allow any evidence, including hearsay, "if the military judge determines that the evidence would have probative value to a reasonable person".

7. Other exceptions, declarant's availability immaterial: In the United States Federal Rules of Evidence, separate exceptions are made for public records, family records, and records in ancient documents of established authenticity. When regular or public records are kept, the absence of such records may also be used as admissible hearsay evidence.

Hearsay exceptions that apply only where the declarant is unavailable

1. Dying declarations and other statements under belief of impending death:

In the law of evidence, a dying declaration is testimony that would normally be barred as hearsay but may nonetheless be admitted as evidence in certain kinds of cases because it constituted the last words of a dying person.

Under the Federal Rules of Evidence, a dying declaration is admissible if:
1. it constituted the last words of a person who was dying or thought he was dying, and
2. that person was aware that he or she was dying, and
3. that person made a statement, based on their actual knowledge, that relates in some way to the cause or circumstances of his or her death.

The declarant does not actually have to die for the statement to be admissible, but they need to have had a genuine belief that they were going to die, and they must be unavailable to testify in court. Furthermore, the statement must relate to the circumstances or the cause of the declarant's own death. As with all testimony, the dying declaration will be inadmissible unless it is based on the declarant's actual knowledge. In U.S. federal courts, the dying declaration exception is limited to civil cases and homicide prosecutions. It cannot be used in any other kind of criminal proceeding.

2. Declarations against interest: Such declarations are an exception to the rule on hearsay in which a person's statement may be used, where generally the content of the statement is so predjudicial to the person making it (such as confessing to a crime or admitting liability for a tort) that they would not have made the statment unless they believed the statement was true. This differs from a party admission because here the declarant does not have to be a party to the case, but must have a basis for knowing that the statement is true.

3. Prior testimony: if the testimony was given under oath and the party against whom the testimony is being proffered was present and had the opportunity to cross examine the witness at that time. This is often used to enter depositions into the court record at trial.

4. Admission of guilt: if if a statement is made, verbal or otherwise, as an admission of guilt of the matter at hand, that statement would not be regarded as hearsay. In other words, self-incriminating statements or confessions are not hearsay.

The Practice Briefing Notes – Comings and Goings

(Excerpts of dialogues with Alan Shore (casted by James Spader) taken from the television series “The Practice - Comings and Goings (Season 8, Episode 20))

(Conference Room at Crane Poole & Schmidt)

District Attorney: It was an assault. The fact that it took place during a professional hockey game doesn’t meanthis guy . . .
Hannah Rose: Oh, come on, Jeffrey. You have 4,000 reported assaults every year—less than half lead to charges.
District Attorney: Hannah, if you were still here, you’d prosecute.
Hannah Rose: I certainly would not.
District Attorney: He repeatedly punched a defenseless man. He doesn’t get some special exemption because he did it during a sporting event.
Alan Shore: That’s just simply not true. We grant such exemptions all the time.
Hannah Rose: Excuse me a minute.
(Soto voce to Alan Shore) New guy?
Alan Shore: It would be illegal to run somebody down and flatten ‘em, yet in football? Boxers try to knock each other unconscious—the actual intent of the sport is assault. Imagine throwing a hard object a hundred miles per hour at somebody’s head. That’s grounds for attempted murder. But if the victim crowds the plate? Fighting is part of hockey.
(to Hannah Rose) May I speak for a second?
District Attorney: You are speaking.
Alan Shore: Oh. Sometimes I become so rapt with my own words, it feels more like a listening experience. Look, we’re gathered here today because of the media. I suspect if the firestorm died down, so would your urge to be Javert. Suppose this man were severely punished by the League? How ‘bout we get our justice that way?
District Attorney: First of all, I’m not the commissioner of the league.
Alan Shore: I’m offering you the chance to be. Name your punishment. Name it.
District Attorney: Out of the play-offs. And the next two years.
Alan Shore: Done.
District Attorney: Done? How are you . . .
Alan Shore: I’ll meet with the commissioner. My client will be suspended for two full seasons, plus play-offs.
District Attorney: (Chuckles) I hate to break your momentum, but the player’s union will never let . . .
Alan Shore: Yes, they will.
District Attorney: Because you say so?
Alan Shore: Because I say so. Congratulations, Mr. District Attorney. You’ve just helped to change hockey for the better. By the way, I may need to invoke the power of your office a little. Not to worry.

