The view taken refers to Lockett V. Ohio wherein the Court set aside the Ohio's Death Penalty Statute as unconstitutional because "it unduly restricted the mitigating evidence that a jury could consider in deciding whether to impose the death penalty".
Referring to Lockett The court analyzed - "...a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character, record , and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.."
While discussing the California death penalty statute, the court explained that the statute rested on the assumption that California could preclude consideration of mitigating evidence. The Statute limited the jury's inquiry into 11 discrete categories of evidence. The factors relate to the severity of the crime which the defendant was convicted. The eleventh factor was the factor (k).
Supreme Court of US explained that in People v. Easley, the California Supreme Court discussed the possibility of unconstitutionality of penalty instruction and inserted a footnote effectively amending factor (k) to expand the evidence the California jury could property consider as a mitigating factor "...any other aspect of [the] defendant's character or record. That the defendant proffers as a basis for a sentence less then death...”
After the Skipper the court explained "the law was clear: A capital jury must be allowed to consider a broader category of mitigating evidence than normally relevant in no capital proceeding". Skippers did recognize that probative (evidentiary) value of the excluded evidence "would not relate specifically to petitioner's culpability for the crime he committed, there was no question that such inferences would be "mitigating" in the sense that they might serve 'as a basis for a sentence' less then death". In other words, although the evidence may have little to with culpability, but in capital sentencing cases, it might serve as a base for sentencing "less then death".
Analyzing the mitigating evidence in Belmontes, the court recognized the testimony of grandparents of the respondent, his association with CYA (California Youth Activity), testimony of his friend Robert Martinez and Martinez's wife, involvement of respondent in Christian program, respondent's life in prison, his affirmation to make positive contribution to society, testimony of minister Barrett, minister Miller, testimony of the respondent's sponsors in the M-2 program.
After considering the oral testimony, the court reached three conclusions "first, excepting questions concerning the sincerity of respondent's religious convictions, there was no significant dispute about the credibility of the witness; (2). little if any of the testimony extenuated the severity of respondent's crime (3). the testimony afforded the jury a principled basis for imposing a sentence other then death.."
Referring to the prosecutor argument that "the kind of sympathy the instruction tells you to consider naturally arises from the factors in aggravation and mitigation". In other words, according to the prosecutor, the Factor (k) restricted the jury's consideration to the sympathy arising after discounting the aggravating factors against the mitigating factors. The prosecutor laid importance of the "value to community" and not to "religious awakening" and the prosecutor's assertion that "a dreadful crime requires a dreadful penalty". In this context, the defense arguments were considered. Referring to Attorney Schick the court pointed out that "he admitted that respondent...needed to be punished" and "exphasized that religion does not excuse the murder".
On considering arguments for both sides the court said that "in sum both the counsel agreed that none of the mitigating evidence would detract from the gravity of the crime".
The Principal jury instructions were verbatim from 7 of the 11 traditional sentencing factors set forth in the statute. Two mitigating evidence were included. They were (1). Respondent’s ability to perform constructive work & (2). Live in confinement without act of violence. On argument from prosecutor that "none of the proposed mitigating instructions here relates to circumstances concerning the crime.." the judge refused to include the mitigating instructions by observing that the instructions were "over-laden" with factors in mitigation rather than in aggravation. The defense counsel's request was modified in that the jury was told that the instructions did not contain an exhaustive list of mitigating factors. The instructions with an admonition that "you must accept and follow the rules of law as I state them to you" were read out, the subject to determine penalty was considered focused on 7 of the 11 instructions, last one being factor (k) asking the jury to focus attention of any other circumstances that "extenuates the gravity of the crime.." According to the Supreme Court (in contrary view), the jury shall consider "applicable factors" (seven of which the judge finished reading).
The court observed that (1). All evidence [except as hereafter] instructed (2). 7 of the 11 factors were repeated that extenuated the crime (3). The jury was to consider, take into account and be guided by the applicable factors of the aggravating and mitigating circumstances upon which the jury was instructed.
Interpreting the statement of the judge "the mitigating circumstances which I have read for your consideration are given to you merely as examples of some of the factors that you may taken into account...” was explained in context of the following sentence "
Pay careful attention to the factors". Explaining the sentences jointly the Supreme Court said that the mitigating factors were restricted to those listed and none other. The court disagreed and opined that "future conduct" even arguably did not "extenuate the gravity of the crime". Rather then inviting an open-ended review of mitigating factors, this would be "more than a stretch to say that the seriousness of the crime itself is affected by the defendant's subsequent experience".
The court therefore concluded that listed mitigating factors did not encompass any mitigating circumstances which were irrelevant to the task of "simple weighing" which the jury was to perform.
In this context the jury questions were interpreted. The testimony offered by the respondent provided "permissible basis" for imposing sentence other then death.
The judge's responses cemented the impression that juror's lone duty was to weigh specified, limited statutory factors against each other. The judge took a view that jury "be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed . Due to this the Supreme Court explained that "Skipper-type" mitigating evidence was excluded. On this basis, the Supreme Court affirmed the California Supreme Court judgment by saying that it "correctly set aside respondent's death sentence requiring likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence".
