OA52: Thomas Knows Words! Thomas Has The Best Words!

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:16 Thomas: Hello and welcome to Opening Arguments. This is episode 52. This is host Thomas Smith and your other host Andrew Torrez. How you doing, Andrew?

0:01:26 Andrew: I'm great, Thomas. How are you?

0:01:27 Thomas: Doing great. Excited for today's episode. I still don't totally know what's in store for me because I saw a little hint of a post that said, secret Thomas can't look at thing. And you know what? I'll be honest, I'm pretty good at just saying, okay, I am not supposed to look at this, so I didn't look it. I figured you had some plans, so we'll see what this is.

0:01:44 Andrew: Yeah, I am super excited. One of our listeners, Marie Kent, who runs the My Book of Mormon podcast, we met up with her in Milwaukee. She's great. You should listen to her show. Suggested that I ask you certain basic legal terms. And we'll see if you can define them. And from there, we'll sort of see how good a job we've been doing in terms of making some of this complicated legal stuff more accessible. So I'm going to petition to call this episode The Best Words. And We'll See If I Win.

0:02:26 Thomas: Yeah, that's a good one. That's a great title.

0:02:29 Andrew: So, all right.

0:02:31 Thomas: Hey, you know, I want to say something else. Sorry to hijack the show for just a second.

0:02:37 Andrew: Hey.

0:02:37 Thomas: Me and my wife are going to be in London and Paris coming up because by the time this airs, it may be very shortly. And I was considering if I should do any sort of meetup if we have listeners out there. I know I have a lot out there for my other podcasts. And curiously enough, even though we discuss U.S. law here, we have a ton of international listeners, more than I ever would have thought, which is great. I love it that people are so interested, probably because, you know, Trump's going to destroy the world eventually. So they want to hear like exactly how that's goingto go. But if you want to shoot me an email, don't don't bother Andrew with it. But Thomas at SeriousPod.com. If there's interest, maybe I'll do some sort of, I don't know, pub meetup or something something like that. If not, no big deal.

0:03:23 Thomas: But let me know if you're anywhere near those two major cities, which I know nothing about. And then maybe we'll do like a night, we'll do some sort of gathering if people want to get together, have a few drinks. So let me know on that. And I don't know anything. Andrew's telling me London's huge. So maybe if I'm in some part of it and not another, you can't come. But I don't care. Just let me know if you're there. Let me know. If you're anywhere there, we'll see. It's a possibility. Okay. Let's get on with the show.

0:03:50 Andrew: Thomas is a fun guy to hang out with and have a beer with, so you should definitely take advantage of this offer.

0:03:55 Thomas: All right. Let's start with our listener question for today.

0:03:59 Clip: He who questions training, only trains himself at asking questions. What?

0:04:07 Thomas: Rachel. Doty or Dottie, one or the other asks, I have never seen a last name spelled like that. So I'm not sure, but she asks, what is an Alford plea?

0:04:17 Andrew: Yeah, um, good question. And since we're defining stuff on this episode. I thought Uh, I thought we'd tackle it here.

0:04:20 Thomas: I was going to say, if I have to answer this, I don't know. I have no clue.

0:04:24 Andrew: Again, with the caveat that I am not a criminal lawyer, this is my understanding. In general, in the criminal justice system, as in my area, the civil justice system. Most cases plea, right? Most cases do not go to trial. Um, when you were charged criminally with a crime, um, what you have to do is knowingly and voluntarily confess to the crime, and then typically the procedure with which I am familiar, which I believe is a state requirement, uh, but I, I think it's a requirement in every state, again, not my area, so if I'm wrong, uh, please feel free to correct me via email, uh, but you have to that crime, right? Which is to say, you have to get up in court and say, I am knowingly, freely, and voluntarily confessing and pleading guilty to the crime of X.

0:05:18 Andrew: And then you have to say I did this crime and you have allocute us to each of the elements of the crime, right? So, typically Typically, to prove somebody guilty of a crime, you know, are multiple required elements. And you have to then allocute as to each of the individual elements. That's the normal course of events. However, there was a Supreme Court case in 1970 called North Carolina versus Alford. And the defendant in that case, pled guilty to a second degree murder charge and said, I am pleading guilty to this because if I don't, they're going to give me the death penalty and I don't to Explicitly, I am doing so under the fear of the death penalty And went all the way up to the Supreme Court.

This was 1970. It was not the liberal heyday of the court, but it was still a very, very liberal time on the court. But the Supreme Court said that's a perfectly valid form of plea if the individual was advised by competent counsel and if they decided that balance was there's enough evidence that you're likely to be convicted and executed. And so it becomes a rational decision to take a plea that avoids that in order to avoid the death penalty, and that it can be a valid form of not a not a coerced or

0:05:58 Thomas: Huh? Yeah. Yeah.

0:06:53 Andrew: Fraudulent plea. Now, I will tell you, my understanding is from having talked, and I talked to a prosecutor friend of mine just just before coming on the show, that Alford pleas are incredibly disfavored at the federal level in federal court, and they are largely disfavored in most states at the state level. You can—so Prosecutors are encouraged not to bring cases before judges that involve a defendant who is entering an Alford plea, right? They say that because the judge has to approve your plea that when you, when you enter into a plea bargain, the judge has to sign off on it, and he will look at you and say, or she will look at you and say, are you, is this plea made freely of your own volition?

You know what you're doing, and we'll, and we're asking a series of questions, and in, in some cases a judge will say no, this, this plea does not meet the standards. Therefore, I'm throwing it out. You're going to have to either, you know, bring this case to trial or, you know, do something else, right? So, you know, enter a different kind of plea, get the defendant to say something else.

0:07:13 Thomas: What do you mean when you say disfavored?

0:08:03 Andrew: So it is within the discretion of the trial court judge, the best of her abilities, to determine whether a plea is being made competently and voluntarily. And so judges can send signals to prosecutors that says, don't, don't bring me an Alford plea. Right. That being said, it remains a valid mechanism. Can see the arguments on both sides. Right? You can, you can see if, if our belief is that you should only enter into a plea bargain with individuals who have freely and voluntarily admitted to the offense that they have committed, and that that's a bulwark against people into accepting punishment for crimes that they didn't commit. You know, that's sort of the one hand of the argument. On the other hand, the argument is that it certainly seems like a criminal defendant could make the rational decision and say, yeah, I'm going to maintain my innocence until the day I die.

0:08:21 Thomas: Okay.

0:09:07 Andrew: But as I look at this, I recognize that the case against me looks strong. I don't have any other evidence other than said I didn't do there, it. Right. There certainly are cases in which, um. Individuals, you could imagine them saying, I've taken a look at the stock of the situation and the evidence looks really, really bad. I maintain my innocence, but I recognize on a rational view and with advice from counsel that there is an extraordinarily high chance that I could be executed. And so to avoid that, I'm going to plead guilty even though I still maintain my So I can see both sides of it. This is one of the reasons I don't do criminal law.