(Nods, and then gathers up his papers)

---------------------------------------------------------------------------------

(Conference Room at Crane Poole & Schmidt)

Hockey League Commissioner Burke: There is no precedent for a two-year suspension. And even if I were to sanction that, I can assure you, the player’s union wouldn’t. If you only knew . .
Alan Shore: What would they do? Pull your jersey over your head and pummel you?
Burke: Mr. Shore, the idea of . . .
Alan Shore: Mr. Burke. You will suspend Mr. Sears for two years. In consideration for that . . . Forgive me, I’m parched.
(Takes a sip of water from his glass)
In consideration for that, I’ve worked it out with the D.A. for the League not to be criminally prosecuted.
Burke: The League? How are we liable for that . . .
Alan Shore: Massachusetts General Laws, Chapter 274, Section 2, Aiding and Abetting. “Anyone who assists, encourages or promotes an assault can be charged as a principal.”
Burke: We don’t do that.
Alan Shore: You don’t do that? (Smiles knowingly)
Burke: No, we don’t.
Alan Shore: In your highlight videos, you show the brawls. You also show them on the big jumbo Trons between periods. A Gordie Howe hat trick is considered to be a goal, an assist and a fight.
Burke: We penalize fighting.
Alan Shore: But you don’t ban it. Every other professional sport does. If a player fights in football or baseball, he’s gone. In your sport, he gets a standing ovation.
Burke: Mr. Shore, I’m sure you’re a fine attorney, but you have no appreciation for what hockey is, its history, its tradition . . .
Alan Shore: I have enormous appreciation for your sport, Mr. Burke. In fact, I have season tickets. Hockey is Bobby Orr. Hockey is Bobby Hull; Stan Mikita; Wayne Gretzky. Hockey is speed, finesse, skill and power. None of which has anything to do with mayhem. Hockey is being debased with thuggery, that your league not only condones, but encourages.
Burke: And you think if we just change the rule, it will stop?
Alan Shore: Yes. In college hockey, it’s banned. The players don’t fight. In the Olympics, it’s banned. They don’t fight. It can absolutely be legislated out. You choose not to do so. And with all the vicious muggings happening on the ice today, you are daring a district attorney to prosecute the League. I have that district attorney, Mr. Burke. Mr. Sears will be suspended for two years. You need to have appreciation for your sport, Mr. Burke. We need your league to rise up and mirror the dignity of the game itself. Tell your players, “No more fighting.” And if they still insist on violence, lt them beat up their coaches, like the basketball players.

Boston Legal Briefing Notes – Death Penalty

(Excerpts of dialogues with Alan Shore (casted by James Spader) taken from the television series “Boston Legal - Death Be Not Proud (Season 1, Episode 17))

N.B. Chelina Hall asks Alan Shore to assist her in Texas because her former client, Ezekial Borns, is getting executed but may be innocent of the crime.

(In a courtroom.)

A.D.A. Glenn Jackson: Ezekial Borns murdered a man in cold blood for a few dollars. He confessed to it. The Petitioner has gone up and down State and Federal courts, exhausting his appeals, losing his habeas arguments, and failing on claims of constitutional violations. Four different courts of appeal have reviewed and rejected each and every one of his arguments. Now is the time for this man to pay the penalty imposed on him fairly and legally. A Texas jury had decided that Ezekial Borns is a dangerous killer. He has forfeited his right to live. Thank you.

(Alan moves to get up. Chelina stops him to softly remind him.)

Chelina Hall: With all due respect, may it please the court.

(Alan nods.)

