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OT: A LEGAL QUESTION


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I trust that some of you work in the law, for I have a poser that has troubled me for years.

Suppose that at least one of the Justices of the US Supreme Court is an angler, and he wants to take a vacation dedicated entirely to fishing. Wishing to be as far away from judicial business as possible, he goes to Guam. Naturally he is greeted by the authorities of Guam, and he obliges by participating in social events, but he soon settles down to the real business that brought him to Guam, sport fishing. Hardly has he started his fun that he gets into trouble, because he is caught fishing in an area where an old law forbids unauthorized fishing. The reaction of the authorities is total surprise and amazement and disbelief, because the law in question is a withered old piece of legal driftwood that even the Supreme Court of Guam has forgotten is still in the books.

Should that Justice, or any other person, including a citizen of Guam, be penalized for breaking a law that no one, not even the Guam judicial system, was aware existed? In AROUND THE WORLD IN EIGHTY DAYS, Passepartout causes a riot when he enters a Hindu temple without removing his shoes, as is Hindu protocol. Can he be blamed for not knowing what is not allowed in a country that is not his own? It's obvious that in, say, Ukraine, it is illegal to commit murder or robbery, as is the case with all other countries, but what about legal things that pertain exclusively to Ukraine and the Ukrainians? Should a foreigner be penalized for breaking a law or rule whose existence is known only to Ukrainians?

My point, as you must have deduced by now, is that there is, or should be, a limit to the principle that IGNORANCE OF THE LAW IS NO EXCUSE. Honestly, is there even ONE person in the world who can always safely abide by that principle because he knows full well EVERYTHING THAT IS ILLEGAL AND FORBIDDEN in every one of the millions of population centers of the world?

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A Stranger In Town is a great classic movie. These types of things used to happen in many towns, counties, states, etc. Back in the years before the Federal Government began to make a lot of local laws standard in every part of the US, some local areas had odd local laws so they could make some extra fine-money off of tourists and out of state people.

 

Some small towns would put up speed limit signs on a major two-lane highway, just inside the city limits, then they would plant shrubs and bushes to cover up the signs, so that people traveing on a highway at 50 or 60 miles an hour would suddenly enter a 30 mile an hour zone without realizing it, and a cop would be waiting nearby to trap tourists.

 

Some towns like Gallup, New Mexico, would have the policemen take a person's drivers license and require the person to go to court to get it back and to pay a fine. They had a night court system set up which would generally required the traveler to stay overnight, eat at local restaurants, etc, so they could all make a lot of money using this entrapment system.

 

A Stranger in Town:

http://www.youtube.com/watch?v=sTKGLd3kGK4

 

Here is an old TV show about the same type of thing:

http://www.youtube.com/watch?v=d-fHI-jV7k8

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We had a similar flap like that here in Michigan concerning an old, long forgotten public obscenity law. The guy wound up having to pay a fine and do some community service, if memory serves.

 

As far as unwittingly breaking long forgotten laws or unknowingly disrespecting social customs in another country, it is only my opinion that the perpetrator not be punished. If he/she is of reasonable conscsience, then a sincere apology will be gladly forthcoming. In the case of the Supreme court judge hypothesis, I'm sure the judge would be of the mind and character to do whatever needed to make things right.

 

Sepiatone

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The short answer boils down to prosecutorial discretion, the discretion of the jury if it is a jury trial and the discretion of the judge at sentencing.

 

It's up to a prosecutor to decide if they want to press charges. In the case of a long forgotten and unenfoced law, this may well come into play.

 

The fact that the defendant was ignorant of the law may be taken into account at sentencing. If the law was long unenforced and is a relic on the legal books, that may result in the judge dismissing the case, even if brought by the prosecutor. Absent mandatory sentencing guidelines, the judge has wide latitude to go easy on the defendant. He can also order a suspended sentence.

