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PostPosted: Thu May 13, 2004 3:53 pm 
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Posts: 493
Location: Framingham, MA USA
Many of us enjoy knives, as utilitarying objects to assist us and as works of art or beauty.

In Massachusetts and many other jurisdiction, laws or regulations closely cover the use of edged weapons or tools.

Questions concerning this subject matter appears in many of our forums, and it is no wonder.

Many of these laws and regulations are not written by persons who are expert in the history or technecalities of knives as tools or weapons, and create havoc even in the legal community.

Small differences in blade placement, carry or use, as well as the knife construction can mean the conviction of a felony or exoneration.

The best way to atttain knowleldge of the subject matter is to read cases which contain pertinent case reasoning and the citing of other cases and how the presiding court or the decisions of other courts explain and reason out what, in there jurisdiction constitutes the law.

Much of the reasoning and implementation of standards can be learned by reading these cases.

Here is a case which is very recent by legal standards, and reviews other cases wherein there relevance is explained.

At least two major issues are left unclear thereby leaving a major gap and impediment. Can you guess them.

The Case:



Here is a report on important case:


COMMONWEALTH
v.
TURNER



02-P-178 Appeals Court

COMMONWEALTH vs. EUGENE B. TURNER.





No. 02-P-178.

Suffolk. May 15, 2003. - November 5, 2003.



Present: Grasso, McHugh, & Mills, JJ.



Dangerous Weapon. Arrest. Practice, Criminal, Property seized at time of arrest.



Complaint received and sworn to in the Boston Municipal Court Department on April 2, 2001.



A pretrial motion to suppress evidence was heard by Thomas C. Horgan, J., and the case was heard by John T. Lu, J.



Lisa Siegel Belanger for the defendant.

Stacy J. Silveira, Assistant District Attorney, for the Commonwealth.



McHUGH, J. After stopping the defendant in Boston's "Combat Zone" in the early hours of a weekday morning, police removed from his back pocket a folded knife with a three and one-quarter inch serrated blade. When police learned that there were outstanding warrants for the defendant's arrest, they arrested him on those warrants and, in addition, charged him with violating G. L. c. 269, § 10(b), which prohibits, among other things, possession of a dangerous weapon when arrested on a warrant. Later, the defendant's motion to suppress the knife was denied and, following a jury-waived trial, he was convicted of violating the statute. He appeals, claiming that his motion to suppress was improperly denied, that he did not possess a "dangerous weapon" within the meaning of the statute, and that, under the circumstances of this case, conviction for violating the statute would violate his right to due process of law.[1] We conclude that the evidence at trial was insufficient to prove a violation of the statute and, therefore, vacate the defendant's conviction.[2]

Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the relevant facts are these. In the early morning hours of April 2, 2001, Officer Al Young was on routine patrol in the "Combat Zone" area of downtown Boston. At approximately 2:25 A.M., he saw a white Ford automobile turn from Washington Street onto Beach Street, a one-way street, in the wrong direction. Officer Young turned on his flashing lights. In response, the Ford promptly stopped, and Officer Young got out of his cruiser to approach the vehicle. As he did, the defendant, who was a front seat passenger, got out of the car and began to walk quickly back in the direction from which the car had come, ignoring Officer Young's demand that he return to the vehicle.

Upon seeing the defendant depart, Officer Young radioed for assistance, told the Ford's driver to turn off his engine and remain in the car, and then set off on foot in pursuit of the defendant. Another police cruiser quickly arrived and pulled alongside the defendant as Officer Young drew near. Seeing the approaching officers, the defendant stopped, told the officers that he had nothing "on him" and that they could search him. In response, Officer Young pat frisked the defendant and discovered a closed black folded knife in the rear pocket of the defendant's pants. The knife was a common implement of a type freely available for purchase in stores throughout the city of Boston.

After removing the knife from the defendant's pocket, Officer Young placed the defendant in his cruiser and asked him for his name. Young then "ran [the defendant's] name for warrants" and discovered outstanding warrants for the defendant's arrest. He arrested the defendant on those warrants and later charged him with violating G. L. c. 269, § 10(b). There was no evidence at trial of the nature of the offenses for which the warrants had issued nor was there any evidence that the defendant knew the warrants were outstanding.