According to Supreme Court the "Boyde...adopted a new legal standard for reviewing jury instructions claimed to restrict impermissibly a jury's consideration of relevant piece of evidence. Applying the "new legal standard" Boyde's argument that factor (k) excluded the mitigating evidence was rejected. The court in Boyde's did not expressly suggest that factor (k) allowed for consideration of Skipper-type evidence. All that the court suggested "that factor (k)... resented "overall strategy to portray himslef as less culpable" and therefore his evidence fell within factor (k).
Therefore, the Supreme Court explained in contrary view that "Boyde did not purport to hold that factor (k) naturally called for consideration of postcrime changes of fundamental views". This is how the court said that Court's opinion in Boyde fail[s] to support an improbable argument that respondent's mitigating evidence falls within factor (k)'s purview. Similarly the Supreme Court observed that Payton lends no succor to this case either. Considering Justice Scouter's dissenting opinion (rather then the majority deferential review), the Court found "that factor (k) [did not] consider defendant's personal development" and any claim to this effect was "at odds" with common attitude and English language. Secondly, Paton did not bring out confusion amongst jurors as in Belmontes neither did Payton have a defense attorney who claimed not to "insult" jury by "telling you I think [the mitigating evidence] excuses in any way what happened here".
The contrary view states that the jurors are unlikely to note subtle distinctions between words "circumstances of the crime" and "any other circumstance". The highly technical parsing of factor (k) depends of linguistic distinctions occurring to trained lawyers and not to 12 laymen to whom the Court cannot seriously insist a command on constitutional law. The dissenting view opined that dubious premise that the juror would understand "remorse" to be a species of postcrime evidence was unpersuasive. The minority view held the court was heaping on "speculation on speculation". The incremental value according to the Court of the California death sentence was far outweighed by the interest in maintaining confidence in the fairness of any proceedings that results in the State's decision to take the life of one of its citizens.
The factor (k) was thus canvassed to be unconstitutional.
Sunday, August 12, 2007
FACTOR (k)
03/08/2007
The Supreme Court of United States in Robert Aayers v/s. Fernando Belmontes is concerned about the jury instruction in the sentencing phase. The short issue is: in 1982, the respondent Belmontes was tried and the jury returned a verdict of murder in the first degree then determined he should be sentenced to death (the evidence at trial showed that Belmontes encountered Stecy McConnell who was struck 19-20 times and killed by him. The trial court directed the jury with factor k instructions. The factor k was a general and catch-all factor. Under Factor K the jury was instructed to consider "any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime".
What steps did Belmontes take before he approached Supreme Court?
Belmontes exhausted (1). direct review (2). state collateral proceedings (3). Federal Habeas Proceedings. Belmontes first exhausted state remedies and then filed amended Federal Habeas Petition.
Belmontes approached the Supreme Court of California where his sentence was affirmed. The United States Dist. Court of the Eastern District denied relief. The Court of Appeals for the ninth circuit reversed relevant part. Over dissent the rehearing was denied en banc.
Mitigating evidence lead by Belmontes:
In a sentencing phase the respondent introduced mitigating evidence to show inter alia that he would make positive contributions in a structured prison environment. He testified that during previous term under California Youth Authority - CYA he behaved in a constructive way. He embraced Christianity, formed good relationship with his Christian Sponsors, pursued religious life and was baptized. Although his religious commitment lapsed, he testified that he would once again returned to religion. Belmontes got chaplain and assistant chaplain to testify in his favor.
After presenting mitigation evidence, the closing arguments were made discussing how jury should consider the mitigating evidence. The trial judge included in his instructions the disputed factor (k).
Analysing factor (k) in Belmontes in light of Payton and Boyde
The Aayers V/s. Belmontes has been considered in light of Brown V/s. Payton and Boyde V/s. California.
In Boyde (concerned with pre-crime back-ground), a constitutional challenge was made that factor (k) precluded consideration of mitigating evidence unrelated to the crime, such as evidence of the defendant's background and character. Rejecting this claim the US Supreme Court explained that "proper inquiry, is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence?"
In Boyde's the defendant had an opportunity through factor (k)
to argue that his background and character "extenuated" or "excused" the seriousness of the crime. The court therefore rejected the plea challenging factor (k) by saying that it saw no reasons to believe that reasonable jurors would resist the view long held by society that in appropriate case such evidence would counsel punishment of a sentence less then death.
Analyzing Boyde, the court further said that exclusion of the mitigating evidence would require the jury to believe (1). that the court's instruction transformed all the favorable testimony into a virtual charade (2). disregard another instruction with required jury to consider all the evidence which has been received during any part of the trial of case.
This is what the court said it could not believe. Thus, factor (k) challenge was turned down by the court.
Similarly in Payton (concerned with postcrime rehabilitation), the prosecutor's argument saying factor (k) precluded consideration of postcrime rehabilitation evidence was turned down by the court. Court remarked that accepting the prosecutor's reading would have required a "surprising conclusion that remorse could never serve to lessen or excuse a crime". In Payton, the court observed that (1). defense had presented extensive evidence and argument regarding postcrime religious conversion and other good behavior. (2). Jury was instructed to consider all evidence admitted "during any part of the trial in the case, except as you may be hereafter instructed". (3). prosecution devoted substantial attention to discounting (postcrime evidence's) importance as compared to the aggravating factors. Based on these premise, the Supreme Court explained that the state court in Payton could reasonably have concluded that, as in Boyde, there was no reasonable likelihood that the jury understood the instruction to preclude consideration of the postcrime mitigation evidence it had heard.