0:09:53 Andrew: You don't face those kinds of of true life or death decisions for your clients, particularly in the same sort of urgency as when you do business law like I do. So, you but that's an Alfred plea.

0:10:05 Thomas: Yeah. There you go. Good question. I didn't know. Yeah, I had no idea about that. Cool.

0:10:16 Andrew: Right, Thomas, are you ready to take your vocabulary quiz on legal terms?

0:10:21 Thomas: Realistically, no, probably not. But, you know, we got to do what we have to do. So, I'm ready to be a font of wisdom for everybody here.

0:10:32 Andrew: Yeah. No, our patrons suggested as of this recording, there were 82 comments within less than 24 hours of various terms and phrases and things that they wanted to see defined. So I think folks had a lot of fun with this. Um, we have a lot of fun on our uh patron only boards, we respond to questions and have discussions and all that good stuff, so um, this is, you know, another example of where we, uh, we got to play along, uh, with our, with our patrons, which is, uh, it's, it's a lot fun for, for both of us, so um, ready to go.

0:11:08 Thomas: All right. I'm, again, still not ready, but I'll do my best.

0:11:13 Andrew: All right. Term number one. This comes from our good friend Sakashita Fukasumi, who asks for you to define a tort, which he thought was a kind of cake.

0:11:24 Thomas: Tort. It's a, it's a harm that you cause someone, uh I think, and I'm not sure, there's probably some more technical spin on it, but it's something like that, right?

0:11:33 Andrew: Yeah, it is a civil wrong as opposed to a criminal Wrong. There you go

0:11:34 Thomas: Civil wrong, ah, that was the key, yeah, I knew that. Anyway, we'll edit this in, uh yeah, civil wrong, I KNEW that all along. Yeah, we could just edit this so I get every one of them exactly right, but that wouldn't be as funny.

0:11:37 Andrew: Uh okay next up uh Rachel, my second favorite Jew, asks uh you to define per

0:11:54 Thomas: Wait, is that their patron name or is that your personal opinion?

0:11:55 Andrew: Se that is that is her that is Herb patron name uh which I have

0:11:58 Thomas: Oh, okay. I thought you were just, I thought you werejust telling us like, yes, I've got a hierarchy of Jews.

0:12:02 Andrew: Yeah I do not I do not have a personal ranking of Jews but no this is

0:12:04 Thomas: Yeah. Oh, Okay. I, I, literally wasn't sure. Like I'm glad that I asked the followup, but anyway,

0:12:11 Andrew: We uh so Rachel asks you to define per se. Yeah.

0:12:15 Thomas: Per se. Well, I don't know the definition per se, but, uh, I do know that. Okay. So you've used that the legal definition of per se. Per can't do it, the too legal, the precise death legal definition is something I feel like I know but I can't put into words, which is frustrating, which is probably what the your second favorite Jew thought as well.

0:12:38 Andrew: Um, per se, the per se means uh inherently, right? Means as a function of the definition of the term itself, as opposed to uh you know, functionally or practically.

0:12:42 Thomas: Mm-hmm. Okay. I feel likes so far I'm perhaps not providing the level of expertise that our, our, our wonderful patrons really have been counting on me for

0:13:00 Andrew: Okay. Uh, a bunch of folks asked, you asked you to define pluribus.

0:13:10 Thomas: Plurvious. Yeah. Uh, that, that means we've got a bunch of folks who are enjoying Law'd Awful Movies. Number four, which was, uh, which, which was really fun.

0:13:16 Andrew: Yep. Okay, uh, it's a real one. This is this is from our friend uh Donald J. Trump, super genius, who asks you to define pro se. Yes.

0:13:29 Thomas: Pro say, Oh, wow. Well, that's a more professional version of per se. And I just don't, I'm not up to that level of professional ability. So I'm only at the per se level. I'm non at the pro se level, sorry. So you'll have to take that one.

0:13:43 Andrew: So Yeah, pro se is when you, you represent yourself in court?

0:13:48 Thomas: That's not even close to per se. How could it be that close in words, but me not even closer to the same thing?

0:13:51 Andrew: Nope. You would have to go find the ancient Romans.

0:13:58 Thomas: Ask a Latin teacher or

0:14:00 Andrew: Yeah.

0:14:00 Thomas: Something?

0:14:01 Andrew: Heather Loveridge, a hall of fame patron asks, what is a belt and suspenders argument? And is that what the Futurama quote is referencing?

0:14:09 Thomas: Wait, this is an actual argument?

0:14:13 Andrew: They did describe this. It's true. You hear this in the law sometimes that it is a belt and suspenders. Point, I don't want to give, I don't want to give too much away

0:14:21 Thomas: Wow. So I don't, I've never heard of that in my life. I thought it was the distinction between a belted lawyer and a non-belted lawyer, which is something we made early on, which, you know, is based on one of the first quotes that we had in the original intro, which was the Hollywood version of a lawyer wears a belt. So I'm going to go ahead and say a belt and suspenders argument, it must mean it's belt and suspenders. I wonder if it does it mean it's like a very key supporting argument or something like that or what about.

0:14:45 Andrew: No, If you think about it, if you saw somebody who was wearing both a belt and

0:14:59 Thomas: Oh, OK. It's it's superfluous. It says it's adding to the it's piling on.

0:15:00 Andrew: Suspenders, right, well, it is yeah, it is extra cautious, right, you would do that because, right, that way if you're, if your suspenders rip, then your pants don't fall down if you have a belt as well, um, so it is, it is typically used when you're taught, when you're trying to describe, uh, sort of with utmost caution, um, as you would say, belt and suspenders.

0:15:08 Thomas: Oh, extra cautious. OK. Yeah, yeah. I see.

0:15:27 Andrew: Okay.

0:15:23 Thomas: Gotcha. Gotcha. Makes sense.

0:15:28 Andrew: Next, next up. Uh, Marie asks, starry decisis.

0:15:33 Thomas: Stare decisis.

0:15:34 Andrew: And I want to point out, she spelled it starry S T S T A R R Y D E C I S U S. Uh. Which is just delightful. I'm picturing that like Vincent van Gogh painting.

0:15:48 Thomas: Yeah. Is it S-T-A-R-E? Is that how you spell the first one? And then decisis, it's just an I instead of a U. Is that what it is? Okay. So I know how to spell it. Yeah, I get the half credit spelling.

0:15:52 Andrew: Yes, yes, correct, correct. So you've got the spelling portion right. Can you define

0:16:02 Thomas: Yeah yeah. That was back when I had a really tough high school English class. That was the test. You had to both spell the vocabulary word correctly and you had to define it. So, you know, that's just following through on my high school, you know, teacher that was provided some great inspiration for me today. So I or that you use, which, which kind of counters originalism, which is actually looking at past decisions and weighing them properly, Uh-huh.

0:16:04 Andrew: It?

0:16:35 Andrew: Decisis is the idea. It is let the past decision stand. That's what the stare part is. So it is the idea that past decisions are binding precedent.

