Gdanning
2yr ago
The analogous CA provision is Evidence Code section 1108
And note that a prior robbery might indeed be admissible under certain circumstances, if admitted to prove something other than propensity, such as motive, intent, identity. or common plan (i.e, M.O.). At least that is the law in California:
The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. (See People v. Robbins, supra, 45 Cal.3d 867, 880.) "[T]he recurrence of a similar result ... tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act...." (2 Wigmore, supra, (Chadbourn rev. ed. 1979) § 302, p. 241.) In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant "`probably harbor[ed] the same intent in each instance.' [Citations.]" (People v. Robbins, supra, 45 Cal.3d 867, 879.)
A greater degree of similarity is required in order to prove the existence of a common design or plan. As noted above, in establishing a common design or plan, evidence of uncharged misconduct must demonstrate "not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." (2 Wigmore, supra, (Chadbourn rev. ed. 1979) § 304, p. 249, italics omitted.) "[T]he difference between requiring similarity, for acts negativing innocent intent, and requiring common features indicating common design, for acts showing design, is a difference of degree rather than of kind; for to be similar involves having common features, and to have common features is 403*403 merely to have a high degree of similarity." (Id. at pp. 250-251, italics omitted; see also 1 McCormick, supra, § 190, p. 805.)
To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. For example, evidence that a search of the residence of a person suspected of rape produced a written plan to invite the victim to his residence and, once alone, to force her to engage in sexual intercourse would be highly relevant even if the plan lacked originality. In the same manner, evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. (See People v. Ruiz, supra, 44 Cal.3d 589, 605-606.)
The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. (People v. Miller, supra, 50 Cal.3d 954, 987.) "The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature." (1 McCormick, supra, § 190, pp. 801-803.)
People v. Ewoldt, 7 Cal.4th 380 (1994)
But do we know for sure that past assaults were used against him?
Gdanning
2yr ago
And I believe this is the part pertaining to SOL
That provision has nothing to do with the statute of limitations. CA Penal Code sec 1385 simply permits the court to dismiss charges or enhancement allegations "in the interests of justice." The relevant CA penal code section re statutes of limitations is Section 799, which states that prosecution for rape "may be commenced at any time."
what was the evidence against Masterson? Near as I can tell none. There were 3 victim testimonies,
That is enough, if the jury believes them.
All we're left with is he said/she said,
That is very common in criminal trials (as well as civil trials). And determining who is lying and who is telling the truth is what juries do. The unanimity requirement (and CA uses 12 jurors, unlike some states) and beyond a reasonable doubt standard of proof hopefully provides some protection for defendants; that being said, I share your criticism of lengthy or nonexistent statutes of limitations. I am merely describing the law and explaining how the conviction happened, not defending it.
Gdanning
2yr ago
True, but she is not earning income. And doing unpaid labor does not seem to be a path toward economic independence.
Gdanning
2yr ago
Bread winners share income with their families. This is a no brainer. All over the world, men are expected to fulfil their gender role as a bread winer. This does not mean that they keep the pay check for themselves while their wives and children starve to death. Imagine this scenario: a poor father from India travels to Qatar where he labours in deadly conditions, so that his family can live a slightly better life. According to UNDP, he just became more developed, while the standard of living his wife is exactly zero.
All such indexes are of course imperfect in many ways, but this particular criticism seems to me to be off the mark. According to the UN, the Gender Development Index is meant to measure "gender inequalities in achievement", not gender inequalities in economic well-being. In your hypothetical, the wife's* economic well-being* is as high or higher than that of her husband, but her economic achievement is indeed about zero. Moreover, "command over economic resources" would seem to imply something other than mere access to economic resources. A woman who relies on her husband as the breadwinner is dependent on him in ways that a woman who earns her own income is not. And, of course, female economic independence is correlated with all sorts of other outcomes of interest.* So, it certainly makes sense to measure it separately from total access to income via a husband.
Of course, maybe no one should care about any of this, but apparently the UN does.
*Note that the linked article refers to female labor force participation rate, rather than female earned income, as the GDI does. But earned income is probably much easier to reliably measure across countries than is labor force participation (most countries of course try to track income for purposes of taxation), so it is a reasonable, if imperfect, decision to use earned income as a proxy.
Gdanning
2yr ago
they prosecuted people who weren't even there
Not being there is not necessarily a defense. Charles Manson wasn't there when the Tate/La Bianca murders took place. Nor was Khalid Sheikh Mohammed on any of the planes on 9/11.