Turning from facts to analysis, we agree that the evidence was insufficient to support the defendant's conviction. General Laws c. 269, § 10(b), essentially contains two separate provisions. The first prohibits possession of specifically defined weapons under any circumstances unless possession is specifically authorized by law. The defendant was not charged with violating that portion of the statute.

The second provision,[3] under which the defendant was charged, more broadly prohibits one from being "armed with or having] on his person, or . . . under his control in a vehicle, a . . . dangerous weapon other than those . . . mentioned [in the first provision of § 10(b)] and those mentioned in" § 10(a), which deals with firearms, "when arrested upon a warrant for an alleged crime."[4] The statute is designed to "discourage[] the carrying of dangerous weapons which can be used against arresting officers." Commonwealth v. Thompson, 15 Mass. App. Ct. 974 (1983). See Commonwealth v. O'Connor, 7 Allen 583, 584 (1863).

When not otherwise defined,[5] the term "dangerous weapon" embraces objects that are dangerous per se, i.e., objects that are "designed and constructed to produce death or great bodily harm" -- objects, in other words, that are "designed for the purpose of bodily assault or defense," Commonwealth v. Appleby, 380 Mass. 296, 303 (1980) -- and objects that are dangerous as used, i.e., "those things that become dangerous weapons because they are 'used in a dangerous fashion.'" Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001), quoting from Commonwealth v. Appleby, supra at 304. "The essential question, when an object which is not dangerous per se is alleged to be a dangerous weapon, is whether the object, as used by the defendant, is capable of producing serious bodily harm." Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922 (1984).[6] See generally Commonwealth v. Tarrant, 367 Mass. 411, 415-417 (1975).

Straight knives typically are regarded as dangerous per se while folding knives, at least those without a locking device, typically are not. See Commonwealth v. Appleby, 380 Mass. at 303; Commonwealth v. Monico, 396 Mass. 793, 807 (1986); Commonwealth v. Miller, 22 Mass. App. Ct. 694, 696 (1986); Commonwealth v. Henry, 37 Mass. App. Ct. 429, 440 n.7 (1994). There was no evidence that the defendant's knife had a locking device. Both the trial judge and the Commonwealth properly placed the defendant's folding knife in the category of weapons that are dangerous as used, a position the Commonwealth maintains on this appeal.[7]

The question, therefore, is whether the evidence permitted the fact finder to conclude that the defendant used or handled the knife in a manner that made it a dangerous weapon. See Commonwealth v. Appleby, 380 Mass. at 305-306; Commonwealth v. Tevlin, 433 Mass. at 310-312. It did not. At all material times, the defendant's knife was out of sight, folded in his back pocket. It was folded in his back pocket as he distanced himself from Officer Young. It was folded in his back pocket when he told the officers, after he was stopped, that they could search him because he had nothing "on him." The officers were not even aware of its existence until they encountered it during the frisking process. Whatever the knife's potential for harm at other times and in other circumstances, the defendant did not use it in a manner that was capable of causing serious harm or even the apprehension of serious harm on the morning of his arrest. Compare, e.g., Commonwealth v. Blavackas, 11 Mass. App. Ct. 746, 752-753 (1981) (kitchen bread knife with a blade eight inches long found in the defendant's purse, although capable of supporting a conviction under G. L. c. 269, § 10[b], if the defendant were arrested on a warrant, would not have supported such a conviction if the defendant was carrying it "for an innocent purpose"); Commonwealth v. Thompson, 15 Mass. App. Ct. at 974 (steak knife with a "serrated blade eight inches long," which was found in the defendant's purse and which she said she intended to use "for her protection" was dangerous within the meaning of G. L. c. 269, § 10[b]); Commonwealth v. Miller, 22 Mass. App. Ct. at 696-697 (defendant's knife, which was a "heavy, oversized version of a folding pocket knife or jack-knife" that did not open easily or quickly and was found closed in the defendant's pocket, "could have been deemed to be a dangerous weapon" under G. L. c. 269, § 10[b], if it had been found open in his hand or pocket); People v. Brown, 406 Mich. 215, 220 (1979) (weapon is dangerous if "used in a manner intended to inflict serious injury or carried for such use"). Consequently, the evidence was insufficient to support a conviction under a theory that the defendant's knife was dangerous as used.

