Can a DU legal expert explain to me...

[Pototan]

...why we need knowledge that he lost in the Jan. 6 case against Trump?

It seems that all the talking heads mention that Trump could be found "not guilty" if he really believes he won in 2020 election. Or, better yet, if the government can't prove that he didn't believe he lost.

I always thought that in a legal dispute of any kind that a "reasonable person" standard would be used. In other words, would a reasonable person who was informed by his Attorney General and other advisers persuade a reasonable person. Would the fact that you lost 62 out of 63 court cases involving 7 states convince a reasonable person? Who gives a fuck what he says he believes. He's not under oath and he's a habitual liar.

Even in a Judge's charge to a jury, he or she explains "reasonable doubt", that "reasonable" in this context means a doubt a reasonable person would hold. Not beyond any doubt.

It seems odd to me that this is a defense of any kind.

[doc03]

1. I gave the bank teller a note saying hand over all your cash, I didn't intend to

to take it, I just wanted to see how much money they had.

[enough]

2. If he knew he had lost, it's a different kind of crime. Fraud, for one thing.

[Skittles]

13. of course he knows he lost

the problem is he couldn't ACCEPT losing, because he has been able to "win" his entire life via corruption, bullying, suing, etc

[elleng]

3. 'willfully subjects any person in any State,' meaning WITH KNOWLEDGE.

willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments

"Conspiracy to defraud, Witness tampering, Obstructing official proceeding, Deprivation of rights" [View all]
Mueller, She Wrote @MuellerSheWrote 17m
BREAKING: per Rolling Stone: The statutes listed in his 1/6 target letter include conspiracy to defraud the US (18 U.S.C. § 371), Witness tampering (likely 1513(c)(2) obstructing an official proceeding), and 18 U.S.C. § 242 (deprivation of rights).

[Pototan]

6. My point is...

...do we just take the word of the defendant, or can we instruct the jury as to what a reasonable person would have believed?

In order to overturn the election results it would have taken tipping the results in at least 4 of the 7 contested states. Trump lost every recount and every court case in every contested state. States controlled by members of his own party that supported him in the election. Losing court cases from Republican judges, many appointed by Trump, himself.

Any reasonable person would have realized he lost this election. I don't care what he says he believes while not under oath.

[elleng]

8. Behavior often demonstrates knowledge, and I suspect 'instructions' state such;

been a while since I've read instructions in such detail.

[Nevilledog]

19. Don't forget the two expensive studies he paid for showing no fraud.

[spooky3]

20. +1

[brooklynite]

35. You would be wrong...

A recent Supreme Court ruling said that you can't infer intent from behavior. It has to be provable.

[Ms. Toad]

9. No. You can't just instruct the jury as to what a reasonable person would have believed.

You can present evidence as to what he was told, what he read, etc. You an present evidence of what he communicated to others about his beliefs. But ultimately it is up to the jury to determine whether the evidence they are presented with proves that he (not a reasonable person) knew/believed. They are free to decide (should he choose to testify) that he is a bald-faced liar and that there is no way that he really believed he won.

But - you can't instruct the jury to find him guilty solely on what a reasonable person would have believed. They have to find, based on direct or circumstantial evidence, that he actually knew he lost.

[Pototan]

15. No judge says "find him guilty"...

The instruction would be if a reasonable person would or would not have believed he lost the election. The juror is then free to decide that a reasonable person would have believed Giuliani, Powel etc. that he won, regardless of the Attorney General, Secretaries of State in 7 states and the 63 lost court cases.

[Ms. Toad]

18. The mens rea of the crime is ALWAYS subjective - what the accused actually knew.

Not objective (what reasonable people would have known).

You are suggesting that the judge change the elements of the crime (from a subjective to an objective standard).

[Happy Hoosier]

44. Attempting to nfluence official proceeedings...

... outside the normal and legal course of those proceedings is still an issue for him, regardless of whether or not he thought he really won.

Say you think teh bank made an error and owes you $10,000. Even if you really believe that, you can't rob the bank to get the money they "owe" you.

Trump was performing extra-legal activities interefering with the due process of the election, regardless of whether or not he tought he actually won.

[rsdsharp]

4. Criminal offenses have elements which constitute the crime.

Each separate element must be proven beyond a reasonable doubt. If you fail to prove any of the elements, you fail to prove the crime. The defendants state of mind, mens rea, typically is an element to be proven. The government must prove that he knew his actions would be wrongful; stated simply, he knew he lost, and went ahead anyway.

[former9thward]

5. The 62 cases are not really a good argument.

They were not decided on merit. The were decided on technical procedural grounds. The plaintiffs did not have standing to bring the cases. The courts did not get into the alleged facts.

[Pototan]

11. Once you have exhausted all your legal avenues...

...that's the end.