 

If the matter is put to a jury, the jury may sympathise with the defendant and vote for acquittal. This may happen in the event that an archaic law is pulled out of nowhere, one that has not been in force for a long time. The jury could fault the prosecution for being persecutirial.

 

There is a lot of discretion in the enforcement of legal process, jury outcomes and judicial penalties. The law is not a science like mechanical engineering. Outcomes of court cases are never 100% predictable, for either side.

 

 

Not sure why you brought this up on a classic film site.

 

speakthelma.gif

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Thank you for your reply, which is very helpful.

I have been reading the threads here since December, and the posters have impressed me as well informed and knowledgeable people, so naturally I am eager to know what they would respond to this legal question that has puzzled me for many years, ever since I saw characters in several movies and TV shows having to endure the consequences of inadvertently breaking laws that were totally unknown to them.

Thelma Todd was one great beauty.

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Your welcome Palmerin!

 

A vital concept in criminal law is "mens rea", which is Latin for "guilty mind". The defendant must knowingly commit an unlawful act or act with evil intention. If the act was accidental, or the defendant had no idea that what he was doing was illegal or wrong, that can affect the severity of the charges if brought, if they are brought. For a prosecutor in a murder case for example, that can mean the difference between a manslaughter vs. murder one charge.

 

A judge can take a lack of mens rea into account at sentencing. In the event the violation is clearly wrongful behaviour, judges tend not to like it when the defendant is unremorseful and appears to use ignorance of the law as a straw defense.

 

The hypothetical you gave would raise suspicions of a politically motivated vendetta and selective prosecution. It would definitely attract media attention and force the prosecutor to explain why, all of a sudden, he is dusting off this old obscure law and for this particular defendant.

 

(As you are new to this website, FYI that Thelma Todd GIF is my "signature" panel Yes, she was beautiful! Given that I have appropriated her name around here, I hope not to bring shame to her memory by my activity here!)

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There was a murder case down in Nicaragua a few years ago that received some press coverage in the US.

 

A young American guy started a business down there and had a Nicaraguan girlfriend. She lived in a town a couple of hours drive away from where he worked.

 

Someone murdered her and a lot of local people in her village automatically suspected him, because a lot of Nicaraguans dislike Americans, and they have disliked them for a long time, ever since the invasion of Nicaragua by US Marines in the 1920s and their assassination of the revolutionary, Augusto Sandino. (See Frank Capra's movie FLIGHT).

 

The young man's own private investigators suspected the killer was a young local man who lived in the girl's village.

 

At the trial the young American gave the judge a list of people he would like to testify on his behalf, who would assure the court and the jury that he was a long way away at the time of her death.

 

The judge ruled that his witnesses would not be allowed to testify because they would only back up his story that he was out of town, and, thus, their testimony would not be reliable.

 

Doh....

 

http://en.wikipedia.org/wiki/Eric_Volz

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I understand and appreciate your concerns in this matter. I have found also difficulties in adjusting to laws of which I know nothing. It is bothersome to me that it is against the law here to drive an automobile when there is not a person with a flag walking fifty feet in front to warn people of the automobile's approach.

 

I find that some laws cause me to wonder of the situations which caused their creation. In particular I wonder what occurred in Cheyenne, Wyoming which created a need to ban concealed weapons which are more than six feet long.

 

I think it unfortunate that you choose Ukraine as example of a place where people might run afoul of odd laws. I know well that in major cities that odd laws are of no problem. The police are paid little by the government with the understanding that the majority of their income will be gratuities paid to them by people who are thanking them for reminders that they are breaking the law. It is more than five years since I have lived there but the standard of the time was that $10 was a proper tip for them when they advised you that your level of intoxication exceeded what is customary for people in public. Such a gratuity when properly offered would ensure their good wishes and their finding a taxi to take you home.

 

To break a little-known law in Odesa or Kyiv most often means that the police officer'has had an unexpected expense such as their car needed a new transmission or their rent was raised with no warning. A $20 tip on these occasions is appropriate for the information which they provided concerning peculiarities of law and would assure their good wishes.