The trial judge's contrary conclusion was based on the following analysis:

"I find sufficient facts in short based on the . . . early morning hours in downtown Boston, Defendant has an extremely lethal knife in his pocket, is walking away from the police in a really suspicious manner, and I find that that is dangerous as used."



Generalizing that analysis, the Commonwealth asserts that § 10(b) is a possessory offense and that, when considering weapons like the defendant's that are not dangerous per se, "'use' in the possessory context does not mean actual use of the weapon; rather it means carrying a weapon, while subject to arrest on an outstanding warrant, that could be used in a dangerous manner against the police."

Two insurmountable problems with that position immediately emerge. The first is the limitless nature of the construction the Commonwealth urges. If a "dangerous weapon" is any object that has the potential for harming the police while they are effecting an arrest, then the carpenter with her hammer, the plumber with his pipe wrench, the Sunday driver in an automobile, see Commonwealth v. Cherubin, 55 Mass. App. Ct. 834, 842 (2002), indeed, all but the shoeless, see Commonwealth v. Tevlin, 433 Mass. at 310-312, would find themselves beneath the statute's broad cover. We decline to adopt an interpretation that would produce such an absurd result. See generally Commonwealth v. George, 430 Mass. 276, 280 (1999); Commonwealth v. Landry, 438 Mass. 206, 208 (2002).

The second problem relates to the first. Due process requires "fair notice of proscribed conduct." Commonwealth v. Clint C., 430 Mass. 219, 227 (1999). Common sense would suggest to one who uses an innocent object in a manner capable of causing death or serious injury, or in a manner that creates a reasonable apprehension of those results, that his conduct is of doubtful legality. But if the statute truly means that a "dangerous weapon" is any hammer, wrench, pocketknife, or other object with dangerous potential, regardless of how that object is used, then wholly innocent possession of the object will be criminalized by issuance of a warrant or, at least, by the warrant's execution.[8] Acceptance of the Commonwealth's position would, therefore, produce a statutory scheme with the potential for criminalizing otherwise innocent activity in a way that provides a defendant with no notice of his conduct's prohibited nature until after the crime had occurred. Such a scheme would clearly violate the first essentials of due process. For that reason, as well, we decline to construe the statute in the broad manner the Commonwealth urges. See Adamowicz v. Ipswich, 395 Mass. 757, 763-764 (1985).

Judgment reversed.

Finding set aside.

_________________
"The Goddess of Justice is Blind"


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PostPosted: Thu Aug 12, 2004 1:23 am 
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There are many. For example, what other objects are "dangerous per se"? The case is pretty clear about straight and lockback knives, but of course it doesn't indicate whether a telescoping baton, a staff, or even the jawbone of an ass would qualify. This is unsurprising, since courts generally reach only as car as the facts of the case. (It is often said that if they went farther they'd be legislating.) Another open issue is just what "use" would qualify to make an ordinary object the grounds for conviction if possessed while arrested under warrant. Presumably you'd at least have to have it in your hand. But what about, for example, Bad Bad Leroy Brown's "razor in his shoe"? Maybe the courts would say that even if a straight razor is not "dangerous per se," since it can be used for shaving, having one in your shoe could be intended only for violent use. The same theory would presumably apply to any potential weapon that, although not "dangerous per se," was carried in an unusual way: a letter opener taped to your back, a small spray can of lock de-icer in your sock, maybe even a rolled up newspaper taped around the ends tightly and tucked into your waistband. I do seem to recall a MA case where someone was convicted for wearing a spiked wristband. Glad to be here in NY where all they do is bust you for having nunchaku in your home... 8O


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PostPosted: Sat Sep 04, 2004 10:53 pm 
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Location: Randolph, Ma. U.S.A.
Alan,

Wow ! Thank you for posting such info. As i have rescently posted some question on Van's forum regarding the legalities of knife possession and it was suggested to write about it here.

I thought there were laws that were "cut and dry" pertaining to knife possessions. However, after reading the info you posted, i am drawing the conclusion that possession of any form of knife or other, may be viewed as violation of general law !