Alan Shore: Good afternoon. My name is Alan Shore.
Judge Christopher Serra: Mr Shore. What are new issues being raised here?
Alan Shore: The first issue before the court concerns the absence of any African-American jurors.
Judge Lance Abrams: That was previously argued and ruled on council.
Alan Shore: Yes. Before the lower courts. This bench has never considered…
Judge Christopher Serra: We’re not persuaded that the absence of a black juror is in violation of due process. What’s your next issue?
Alan Shore: I would turn the courts attention to the fact that the Grand Jury which indicted Mr Borns, similarly, was all white. This raises equal protection laws that…
Judge Christopher Serra: That issue was never raised and is therefore waived.
Alan Shore: Your Honor, Texas Law requires that the jury recommend death only in cases where they find that the defendant poses a threat, a future dangerousness to society. We maintain this is unconstitutional. Juries are supposed to find on elements of guilt and innocence based on facts beyond a reasonable doubt. Not on the basis of perceived probabilities. Moreover as a practical matter, since Ezekial Borns will remain in prison for life, he couldn’t possibly constitute a future threat to society, unless the law assumes prison breaks.
Judge Christopher Serra: That’s an interesting issue council, but uh, that also was never raised and therefore it is deemed waived. Next?
Alan Shore: May it please the court. Mr Born’s trial lawyer has recently admitted he was ineffective council. He was abusing cocaine and alcohol during the trial, and...
Judge Martha Brenford: Not legally inadequate.
Alan Shore: I believe if you examine the transcripts…
Judge Lance Abrams: Mr Shore. Representation can always be better. Especially when we play Monday morning quarterback.
Alan Shore: With all due respect, this lawyer never gave an opening statement, he never questioned several of the prosecutions witnesses, he failed to pursue a number of leads and important sentencing issues. This court right here today has recognized that many valid grounds for appeal were never raised.
Judge Christopher Serra: This court is satisfied that representation was adequate. Is there anything else?
Alan Shore: Yes. Mr Borns may be innocent. The jury disagreed. And legally that issue has been settled.
Alan Shore: The DNA evidence shows somebody else was there.
Judge Christopher Serra: But it does not disprove that your client was also there. And, your guy confessed by the way.
Alan Shore: My client has an IQ of 80; he was interrogated for 16 hours.
Judge Lance Abrams: Coercion was never raised.
Alan Shore: It was never raised because he lawyer was an inadequate hack! Though the 9 of you seem quite satisfied with his performance. With all due respect.
Judge Christopher Serra: Mr Shore? You came down here from Massachusetts?
Alan Shore: Yes. Sir.
Judge Christopher Serra: We in Texas have been living with this case for 8 years.
Alan Shore: You’ve been living with it personally? May it please the court.
Judge Christopher Serra: You first met Mr Borns, when?
Alan Shore: Yesterday.
Judge Christopher Serra: And you are proposing to us, that you know him. You know what I’d like to propose? I’d like to propose that you got a problem with the death penalty in general. Now, is that why you came here sir?
Alan Shore: I am here. With all due respect, may it please the court, because I have a problem with the State executing a man with diminished capacity. Who may very well be innocent. I’m particularly troubled, may it please the court, with all due respect, that you don’t have a problem with it. You may not want to regard my client’s innocence, but you cannot possibly disregard the fact that 117 wrongfully convicted people have been saved from execution in this country. 117! The system is hardly foolproof. And Texas! This state is responsible for a full third of all executions in America. How can that be? The criminals are just somehow worse here? Last year you accounted for fully half of the nation’s executions. 50% from 1 State! You cannot disregard the possibility, the possibility that something’s up in Texas.
Judge Lance Abrams: I would urge you to confine your remarks to your client, and not the good state of Texas.
Alan Shore: Zeke Borns never had a chance. He was rounded up as a teenager, thrown in a cell while he was still doped up on drugs, brow-beaten and interrogated, until his IQ of 80 was overcome, he confessed to a crime he had no memory of, still has no memory of, for which there is no evidence, other than two witnesses who saw him pumping gas around the time of the murder. He was given a coked-up lawyer, who admittedly did nothing. I’m now before 9 presumably intelligent people in the justice business, who have the benefit of knowing all of this. Add to that, you know DNA places somebody else at the scene, and you’re indifferent! You don’t care! Whether you believe in my client’s innocence, and I’ll assume, with all due respect, may it please the court that you don’t! You cannot be sure of his guilt! You simply cannot! And failing that. How can you kill him? How can you kill him?