0:16:46 Thomas: Gotcha. Gotcha.

0:16:47 Andrew: So you get you you got there. I think you get credit for that.

0:16:49 Thomas: Okay. I'm questioning myself too much on this because it's impossible. That's probably why, but go on. A

0:16:53 Andrew: Right. Asks, what is the difference, if any, between a law and a statute? I like this. It's good. Okay.

0:17:03 Thomas: Law and a statute. Gosh, I should find a lawyer to answer these questions. Um, Nope. Don't know. No idea.

0:17:09 Andrew: A statute just means a written and publicly enacted law. And so you might say, what are the other kinds? So for example, we have common law, right? So most, there are common law crimes that are not specifically defined by statute. And then you pass a law that says, um, you know, you may only drive 65 miles an hour on I-95 and the penalty is that's a statute. So anytime, so it's a, it'sa subset. Um, most of our laws today are statutory.

0:17:34 Thomas: Right. Statutory.

0:17:41 Andrew: Um. And that's and that's what that means.

0:17:41 Thomas: Yeah. I like that one cause I probably could have figured that out, but I just, I couldn't quite get there, but that, that is a really good question.

0:17:47 Andrew: It's it's the pressure. You know, I can understand how the pressure gets to you.

0:17:50 Thomas: Yeah, well, no, these are good. These are all the questions that people have had throughout listening to the show that, uh, I think some of them maybe are things things I should have asked at some point. So this is really a absolutely condemnation on me as a person and as a host. But but let's go on.

0:18:11 Andrew: You're wrong, both intellectually and morally and weak in the upper body, too. OK, next up another one from Donald J. Trump. Super genius. He says he loves the Latin. He says per curiam. And we have talked about that on the show. So you got to get this one.

0:18:13 Thomas: Yeah. Oh, OK. Per curiam opinion, per curiam opinion. What was that? Crap. I know you said that. What What was it relating to? I can't remember. This is school all over again. Am I wearing pants? I'm not wearing any pants. It's my nightmare. I didn't study for the test and I'm not wearing anything. I can remember. I don't know. I'm blanking on it. This is driving me nuts.

0:18:48 Andrew: So so per curium is an unsigned opinion of a court that has multiple judges or justices that sit on Right. So be it a panel of the, you U.S. Circuit Court for the Fourth Circuit or the Supreme Court, when you issue a per curiam opinion, it doesn't come from any one individual judge. It comes unsigned from the court.

0:19:12 Thomas: Huh. Was this the one that was done for the Bush V Gore?

0:19:18 Andrew: Yes, indeed, it was.

0:19:20 Thomas: OK. Yeah. So I remember that it was done for much vigor, I was trying to remember what specifically it meant. I just couldn't remember that. It meant so it means no one judge like signed on to, they're all kind of embarrassed about it, but they're like, let's just yeah yeah so

0:19:27 Andrew: Yeah. And, and the, right. You know, that, that's exactly right. And most per curiam opinions, um, are in cases where you, you don't expect, uh, the opinion to have, you know, sort of serious precedential value. In, Uh, in Bush v. Gore, it was deliberate, yeah.

0:19:44 Thomas: It's a little it's weaselly opinion is what

0:19:46 Andrew: All right. Next up, um, you

0:19:46 Thomas: It is. Yeah, all Right. I couldn't be doing worse at this. I, I'd like to point out, I could not be doing worse I could be doing slightly worse. I

0:19:54 Andrew: You could you could be doing worse, you could me doing worse, uh, Aaron Terrio asks to define res judicata. Really?

0:20:03 Thomas: No idea what that is. Res judicata. What? What? Yeah, that isn't even something you've talked about.

0:20:05 Andrew: You Okay. Res judicata is, uh, a matter that has been settled by, uh, in with finality by a court of competent jurisdiction, right? And so, uh, you cannot so

0:20:21 Thomas: Let me get this straight. You're in disbelief that I don't know a term you've never used on opening arguments.

0:20:23 Andrew: I I know, I am in disbelief that I have never used the term on opening arguments. That's that's my, that's my disbelief. So res is, uh, this - this is going to help you later on. Res is Latin for thing, I think. And so, and judicata, you know, judicially. Yeah.

0:20:30 Thomas: Oh, okay. Okay. Okay, it's like adjudicated or something. Yeah.

0:20:44 Andrew: Adjudicated thing. Right. So when Something is res judicata, you may not you may not relitigate it. It has been settled with finality. Sandra Whitson asks, "Prima facie" exactly there you go um yeah so

0:20:45 Thomas: Yeah, okay, just is a first impression? Yes, oh god, finally. Oh all right, let's spend 10 minutes on me getting this one right. Okay Okay.

0:21:05 Andrew: Yeah Your so your prima facie case is the the minimum that you have to do to establish uh the elements of the case, right? And so, and then from there, uh, you will often say, you know, you've met your prima facie case, then the burden shifts to the other side to offer affirmative defenses or something. Like, but but prima facia, uh, you've meant that initial burden.

0:21:27 Thomas: Yeah. I officially could be doing worse. Okay. Go on. That's

0:21:28 Andrew: Okay, uh, Brandy says, uh, she endorses uh pro se. Uh, she says, "I got a divorce in absentia." I can I can give you absentia, but I'm assuming that you can figure that one out. And my document said something about pro se. We've defined that. Then she says, what does it really mean to write a dissent when RBG writes one? What is it and why? What purpose does it serve? So it's a to define the term dissent.

0:21:43 Thomas: Pretty easy. Yeah, to write a dissent. Well, a dissenter is when you disagree with the decision that ended up being in the majority. Oh, well, let's see. Majority decision. I know there's the wrinkle that you could have like a 2-1-1, 1-1. But I guess I would still call it the majority decision. Dissent is when when you disagree with that so much that you want to actually like express why, uh, dumbass, uh Scalia was so wrong in his deciding of this. I think they invented it just for Scalia that, that this may be wrong. This may be inaccurate, but I think the, the, uh they invented the term for when they were like, God, what is this asshole thinking? We need to write a document that no, I'm sure it goes back further than that. But anyway, yeah, that's what it is.

0:21:59 Andrew: Yeah.

0:22:36 Andrew: Yeah. No, all the way up until where you went off the rails. I endorse that completely. Remember, Scalia has written a lot of dissents, too, because he's been in the minority. But yeah, no, no. I know you were joking. I'm not taking off credit.

0:22:44 Thomas: Yeah. Yeah. That's true. Yeah. I was completely joking, but yeah. This is for the... Look, I'm a little sensitive right now because you're completely... The segment is designed to reveal how little I know about anything. So, I just want to make sure people are aware that I was joking on that. That's all.

0:23:01 Andrew: And the purpose of writing a dissent is to describe principles of law that compel reaching the other result. And dissents, particularly at the Supreme Court level, are frequently relied upon by subsequent Supreme Court precedent, right? To go back and look at it and say, we reached this result in Smith v. U.S., but as the dissent warned us, if the facts had been different, we would have reached a different result and the facts are different here, so we now reach that result, right.