Because these individuals had warrents outstanding for their arrest, possession of knife's are then deemed dangerous because they are "potential" to do physical harm to arresting officers ?

There are so many case files that one cannot read them all in an attempt to actualy understand state law.

As mentioned, anything can be considered "concealed & dangerous" in ones possession. However, it is "not" such until one uses an object of question in such mannor ?

According to what i read, anyone who mearly possesses a knife or other object is subjected to arrest for possession of a dangerous weapon. Is that so ?

Is an out standing warrant required for an officer of the law to search one for possession of a weapon ? Or is "just cause" alone enough ?

Does one not bear any right to posess a knife for the purpose of self protection ? From what i read and hear, it appears not to be so.

In conversation with a police officer today, it was somewhat expressed that one may have "possession" of a serrated knife for the purpose of "safety" or "emergency responce" such as E.M.T. or other who may feel the need to carry such for the cutting of seat belts or clothing in accidents that require cutting or removal of such articles.

However, i was to believe that possession of non-serrated edged blades has no just cause for one to carry.

Am i clearly understanding that possession alone of any knife by civilians is subjective to arrest for general law violations ?

Also, i have wittnessed many who carry on there sides attatched to belts, fixed blade knives. Such as bikers, workers etc. ow do possession laws differ here in "visible" carrying of knifes that exceed several inches.

Possibly those laws have changed over the years ? As i have not seen such in some time. However, many years ago, it was common place.

Also, i was to understand that use of a knife in self defense is only justified when one is being attacked by an assailent who first produces "life threatening" situation by showing of a knife or other weapon.

Civilian right to defend oneself ?

Is it true that one can only meet the threat with that of equal force ? However, can not exceed that ?

Does an attack by unarmed assailents "not" give the defendent legal right to use any form of weapon ? At what point can one do so ?

What about being victim to attack by much larger individuals or being out numbered ?

Legal and financial liabilities ! I can only imagine the potential for damage control !

An officer can go one level above that of the threat level, however, civilian can not ? Please clarify and justify if can ?

Could a civilian actually carry "handcuffs" and us them to detain and control an assailent until police arrive ?


Surely i am throwing a lot of questions out there. Possibly some of the answers are much simplier than they look.

Any feedback and responce to such would be greatly appreciatted.

Respectfully,

_________________
Gary S.


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 Post subject: How about this Alan?
PostPosted: Wed Oct 06, 2004 4:11 am 
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Quote:
10/1/04

Boston Municipal Code of Ordinances

16-45 PROHIBITING THE CARRYING OF KNIVES OR SIMILAR WEAPONS.

16-45.1 Carrying of Weapons Prohibited.
No person, except as provided by law, shall carry on his person, or carry under his control in a vehicle, any knife having any type of blade in excess of two and one-half (2½ ) inches, ice picks, dirks or similar weapons that are likely to penetrate through police officer's ballistic vests, or other object or tool so redesigned, fashioned, prepared or treated that the same may be used to inflict bodily harm or injury to another, except:

a. When actually engaged in hunting or fishing or any employment, trade or lawful recreational or culinary activity which customarily involves the carrying or use of any type of knife, or

b. In going directly to and/or returning directly from such activities, or

c. If the knife is being transported directly to or from a place of purchase, sharpening, or repair, and if packaged in such a manner as not to allow easy access to the knife while it is being transported.

(Ord. 2001 c. 10) Penalty, see subsection 16-45.4

16-45.2 Distribution Exception.
This section shall not apply to persons who, through entities or establishments engaged in a recognized retail or wholesale business, are involved in the sale, purchase or repair of knives for trade, sport, hobby or recreation, including without limitation persons engaged in the transportation to or from such entities or establishments.

(Ord. 2001 c. 10)

16-45.3 Applicability.
Nothing in this section shall be construed to enhance or diminish any duties of persons described in subsection 16-45.2, and this section shall not be introduced or cited in any proceeding as evidence of negligence, recklessness, or similar state of mind of such persons.

(Ord. 2001 c. 10)

16-45.4 Penalty.
Violators of any provision of this section shall be subject to a fine of not more than three hundred ($300.00) dollars for each offense.