Gdanning
2yr ago
As to conspiracy, the fundamental issue is a lack of a documentable conspiracy with specific other people. My understanding is he shouted at a lot of people, and often got shouted back at, but who, specifically, were his co-conspirators with whom there was a meeting of the minds? Where's the agreement with another person to harm or destroy property or harm or kill people?
Is that level of specificity required? IIRC, not a whole lot is needed to show agreement. This says:
One becomes a member of a conspiracy by willfully participating in the unlawful plan with the intent to further some object of the conspiracy.[FN2] One may become a member of a conspiracy without knowing all of the details of the unlawful plan or the identities of all of the other alleged conspirators. If the defendant, with an understanding of the unlawful character of a plan, knowingly joins in an unlawful scheme on one occasion, that is sufficient to convict him of conspiracy, even though he had not participated before and even though he played only a minor part in the conspiracy.
FN2. Blumenthal v. United States, 332 U.S. 539, 557 (1947).
One who has no knowledge of the unlawful plan does not become a member of a conspiracy simply because one happens to be present at an event or transaction or because one happens to commit an act which inadvertently furthers some object of the unlawful plan or conspiracy. One does not become a member of a conspiracy through an association with members of the conspiracy or by the mere knowledge that a conspiracy exists.[FN3]
FN3. United States v. Falcone, 311 U.S. 205, 210(1940).
The evidence in the case need not show that the alleged members of the conspiracy entered into any express or formal agreement, or that they directly stated between themselves the details of the scheme and its object or purpose, or the precise means by which the object or purpose was to be accomplished. Similarly, the evidence in the case need not establish that all of the means or methods which were agreed upon were actually used or put into operation. Nor must the evidence prove that all of the persons charged were members of the conspiracy.
BTW, I am not opining one way or the other re his guilt. I am merely commenting on the applicable law.
Gdanning
2yr ago
since I don't see a regime silencing it's detractors as wrong
If that is what you think, I am afraid that we don’t have much to tallk about. But I can say that if you think that social media can't be a vastly better space for rational debate than The Motte, of all places*, then you are following the wrong people on Twitter.
As my father would say, if The Motte is not a platform to push an agenda based upon a belief system you've already decided upon, it will more than suffice until such a platform comes along.
Gdanning
2yr ago
This seems to be a claim that you are just taking at face value
Well, I provided a link, and frankly it is pretty common knowledge. The Heritage Foundation has written about it and federal law now requires that the State Department issue biannual reports on the practice.
So you seem to be suggesting that India (parliamentary democracy, not authoritarian government BTW) faked evidence
- No, as I said, "The Interpol reference might not mean much" and "My only point was that the fact that Interpol has issued an arrest warrant does not, in and of itself, necessarily mean anything." Note the tentative nature of those statements.
- Ostensible parliamentary democracies can be authoritarian. See, eg, Hungary. And if you are not aware of the trends toward authoritarianism in India in recent years, you should be. Again, it is common knowledge and has been a somewhat thorny issue re US foreign policy of late.
but wouldn't do the same thing to try to have him extradited from Canada?
As noted several times, neither you nor I know what efforts India made to extradite him, and we certainly don't know what evidence it gave to Canada in support of any application it submitted.
But would send assassins to shoot him on Canadian soil?
-
I have not opined that they did. I simply noted that the Interpol action is not necessarily evidence of anything.
-
However, yes, regimes sometimes prefer their opponents dead to the alternative of giving a forum to their views via a trial. Especially a leader of a secessionist movement. Moreover, an assassination gives the regime deniability, unlike a trial. So there is nothing inherently illogical about it.
Gdanning
2yr ago
nitpick things like calling an Interpol Red Listing (or whatever they call it) a warrant
That wasn't my point at all. My point was that Interpol does not do its own investigation. And, the only reason I referred to it as a warrant is that you did; note that I initially referred to "Interpol procedures" and I did that precisely because I did not know for sure what specific Interpol procedures tend to be abused, and which is also why I said, "The Interpol reference might not mean much."
And, perhaps you might think about why you got so bent out of shape by a simple observation that the Interpol reference might not mean much. And that there has apparently been quite a bit of abuse of Interpol procedures on the part of authoritarian governments in recent years. Yet you took that as some sort of claim that there was a good reason for him not to have been extradited, which I did not say at all.
Gdanning
2yr ago
if these theories meet your standard, then there's a tonne of others you'll have to let in as well".
I have addressed this several times. Eg: If I am teaching a unit on religion, I have at least three options: 1) teach only about Christianity, the one true religion; 2) teach all the major religions, ie, those having more than X number of adherents; 3) teach every religion that has ever existed. You keep pretending that #2 does not exist. Once again, the mere fact that the perfect (#3) is impossible does not change the fact that #2 is better than #1.
