A year or so back I had a really bad shoplifting case. There was no way to win and no way my client was pleading guilty. It was so bad that when I got to court the prosecutor had decided to let one of her third year, trial certified law student interns try the case (which only happens in open and shut felony cases).
We go through the case; it's as bad as I thought it would be and the intern is sailing though. It's just been too easy. Perhaps feeling a little mischievous, I slip into legal garbalese in my closing argument. I went on and on arguing that while the prosecution may have proven asportation it never proved caption. I don't know if other jurisdictions use these terms in larcenies but I know I'd never heard of them until I started reading Virginia case law. And even then "caption" wasn't in my copy of Black's so it took a little bit to figure out. I finish up with some sort of grand statement like "And, of course, as we all know, your Honor, since they haven't proven caption my client can't possibly be found guilty of larceny." Walking back to the defense table I glance over at the intern. He looks absolutely lost. When the judge asked for rebuttal the prosecutor had to ask the judge to give her a few minutes to explain. The prosecutor then spent at least 5 minutes explaining it to him before he got up and started speaking. Even then he didn't use the terms; instead he spoke of exercising dominion and control and carrying something away. To this day I'm not sure he knew which one was caption and which was asportation.
Teach them to sic an intern on me. Next time I'll have to memorize two or three Latin phrases so that they come tripping off the tongue. Maybe something like:
As we all know, your Honor, the police philosophy in this sort of situation is "Conlige suspectos semper habitos."Heck, I could even use some of these with Tom the next time we have a trial. During my opening argument I could tell the jury: "Ladies and gentlemen, Mr. McKenna rudely keeps trying to throw my clients in prison. Sometimes I just want to turn to him and ask, "Nonne de Novo Eboraco venis?"
Your honor, the officer was clearly on a fishing expedition. You'll note that he didn't say "Dic mihi solum facta, domina."
I know my client hasn't yet paid the restitution however, he assures me "Perscriptio in manibus tabellariorum est."
10 comments:
Asportation I knew, from being an annoying dictionary reader, but what is caption? Obviously, "dominion and control", and I can guess the root, but in your specific legal context, Heading or introductory party of a pleading doesn't make much sense.
From Webster's 3d New International (1971):
Caption: archaic: act of taking or seizing: seizure.
I've never seen it used that way except in Virginia case law and seizure (under case law) does seem to mean more than just picking something up. In other words, caption doesn't occur when you pick up a DVD and carry it to the cashier to buy. However, it does occur when you pick it up and head out the door without paying (or stick it in your pocket).
So who won?
.....
Windypundit said...
Good lord. You know, if you tossed out that sort of thing more often, maybe your clients would think you were a real lawyer after all.
So how do you prove that someone carried something away without also proving that they had dominion and control? Or were you just [mess]ing with him?
The prosecution won. Video tape of Client waving someone inside the store, handing that person both the item and keys to his car, and that person turning and walking straight out of the store was pretty hard to get around. Client and compadres had a story but there would have been moments on the tape where there were conversations (nobody spoke on the tape; they just acted) for it to have been semi-believable.
..."and so who won"? I need to know!!!
WP,
To a lot of my clients "dominion and control" and "take and carry away" are impenetratable legalisms; I don't have to go as far as I did here.
Well, I wasn't just "messing with" the intern; that would be wrong. I was trying to give him a sense that he earned his victory and perhaps learned something along the way. Yeah, Yeah . . . that's the ticket . . .
They proved someone else carried the item away from the store. Of course, the item was found locked in the trunk of Client's car after he left the store, but still, she took it and the defense would be something along the lines of "She meant to steal it, he just meant for her to put it back on the shelf and then go out to the car and get his smokes."
Two people. Aha, now I understand.
(And, ah, sorry about the language problem. I accidentally clicked "Publish" instead of "Preview" so you got the unrestrained first draft.)
My state still uses asportation, so any intern that we'ed let into court would would know what that meant. The last time caption appears to have been used in the sense of taking control of an object, as opposed the heading of a pleading, appears to be 1863 or thereabouts.
American Heritage notes : "[Middle English capcioun, arrest, from Old French capcion, from Latin capti½, capti½n-, from captus, past participle of capere, to seize."
"Vae victis"? Brennus has a blog?
Post a Comment