(Walks away from the podium.)

Alan Shore: And I would sincerely, sincerely, sincerely, hope that you don’t penalize my client, simply because his lawyers happen to be from Massachusetts.

(He moves to sit down, then rises.)

Alan Shore: The home of the New England Patriots, who could kick ass with any football team you’ve got in the good state of Texas. May it please the court.

Boston Legal Briefing Notes - Preservation of Life

(Excerpts of dialogues by Denny Crane (casted by William Shatner) and Alan Shore (casted by James Spader) taken from the television series “Boston Legal - Finding Nimmo” (Season 2, Episode 3))

N.B. Reeling over his break-up with Tara Wilson, Alan Shore heads to Nimmo Bay in British Columbia with Denny Crane for some fly fishing and male bonding in an effort to cure his pain. When they learn that the salmon population is being threatened by sea lice produced by fish farms, Shore and Crane feel compelled to act.

(Alan comes out from the cabin with a drink in his hand and joins Denny and a fellow-guest sitting out on the deck.)

Alan Shore: Excuse me. Is it unusual to catch five cohos in one day? I mean…
Guest: I’d say you had a bit of luck
Denny Crane: Beginners luck.
Alan Shore: You’re not competitive over this sort of thing, are you Denny? Could you pass me the ashtray please? Denny passes the ashtray. Ahh. Thank you. I’d have reached for it myself but my shoulders are a bit sore from all that reeling. He looks to the guest. How many did you catch?
Guest: I didn’t fish.
Alan Shore: Ah! That would put you about even with Denny.
Guest: I’m sorry. Are you Denny Crane?
Denny Crane: Yes I am. And I’m not your father.
Guest: I’m Peter Barrett. I’m an attorney actually and I’m a big admirer.
Denny Crane: Fine. I’m still not your father.
Peter Barrett: You’re a salmon catcher, Mr Crane?
Denny Crane: Catch em in my sleep.
Alan Shore: That must be the only place he catches them.
Denny Crane: I see why Tara dumped you. I’m about to.
Alan Shore: There’s no Tara. Don’t be deceived. Denny and I are lovers.
Denny Crane: I’m a heterosexual. And I catch salmon like one.
Peter Barrett: Well, you won’t be catching them for long I’m afraid. Wild Pacific salmon are being wiped out.
Denny Crane: What are you talking about?
Peter Barrett: Sea lice are killing them. The weight of evidence points toward the fish farms.
Denny Crane: Fish farms?
Peter Barrett: The penned fish in the fish farms host the lice, which attach themselves to the baby wild salmon migrating past the pens and it’s destroying them. I’m actually here because I’m going into court in Port McNeal tomorrow to try to enjoin another fish farm from going in. Boy! Would I love to go in with the Denny Crane by my side?
Denny Crane: You one of these environmental lawyers?
Peter Barrett: Is there something wrong with that?
Denny Crane: They’re evildoers. Yesterday it’s a tree, today’s is a salmon, tomorrow it’s ‘Let’s not dig Alaska for oil cause it’s too pretty?” Let me tell you something. I came out here to enjoy nature. Don’t talk to me about the environment.
Alan Shore: All reality. None of it scripted.

(Alan and the guide are coming out of the water. Denny is sitting on chair out of the water.)

Denny Crane: Can I fish yet?
Guide: You still have a timeout. You just sit there.
Alan Shore: Alan sit down next to Denny. As you said yourself, these fish are positively majestic. Sacred even. And you shot one.
Denny Crane: Sometimes I get incompatible.
Alan Shore: Really? You’ve upset the guide. I’ll tell you this Denny. I see it now how this kind of nature can renew you spiritually. I really see it. I’ll tell you something else. In our day jobs we’re lawyers and we’re good ones.
Denny Crane: What’s your point?
Alan Shore: My point is. Given this. Given those salmon. There’s a hearing going on in Port McNeal. We need to go be lawyers now.

(Tara is sitting at a desk talking on the phone.)