0:23:08 Thomas: Yeah. Okay.

0:23:32 Andrew: Or sometimes making fun of people. Dissents have been cited in subsequent opinions as, well, oddly enough, Scalia wanted to reach X result in Y case, see this dissent. So, you know, in particular, Scalia's dissents in the sodomy cases were instrumental in Obergefell, as Scalia basically said in his dissents, like, well, you know, if it's unconstitutional for a state to outlaw homosexual sodomy, then, you know, what's next? Gays getting married? And the Supreme Court was like, well, actually, now that you mention it. So there. OK, there we go on dissent. Uh, next, uh, our buddy the net sec, he then asks, what exactly is habeas corpus? Yeah.

0:24:23 Thomas: Habeas corpus. Question. Question. Does that just express that you have certain rights or that you're, you're eligible for certain, they should be covered for certain rights? I can't quite remember precisely.

0:24:37 Andrew: You, you, can I'm gonna need, the the ruling from the judges is we're gonna need a little bit more specificity on on what rights you mean there. You are correct, it comes up in the context of of of uh petitioning for a writ of habeas corpus. What is that, what right are you trying to vindicate? Kate?

0:24:53 Thomas: Due process?

0:24:56 Andrew: Still more, still. More.

0:24:58 Thomas: Still more?

0:24:59 Andrew: You give, I give one, one last, one last chance for a little bit more specificity here, uh.

0:25:07 Thomas: I feel like that's specific enough. You know, you know what I'm thinking, lawyer to lawyer, we each know what I'm thinking.

0:25:08 Andrew: Okay. Habeas, habeas corpus, uh, applies when, uh, you contend that you have been unlawfully detained by the government.

0:25:23 Thomas: Detained? Oh.

0:25:24 Andrew: So it means corpus.

0:25:24 Thomas: You're Right, damn it.

0:25:26 Andrew: Body, right? Like, so they are exercising

0:25:26 Thomas: Due process was kind of it, come on, uh, I need to appeal I'm gonna appeal this to the Ninth Circuit, is It's, I'm hoping it's similar to amicus brief, which is, when, I better get asked because I think I actually know that one, um, what's the difference between that? No, uh, maybe that's not the same because the amicus part is like a friendly thing. I think it's like, amicus brief is like when, when, when one, when, when a friend of yours decides to write an argument for your Supreme Court case, that's an amicus grief, I figure it comes from from that, but uh, uh, I don't, I can't remember, amicus curiae, I can't remember what that is. I think, I think come up actually, but I don't remember what it is.

0:25:29 Andrew: It's It's kind of it, but not not enough. Of it, okay, next, up, uh, amicus curiae.

0:26:11 Andrew: You've, overthought yourself. You get, you get credit here. Amicus, it is a brief of amicus curios, uh, it's so it just gets shortened down to amicus brief. And amicus curiae means friend of the court. So it's Exactly what you've just described, you described it correctly. No, no, no, you get the points on that one, that, uh, that definitely counts. Next up. Oh, I like this one, I don't know if we have discussed it, so you're gonna have to puzzle this one out, um, subpoena deuces take them

0:26:13 Thomas: Oh. It's the same thing. Oh, okay. Ah. Geez. Okay.

0:26:36 Thomas: Deuces take them that's this, just sounds like a juvenile, like, joke on, like, I'm taking a deuce and I'm gonna subpoena you for it. I think this did, did Alex get into the Patreon thing, did your son, no, did somebody's teenage son get intothe Patreon account and ask about a fake question? Question. This is, this is that right up there with like a Bart Simpson prank call or something to a, to Mo.

0:26:36 Andrew: Yep. Yeah, why Can't, why, can I find Amanda Hug and Kiss

0:27:06 Thomas: It's exactly what it sounds like to me. And what was it again? What was the term?

0:27:08 Andrew: Uh, Subpoena subpoONA, which you know deuces takem, so, define subpoena first, get that one out.

0:27:12 Thomas: Yeah, I know subpoena. Well, a subpoena is just, official request by the court to do something, or to, to, don't something like that right?

0:27:22 Andrew: Yeah. It's an order by the court for you to show up. Right? So that's a subpoena. So deuces tecum. What do you think it means to add that onto it? And it

0:27:26 Thomas: Okay. No, idea, it's I think it's asking you for a stool sample.

0:27:35 Andrew: Is asking, it means and you have to bring documents or other physical things with you. Right, so you can compel a witness, an ordinary subpoena's just makes the witness show up, if you want to get their documents, you issue a subpoena deuces take them and they have to and the, the take them I mean literally is like, it's it's T-E-C-U-M.

0:27:35 Thomas: Okay. Okay. Okay. Take them, yeah.

0:27:55 Andrew: But it is, it is like take them, right? You know, you're gonna take it with you, yeah, that's how you remember that one. Um, this is, uh, boy, this is almost impossible.

0:27:58 Thomas: Yeah. Yeah. Oh. Good.

0:28:05 Andrew: So I definitely want to ask you this one, um, so Uh, our friends over at the Is This Real Life podcast ask you to define demurrer, D-E-M-U-R-R E-R. I know we have mentioned it at least once, but

0:28:06 Thomas: You You mean sort of like most of these? Okay.

0:28:21 Thomas: Demure. Yeah, I can' t remember. No idea.

0:28:25 Andrew: So a demurrer is in many states, it's no longer part of how you plead in response to a complaint. Um, but it is, it is a response to a complaint that has been brought against you that says, uh, that there is no legal claim, even if the allegations are true. And we've talked about that in the motion to dismiss for failure to state a claim context, California. The reason I picked this one is because I had to look this up. I did not know. Now, Maryland does not have the active demurrer, but California is a state in which you can still demur to the complaint. So so that's what that means. That was definitely ridiculously tricky. But it made me laugh. So that's why I read it. So, OK, next up, like this one.

0:29:04 Thomas: Yeah, tricky in that it's impossible to know that but okay okay is

0:29:12 Andrew: Uh a plea of nolo contendere that

0:29:15 Thomas: This different than pleading no contest or something is it the same is this the latin version of it yeah okay

0:29:18 Andrew: Is that is the latin phrase for. No contest yes so half half a point already um

0:29:24 Thomas: Well well it's different than like pleading guilty. Or innocent or whatever it's just is it pleading no contest is that sort of just like I don't I'm not pleading anything I'm nicht going to contest any of the charges, just give me a sentencing or something. I don't know what it's precisely means, but something like that.

0:29:39 Andrew: Yeah yes You're You're almost there. So number one, you don't you don't plead innocent, you plead not guilty. Right, that Puts the State to their burden Of proof. Well, no, that's it Important, right? Like you don't have to prove your innocence. They have to prove your guilt. A nolo contendere or no contest plea says that you are accepting the consequences of guilt. It's the same as pleading guilty from a practical standpoint, but you are not admitting your actual guilt. So You're saying I accept the punishment, but I don't admit the guilt. Effect of that is has to do with sort of future precedent in terms of whether you have admitted to the underlying allegations or not. And some states by statute have said you have really kind of gutted the point of a NOLO plea and said, you know, we're going to construe that against you as if you'd pled guilty, um,

0:29:46 Thomas: Oh yeah. Whatever. Yeah. You're right. Yeah, yeah, yeah. Okay.

