Lunch with Legal 1 Jan 2020

This program is intended for informational purposes only and does not constitute legal advice.

Nothing about this program establishes an attorney-client relationship between the City of Great Falls, its attorneys, and the viewers. Questions regarding a specific legal issue should be addressed directly to an attorney.

The information contained in this program is current as of January 28, 2020, and is subject to change. The views and opinions expressed in this program are those of the individuals involved and unless otherwise stated do not represent the views or opinions of the City of Great Falls If you have questions or ideas for future programs, email us at [email protected] LUNCH WITH LEGAL Standard of Proof/Burden of Proof Presented by Mark A. Dunn, Prosecutor STANDARD OF PROOF

• The standard of proof is defined in Blacks Law Dictionary (BLD) as “The degree or level of proof demanded in a specific case.” • There are difference standards or levels of proof in the legal system depending on the type of case. EXAMPLES OF STANDARDS OF PROOF

• Beyond a Reasonable Doubt • Clear and Convincing Evidence • Probable Cause • Preponderance of the Evidence • Particularized Suspicion • A Modicum of Evidence BURDEN OF PROOF

• The burden of proof is defined in BLD as “A party’s duty to prove a disputed assertion or charge.” • The burden of proof places on the appropriate party the burden of proving the standard of proof. BURDEN OF PROOF CONTINUED • In a dispute between parties, one party is initially presumed correct and receives the benefit of the doubt. The other party must meet the standard of proof. In other words, one party has the burden to meet the standard of proof. • Latin maxim semper necessitas probandi incumbit ei qui agit, meaning: "the necessity of proof always lies with the person who lays charges." BURDEN OF PROOF CONTINUED

• The burden of proof may change/switch during the case/action/trial from the party initiating the action, i.e. the plaintiff, to the defendant depending on multiple circumstances. BURDEN OF PROOF CONTINUED

• The burden of proof includes both the burden of persuasion and the burden of production. BURDEN OF PRODUCTION • Montana Code Annotated § 26-1-401 states “The initial burden of producing evidence as to a particular fact is on the party who would be defeated if no evidence were given on either side. . . .” • Generally, the burden of producing evidence is on the party that brought the case/action in the first place. BURDEN OF PERSUASION • Montana Code Annotated § 26-1-402 states “. . . a party has the burden of persuasion as to each fact the existence or nonexistence of which is essential to the claim for relief or defense the party is asserting.” • AKA, the burden of persuasion is the “party’s duty to convince the fact finder to view the facts in a way that favors that party.” BLD 3 COMMON STANDARDS OF PROOF IN CRIMINAL LAW • Proof Beyond a Reasonable Doubt

• Probable Cause

• Particularized Suspicion/Reasonable Suspicion BEYOND A REASONABLE DOUBT

• In a criminal trial, the State of Montana, aka the government, has the burden (burden of production and burden of persuasion) of proving the guilt of the Defendant beyond a reasonable doubt. Montana Code Annotated § 26-1-403. BEYOND A REASONABLE DOUBT DEFINED • “Proof beyond a reasonable doubt is proof of such a convincing character that a reasonable person would rely and act upon it in the most important of his or her own affairs. Beyond a reasonable doubt does not mean beyond any doubt or beyond a shadow of a doubt.” MCJI 1-104. BEYOND A REASONABLE DOUBT DEFINED • Proof beyond a reasonable doubt does not mean there can be no doubt that the crime was committed. There must be no reasonable doubt that the crime was committed. PRESUMPTION OF INNOCENCE • “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether the defendant's guilt is satisfactorily shown, the defendant must be found not guilty.” Montana Code Annotated § 46-16-204. PRESUMPTION OF INNOCENCE • “The Defendant is presumed to be innocent of the charge against him/her. This presumption remains with him/her throughout every stage of the trial and during your deliberations on the verdict. It is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the Defendant is guilty.” MCJI 1-104 PRESUMPTION OF INNOCENCE

• “The Defendant is not required to prove his innocence or present any evidence.” MCJI 1-104. PRESUMPTION OF INNOCENCE • “In the criminal justice system, the presumption of innocence is overcome when the State presents evidence against a defendant that satisfies a jury, beyond a reasonable doubt, that the defendant is guilty of the crime charged. . . .” PRESUMPTION OF INNOCENCE • “. . . To that end, courts instruct the jurors that they are to refrain from making their decision as to the guilt or innocence of a defendant until they have considered whether the State has overcome the presumption of innocence beyond a reasonable doubt. . . .” PRESUMPTION OF INNOCENCE • “. . . It is reasonable and required that both the State and defense counsel jealously guard the principle throughout the entirety of a criminal trial.” State v. Lawrence, 2016 MT 346, ¶16, 386 Mont. 86, 385 P.3d 968. 4TH AMENDMENT • “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” ART. II, PART II, §11 OF THE MONTANA CONSTITUTION

“The people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing. PROBABLE CAUSE

• So in order for the government/law enforcement to seize items/evidence or to arrest an individual, whether that be with or without a warrant, the government must have probable cause. • Also, in order to charge someone with an offense the government/law enforcement must have probable cause. PROBABLE CAUSE