Tara Wilson: Your first logistical obstacle is the robes. Canadian lawyers appear in black robes.
Alan Shore: We should be able to borrow them.
(Alan is talking on a cell phone as he and Denny walk up to a helicopter.)
If all else fails we could stop at a costume shop. What else?
Tara Wilson: The judges are called, “My Lord.” It’s not, “Your honor” but, “My Lord”. It’s a lot like in England.
Alan Shore: What time is the motion?
Tara Wilson: According to the docket. Eleven AM. How far away are you?
Alan Shore: Twenty minutes!
Tara Wilson: Well you probably join in progress then. Good luck.
(Alan shuts his phone.)
And Alan? I miss you.

(In Judge Sean O’Bryne’s courtroom.)

George Knott: There’s just no scientific evidence that the sea lice are causing the death of wild salmon.
Peter Barrett: That is ridiculous! Sea lice wiped out the stock in Norway, they wiped out the stock in Scotland.
D.A Valarie Murrow: All we’re saying is let’s wait and do the research. This is a vendetta against the farmed fish.
Peter Barrett: This is no such thing. We have no issue with farm fish all long as they can raise their stock in an environmentally sustainable manor and not host millions of sea lice. Closed containment systems have been shown to work.
Judge Sean O’Byrne: Okay gentlemen. I’ve heard your arguments. I have your briefs. I’ll review the matter as well as the science.

(Alan and Denny march in.)

Denny Crane: Greetings! Oh Canada. Denny Crane.
Alan Shore: Good morning, my Lord. My name is Alan Shore, and Mr Crane and I are attorneys from the Commonwealth of Massachusetts. We seek permission to be heard on this issue as friends of the court.
Judge Sean O’Byrne: Mr Shore. We don’t wear wigs in Canada.
Alan Shore: Oh!
(Alan takes off his wig.)
Judge Sean O’Byrne: Nor do we wear waders.
Alan Shore: My Lord. We’ve just spent the last two days in your rivers. In your countryside. It is the most spectacular nature I have ever seen. And the fish! They’re enough to make one believe in a Higher Power.
Judge Sean O’Byrne: Yes. How many of the Higher Power’s creations did you torture?
Alan Shore: Fifteen. Denny didn’t catch any. I get your implication Judge, and I acknowledge the hypocrisy of a fisherman pleading for the survival of a species only so that he’ll be able to continue dragging them to shore by the lip in perpetuity. But causing a fish discomfiture and cause it to become extinct are two very different things. And when talking about Pacific Salmon! This is a species that goes back to the ice-age. One that is born in a river, migrates up to two thousand miles in the sea, then returns to the very place of birth to spawn. Against enormous miraculous odds, bringing nutrients on it’s journey to sustain the bald eagles, the grizzly bears, the wolves, even the Rain Forest’s themselves. An entire ecosystem depends on them. If Charlotte the spider were still alive today she’d be writing in her web, “Some fish”.
Judge Sean O’Byrne: Yes. Well, forgive me, but I find it insulting to be lectured by an American on the environment.
Denny Crane: Watch it Judge. We’re a super power. Don’t make us add you to the access.
Alan Shore: Being from the United States I have an expertise on the issue.
Judge Sean O’Byrne: Do you?
Alan Shore: Yes! Remember! We’re the country that’s practically wiped the grizzly bear off our maps. We got rid of bull trout. To see a Florida panther? You have to go a hockey game. We seek to count hatchery salmon as wild so the numbers go up and we can take the actual wild salmon off the endangered species list. Almost a hundred different bird and animal species have gone extinct in the last thirty years. While our national policy remains, “It’s not a priority.” I know all about economic interests trumping the environment. And truthfully, if we were talking about the Virgin Island screech owl or the Fresno kangaroo, I might not care, but this is the Pacific Salmon! The sea lice are killing them! Once they’re gone Judge, my God! They’re gone! Oh! Yes. Mindful that abroad people tend expect shock and awe when Yankees arrive on the scene, we shall leave you with two small, but lasting words.
Denny Crane: Denny Crane eh?

(Denny and Alan leave.)