(Ord. 2001 c. 10)

16-45.5 Severability.
The provisions of this section shall be severable and if any section, part, or portion hereof shall be held invalid for any purpose by any court of competent jurisdiction, the decision of such court shall not affect or impair any remaining section, part or portion thereof.
(Ord. 2001 c. 10)

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 Post subject: Knife Possession
PostPosted: Wed Oct 06, 2004 3:11 pm 
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Location: Framingham, MA USA
Thanks for the info on the Boston Ordnance, Van.

These municipal rules (in lieu of State Laws} can only be substantiated if constitutional.

A conflict with the State Law should result in the survival of the statte law.

The City of Boston promulgation can be justified only if the regulation is in the interest and would result in protection of public safety rights.

Who wants to be the one to challenge the law by carrying a knife with a three inch blade?

Gary, You have a good grasp as to these statues and decisions. A tiny key chain Swiss Army Knife can become a deadly weapon depending how it was
A) employed
B) intended.

The warrant issue in the statute was enacted for protection of LEO's, but must be justified, within the parameters of the warrant.

A new case on many issues posed in these forums is being tried in the Middlesex Superior Court as I write this. This case contains many legal issues seen in this forum and in Van's forum.

I will report on this after the trial because as an officer of the court, I am limited to reporting standards and ethics.

I can say that a young and well-off Harvard graduate student is being tried for Murder One for the stabbing death of an 18 year old male who had no social status
and the Plea of Self Defense is a Major issue and involves a plethora of legal issues eminating from the facts such as:

Did the use of a large knife with multiple stabbings fall under the umbrella of justifiable homicide for the defendant who claimed to being struck with swinging fists constantly striking him.

This case will be monumental in issues of blade self defense,
permissable force, the duty to retreat and the duty not to instigate and a whole lot of other matters germaine to this type conduct by the defendant and the alleged deceased victim.

This will be a nice fill in of the progression recent cases involving sectors of self-defense.

Until there is more clarification, I believe that instead of Carrying a single blade knife, use a knife based on multi use such as the brands of Swiss Army Knives or may other types of tool, blade combinations, which may be purchased in department and sporting goods stores.

Alan K

Alan K

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PostPosted: Thu Oct 07, 2004 9:32 pm 
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http://www.superknife.com/

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Van


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PostPosted: Fri Oct 08, 2004 12:27 am 
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Location: Randolph, Ma. U.S.A.
Van,

Thank you for that post. As many believe that Ma. has a three inch state statute in effect. As you and Allen appear to indicate that Boston has imposed a 2 1/2" municiple law ?

Can that hold up in court if it conflicts with state regulation ? I would think not.

Secondly, Allen, i would realy like to have the opportunity to sit in on the Middlesex court case you refer to. I assume that it is the same case that was on the news last week regarding an attack by two individuals resulting in a stabbing to death of one in "self defence" while being beaten on the ground ?

I would think that if those facts as the defendant claims prove to be true, he was justified in such action. However, how many times and to what degree of his action may be in question.

This is "exactly" the case and point that i have been trying to make reference to. It has been a huge concern for me as a knife carrier to possibly find myself in such a situation.

Certainly i would not want to be in his situation. Being tried for murder with possible life imprisonment based upon perception of jurers who may or may not find justification in his actions.

Then again, i do not know the details involved and it is possible also that he may have gone overboard in his reaction. However, fighting for survival in such a situation, who can say what responce may be triggered. I probably would have responded the same way !

With or without a knife, one may possibly find simular charges brought forth even in the use of bare hand self defence resulting in one's death.

Very sticky situation. As i have rescently stopped having possesion of a knife clipped on my pocket as often as previous do to these these post.

I hope that my search within for a sence of security in my empty handed abilities will not fail me when and if such a situation may arrive.

Although i do keep a blade in the vehicle in the case of a serious need for it prior to exiting my vehicle, i think that by not having it so readily available, i am less likely to depend upon it under questionable circumstances.

Awareness is first and foremost. Those of us who have trained for a lifetime, i hope by now would have a "sense" for danger and hopefuly the ability to adjust to self preservation as needed. To "read" a situation and respond to it.