Dissenting with the opinion of the Court of Appeals, the Supreme Court concluded that "the court of appeals erred by adopting a narrow and an unrealistic interpretation of Factor (k). The court explained that Factor (k) "did not limit the jury's consideration on any other circumstances of the crime which extenuates the gravity of crime rather the jury was directed to consider any other circumstance that might excuse the crime. Precrime background & character (Payton) and Postcrime rehabilitation Boyde therefore may extenuate the gravity of the crime.
In Belmontes, the court said "in any event, since the respondent sought to extrapolate future behavior from precrime conduct", his mitigation theory was more analogous to the good-character evidence examined in Boyde and held to fall within factor (k)'s purview. The defense adduced evidence of troubled upbringing and the respondent's testimony saying he could not use his difficult life "as a crutch to say I am in a situation right now, I'm here now because of that". The Supreme court recognized this assertion, forward-looking evidence of defense, testimony of two prison chaplains, respondent's church sponsors and considering these factors, the court said "the jurors could have disregarded respondent's future potential only if they drew the unlikely inference that 'the court's instructions transformed all of his favorable testimony into a virtual charade', it is impossible that the jurors were engaging in an exercise in futility when respondent present his mitigating evidence in open court".
The prosecutor in Belmontes suggested that respondent's religious evidence was weak. The Prosecutor argued "You know, first of all, it is no secret that the evidence upon which the defendant's religious experience rests is somewhat shaky". The court explaining prosecutor's argument suggested that "he was discussing the persuasiveness of the evidence, not the jury's ability to consider it." The prosecutor explained the evidence of "religious awakening" to be weighed across "value to the community later". He said "I think that value to the community is something you have to weigh in. There's something to that..Religion..should be no ground for either giving or withholding life..Let us turn it around and look at the other side of the coin. Suppose someone said he did not belong to a church and did not talk to a minister. Would that man deserve to die merely because of that?.. I don't think that that should be an influencing factor at all in that respect. I don't think the law contemplates that and I don't think it's right".
Countering the prosecutor's argument the Supreme Court explained that "respondent did not argue that the jury should consider the mere fact that he had discovered religion. Rather, as manifested by his arguments on appeal, the respondent wanted to use his religious evidence to demonstrate his future "value to the community," not to illustrate his past religious awakening."
The Supreme Court in Belmontes also recognized the defense counsel's closing argument "I am not going to insult you by telling you I think [the mitigating evidence] excuses in any way what happened here.. people who came in here [and] told you about [respondent] provided the jury with "a game plan" for what the respondent could do with his life". Analysing this statement the court explained "his remarks merely distinguished between a legal excuse and an extenuating circumstance..which extenuates the gravity of the crime even though it is not a legal excuse for the crime..This would have left the jury believing it could and should contemplate respondent's potential".
Considering "other instructions" the Supreme Court found "it quite implausible that the jury would deem itself foreclosed from considering respondent's full case in mitigation." The judge said the Supreme Court "told the jury" to "consider all the evidence which has been received during any part of the trial of this case, except as you may be hereinafter instructed.."
The court instructed the jury to consider all the evidence. If the aggravating circumstances outweigh the mitigating circumstances, sentence of death shall be imposed. However, if the mitigating circumstances outweigh the aggravating circumstances, sentence of confinement in the state prison for life without the possibility of parole be imposed. The judge gave supplemental instructions where listed aggravating circumstances and none other were to be considered for deciding that the death penalty would be an appropriate punishment. However, the mitigating circumstances read out were mere examples. Any one of them stand-alone may support that "death is not the appropriate punishment in this case" (thereby making it clear that jury was to take a broad view of mitigating evidence).
The Supreme Court in Belmontes therefore recognized that evidence and arguments "eliminate any reasonable likelihood that a juror would consider respondent's future prospects to be beyond reasonable doubt." The court found it implausible that the jury supposed the past deeds pointing to a constructive future could not "extenuate the gravity of crime" as required by factor (k) much less that such evidence could not be considered at all." The Supreme Court found factor (k) instructions giving support to the defense's central evidence rather then encouraging the jury to ignore it.
While interpreting the jury question, the Supreme Court pointed the flaws of the Court of Appeals' and supported the observations of California Supreme Court. The Court of appeals viewed that Juror Hern's questions regarding only listed mitigating factor "were on the table" (only those factors as listed and none other were to be considered) needed a clarification instructions which were not given by the court. Thus, concluding that the factor (k) instructions precluded the forward looking evidence. The Supreme Court pointed out that this was a only a way to interpret her (Juror Hern's) questions (and not necessarily a correct one). The Juror questions simply clarified the California's overall balancing process "which requires juries to consider and balance enumerated factors (such as age and criminal history) that are labeled neither as mitigating nor as aggravating".