- If it's the school board, then in theory I suppose the law is fine
Then apparently we agree.
Yes, really. Nothing
I'm sorry but that makes zero sense.
barring a mandate on stocking all books that have ever existed, that rule is toothless
It isnt about specific books, it is about specific viewpoints. Eg if you add White Fragility, then add one book on the other side, not every book.
What do you call it when libraries ban Huckleberry Finn for the liberal use of the word "nigger"?
While Huck Finn has sometimes been removed from curriculum, it has rarely been removed from school libraries. And again, even if it has, the fact that a rule cannot be perfectly enforced does not render the rule illegitimate.
It looks like you're having trouble following the conversation ... He wasn't talking about topics, or theories. He was talking about any and all content, including books.
Nope. You are. His proposal was to drop from the curriculum all topics upon which there was any disagreement.
That is part of the reason why I think it does nothing to prevent the censorship of ideas.
I understand your view. It just makes no sense, unless you are using "does nothing" to mean "does not perfectly prevent." Which I suspect you are.
I'm getting the feeling these proposals are more about ensuring your employment as a lawyer, than they are about improving the quality of education.
If you are going to engage in infantile ad hominem arguments, I am not interested in continuing the discussion.
Gdanning
2yr ago
Alright... so do geocentrism, creationism, and flat Earth make the cut to be taught in schools or not?
I already answered that question.
who makes the decision, and why is it better that they make it rather than the parents?
I already said I don’t care who makes the decision, but presumably, like all similar decisions, it will ultimately be made by the school board.
All this time I've been arguing that prohibiting the removal of books will do nothing to protect the censorship of ideas the librarians do not like. They will simply not acquire the books containing those ideas they do not like.
- Really, it will do nothing? For the 10000th time, it will be better than the alternative, even if -- spoiler alert! -- it isn't perfect.
- I believe I have mentioned that I am perfectly fine with extending the current prohibition on viewpoint discrimination to cover book acquisitions.
It is far better that censorship is explicit and decided on by parents, rather than implicit, decided on by librarians, and hidden behind "pervasive vulgarity" and other loopholes.
Where is your empirical evidence that books are removed for their views under the guise of concerns about vulgarity and the like.
There's nothing about "competing theories" there, the proposal was about "things whose inclusion is contentious"
Yes, that is exactly what I said: "We are talking about topics, not theories."
Can you answer my questions on Mein Kampf?
- I have no idea how many school libraries stock Mein Kampf.
- As for "If not why has Pico failed to result in punishment schools for censoring it?", again, Pico prevents only removals, not failures to stock books in the first place. Where is your evidence of how many school libraries stocked Mein Kampf in 1982? And that fewer do now?
Gdanning
2yr ago
I stated my point very clearly, twice:
- "The Interpol reference might not mean much. There has apparently been quite a bit of abuse of Interpol procedures on the part of authoritarian governments in recent years."
- "My only point was that the fact that Interpol has issued an arrest warrant does not, in and of itself, necessarily mean anything."
Gdanning
2yr ago
Interpol doesn't give out warrants on a bare allegation,
- "A Red Notice is NOT an arrest warrant and is NOT based on any INTERPOL investigation"
- I was referring to an allegation by India, not Interpol
sometimes we refuse to extradite for minor charges, or things that would not be crimes in Canada -- bombing a movie theatre is not those, that's the point.
No, the point is that there are other causes for denial of extradition, including, most importantly, the severity of the sentence faced by the person whose extradition is being sought. In particular, Canada will not extradite a person if that person faces the death penalty if convicted.
More specifically, the point is that your claim that Canada will ignore the protections provided its citizens if another country simply files super-serious charges, especially given the abuses I note above re abuse of Interpol red notices.
but even so, it's been over a year with no action
- How do you know that there has been no action? Do you have any idea how long extraditions usually take? Did the Indian government ever actually file a formal request for extradition? If so, when? Because the article I linked to stated only that local authorities in Punjab were seeking extradition, but of course the treaty says, "The request for extradition shall be made through diplomatic channels," so that means it has to be made by the Indian federal govt, not the local govt.
- One reason it has been "over a year with no action" is that he has been dead since June. And, let's take a look at a famous recent Canadian extradition case: That of Meng Wanzhou. That Wikipedia page says that it took more than a year between the receipt of the extradition request in Dec of 2018 and the start of the first phase of the extradition hearing in January of 2020. So, where is your evidence that 10 months with "no [public] action" is
Gdanning
2yr ago
The interpol warrant is not dispositive here
I didn't say it was.
it's odd that this hasn't been going through the normal channels for extradition
How do you know it hasn't? This indicates that Indian authorities did not seek extradition until August of 2022. If that is correct, obviously proceeding would not have concluded by the time of his killing in June.