 

I feel the greatest danger in Ukraine concerns not understanding basic traditions rather than breaking obscure laws.

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> They are yet to discuss the shortage of clowns in the U.S.

 

 

If Will Rogers were alive today, he would suggest that any circus in need of a clown just approach the congress. There are many there not DOING anything at the moment!

 

I heard about that case in Nicaragua. How did that eventually turn out? It seems similar to the case of that poor American girl in Italy. But neither is a case of breaking some obsure law or unwittingly disrespecting a custom unknown to the perpetrator.

 

The late syndicated columnist Burt Bacharach( the songwriter Bert's father) would occasionally bring up obscure laws still on the books. The one I remember best was a law in some small town in Wyoming that stated: "It is unlawful for men to spit to the left on Sundays between the hours of Noon and 5:00 pm."

 

"Ignorance of the law is no excuse" is an old axiom that needs to be rethought. If, for example, the breaking of some law in which no one was hurt as a result, the "punishment" for the breaking said law should be mild to negligible. But I can't imagine anyone doing something that HARMS anybody NOT knowing such action might be unlawful.

 

Sepiatone

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To Fred and SansFin:

 

Palmerin's original post referenced Guam, which is a US dependency and whose courts are under the jurisdiction of the American judicial system.

 

When we reference other nations, especially "lesser developed countries" like Nicaragua or the Ukraine, an entirely different game and set of "rules" comes into play. The "lesser developed" that lesser developed nation is, the more likely matters have to be settled by bribery than by invoking fine points of law and procedure!

 

As SansFin suggested, your first "line of defense" is usually to try bribing the police officer, as likely he is a free lance "commission agent" extorting payoffs from people in exchange for avoiding arrest. This problem is rampant in poor countries.

 

If charges are brought by a prosecutor, or the matter escalates to a prosecutor, then you are facing a more serious situation, and you will have to be quite solvent to extricate yourself from the mess. There is a good chance your defense attorney will offer to "fix" the matter with the judge, but the price will usually be steep. For serious charges pertaining to drug trafficking or murder, the requested payoff will be substantial. He'll take the money, but often there is no assurance that it will work. That attorney is as corrupt as the police, and working for himself.

 

Anglo-Saxon law has long established the concept of release on bail, as the defendant is assumed to be innocent until proven guilty. Legal traditions of many other nations have no such presumption, nor is there the possibility of release on bail in some countries. Once, arrested, you may face incarceration until the trial. It sometimes takes many months and even years for a matter to come to trial in some countries. Some people have been held for as long as two years in jail before their case came to trial.

 

Many nations do not guarantee the right to defense counsel; hence no provision for a "public defender" for financially strapped defendants. Such people are entirely at the mercy of the court and in many places, that's not saying much!

 

In the event of a conviction, there is the possibility of an appeal. Again, there may be no provision for bail and it may take years for the case to make it to appeals. An appeal will afford the attorney the opportunity to ask for more bribe money to help "fix things" with the higher court.

 

A very bad thing to get involved in is being a drug "mule". Many naive people are recruited for this, and many times they have been set-up for an arrest. The authorities, cops and drug dealers are frequently in collusion with one another over the profits of the trade. The traffickers will offer up a "sacrificial lamb" to the authorities for arrest, as part of of an agreement to help the police maintain an image of being diligent crime fighters, in exchange for police overlooking the bulk of the trade. That means the airport officials and other cops are tipped off by the traffickers that so and so is carrying!

 

It's part of a scheme whereby the traffickers offer up such people as part of paying "protection" to corrupt authorities. Thus the cops can make a show out of fighting crime, and can pose before their public as guys who are on the job and doing their best to fight trafficking. It's all a sham of the worst kind. For the traffickers, the loss of the drugs confiscated from such captured mules is written off as a cost of doing business. In some cases, the confiscated drugs are returned by the authorities to the traffickers! For every mule caught, many, many more get through.