Considering the above disposition, the matter was remanded back.
(For Contrary view, please see "Factor (k) - contrary view")
The Supreme Court of United States in Robert Aayers v/s. Fernando Belmontes is concerned about the jury instruction in the sentencing phase. The short issue is: in 1982, the respondent Belmontes was tried and the jury returned a verdict of murder in the first degree then determined he should be sentenced to death (the evidence at trial showed that Belmontes encountered Stecy McConnell who was struck 19-20 times and killed by him. The trial court directed the jury with factor k instructions. The factor k was a general and catch-all factor. Under Factor K the jury was instructed to consider "any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime".
What steps did Belmontes take before he approached Supreme Court?
Belmontes exhausted (1). direct review (2). state collateral proceedings (3). Federal Habeas Proceedings. Belmontes first exhausted state remedies and then filed amended Federal Habeas Petition.
Belmontes approached the Supreme Court of California where his sentence was affirmed. The United States Dist. Court of the Eastern District denied relief. The Court of Appeals for the ninth circuit reversed relevant part. Over dissent the rehearing was denied en banc.
Mitigating evidence lead by Belmontes:
In a sentencing phase the respondent introduced mitigating evidence to show inter alia that he would make positive contributions in a structured prison environment. He testified that during previous term under California Youth Authority - CYA he behaved in a constructive way. He embraced Christianity, formed good relationship with his Christian Sponsors, pursued religious life and was baptized. Although his religious commitment lapsed, he testified that he would once again returned to religion. Belmontes got chaplain and assistant chaplain to testify in his favor.
After presenting mitigation evidence, the closing arguments were made discussing how jury should consider the mitigating evidence. The trial judge included in his instructions the disputed factor (k).
Analysing factor (k) in Belmontes in light of Payton and Boyde
The Aayers V/s. Belmontes has been considered in light of Brown V/s. Payton and Boyde V/s. California.
In Boyde (concerned with pre-crime back-ground), a constitutional challenge was made that factor (k) precluded consideration of mitigating evidence unrelated to the crime, such as evidence of the defendant's background and character. Rejecting this claim the US Supreme Court explained that "proper inquiry, is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence?"
In Boyde's the defendant had an opportunity through factor (k)
to argue that his background and character "extenuated" or "excused" the seriousness of the crime. The court therefore rejected the plea challenging factor (k) by saying that it saw no reasons to believe that reasonable jurors would resist the view long held by society that in appropriate case such evidence would counsel punishment of a sentence less then death.
Analyzing Boyde, the court further said that exclusion of the mitigating evidence would require the jury to believe (1). that the court's instruction transformed all the favorable testimony into a virtual charade (2). disregard another instruction with required jury to consider all the evidence which has been received during any part of the trial of case.
This is what the court said it could not believe. Thus, factor (k) challenge was turned down by the court.
Similarly in Payton (concerned with postcrime rehabilitation), the prosecutor's argument saying factor (k) precluded consideration of postcrime rehabilitation evidence was turned down by the court. Court remarked that accepting the prosecutor's reading would have required a "surprising conclusion that remorse could never serve to lessen or excuse a crime". In Payton, the court observed that (1). defense had presented extensive evidence and argument regarding postcrime religious conversion and other good behavior. (2). Jury was instructed to consider all evidence admitted "during any part of the trial in the case, except as you may be hereafter instructed". (3). prosecution devoted substantial attention to discounting (postcrime evidence's) importance as compared to the aggravating factors. Based on these premise, the Supreme Court explained that the state court in Payton could reasonably have concluded that, as in Boyde, there was no reasonable likelihood that the jury understood the instruction to preclude consideration of the postcrime mitigation evidence it had heard.
Dissenting with the opinion of the Court of Appeals, the Supreme Court concluded that "the court of appeals erred by adopting a narrow and an unrealistic interpretation of Factor (k). The court explained that Factor (k) "did not limit the jury's consideration on any other circumstances of the crime which extenuates the gravity of crime rather the jury was directed to consider any other circumstance that might excuse the crime. Precrime background & character (Payton) and Postcrime rehabilitation Boyde therefore may extenuate the gravity of the crime.
In Belmontes, the court said "in any event, since the respondent sought to extrapolate future behavior from precrime conduct", his mitigation theory was more analogous to the good-character evidence examined in Boyde and held to fall within factor (k)'s purview. The defense adduced evidence of troubled upbringing and the respondent's testimony saying he could not use his difficult life "as a crutch to say I am in a situation right now, I'm here now because of that". The Supreme court recognized this assertion, forward-looking evidence of defense, testimony of two prison chaplains, respondent's church sponsors and considering these factors, the court said "the jurors could have disregarded respondent's future potential only if they drew the unlikely inference that 'the court's instructions transformed all of his favorable testimony into a virtual charade', it is impossible that the jurors were engaging in an exercise in futility when respondent present his mitigating evidence in open court".