• The probable cause standard is less than the level of proof for beyond a reasonable doubt. • BLD defines probable cause as “a reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected to a crime.” PROBABLE CAUSE TO ARREST • “Probable cause for an arrest exists ‘if the facts and circumstances within an officer's personal knowledge, or related to the officer by a reliable source, are sufficient to warrant a reasonable person to believe that another person is committing or has committed an offense.’” City of Missoula v. Iosefo, 2014 MT 209, ¶ 10, 376 Mont. 161, 330 P.3d 1180. PROBABLE CAUSE TO ARREST CONTINUED • “The probable cause determination ‘must be based on an assessment of all relevant circumstances, evaluated in light of the knowledge of a trained law enforcement officer.’” Iosefo, ¶ 10. PROBABLE CAUSE FOR A SEARCH WARRANT • Montana Code Annotated § 46-5-221 states that a search warrant must state (1) sufficient facts to believe an offense has been committed; (2) sufficient facts to believe that evidence, contraband, or persons connected with the offense may be found; (3) particularly describes the place, object, or persons to be searched; and (4) particularly describes who or what is to be seized. PROBABLE CAUSE FOR A SEARCH WARRANT CONTINUED • Given the totality of the circumstances, the judge “must make a practical, common sense determination, given all the evidence contained in the application for a search warrant, whether a fair probability exists that contraband or evidence of a crime will be found in a particular place.” State v. Tucker, 2008 MT 273, ¶ 16, 345 Mont. 237, 190 P.3d 1080. PROBABLE CAUSE FOR A SEARCH WARRANT CONTINUED • The judge’s probable cause determination does not require facts sufficient to make a showing of criminal activity; only a probability of criminal activity must be present. There must be a "substantial basis" to determine that probable cause existed. Tucker ¶ 17. PROBABLE CAUSE TO ISSUE A CITATION • “When a complaint is presented to a court charging a person with the commission of an offense, the court shall examine the sworn complaint or any affidavits, if filed, to determine whether probable cause exists to allow the filing of a charge.” Montana Code Annotated § 46-11-110 PROBABLE CAUSE TO ISSUE A CITATION • “A showing of a mere probability that a defendant committed the offense charged is sufficient to establish probable cause . . . The district judge is to use common sense to determine whether probable cause exists. State v. Holt, 2006 MT 151, ¶, 332 Mont. 426, 139 P.3d 819. PROBABLE CAUSE DETERMINATIONS • Every case is different and it depends on the facts and circumstances of each individual case in determining whether probable cause exists to issue a citation, arrest an individual, or to conduct a search. PARTICULARIZED/ REASONABLE SUSPICION • While probable cause is required to issue a citation, conduct a search or to make an arrest, the government/ law enforcement can still contact individuals in the process of conducting investigations. PARTICULARIZED/ REASONABLE SUSPICION CONTINUED • The 4th Amendment and Montana Constitution Art. II, § 11 prohibits unreasonable searches and seizures. Those protections extend to investigative stops. The investigatory stops can be of individuals whether in vehicles or not. PARTICULARIZED SUSPICION CONTINUED

• Before conducting an investigatory stop, the government/law enforcement official must observe circumstances that create a particularized suspicion that the person has committed, is committing, or is about to commit an offense. • Montana Code Annotated § 46-5-401. PARTICULARIZED SUSPICION CONTINUED

• The State bears the burden of proving that an officer had particularized suspicion to conduct an investigatory stop. City of Helena v. Brown, 2017 MT 249, ¶ 9, 389 Mont. 63, 403 P.3d 341. • PARTICULARIZED SUSPICION CONTINUED

• Particularized Suspicion is (1) objective data and articulable facts that an officer can make certain inferences, and (2) a resulting suspicion the person being contacted is or has been engaged in wrongdoing or was a witness to criminal activity. • City of Helena, ¶ 9. PARTICULARIZED SUSPICION CONTINUED

• “The focus is on objective data and the Supreme Court of Montana's precedent has established that an inquiry into the subjective motivations of law enforcement is inappropriate in assessing the validity of an arrest.” • City of Helena, ¶ 9. PARTICULARIZED SUSPICION CONTINUED

• “The law in Montana has never required that a peace officer be certain that an offense has been committed in order to justify an investigatory stop.” City of Missoula v. Sharp, 2015 MT 289, ¶ 8, 381 Mont. 225, 358 P.3d 204. PARTICULARIZED SUSPICION CONTINUED • “The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers. . . .” PARTICULARIZED SUSPICION CONTINUED • “. . . Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” • United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981). NON-INVESTIGATORY CONTACTS • Not all contact between law enforcement and the public is the result of a seizure. • The 4th Amendment and Art. II § 11 of the Montana Constitution protects citizens from unreasonable searches and seizures. State v Wilkins, 2009 MT 99, ¶ 7, 350 Mont. 96, 205 P.3d 795. NON-INVESTIGATORY CONTACTS • ‘“Not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred.’” State v Wilkins, ¶ 8. NON-INVESTIGATORY CONTACTS • ‘“A person has been seized . . . only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’” State v Wilkins, ¶ 9, NON-INVESTIGATORY CONTACTS • ‘“If an officer merely walks up to a person standing or sitting in a public place (or, indeed, who is seated in a vehicle located in a public place) and puts a question to him, this alone does not constitute a seizure.’” State v Wilkins, ¶ 9, This program is intended for informational purposes only and does not constitute legal advice.