0:30:36 Andrew: But uh, But some states do do still allow it, yeah.

0:30:37 Thomas: I'm going to give myself like 75% of a point for

0:30:41 Andrew: I think, I think that's fine. Um, all right, next, uh, how about the word mandamus?

0:30:41 Thomas: That.

0:30:50 Thomas: The word mandamus, there's a, a, isn't there a writ of mandamus? Okay. Now, what does that mean, uh, half a point for that.

0:30:53 Andrew: Yes. There is, we talked about this last episode, yeah, we're not last, we talked about this. We talked about this last week, uh, in connection with originalism, um, and with, if Marbury versus Madison, the underlying cause of action there was someone had applied for a writ of mandamus.

0:31:00 Thomas: Yeah, oh, really uh mandamus Oh. Yeah, man, Is it to have the court mandate you do something, like to have the court, is it, is it that I can't remember, okay. To

0:31:21 Andrew: That's exactly right. That's absolutely right. Writ of Mandamus issues when the government, when it when a government official. Has an obligation and no discretion to do a thing. And so you can tell the court to tell that person to do their job, right? So think about the, like, the Kim Davis issuing the marriage license or whatever, right? Like, if you have a situation, right, like you can't get a writ of mandamus for, you know, a driver's test, to pick an example, because, right the, unless, you you know, you could show you've objectively passed the standards.

0:31:39 Thomas: Right. Is This, when we talked about, like, oftentimes you just ask for money instead of, of mandating that they, like, shovel your, your backyard or whatever it was it was that one, and

0:32:07 Andrew: Yeah, well, we talked about that. That's in connection with that's that's an injunction, injunctive relief. But mandamus applies to a government official. Right. And so the the the key analysis is, do they have the discretion to do their job or are they required to do a certain thing? And if they're required to do certain thing, then you can apply. You can petition for a writ of mandamus to tell them for for the court to tell them, Hey, do that thing. Right. And that's all that means.

0:32:11 Thomas: Junction, oh, okay, different thing, oh, okay. Okay, I see, okay.

0:32:32 Andrew: Yep.

0:32:32 Thomas: Yeah, It makes sense.

0:32:33 Andrew: Okay. Ooh, this is a good one. Um I think this has come up, but, but only once. Um how about slip opinion, slip opinion SLIP.

0:32:41 Thomas: Opinion, well, I don't, I can't remember, but I may, I'm just gonna go with the one thing I know, which is maybe it something that only partially agrees with the majority opinion, maybe. Is it it something like that? I don't know, okay.

0:32:55 Andrew: No, that, That would be a concurrence, that that's what you're, you're thinking of with that.

0:32:59 Thomas: Slip Opinion. Yeah, I don't think I can remember.

0:33:03 Andrew: So We talked about how cases, um, get published, right? So they, so you read the result from the bench, uh, and then, uh, there is a period of time between, uh, when that opinion is read versus when that opinion is published in those actual big law books that you see in, uh, with decreasing regularity in law offices, but you see them in movies all the time. And whenever, you know, like, uh, lawyers do, uh, appearances on TV, they pose with the law books in the background, they have the numbers on it, and, and That's

0:33:03 Thomas: Yeah. Yeah. That's

0:33:36 Andrew: And the volumes correspond, yeah, right, yeah, That, and the belt, um, yeah,

0:33:37 Thomas: How we know, they're lawyerly and smart, yeah. I need you know, what maybe that's what I need, I need to give myself some law books to put in my background, that'll increase my, uh, you know, like my credibility, and then I can start answering bar questions by just being like, well, well, you know, you and I know the answer to this. We don't, I don't need to, do I need to vocalize the answer? Look at these law books behind me.

0:33:44 Andrew: Yeah. Yeah, right. Obviously, we all know.

0:34:00 Thomas: I mean, come on. Yeah.

0:34:00 Andrew: Yeah. So when an opinion is published in final form, we can cite it, right? So 427 U.S. 315 means pull out book 427 and turn to page 315. The intermediate stage between an opinion being read from the bench and being published is what's It's called the slip opinion and, um, slip opinions. You then cite, you would attach, uh, when you have a brief, you would attach.

0:34:10 Thomas: Wait, you're telling me you think this has come up before? When did this come up?

0:34:28 Andrew: I know we, I knew I, we talked about publishing opinions and the like, uh. Book and citation thing. And I, you don't think I said slip. Okay.

0:34:35 Thomas: We talked about the book and citation thing, but I'm, I'm

0:34:38 Andrew: Fair enough. If we, so, so

0:34:38 Thomas: Officially contest your, uh, contention that you, you know, I need the court to write a rate of mandatment. No, no, that doesn't work. You admit, you might be right. We'll have to go back. You know, let's have the judges go back in the tapes and, uh, check if you have ever told me what a slip opinion was.

0:34:48 Andrew: Yep.

0:35:00 Andrew: So slip opinion is in between. It is when the opinion is in almost final form and you, but has not yet been published in the reporter. So, yeah, well, no, it, yeah.

0:35:09 Thomas: It's like someone just writes a little sticky note. Like here, this is opinions been, you

0:35:14 Andrew: It used to be right. You wrote it on a slip of paper. That's exactly, you know, from 3,700 years ago where it comes from. So, Dead Eye Nick asks in race and in rem. Now, we defined race earlier in the show, uh, so there's... there's sort of your hint. We have definitely not talked about this on the show at all, so this will require your, uh, keen analysis of Latin, uh, to to figure out

0:35:14 Thomas: Know, it's a slip. Yeah, exactly. Okay.

0:35:39 Thomas: Yeah. Which I definitely have. I have no background in Latin. I didn't even, at least I could, uh, you know, if I'd taken some sort of Latin course at some point, I would maybe be able to fake some of these, but I think it's, there's specific, uh, proceedings that take place when you're in a deep sleep, and this is just one of those, so I'm gonna go with go. With that. Oh.

0:35:58 Andrew: You were, you were so close. So, so race, so, uh, uh, a proceeding against a race, right? Remember, race is a thing, right? That's Latin just for thing. So Proceedings against, you can proceed against a piece of property, uh, and, uh, as opposed to proceeding against an individual, um, and that, those proceedings against an individual are considered in personam jurisdiction, and proceedings, proceedings against a race are considered in rem jurisdiction. Um, uh, when would you just proceed against a piece of property? Um, the main areas in which that comes up is when you have, like, civil forfeiture, uh, in connection with, um, property that has been seized. Uh, it used to be a big thing for, uh, in admiralty law, like when there was a ship, right?