The prosecutor in Belmontes suggested that respondent's religious evidence was weak. The Prosecutor argued "You know, first of all, it is no secret that the evidence upon which the defendant's religious experience rests is somewhat shaky". The court explaining prosecutor's argument suggested that "he was discussing the persuasiveness of the evidence, not the jury's ability to consider it." The prosecutor explained the evidence of "religious awakening" to be weighed across "value to the community later". He said "I think that value to the community is something you have to weigh in. There's something to that..Religion..should be no ground for either giving or withholding life..Let us turn it around and look at the other side of the coin. Suppose someone said he did not belong to a church and did not talk to a minister. Would that man deserve to die merely because of that?.. I don't think that that should be an influencing factor at all in that respect. I don't think the law contemplates that and I don't think it's right".
Countering the prosecutor's argument the Supreme Court explained that "respondent did not argue that the jury should consider the mere fact that he had discovered religion. Rather, as manifested by his arguments on appeal, the respondent wanted to use his religious evidence to demonstrate his future "value to the community," not to illustrate his past religious awakening."
The Supreme Court in Belmontes also recognized the defense counsel's closing argument "I am not going to insult you by telling you I think [the mitigating evidence] excuses in any way what happened here.. people who came in here [and] told you about [respondent] provided the jury with "a game plan" for what the respondent could do with his life". Analysing this statement the court explained "his remarks merely distinguished between a legal excuse and an extenuating circumstance..which extenuates the gravity of the crime even though it is not a legal excuse for the crime..This would have left the jury believing it could and should contemplate respondent's potential".
Considering "other instructions" the Supreme Court found "it quite implausible that the jury would deem itself foreclosed from considering respondent's full case in mitigation." The judge said the Supreme Court "told the jury" to "consider all the evidence which has been received during any part of the trial of this case, except as you may be hereinafter instructed.."
The court instructed the jury to consider all the evidence. If the aggravating circumstances outweigh the mitigating circumstances, sentence of death shall be imposed. However, if the mitigating circumstances outweigh the aggravating circumstances, sentence of confinement in the state prison for life without the possibility of parole be imposed. The judge gave supplemental instructions where listed aggravating circumstances and none other were to be considered for deciding that the death penalty would be an appropriate punishment. However, the mitigating circumstances read out were mere examples. Any one of them stand-alone may support that "death is not the appropriate punishment in this case" (thereby making it clear that jury was to take a broad view of mitigating evidence).
The Supreme Court in Belmontes therefore recognized that evidence and arguments "eliminate any reasonable likelihood that a juror would consider respondent's future prospects to be beyond reasonable doubt." The court found it implausible that the jury supposed the past deeds pointing to a constructive future could not "extenuate the gravity of crime" as required by factor (k) much less that such evidence could not be considered at all." The Supreme Court found factor (k) instructions giving support to the defense's central evidence rather then encouraging the jury to ignore it.
While interpreting the jury question, the Supreme Court pointed the flaws of the Court of Appeals' and supported the observations of California Supreme Court. The Court of appeals viewed that Juror Hern's questions regarding only listed mitigating factor "were on the table" (only those factors as listed and none other were to be considered) needed a clarification instructions which were not given by the court. Thus, concluding that the factor (k) instructions precluded the forward looking evidence. The Supreme Court pointed out that this was a only a way to interpret her (Juror Hern's) questions (and not necessarily a correct one). The Juror questions simply clarified the California's overall balancing process "which requires juries to consider and balance enumerated factors (such as age and criminal history) that are labeled neither as mitigating nor as aggravating".
Considering the above disposition, the matter was remanded back.
(For Contrary view, please see "Factor (k) - contrary view")
Thursday, August 2, 2007
Wanna Protect Property - Think of using criminal law
In India offenses against the property are those raising deep concern. Say you are an owner of an apartment or a house. You want to let out your property. When this thought strikes you, remember that you have all reasons to be scared. The guy whom you permit in, may go to court and say that he was a tenant or he held a license which could not have been cancelled except upon some contingency.. so on and so forth, there are thousand excuses in India law which permit such rouges to approach courts, file cases, show prima facie case, get interim relief and after doing all such things which rouges normally do, your case can hang on and on for years in our courts waiting for the justice which may never come. Did you find it difficult to believe prevalence of sad state of affair? If yes, understand that you are not aware about Indian system.
The question is : what should be done to bring these rouges to justice. Remember when two ways are possible – one criminal and another civil mode of actions, I have found that criminal mode of actions, if available for some or other reason, is far more effective then the civil course of action (remember “then”, because, even criminal cases drag on and on for years with no results forthcoming and after results you always have option of post conviction bail, revisions, appeals, writs et al to drag time).
Our law is rather absurd. If you snatch a chain, then for sure, you did a crime should you get caught. But if someone gets into your property, ensnares it for a hundred years; the other side isn’t criminally prosecuted, even if that “somebody” looses his case after years and years of contest and forcing you spend half of your precious life contesting cases.
Does this fade our hopes? I think it is not a bad idea to be an optimist. So let us think over what can we do if we have some stranger occupying our property against our wishes. Let us understand some criminal actions which we possibly can take (of course this is subjective and depends all on your individual circumstances and case). But this is a general idea which for all good reasons, I am writing to help you out. I am not discussing civil actions, because according to me they are anyway useless when you are in India. So read on..