To carry or not to carry a weapon, be it a knife or a gun, legal or not, can carry consequences either way. Many of them not being favorable.

As advanced martial artist with many years of study and practice, most would agree that the reliability upon such knowledge in a life threatening situation is marginal at best.

However, all the elements of training besides the physical abilty of one, is first and foremost in quickly evaluating a situation and determening how best to respond to it.

Certainly the physical abilities is not to be ignored, However i refer to one's abilty to "feel" a situation. Use one's surroundings and enviroment to ones advantage. Seek out escape route's if needed, find other forms of protection via one's vehicle, objects within reach etc.

Body language, positioning etc. may all be part of the equation to set the stage for one's self protection. The way one may carry themselves in itself has in previous proven to detour would be assailents. As i have experienced such in past as others have also.

Then there are times when we must just dig in and fight !

Please keep us informed as best you can as to the progress of this on going case ? As few of us would be very interested in how this plays out. It may in fact set some new law in effect, may it not ?

Thanks,

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Gary S.


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PostPosted: Fri Oct 08, 2004 3:48 am 
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Quote:
Certainly i would not want to be in his situation. Being tried for murder with possible life imprisonment based upon perception of jurors who may or may not find justification in his actions.



I have been up the legal system, in my work, both criminally and civilly. I have testified before juries many times, been deposed a number of times, and have come close to actually battling with fists in Court against unscrupulous opposing counsel.


“Being judged by your peers” is the biggest line of BS going.

People sitting on a jury are not really your peers, because they were not subjected to the same stressors, physical and emotional, that you might have been subjected to in a survival situation.

So they are passing judgment on something they know nothing about.

Being on trial these days is like finding yourself between Scylla and Charybdis.

Scylla and Charybdis have become proverbial, to denote opposite dangers which beset one’s course.

The street dangers and the court dangers. The latter being the worst. :twisted:

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Van


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PostPosted: Sat Oct 09, 2004 10:18 pm 
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Location: Randolph, Ma. U.S.A.
Van,

This area is obviously your line of expertise. Certainly myself and many other readers would have much difficulty relaying such factors as you mention to a judge or jury. As you have indicated, even with your expertise, it has not been well accepted by council for prosecution and jurers alike.

Certainly i would hope to have one of your capacity on my side in such an event. As even a good lawyer would have to call upon someone like you to testify in behalf of ones defence. As i believe that is the involvement in cases that you indicate.

Please explain what being "deposed" means ? As i am not familier with the term.

Once again, thanks for your replies.

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Gary S.


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 Post subject: Gary
PostPosted: Tue Oct 19, 2004 9:19 pm 
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The oral deposition is the most valuable tool in a trial attorney’s arsenal. It is used to ferret out the truth in the investigation phase of a case in litigation _ appropriately called "discovery" and it is used at the trial as evidence or to impeach a witness if he/she tries to change testimony.

In a deposition, witnesses are placed under an oath to tell the truth and questioned about the facts of a case by skilled attorneys. It is a very formal legal proceeding and a certified court reporter records every word said during the deposition on a steno machine or computer.

After the oral deposition is completed the deposition is typed up and a written line-by-line transcript is generated and sent to the witness to sign before a notary. The penalty for not answering the questions truthfully can be criminal perjury so the process is indeed an intimidating one.

Depositions are often very dramatic, adversarial and confrontational as the attorneys spar with each other over the form of questions and make objections for the record, but the deponent must still, generally answer the questions. The objections will be used during trial.

The process can be quite “invasive” of your privacy, and this, often, is geared at destroying your credibility and qualifications as to whom and what you represent yourself to be. Some “personal questions” are designed at “unnerving” you.

I have been in numerous depositions where all parties have had a go at each other verbally, including myself, and I have come very close to a physical confrontation.

I have also testified on the stand before juries in both civil and criminal cases I had investigated.

It is “mind conditioning” at its best. You learn to deal with the “cocktail” and to handle yourself without digging yourself a “legal grave” with your demeanor and your answers.

After a number of them you usually can do pretty well, if you can “stand your ground” against aggressive interrogators.

I have also attended dozens of them in an “interest observer capacity” and I have seen witnesses [grown men] not used to the process, easily intimidated and reduced to tears.


.

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Van


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