 

Edited by: ThelmaTodd on Feb 20, 2014 11:16 AM

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Hello finance,

 

When we confine discussion of such travel risk to potential legal jeopardy, then I would have to say that American tourists are probably at less risk than locals, provided they are sufficiently solvent and confine themselves to normal tourist-y behavior and hangouts. (They won't usually target tourists who stay in good hotels and resorts- these countries welcome the tourist dollar!) Minor traffic infractions can usually be fixed by a pay off to the officer; in fact he may have stopped you for just that purpose!

 

Getting involved with drugs (especially drug trafficking), with political activism and agitation against the existing government, engaging in criminally reckless behavior, hanging with low lifes or act like a low life yourself- and the bets are off and you may be in for a life lesson you won't forget! You'll quickly learn that you aren't in the USA anymore, and everything you learned watching Perry Mason and LA Law goes out the window!

 

Young people who like to hitchhike and bum around on a shoestring with a back pack can be vulnerable to harassment by authorities in many parts of the world. (Don't travel with a guitar; it says drug user and hippie bum to customs and police in many nations!)

 

The poorer the country, the more important becomes the issue of who (if anybody) are your friends among the local people in the event you do get in trouble. If your friends are people from wealthy and influential families, that can make all the difference in the world. The poorer the society, the more it tends to run on the crony principle. Have the right friends and you can get out of any jam and get away with just about anything.

 

Note: Americans who get in trouble abroad sometimes have this misconception that the local American Embassy has magical powers of intervention. They do not! Embassies do not intervene on your behalf to get you out of "jams", not unless they get specific instructions to do so from the State Department. You would have to have some very fancy friends in Washington for that to happen! Embassies will confine themselves to inquiring whether you have been treated OK (considering your situation as an arrestee) and whether you would like them to contact your family. That's it bucko!

 

Edited by: ThelmaTodd on Feb 20, 2014 4:13 PM

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>Getting involved with drugs (especially drug trafficking), with political activism and agitation against the existing government, engaging in criminally reckless behavior, hanging with low lifes or act like a low life yourself- and the bets are off and you may be in for a life lesson you won't forget!

 

Yes, yes, yes!

 

Do you remember that poor dumb American girl who got involved in radical politics in some South American country like Peru. She was arrested and when she went into court she called a bunch of the local judges fascists? She's been in prison in Peru for about 20 years all because of her bad courtroom attitude.

 

http://en.wikipedia.org/wiki/Lori_Berenson

 

What a nightmare!

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I appreciate the compliment Fred!

 

My childhood upbringing and influences can be a lesson to others. Ever since I was a small child, my parents and their friends always told me I was smart and can do anything I set myself to. That kind positive reinforcement, especially from parents and adults, is vital for a child developing their potential. I believe that almost all children are smart and represent a great potential. Tell a kid he or she is dumb, and it can scar them for life and hinder their development. That can become a self-fulfilling prophecy. (Just like telling them they are smart!)

 

Ever since I was a tot, my mother read books to me and cultivated in me a lifetime love of books and reading. Reading is important to mental development and intellectual curiosity. It allows us to digest information about life and the world that lies beyond our immediate experience.

 

I have always maintained a strong curiosity about most anything. Curiosity is an important driver to cultivating the mind.

 

About my education: University of Notre Dame, Finance, University of Toledo, College of Law.

 

PS: Yes, I have traveled a lot and speak 3 languages. Travel allows you to compare societies and weigh their relative strengths and weaknesses. And, no, I have not gotten into any "jams" abroad! Here, the wise person learns from the experiences of others!

 

PSS: I do remember the case of that girl. Get involved with politics and protests in some of these countries and you better prepare for martyrdom!

 

speakthelma.gif

 

Edited by: ThelmaTodd on Feb 20, 2014 4:46 PM

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