Point of Law - Fruit of the Poisonous Tree

The concept of fruit of the poisonous tree is founded under the criminal law. The doctrine states that any evidence that is discovered due to information found through illegal searches or other unconstitutional means such as forced confession may not be introduced by the prosecution during trial. The theory flows from the analogy that if the tree, being the original illegal activity, is poisoned in the first place, then any fruit that grows from the poisonous tree is therefore tainted with the poison, being the resultant evidence that is derived from the illegal activity.

For example, as part of a coerced admission which was made without reading to a suspect the Miranda Rights (please kindly refer to my previous post "Point of Law - Miranda Rights"), the suspect tells the police the location of the stolen property. Assuming that the police does in fact finds the stolen property in the process, since the admission, being the poisonous tree, cannot be introduced as evidence during trial, the stolen property, being the fruit of the poisonous tree, can neither be introduced as evidence during the trial as well under the doctrine.

Generally, the simplest cases where the dotrine applies involves the exclusion of illegally obtained evidence. For example, an illegal body search of the suspect may yield the stolen property itself. The item, as in the above case the stolen property itself, which the defense is trying to suppress is direct or primary in their relationship to the illegal police action. Therefore, if the police have acted unlawfully, the evidence would then be excluded from trial.

However, in many occasions, the evidence is derivative or secondary in nature. For example, an illegal search may turn up a key to a public locker where the stolen property is being kept, or a coerced confession may reveal the place where a suspect hid the stolen property as mentioned in the above, or an illegal tap of the suspect's phone may reveal the whereabouts of a person willing to testify against the suspect. In such cases, it is necessary to determine whether the derivative evidence is fatally tainted by the initial or primary illegal action.

Point of Law - Probable Cause

The Fourth Amendment to the Bill of Rights of the United States of America gave rise to the term "probable cause". In essence the Fourth Amendment carries 2 clauses. The first clause states that people have a right to be protected from unreasonable searches and seizures, and the second states that no warrant shall issue except upon probable cause.

It is widely acknowledged that the probable cause requirement is, in many ways, more important than the reasonableness clause. Not all searches and seizures require warrants. Examples of which are automobile searches and arrests in a public place. However, the US Supreme Court has interpreted warrantless searches and seizures as unreasonable unless preceded by probable cause. This means that as a general rule, most searches and seizures require probable cause.

Although there is no written definition of the term "probable cause", but generally speaking based on the established rulings from precedence, probable cause is:

(i) where known facts and circumstances, of a reasonably trustworthy nature, are sufficient to justify a man of reasonable caution or prudence in the belief that a crime has been or is being committed;
(ii) what would lead a person of reasonable caution to believe that something connected with a crime is on the premises of a person or on persons themselves; and/or
(iii) the sum total of layers of information and synthesis of what police have heard, know, or observe as trained officers.

Point of Law - Miranda Rights

The principles of Miranda Rights was founded upon the landmark case law of Miranda v. Arizona (1966). The facts of the case was that on 13 March 1963, cash of US$8 was stolen from a bank worker from Phoenix, Arizona. The police suspected and arrested Ernesto Miranda for committing the theft. During the two-hours or so of questioning, Miranda, who was never offered a lawyer, confessed not only to the US$8 theft, but also confessed to the kidnapping and raping of an 18-year-old woman just 11 days earlier. As a result, based largely on his confession, Miranda was convicted and sentenced to 20 years in jail.

Miranda's lawyers appealed all the way to the U.S. Supreme Court. On 13 June 1966, the U.S. Supreme Court, in deciding on the case reversed the Arizona Court's decision, and granted Miranda a new trial at which his prior confession could not be admitted as evidence, and thereby established the Miranda Rights of persons accused of crimes.

Although the exact wording of the Miranda Rights statements were not specified in the U.S. Supreme Court's ruling, the respective law enforcement agencies have created a basic set of simple statements that could be read to the suspects prior to any questioning. These statements are as follows:

1. You have the right to remain silent.
The U.S. Supreme Court: "At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent."

2. Anything you say can be used against you in a court of law.
The U.S. Supreme Court: "The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court."

3. You have the right to have an attorney present now and during any future questioning.
The U.S. Supreme Court: "...the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. ... [Accordingly] we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today."