And so, you, you know, you had stuff, it was, the ship was impounded, and it might be impounded in, you know, a port in Florida. The owners of the ship, you know, might have, you might have had no connection with Florida, right? So you might, you, you would say, look, we're not going to try, say, you don't, look, we, we don't really care about finding the owners of the ship and making them.

0:36:19 Thomas: Okay, I Want to get this piece of junk out of our port is that what it is Can

0:37:07 Andrew: Yeah. Yeah. Yeah. Well, we don't you know, we don't need them to stand trial in Florida. We have this ship and there are two dozen people who say they are creditors, right, who have property on board that ship and have claims against it. So we're going to proceed in rem against the ship. And then, you know whatever the judgments are, you will will render that and people will be able to take that out of the proceeds. Right. So

0:37:32 Thomas: The ship defend itself, does the ship represent itself

0:37:35 Andrew: So, yeah, when when the ship represents itself, that is pro se. So but there's no distinction between in race and in REM. It's the same. I think it has to do with how Latin is declined or conjugated. I don't know. It's been a long time since I've had Latin. Race is the thing. Proceedings are not proceedings in race. They are proceedings in REM because of the I think because the conjugation of the word. Oh, this is this is a good one. Marcus Rademacher asks us dispositive. You say this like eight times an episode.

0:37:35 Thomas: Yeah Yeah Oh Dispositive Yeah, you'll always say something's dispositive, like it, it's, it indicates something else, right? Like, it's like, this is dispositive of the fact that blah blah blah, that it, right?

0:38:21 Andrew: Yeah. When in in the legal system to say something is dispositive means that it answers the question. Right. So there we That's go. That's close enough.

0:38:28 Thomas: Right My answer was dispositive of the answer, it wasn't quite Uh Yeah It wasn't the answer, pro se, but, uh, no, I'm just kidding, did I get it

0:38:33 Andrew: Um, all right. Um, per, per se, you went on that one.

0:38:40 Thomas: Right Yeah I know that was the joke, okay I

0:38:43 Andrew: No, I know. I know it was good, but it was kind of, uh, David in Kentucky asks, and this is another one that's, uh, uh, sort of standing out there, but, um, I think you can, I think you'll, I think you're will do well with this. What is

0:38:45 Thomas: Need to make sure to clarify my jokes because I, I really have revealed the depths of my ignorance here. So, oh, sure. I'm sure I will. Yeah, definitely. I absolutely, I'm, I've sure I just a second away from giving a perfect answer to this. Oh,

0:39:08 Andrew: A justice of the peace, yeah

0:39:12 Thomas: A justice of the peace. I'm not sure. Is it, is it, it's not the same as being like a peace officer, or it's justice, it's, it's not like a law enforcement officer, would it be like a some other position that, that, any government position that is, that not law enforcement, but also, I don't know, I'm not sure, what is it, but

0:39:31 Andrew: Um, so it, interestingly, I was prepared to give you points for lots of different things because it's going to have different different me, but not that one, um typically in the U.S. today, uh, justice of the peace refers to any number of judges that sit in specialized courts, and we've talked about this on the show, where you have a small claims court or a landlord-tenant court or something like that, where you have really informal procedures. You have an appeal as of right of that decision to an actual trial court. Traffic court offenses sometimes are adjudicated by a justice of the peace, it depends, it depends by the jurisdiction, and the terminology is kind of antiquated, uh, but it's actually a real justice, it's a real judge, uh, but they just have limited powers.

0:39:35 Thomas: Not that, yeah Yeah Oh Okay

0:40:22 Andrew: Next, oh, another one from Sakashita Fukasumi, he says, voir dire, as heard in My Cousin Vinny I said it, it, the last time we discussed this was during an episode of Law'd Awful Movies, yes I know, we discussed this in, in Law'd Awful Movies, all right What

0:40:28 Thomas: Don't owe Dear, I I really don't think so, but okay, uh I do not know, go ahead, yeah

0:40:45 Andrew: So Voir dire is the process of examining potential jurors I

0:40:45 Thomas: Yeah Well we talked about that, but but I don't think you use the term voir dire.

0:40:53 Andrew: I think, oh, okay, I mean we can let uh our our patrons who have who have heard uh Law'd Awful Movies with Runaway Jury, which, by by the way, was hilarious.

0:40:56 Thomas: Okay. Yeah. Yeah. Maybe you, yeah, you should. Maybe, uh, maybe you did mention it and it just was so quick that, yeah. I would never have remembered. That's what it meant, but okay. You win, you win this round and most of these rounds, pretty much every round.

0:41:07 Andrew: Yep. But that's what that means. Know if we've done this one, but I hope we have. It certainly has come up politically, so you've got two ways of knowing about this. But Zabby and a couple of other folks Folks have asked about eminent domain.

0:41:28 Thomas: Eminent domain. Yeah. Isn't that when the government takes your land and decides it needs it for a government purpose?

0:41:34 Andrew: Yep, that's exactly right. What must they do to exercise the power of eminent domain?

0:41:35 Thomas: Okay. Oh, they have to compensate.

0:41:39 Andrew: There you go. They have to pay the fair market value of the property. They have the property for a legitimate public use. And so the current political controversy over eminent domain, it was a split in the Republican primary, is the sort of Ayn Randian side that that says, that should be construed incredibly narrowly, versus the Donald Trump side that says no, you know, because we've had jurisdictions, for example, that have seized property and then turned around and sold it to developers, right? Like as part of a downtown renewal plan, right. Like you could imagine you've got one house in the middle of an area that won't sell to the developer and the developer wants to put in one of these gentrification kind of projects.

0:41:39 Thomas: You for it right. Yeah, Yeah, Yeah,

0:42:29 Andrew: And and so by and large, courts have upheld the power of localities to seize under eminent domain, even though, you know, the traditional use has been for, you know, building roads or things like that where, you know, they've got to seize a part of your property because they're, you know, widening the highway or something like that. And it is it is more of a core governmental function. So there's a current dispute about whether it counts as a governmental function to, you you know, basically turn around and give it to, to, to private businesses. Yep.

0:43:00 Thomas: That's an interesting question.

0:43:03 Andrew: Well, I would love to do this again. There are a bunch of terms on here that, um. Uh, I, I have skipped some for time and some because it's totally unfair. We have never said them on the show. Uh, but, um uh, I'm going to keep that in reserve. I, you know, I hope we can, if, if your ego can handle it, I hope we can, uh, do this show again sometime because I think this was a lot of fun.

