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by JALLEN
Thu Nov 01, 2012 12:24 am
Forum: The Crime Blotter
Topic: CA: Burglary suspect sues homeowner who defended himself
Replies: 34
Views: 4039

Re: CA: Burglary suspect sues homeowner who defended himself

The DA can obtain an indictment from the Grand Jury or file an Information(or Felony Complaint), which proceeds with a preliminary hearing, at which the DA presents evidence, defense cross examines, etc, and the question for the judge is whether the DA has proven a good enough case to justify a full blown trial, in which case the defendant is "bound over for trial." No weighing of evidence, etc just enough to show probable cause that a crime has been committed and that the defendant committed it.
by JALLEN
Sun Oct 28, 2012 6:38 pm
Forum: The Crime Blotter
Topic: CA: Burglary suspect sues homeowner who defended himself
Replies: 34
Views: 4039

Re: CA: Burglary suspect sues homeowner who defended himself

California, and most states, allow considerable latitude in filing suits, on the grounds that society wants disputes resolved in courts peaceably rather than in the streets, etc. In that interest, the initial burden to file a suit is rather low.
The right to bring grievances to the courts, in good faith, is protected by state and federal constitutions in a variety of ways. In most states, the right to trial by jury in civil cases is recognized. The right to cross-examine witnesses is fundamental to our judicial system. Moreover, the first amendment protects the right to petition the government for a redress of grievances. The “right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition.” Because “the right to petition is ‘among the most precious of the liberties safeguarded by the Bill of Rights,’ ... the right of access to the courts shares this ‘preferred place’ in our hierarchy of constitutional freedoms and values.
That said, it is not merely open season on filing whatever nonsense comes to mind. California Code of Civil Procedure Section 128.7 provides that when an attorney or unrepresented party file a paper with the court, he or she is representing that (a) The paper is not presented primarily for an improper purpose, such as harassment or delay, (b) legal contentions are warranted by existing law or by non-frivolous arguments for modifications of existing law, and (c) factual allegations or denials are warranted by evidence or likely to have evidentiary support after investigation or reasonably based on information or belief. Sanctions can be awarded in the discretion of the court after a defined procedure. I have used such motions now and then when the circumstances were appropriate, like when my client was named in a construction defect lawsuit on homes the client had no connection with whatsoever. Attorneys are supposed to have engaged in a modicum of investigation prior to filing, but sometimes matters go awry, and a motion like this sobers them up fairly well. The courts make the attorneys pay for their carelessness.

Beyond that, controversies often have facts that, when forced through the crucible of evidentiary rules and pressures of courtroom presentation, come out differently than how matters were presented in the media. "Trying the case in the newspaper" is fraught with perils.

I suspect that if the criminal case goes as presented in the media, this case will not go forward. I don't understand why it was necessary or helpful to have filed the civil suit before that, but perhaps there is some strategery involved.

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