CRIMINAL ACTIONS for offenses against property:
1. Criminal Trespass:
This is an offense defined under the Indian Penal Code – IPC. It says that whoever enters into a property of another to (1). Intimidate (2) insult and (3) annoy the person in possession of the property with such an intention commits this offense.
Remember whenever you go to court and say that such and such offense has been committed; you may attach your general notions about the offense. Say a trespass. You may feel that moment somebody enters into your property, against your wishes, he commits a trespass. May be you are right. But you need to give your accusation a finishing touch. You got to prove to the court the offense you allege in terms of the definition of such an offense given in the statute. This means, you got to tell the judge: “My Lord, this offense has been committed and ingredients of the offense as specified by law are present. So this is a fit case for conviction of an offense.”
So if I got to convey the judge while I am arguing my case favoring the complainant in a criminal complaint alleging trespass, I will try to convey that:
1. The complainant was in possession of the property;
2. The accused committed an unlawful entry or if he has entered lawfully, then I will say that he continued to stay unlawfully;
3. The accused came with an intention to commit an offense or to intimidate, insult or cause annoyance to my client.
Remember, Indian law on trespass does not make the knowledge of the consequences an ingredient of the offense. The IPC has instituted and maintained a distinction between knowledge and intention, and where the elements of the section require that a certain act has to be done with a certain “intent”, no conviction can be had unless the specific intent is found established on the evidence. The Patna High Court once observed:
Say you go to your neighbor’s house. You know if you go there, he is likely to get annoyed. In spite of this you enter his house. This won’t be enough to convict you for criminal trespass. The court should be convinced that you entered into your neighbor’s house with an intention / purpose /aim of annoying your neighbor or you went to his house with a purpose of criminal intimidation etc. If your neighbor can prove this, it will be enough to get a conviction for criminal trespass.
e.g. Writing of love letters by a boy to a girl and delivering the same at her residence by going into the residence (if this annoys the girl) will be held to be a criminal trespass (Madras High Court in Re. Trilochan Singh).
Here all that the law requires is the presence of “intention” of committing offense. So it really makes no difference whether the offense was in fact committed or not. You simply got to prove the presence of “intention” to commit offense. That’s all.
You may ask: How do I know that there was an intention? That depends upon facts and circumstances and how well you carry your case before the court.
Say for example, in Jaladhar Behara V/s. Bhubaneshwar Padhan – the petitioners (accused) entered the newly built house during the temporary absence of the complainant and when complainant returned and remonstrated, the accused chased him out with sticks.
The court held that once the possession of the house was held to be with the complainant, the conduct of the petitioners would clearly come within the mischief of Section 441, IPC, because the latter portion of the section clearly says that even though the original entry may be lawful if a person remains there unlawfully with the intention of intimidating, insulting or annoying anybody in possession of the house he is equally guilty of that offense. Here with the petitioners (accused) chased out the complainant with sticks when he objected to their remaining in occupation of the house they clearly intimidated him and consequently when they continued to remain in the house with the criminal intention of intimidating him, the ingredients of Section 441, IPC are said to have been established.
Note that the concept of criminal trespass tries to protect the person in “possession” of the property. Ownership is not a touch-stone. What is possession? Refer to the dictionary.com for the definition of possession. I am going to tell you possession is of two types: (1). Actual Possession or (2). Constructive Possession; the concept of possession embraces both actual and constructive possession. Possession may exist in law but not in fact and such possession is termed as “Constructive”. It is a settled law that every owner of property is presumed to be in possession of it unless the contrary is proved. The word “Possession” as used in law is therefore wide enough to include not only actual and physical possession but also constructive possession. The Legislature must be deemed to have been aware of the legal connotation of the word “possession” when it used that word in the law. If the intention of the Legislature had been that actual and physical possession should be an ingredient of criminal trespass nothing would have been easier for it than to have qualified the word “possession” with the words “actual and physical”.
Sounds too much? Okay, I will tell you. This simply means that even if you are not in physical possession of your property, don’t worry. Law will presume that you have the possession, if you show that you are owner of the property. This is called “constructive possession” in the eyes of law.
Try to understand these three possibilities:
a. Unlawful entry without the ingredient of “intention”
b. Unlawfully remaining with the ingredient of “intention”
c. Unlawful entry and thereafter remaining there with the ingredient of “intention”
When you can prove the second and third one, you can convict for the offense of “trespass”. Here “intention” means intention to commit offense, criminal intimidation, insult, annoyance (as per definition of trespass)
Then it may be useful to consider the doctrine of secondary intention. Let us take an example: Mr. A is flying on a balloon. He finds that the balloon is taking him to see. Therefore he decides to drop in the fields of B which has tomatoes. A knows that by doing so he would destroy B’s tomatoes and thus annoy B. A trespasses. The doctrine of secondary intention is therefore invoked. (This doctrine is not very helpful).
A trespass made in assertion of a right must be obviously excluded from the category of the crime. This is a normal trend. However, the question cannot be generalized, for it depends upon the nature of the right asserted, the manner of entry and the trespassers belief in his rights. There are cases in which the courts have laid down that the forcible entry upon the land of another constitutes trespass without reference to the question in whom the title to the land may ultimately be found. Here are those in which some inquiry into the title is insisted upon not for the purpose of legalizing the entry but to see if the entry was bona fide.