0:43:23 Thomas: I think This was all a big scheme from Andrew to feel like I still definitely need a lawyer present in the show. And And you know what? Not only did you not need to engineer such an embarrassing scheme to prove that you're such an expert, not only did not need you to do that, but it also was successful. And no matter how well I ever do on the bar exam, I will always still need my lawyer co-host, Andrew, to really provide the in-depth knowledge for us. So I was a complete failure, but I'm glad we all learned more about some terminology that I had no way of knowing, with

0:43:36 Andrew: I I think I think complete failure is way too harsh uh although given that last week you were threatening to replace me with the uh an automated bot reading from LegalZoom I am

0:44:11 Thomas: Legal Zoom? Yeah, well, to be fair, how would LegalZoom have done on this quiz? I don't know, maybe you just type it in and probably would have told me, you know, 100. yeah, So We'll See, we'll see, I still may replace you with Legal but, I just, can't this just proves that I can't replace you like personally, It's just, but, but LegalZoom might be able to. So I'm

0:44:20 Andrew: There we go all right jury is jury is still out okay yeah well but I I can't I can'T REPLACE YOU EITHER THOMAS SO THAT'S THAT'S how I go

0:44:36 Thomas: Easily replaceable. I, I, I think back to the Simpsons where they, where Homer leaves the job for some reason. They're like, how are we, we had a hell of a time replacing you. And it's just like a brick hanging on one lever.

0:44:49 Thomas: I think it's something like that is how you do it. So, all right, that was fun. Thanks for all the participation on that. And now we, uh, we all learned a thing or two. So appreciate that, Andrew. So a listener linked us to a, looks like a Facebook kind of post by Lily S. Axelrod, immigration attorney. And it's about calling people illegal immigrants, I suppose. And she makes some points here about that not really being a valid term. And I guess the listener, and I will include myself as well, are curious, Andrew, what to make of this. And so here's the first paragraph, I'll read a little bit, it's very long, but I'll read enough to maybe give us an indication.

So it starts with, "What part of illegal don't you understand?" Which I think is the maybe the argument she's arguing against. "In immigration law there's no such thing as an illegal immigrant. It's simply not a category that exists. There are people who are deportable slash removable because they don't have permission to be here or because they have permission to be here but violated the term of their stay or for some other reason such as a criminal conviction."

0:45:01 Clip: The law breaking down

0:46:01 Thomas: There are people who lack legal status and are also not removable. These are people who have no lawful status but are not unlawfully present. There are people who are removable but also eligible to apply to stay in the U.S. lawfully. There are people who would be eligible to apply and stay here lawfully, but the application is only available if the U.S. government first tries to deport them. There are people outside the U.S. who are not eligible to come in legally, but if they were here, they would be allowed to stay. There are even people who are simultaneously deportable and eligible to apply for citizenship. Uh, she goes on, but I guess, what do we make of that so far, Andrew?

0:46:43 Andrew: I like this was brought to our attention. And I should say, again, I'm not an immigration lawyer. I've checked out Ms. Axelrod's credentials, and they seem to me to check out. And in general, I endorse the sentiment that's behind this post, which is the use of the term illegal immigrant is probably not helpful and is oversimplification of law. Lots of different overlapping issues, and just kind of using a single term to apply to all of that is, you know, sort of more politically confusing than it is politically insightful, right? And so,

0:47:25 Thomas: Yeah, I don't know, I got to admit something, something here. I've read that, I, I heard this argument and I, I wonder, my sort of liberal bullshit meter went off a little bit because I kind of wonder how much this distinction matters because the bottom line is that there are people who are here legally and there are people who aren't, but maybe I'm wrong. Maybe there are enough different categories to where it matters. But I have sometimes wondered if this is a bit of a liberal self-serving argument, argument that just makes it more and more so that people who by all, by all legal rights shouldn't be here are going to be referred to in ways that will make it seem like they should be here, to try to provide The counter argument.

0:48:12 Andrew: No, that's good. And it's always good to sort of, you I think that that sort of dovetails into what I was able to research, which is I wanted to look at the claim that alien was not a legal term. Right. And I actually found one reference in the U.S. code to illegal aliens. So I would, I would, but it still sort of supports the underlying point. Let me get your opinion on this. So this is eight USC 1365. This was a 1986 law that allows the attorney general to reimburse a state for costs incurred by the state for the imprisonment of any illegal alien or Cuban national who was convicted of a felony within that state. Right. So 1986, Reagan administration, part of comprehensive immigration reform, says states can seek reimbursement from the federal government for having to put illegal aliens in prison. Right. So how does that statute, eight USC 1365, be define illegal alien?

0:48:38 Thomas: Interesting.

0:49:24 Andrew: It says an illegal alien is any alien convicted of a felony who is in the United States unlawfully and one whose most recent entry into the United States was without inspection, or two, whose most recent admission into the United States was as a non-immigrant and A, whose period of authorized stay as a non-immigrant expired, or B, whose unlawful status was known to the government before the date of the commission of the crime for which the alien is convicted. So, so that, that's where the term shows up as a legal term. Obviously, that's very, very narrow.

0:49:57 Thomas: I was going to say, would you expect if it were a proper term, you'd expect probably more references than just one, right?

0:49:57 Andrew: Right. Right, right. So I think the sort of general sentiment is there. And the way in which this comes out, I don't even know. I mean, to me, this is not even a kind of issue. It is much more a sort of, you know, practicing legal issue of the difference between someone who, you know, sneaks across the border versus somebody, let's say they were here on, you know, a tech visa, right? And they are working a, you know, $100,000 a year job programming, and they overstay that visa, you know, but they're, you know, they've declared their salary, they They're paying taxes. You know, they have, have a valid EIN. Obviously, right? I mean, those are the kind of categories that for a very long time. Even the most conservative, right. I mean I'm saying even the most. Let me rescind the statement, right, again, was not a liberal conservative thing, right It was a you'd have to be a moron to want to deport somebody who's abiding by the law and making $100,000 a year and paying $40,000 a year in taxes, right? Like why, you know, why, why?

0:50:40 Thomas: Yeah. Yeah.

0:51:13 Thomas: So just because their their visa expired and they, they haven't figured that out.

0:51:16 Andrew: Right. Yeah. Yeah. Right. So they're no longer, right. I mean, they're outside of their legal status. So are they any illegal?

0:51:18 Thomas: Okay. Yeah. Right. Yeah, I think that, that does sound

0:51:25 Andrew: Does that count the same as like hiding under a tarp?

0:51:26 Thomas: Like a good, yeah, because they didn't, right,

0:51:28 Andrew: You know?

0:51:29 Thomas: They didn'T immigrate illegally, but they, now their status, so maybe it does make more sense, as she's saying, to say, like, kind of removable or not, or deportable or not. Or, you know, so yeah, no, it does sound like there's more of useful distinctions to be made than simply illegal immigrant because that doesn't really cover it, doesn't describe it properly, so yeah, there you go.

0:51:41 Andrew: Yeah. Yeah. Yeah. And You get to the vagueness when you're talking about at things like an educational visa, right,

0:51:58 Thomas: I think I, that, think this post is useful in this segment, therefore, is useful to show that it's not merely a question, because there's also a liberal gripe that people have with, don't say, say, like, illegals, you could say, like, unlawful, you know, where you're just clarifying illegal as a noun versus, you know, using an adjective. And that's not what this is, which I think is important.

0:52:23 Andrew: Yeah, yeah.