Bombing a movie theatre" is normally a thing that is not subject to the various loopholes in extradition treaties
Says who? Do you think the rule is that in order for a foreign country to avoid the protections afforded to Canadian citizens, all it has to do is allege a serious crime? Are Canadians morons?
Gdanning
2yr ago
I am sure that all of that is generally true (although there are certainly plenty of defenses to extradition in Canada. It is not enough to simply demonstrate that the person has been charged with a serious crime). My only point was that the fact that Interpol has issued an arrest warrant does not, in and of itself, necessarily mean anything.
Gdanning
2yr ago
he's been wanted by India/Interpol
The Interpol reference might not mean much. There has apparently been quite a bit of abuse of Interpol procedures on the part of authoritarian governments in recent years.
Gdanning
2yr ago
If I understand you correctly, you're saying that (idea) censorship, as a technique, is inherently bad - even if its being done on behalf of your in-group in order to suppress the out-group. . . . But as suppression techniques go, censorship is rather underrated:
You do not understand me correctly. It is not the technique of suppression that I object to, but the suppression itself.
And, while I suppose it is true that censorship of dissidents is better than murdering them, it is also true that some techniques of murdering dissidents are better than others because of the lower risk of collateral damage, if we are discussing "what it the best method of silencing those with whom we disagree," I think perhaps we have taken our eye off the ball.
If you genuinely believe that all criticism of Jews is unfounded in reality and that allowing such ideas to exist in the mainstream could lead to a 21st century Holocaust, then why shouldn't you stop these anti-Semites from trying to prosecute such a wantonly cruel agenda?
- Because some principles, such as freedom of conscience, are so intrinsically valuable that instrumental concerns are not particularly relevant. See discussion of value rationality here
- I will defer to Justice Holmes on this one: "Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."
Gdanning
2yr ago
Gdanning
2yr ago
Here is the problem with advocating censorship of "bad" ideas: If it is permissible make rules about what ideas can be expressed, then someone has to make those rules. And who will that be, people with power, or people without power. Obviously the former.
Btw, I am referring to censorship of ideas, not obscenity, not child porn, and not any of the 1000 other things that those who favor censoring ideas they don't like want to conflate therewith.
Gdanning
2yr ago
Would it be accurate to say that you think such rules are a good idea because you expect people to follow them?
As I have said 1000 times, such rules are a good idea because they are more likely to achieve their purpose than would the absence of rules.
Also, they stock the libraries with books that the local parents find highly objectionable. The parents want to remove the books they object to.
Once again, there is a difference between removing a book because it contains unpopular ideas, and removing it because it contains salacious content. Parents successfully remove such books all the time; the two books referenced in the video, Gender Queer and All Boys Aren't Blue, were the most frequently removed books last year. And that is fine by me. I have read Gender Queer, and I thought it was quite good. But it also has one or two racy parts, and I certainly understand why some might feel that it is inappropriate for minors. That is a perfectly acceptable reason for removing it.
Is censorship bad in and of itself, or is it bad because of how it shapes our relationships with each other? Is censorship bad because more speech is always better than less speech, or because it allows one group to exercise power over another? If the later is truly the concern
The latter is the only one that is not my concern. In a democracy, the majority is always going to exercise power over the majority in some way. Just ask members of NAMBLA. But certain things are not legitimate exercises of that power.
Gdanning
2yr ago
You bring them up every time anything adjacent to the topic comes up
No, I don’t. You are mistaken.
because they cannot plausibly stock up on every book in existence
- Once again, the specific issue that we are talking about is the decision to remove books, not the decision to acquire books. "
- The issue is not about stocking specific books, but about censoring specific ideas.
Great, another avenue for abuse.
Once again, there are no perfect rules. But now you seem to be saying that you oppose permitting schools to remove sexually explicit books because that is an avenue for abuse?
It does. No one said parents have to come to a consensus on one specific theory, they can just as well come to an agreement on which competing theories should be taught in school, while vetoing the ones they consider fringe
That was not the proposal that was suggested. The proposal was to teach only topics on which there are no competing theories.
We're talking about any content available in, and provided by the school, be it specific theories, whole topics, or books in the library.
Again, I was referring to the proposal that only noncontroversial topics be taught.
Where it's coming from is that I don't understand the difference between your 1 and 2 options here: ... Whoever determines "the standard arguments" is in fact picking which arguments and evidence they favor, and ignoring all others
You don't understand the difference between giving only the argument on one side of an issue, rather than arguments on multiple sides? For example, the difference between 1) teaching only that Keynesian economics says that to fight an recession the govt must do x; and 2) saying, "to fight a recession, Keynesians say to do X, but monetariists disagree and say to do Y."