A mere assertion of a right is not enough. This is no defense. To be a good defense the accused has to show sufficient material to reflect that he had good faith.
If a person enters into the property of another and after such entry refuses to leave the property with any of the intents mentioned in the section, he will be guilty of criminal trespass although by his entry he has succeeded in dispossessing the person who was in possession of the property at the time of entry. Thus, if a person lawfully enters into a room in the possession of another person and induces that person to go out, and on return of that person forcibly prevents him from re-entering and remains in the room with the intention of insulting or annoying that person, the second part of meaning of trespass applies.
Continuance in possession of a trespasser is a recurring wrong and constitutes a new entry every time that the true owner goes upon the land or as near to it as he dares to make a claim to it There is a fresh cause of action each time he is resisted and the persons entering subsequently with the permissions of the first trespassers and resisting the entry of the owner are equally guilty of trespass.
If anybody enters into or remains in any building used as human dwelling house with intent to intimidate, insult or annoy any person in possession of such property shall be guilty of house-trespass. The law does not require that you should be present when the trespasser has entered. All that is required is that you should be in possession.
The law says that even if you can show that there was an intention to “annoy” you, then the accused is taken as guilty of “trespass”. What does “annoy” mean? Courts have held that annoyance means molestation or vexation. Anything that would disturb the peace of mind of a person would amount to annoyance, although it may not appear to amount to physical detriment or comfort.
In addition to criminal trespass, there are other kinds of trespass viz. House trespass, house lurking, house breaking et al which pertain to the building / house.
If possible, I will try to bring them out separately in another post. Additionally I will also mention what should be contended along with the criminal trespass to make your case sound and how to examine the witnesses and cross examine opponent’s witnesses so to bring out truth in the case.
The question is : what should be done to bring these rouges to justice. Remember when two ways are possible – one criminal and another civil mode of actions, I have found that criminal mode of actions, if available for some or other reason, is far more effective then the civil course of action (remember “then”, because, even criminal cases drag on and on for years with no results forthcoming and after results you always have option of post conviction bail, revisions, appeals, writs et al to drag time).
Our law is rather absurd. If you snatch a chain, then for sure, you did a crime should you get caught. But if someone gets into your property, ensnares it for a hundred years; the other side isn’t criminally prosecuted, even if that “somebody” looses his case after years and years of contest and forcing you spend half of your precious life contesting cases.
Does this fade our hopes? I think it is not a bad idea to be an optimist. So let us think over what can we do if we have some stranger occupying our property against our wishes. Let us understand some criminal actions which we possibly can take (of course this is subjective and depends all on your individual circumstances and case). But this is a general idea which for all good reasons, I am writing to help you out. I am not discussing civil actions, because according to me they are anyway useless when you are in India. So read on..
CRIMINAL ACTIONS for offenses against property:
1. Criminal Trespass:
This is an offense defined under the Indian Penal Code – IPC. It says that whoever enters into a property of another to (1). Intimidate (2) insult and (3) annoy the person in possession of the property with such an intention commits this offense.
Remember whenever you go to court and say that such and such offense has been committed; you may attach your general notions about the offense. Say a trespass. You may feel that moment somebody enters into your property, against your wishes, he commits a trespass. May be you are right. But you need to give your accusation a finishing touch. You got to prove to the court the offense you allege in terms of the definition of such an offense given in the statute. This means, you got to tell the judge: “My Lord, this offense has been committed and ingredients of the offense as specified by law are present. So this is a fit case for conviction of an offense.”
So if I got to convey the judge while I am arguing my case favoring the complainant in a criminal complaint alleging trespass, I will try to convey that:
1. The complainant was in possession of the property;
2. The accused committed an unlawful entry or if he has entered lawfully, then I will say that he continued to stay unlawfully;
3. The accused came with an intention to commit an offense or to intimidate, insult or cause annoyance to my client.
Remember, Indian law on trespass does not make the knowledge of the consequences an ingredient of the offense. The IPC has instituted and maintained a distinction between knowledge and intention, and where the elements of the section require that a certain act has to be done with a certain “intent”, no conviction can be had unless the specific intent is found established on the evidence. The Patna High Court once observed:
“Intention is the real test. It is a state of the mind. It is to be gathered from the facts and circumstances of each case. Under Section 14 of the Indian Evidence Act, the court may presume the existence of any fact which it thinks to have happened, regard being had to the common course of natural events, human conduct in relation to the facts of the particular case. In so doing, it has to keep in mind the nature of the act of the accused and its effect on the mind of the party in possession…”
Say you go to your neighbor’s house. You know if you go there, he is likely to get annoyed. In spite of this you enter his house. This won’t be enough to convict you for criminal trespass. The court should be convinced that you entered into your neighbor’s house with an intention / purpose /aim of annoying your neighbor or you went to his house with a purpose of criminal intimidation etc. If your neighbor can prove this, it will be enough to get a conviction for criminal trespass.
e.g. Writing of love letters by a boy to a girl and delivering the same at her residence by going into the residence (if this annoys the girl) will be held to be a criminal trespass (Madras High Court in Re. Trilochan Singh).