4. If you cannot afford an attorney, one will be appointed to you free of charge if you wish.
The U.S. Supreme Court: "In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one.

5. If you decide to answer questions now without an attorney present you will still have the right to stop answering at any time until you talk to an attorney
The U.S. Supreme Court: "If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent."

The Miranda Rights, however, do not preclude a suspect from being arrested. All the police requires to legally arrest a suspect is probable cause (please kindly refer to the N.B. below), which refers to an adequate reason based on facts and events to believe that the person has in fact committed a crime. The police are however required to read to the suspect his Miranda Rights before any interrogation. Any failure to do so may ultimately cause any subsequent statements to be disregarded in court although the arrest may still be legal and valid. In addition, the police are also allowed to ask the suspect routine questions like name, address, date of birth, and social security number without reading him his Miranda Rights in an effort to establish the suspect's identity. The police can also administer alcohol and drug tests without any prior warning, although the suspect who is being tested may refuse to answer questions during the tests.

Ernesto Miranda was subsequently given a second trial at which his confession was not presented. Despite that, Miranda was again convicted of kidnapping and rape based on the evidence. He was then paroled from prison in 1972 after having served a total of 11 years. In 1976, Miranda, who was then aged 34, was stabbed to death in a fight. The police arrested a suspect who, after ironically choosing to exercise his Miranda Rights of silence, was subsequently released.

N.B. Please kindly refer to my following post "Point of Law - Probable Cause" on a more in-depth discussion on the concept of probable cause.

Point of Law - The Slippery Slope

The slippery slope argument is a logical fallacy in which a person asserts that some resultant event must inevitably happen from the occurance of a triggering event without any form of argument for the inevitability of the resultant event in question. Generally speaking, the triggering event normally comes in the form of exceptions to a rule, or rules that depend on fine distinctions. The flow of the argument says that if a person makes any exceptions to a rule, or if the person makes rules that depend on fine distinctions, the inevitable result would then be all of the other people will end up ignoring the rule or rules entirely simply because it is inevitable that they won't accept the difference between the exception and everything else. In other words, if the person allows any exceptions to a rule, it will create a slope away from the absoluteness of the rule, and with which the people will slide down further and further until they will not obey the rule at all. This fallacy is also known as the camel's nose. This follows the phenomenon that if a camel is allowed to put its nose into a tent, the whole camel will ultimately be in the tent very soon.

In most cases, there is a series of progressions between the resultant event and the triggering event and no logical reasons are generally given as to why the intervening progressions will simply be bypassed. This argument flows in the following manner:
1) Event A has occurred (or will or might occur).
2) Therefore event B will inevitably happen.
This above reasoning is fallacious because there is no reason to believe that event B must inevitably follow from event A without an argument for such a claim. This is especially clear in cases in which there is a significant number of progressions between the resultant event and the triggering event. There is old english rhyme which originated for the purpose of encouraging children to apply so-called logical progression to the consequences of their actions. The rhyme is often used to gently chastise a child whilst explaining the possible events that may follow a thoughtless act. However, when applied to the slippery slope argument, the rhyme happens to illustrate the fallacy fairly well too.

For want of a nail
For want of a nail, the shoe was lost.
For want of a shoe, the horse was lost.
For want of a horse, the rider was lost.
For want of a rider, the battle was lost.
For want of a battle, the kingdom was lost.
And all for the want of a horseshoe nail.

Generally speaking again, the presumption behind the slippery slope argument is that if the person makes any exceptions to a rule, the other people will think that the rule is arbitrary to begin with and will see no reason to follow it at all. Hence, any exceptions undermine respect for a rule, and thus eventually lead to the rule's not being followed at all. Another argument is that people generally cannot make fine distinctions, so if you make an exception to a rule, the other people will think the person has shown the rule to be flawed and therefore unnecessary to follow.

N.B. I have previously used the english rhyme "For want of a nail" to illustrate the butterfly effect (please kindly refer to my previous post "The Butterfly Effect"). Come to think of it, the Butterfly Effect and the Slippery Slope Argument seem to run in the same direction.