Only, you seem to think there is a difference between the school telling the teacher "the students will be presented with A, B, C, and not X, Y, Z," and the teacher saying "the students will be presented with A, B, C, and not X, Y, Z,".
No, I think there is a difference between the school telling the teacher "the students will be presented with A, and only A" and "the the students will be presented with A and at least one not-A"
Okay, I get that. And your view is that how the books got into the library is an entirely separate issue that has nothing to do with the question of suppressing ideas people disagree with, and that bringing it up is changing the subject, correct?
No, that is going too far. But my original suggestion re codifying Pico was only about book removals, because that is all that Pico relates to, and because removing a book with viewpoint X is a clear attempt to silence viewpoint X. Would I favor a similar policy re book acquisition as well as book removals? Yes, but that would obviously be logistically more difficult, and if you are not going to agree with the former you are certainly not going to agree with the latter, so in that sense it is pointless to discuss it at this point.
The article I linked above is brazenly arguing that a viewpoint is actually a sort of content, which should be removed because it fits the objective criteria of "Misleading/factually incorrect material/poor content". I think you'd agree that their argument is pretextual, but if they insist it's actually objective, what's your plan?
Book Riot is not exactly a good faith actor, IMHO (or, to be more fair, they are not interested in freedom expression in principle). And, yes, some people will always argue that ignorance is truth, that freedom is slavery, and that viewpoint is content. Such is the human condition. Perfection is not possible. But, as I have noted several times, the actual choices are 1) a rule that explicitly permits silencing of unpopular views; and 2) a rule that does not. If one is concerned with preventing the silencing of unpopular view, then one must choose #2, even if it might not be perfectly effective. As my father would say, if you promulgate a rule that forbids viewpoint discrimination, you might not prevent viewpoint discrimination. But if you don't promulgate that rule, you definitely won't prevent viewpoint discrimination.
Edit: Moreover, a policy that advocates removing racist books is not a policy about content. It is a policy about viewpoint. See Matal v. Tam, 137 S. Ct. 1744 (2017) [Lanham Act provision prohibiting the registration of trademarks that may "disparage ... or bring ... into contemp[t] or disrepute" any "persons, living or dead" is viewpoint discrimination, and Trademark Office's refusal to register the name of the band "The Slants" is unconstitutional]
I've seen it. Do you think this policy provides robust protections against viewpoint censorship on the part the libraries?
Once again, it provides more robust protection than the alternative would.
Gdanning
2yr ago
First, your central examples involved geocentrism, young earth creationism, and flat earth, if
Those are not my central examples. I mentioned them only in response to a query from someone else.
Repealing Pico would not force schools to remove any ideas
Yes,obviously. But it would permit it, so it would presumably happen more often. Repealing the Second Amendment would not force anyone to confiscate guns, either.
Pico removes the ability of parents to curate books in the school libraries, while still allowing librarians to do it.
This is factually incorrect. Pico applies to all removals based on viewpoint, by everyone.
The same logic would apply to porn,
A removal based on content is not the same as a removal based on viewpoint, and Pico explicitly stated that it does not apply to removals based on "pervasive vulgarity,"
why skip my question about Mein Kampf?
I apologize; I did not see it. No, Mein Kampf should not be removed from school libraries.
I'm the one arguing for the "objective" approach, I'm asking for coherence with the communities' values, so that's not an issue for me at all.
The point is that "just teach things that everyone agrees on" does not work.
You can still get a good education without learning every possible theory on everything (or even the main ones).
We are talking about topics, not theories.
It is not that murky, and it isn't really a grandfather clause. It is there to make sure that the extension of the statute of limitations does not run afoul of the ex post facto clause, which invalidates extensions which apply to crimes on which the SOL has already run
So, whether his prosecution was barred by the SOL depends on what the SOL was when the crime was committed, and when the SOL was extended. Note also that the SOL can be tolled, including when the defendant is out of state.
I don't understand the reference to prior convictions; what does that have to do with the SOL? Edit: Ok I looked at the one-strike statute and looked around, and apparently the issue is not that he had prior convictions (sec 667.61(d)(1)) but rather that "The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim." (sec 667.61(d)(4)). That seems to be consistent with established CA law. Eg People v. Stewart (2004) 119 Cal.App.4th 163. Again, this is not meant to be a defense of the law, but merely a description.
Anyhow, if there are SOL issues, they will be raised on appeal and will be pretty easily resolved. Both the facts and law re pretty clear.
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