Here all that the law requires is the presence of “intention” of committing offense. So it really makes no difference whether the offense was in fact committed or not. You simply got to prove the presence of “intention” to commit offense. That’s all.
You may ask: How do I know that there was an intention? That depends upon facts and circumstances and how well you carry your case before the court.
Say for example, in Jaladhar Behara V/s. Bhubaneshwar Padhan – the petitioners (accused) entered the newly built house during the temporary absence of the complainant and when complainant returned and remonstrated, the accused chased him out with sticks.
The court held that once the possession of the house was held to be with the complainant, the conduct of the petitioners would clearly come within the mischief of Section 441, IPC, because the latter portion of the section clearly says that even though the original entry may be lawful if a person remains there unlawfully with the intention of intimidating, insulting or annoying anybody in possession of the house he is equally guilty of that offense. Here with the petitioners (accused) chased out the complainant with sticks when he objected to their remaining in occupation of the house they clearly intimidated him and consequently when they continued to remain in the house with the criminal intention of intimidating him, the ingredients of Section 441, IPC are said to have been established.
Note that the concept of criminal trespass tries to protect the person in “possession” of the property. Ownership is not a touch-stone. What is possession? Refer to the dictionary.com for the definition of possession. I am going to tell you possession is of two types: (1). Actual Possession or (2). Constructive Possession; the concept of possession embraces both actual and constructive possession. Possession may exist in law but not in fact and such possession is termed as “Constructive”. It is a settled law that every owner of property is presumed to be in possession of it unless the contrary is proved. The word “Possession” as used in law is therefore wide enough to include not only actual and physical possession but also constructive possession. The Legislature must be deemed to have been aware of the legal connotation of the word “possession” when it used that word in the law. If the intention of the Legislature had been that actual and physical possession should be an ingredient of criminal trespass nothing would have been easier for it than to have qualified the word “possession” with the words “actual and physical”.
Sounds too much? Okay, I will tell you. This simply means that even if you are not in physical possession of your property, don’t worry. Law will presume that you have the possession, if you show that you are owner of the property. This is called “constructive possession” in the eyes of law.
Try to understand these three possibilities:
a. Unlawful entry without the ingredient of “intention”
b. Unlawfully remaining with the ingredient of “intention”
c. Unlawful entry and thereafter remaining there with the ingredient of “intention”
When you can prove the second and third one, you can convict for the offense of “trespass”. Here “intention” means intention to commit offense, criminal intimidation, insult, annoyance (as per definition of trespass)
Then it may be useful to consider the doctrine of secondary intention. Let us take an example: Mr. A is flying on a balloon. He finds that the balloon is taking him to see. Therefore he decides to drop in the fields of B which has tomatoes. A knows that by doing so he would destroy B’s tomatoes and thus annoy B. A trespasses. The doctrine of secondary intention is therefore invoked. (This doctrine is not very helpful).
A trespass made in assertion of a right must be obviously excluded from the category of the crime. This is a normal trend. However, the question cannot be generalized, for it depends upon the nature of the right asserted, the manner of entry and the trespassers belief in his rights. There are cases in which the courts have laid down that the forcible entry upon the land of another constitutes trespass without reference to the question in whom the title to the land may ultimately be found. Here are those in which some inquiry into the title is insisted upon not for the purpose of legalizing the entry but to see if the entry was bona fide.
A mere assertion of a right is not enough. This is no defense. To be a good defense the accused has to show sufficient material to reflect that he had good faith.
If a person enters into the property of another and after such entry refuses to leave the property with any of the intents mentioned in the section, he will be guilty of criminal trespass although by his entry he has succeeded in dispossessing the person who was in possession of the property at the time of entry. Thus, if a person lawfully enters into a room in the possession of another person and induces that person to go out, and on return of that person forcibly prevents him from re-entering and remains in the room with the intention of insulting or annoying that person, the second part of meaning of trespass applies.
Continuance in possession of a trespasser is a recurring wrong and constitutes a new entry every time that the true owner goes upon the land or as near to it as he dares to make a claim to it There is a fresh cause of action each time he is resisted and the persons entering subsequently with the permissions of the first trespassers and resisting the entry of the owner are equally guilty of trespass.
If anybody enters into or remains in any building used as human dwelling house with intent to intimidate, insult or annoy any person in possession of such property shall be guilty of house-trespass. The law does not require that you should be present when the trespasser has entered. All that is required is that you should be in possession.
The law says that even if you can show that there was an intention to “annoy” you, then the accused is taken as guilty of “trespass”. What does “annoy” mean? Courts have held that annoyance means molestation or vexation. Anything that would disturb the peace of mind of a person would amount to annoyance, although it may not appear to amount to physical detriment or comfort.
In addition to criminal trespass, there are other kinds of trespass viz. House trespass, house lurking, house breaking et al which pertain to the building / house.
If possible, I will try to bring them out separately in another post. Additionally I will also mention what should be contended along with the criminal trespass to make your case sound and how to examine the witnesses and cross examine opponent’s witnesses so to bring out truth in the case.
Subscribe to:
Posts (Atom)