0:52:24 Thomas: This is no, there's more terms. There's more distinctions than is simply covered by a binary legal or illegal. And so I think that's useful. Cool.

0:52:35 Andrew: I agree.

0:52:36 Thomas: All right. Well, it sounds like it is time for Top Patron Friday. Gosh, I wish we had an alliteration. Fantastic Patron Friday.

0:52:46 Andrew: You gotta be real careful with this. I

0:52:48 Thomas: Yeah. Fan-freaking-tastic Patron Friday. And that means we need to thank our all-time greats. Our Hall of Fame patrons. They are Roger Metcalf, Dan Irizarry, Eli Bosnick, Dave Nichols of Positively Doubtful Podcast, Steve Sigmund, Jim Grove, Desecrator, Patrick Fussell, Amanda Lipnack, LaBibliotecatrice, Heather Loveridge, Geeker41, Sean Pitty, Ian and Allie, Matthew Vernon, Violet Page Hall, Heath Enwright, Jeffrey Maynor, The Wayward Willis, Matthew Maxson, Xena, Dave Lovely, Danny Baker at Combat Nonsense, and Charone Frankel. Want to take the rest there, Andrew?

0:53:28 Andrew: And thank you to Squick Thinger, Ian Ryan, Matthew Hillier, Aaron Graddy, you are here, Aiden McCool, thank you too, Brandon Smith, to TV Is My Girlfriend, friend to nukes, Lion C6, Sarah, John Bodley Esquire, thank you to Hunter Ash, Kylie Riser, Jeff S, Sakashite Fukasumi, Philip Stromberg, Michael Schaefer, Michaela, thank, thank you to the Electronic Frontier Foundation at EFF.org, remember you can use your Hall of Fame patronage plugs to plug worthwhile organizations, thank you to the Inciting Incident podcast, thanks to Marissa Alexa McCool and her fabulous snarky publishy stuff, to the Net Sec Heathen, Frederick Alstromer, Sammy, Donald J. Trump, super genius, to Reeven Conrad Michaels, and our top patron Zabby, thank you all so much for being Hall of Fame patrons. No,

0:54:22 Thomas: Absolutely. And if you would like to be a Hall of Fame patron, go to patreon.com/law, pledge, uh, $5 or more per episode and enjoy the lovely Law'd Awful Movies content coming your way every month. It's a, it's always all of them. I think have been over two hours, two and a half hours. So hope, hope you're enjoying that.

0:54:41 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:54:47 Thomas: Okay. Uh, it's time. I feel like every, all the questions I definitely answered correctly earlier in this segment earlier in the show should count, but I guess I need to answer a, an official bar question. So let's have it. Oh,

0:54:56 Andrew: Okay. All, Right, question number 15, an elderly woman was mugged and robbed on a public street. At the time of the offense, the victim saw only her assailant's eyes, a hooded sweatshirt and bandana concealed the rest of his face. A few days later, while the victim waited to be interviewed, she observed the defendant being escorted through the courthouse in jail clothing and restrained by handcuffs and leg irons. She identified, she identified him as the perpetrator. Shortly thereafter, will the court allow that identification into evidence? Okay.

0:55:35 Thomas: Wow.

0:55:35 Andrew: So yeah. So I only see the eyes. Then the are marching. The defendant passed me in leg irons. And I say, looking at the eyes, say, oh yeah, definitely. And identify that person. Is that ID admissible as evidence? So your options are A, no, because it is not reliable enough and there was too much suggestion to make a reasonably accurate identification. B, no because prior statements of identification are considered hearsay and never allowed into evidence. C, yes, if the witness perceived the perpetrator by seeing his eyes and made the identification on that basis, it was reliable enough to be admitted. It. Or D, yes, because the witness's recognition of someone is all that is needed. The reliability or credibility of it is subject to cross-examination. So there are your four options, two no, two yes. What do we think?

0:56:38 Thomas: Gosh, this is an incredibly difficult question because I need too. I've been needing to try to differentiate between something that is like allowable, admissible, and then something that is actually good testimony, like worthwhile kind of testimony or whatever it would be identification. Justification, but cause I, I feel like you would need to do, we've talked about sort of the lineup question, I thought, where it's like nowadays there's like a book and it's got all kinds of different pictures, and I would assume that that's how you would do it. You would have like a large book of different suspects and you would just show their eyes or what amount that the person saw, and you would try to get an identification that way, I would think. But is that the kind of thing that's not even allowable? Oh, I, you know what, I really, I don't know, this is a very difficult question to me, but I think I need to just go with A, which I'm really torn between A and D. I, I feel like D could be the thing where it's like, yes, it's allowed, but it's just wouldn't be very reliable.

0:57:41 Thomas: But I also feel like it's such a suggestive situation to see somebody in the shackles or something and then say, ah, ah, that's a guilty person, but this is going to burn me. I's going to go with D. I hope that it's allowed, but then that you would, you would just kind of dispute it and cross-examine it or something like that. And I'm sure I'm wrong, but I just don't quite like the language of A enough. It doesn't, I don't know. It doesn't sound right to me.

0:58:07 Andrew: OK, well, we will find out next Tuesday. If you'd like to play along with Thomas, as always, uh, you can play along on Twitter, we release this episode via an announcement tweet, if you quote and retweet that announcement and include therein your guess and your answers, uh, you can append a little image, which people have done when they needed to make 900 word analyses, uh, sometimes we pick that, sometimes we, we pick a single sentence, really pithy answers, but play along, keep score, challenge your friends. This has been a lot of fun, and look for the hashtag TTTBE. That's how to play along on Twitter.

0:58:50 Thomas: Yep. And of course, I'm sorry. I'm just too, I'm too distracted by how impossible this question was. I feel like, ugh. All right, I'm really nervous about this one. I was trying to, I was so happy because if I get it right, I go nine of 15, which is a nice even 60%, but if I don't, then I'm down to eight of 15. So anyway, if you want to play on Facebook, hit that share dot dot dot, share our post, write a little answer there, and all the same stuff that Andrew just said applies to that as well. So thanks to everyone who plays, and we'll find out next week how much of a failure I am as a lawyer.

0:59:27 Thomas: All right. That's it for our show today. Thank you, Andrew, as always, for being such an expert. Thank you listeners and patrons for all your contributions to our little terminology segment. They're more, so much listener and patron participation. It's really cool. The best part about this show, I've got to imagine, Andrew, I mean, from my experience with other podcasts, like I've gotta imagine we've got some of the most listener participation that there even is, like it's, it's remarkable, just emails, posts, everything, TTTBE, it's really cool, I love what we're doing here, and the fact that so many people get to be a part of it, and kind of go, and we get to go back and forth with so many different listeners, so thanks for that, and that's all I have, anything from you, Andrew? Yeah.

1:00:11 Andrew: No, I would reiterate that. And I would say thanks to Thomas for all of your help in defining those legal terms. You did great. All

1:00:19 Thomas: All right, we, we will see you next week.

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