In 2000, Gore needed to overturn one state (Florida) in which Bush was ahead by just 535 votes out of 12 million cast. There were still votes to re-count, but they stopped re-counting on Dec. 20th. Bush's brother was the Governor. The case went to the Supreme Court, where Bush won in a 5-4 vote, with two justices voting in his favor appointed by Bush's father.

Once one has exhausted all his or her legal avenues, for whatever reason the decision is made, those are the results, no matter what he or she may think.

One can't use their power to intimidate the state authorities or mount an insurrection because he or she disagrees with the court decision.

At least that's what I think common sense would dictate.

[spooky3]

14. Not true, according to Reuters.

There were some procedural issues in some of the cases. But judges in at least some of the cases found evidence lacking.

https://www.reuters.com/article/uk-factcheck-courts-election/fact-check-courts-have-dismissed-multiple-lawsuits-of-alleged-electoral-fraud-presented-by-trump-campaign-idUSKBN2AF1G1

[former9thward]

21. What cases had a trial giving the evidence?

Your link does not mention any.

[spooky3]

22. Read the article and the one to which it links. Go to Marc Elias' site

And research the cases.

[former9thward]

23. I read the article.

Which is the basis of my post. Somebody give me the name of a case that had a trial so I can research it. I don't go off off articles.

[spooky3]

24. Did you read the linked WaPo article? Maybe you should

Look at https://www.factcheck.org/2020/11/the-facts-on-trumps-post-election-legal-challenges/. As an attorney, you have access to Lexis Nexis and other data bases so should do your own research to support your assertion.

[former9thward]

27. I am posting just like you.

I am not getting paid to do so and I am not preparing a legal brief. So no, I am not going to do hours of research to give an opinion on DU and guess what -- no one else is doing that either.

[Fiendish Thingy]

28. That's not true for all 62 cases.

Many were dismissed for lack of evidence, since Rudy and Sidney were smart enough not to present the looney CT’s that they were promoting in public, in court, as that could subject them to sanctions.

So, no evidence, just claims of “irregularities”…cases dismissed.

[Ms. Toad]

7. Crimes generally include two kinds of elements

Mens rea (guilty mind) and actus reus (bad act).

In order to convict someone, the prosecution has to prove each and every element beyond a reasonable doubt.

So, for example, murder generally includes taking the life of another (actus reus) with malice aforethought (mens rea). That's why if you kill someone who is deathly allergic to shrimp by feeding them shrimp it isn't automatically murder. The prosecution needs to prove that you both (1) took the life of another (which you did) and that you did so (2) with malice aforethought. If the prosecution could prove that you knew the person was deathly allergic to shrimp and you fed it to them anyway they might be able to establish murder.

Same here. Fraud generally includes intentional (mens rea) deception to secure unfair or unlawful gain, or to deprive a victim of a legal right (actus reus)

Intentional (deception) requires that you know that what you are saying is false. So his knowledge that he lost makes the difference between an intent to deceive in order to unlawfully secure the office of the president - and an intent retain the office he rightfullylawfully won.

Mens rea is always subjective (I knew) - NOT - objective (what reasonable people knew). You can't deprive someone of their liberty based on someone else's mental state.

BUT - you can use reasonable person knowledge (and court cases, what people told him, etc) to prove what he knew. (In other words criminals don't generally volunteer their mental state - so you have to prove it by evidence admissible under the rule of evidence.) The challenging part here is that he isolated himself from the real world - AND - some of his inner circle were afraid to tell him the truth. It is possible he really believed he won, since the people closest to him told him so - in some cases - despite their personal beliefs.

[Pototan]

12. So, no election is ever over in America...

...as long as the losing candidate says he thinks he won.

[Ms. Toad]

16. So you weren't really looking for legal information?

I spent a fair amount of time trying to explain the law, generally, and as it relates to the crimes with which Trump was charged.

Those crimes have nothing to do with when an election is over, nor do they have anything necessarily to do with what the losing candidate says.

Again. You can't convict someone of a crime based on someone else's mental state. You have to prove the mental state of the person accused. He may, or in most instances does not, say what was in his mind. You can prove what was in his mind based on circumstantial evidence - but the jury has to decide based on the evidence it was presented with that he knew he lost, regardless of what he says, that he lost. If he didn't know he lost - and was acting on his belief that he won - it is impossible for him to have committed fraud.

If you're just interested in arguing crap, please don't ask lawyers to waste their time explaining the law to you.

[MorbidButterflyTat]

29. Hey...

I appreciated your effort.

[Pototan]

30. I didn't say I disagree. I'm just asking...

a follow up question.

If you are correct (and I'm not saying you're not) than any candidate in any election can claim they won and take whatever extra legal action they need to in order to claim that office.

Just want to have a firm idea of how our Democracy works.

I always thought that the court had the final decision.

Another hypothetical. My neighbor and I have a boundary dispute. He claims I'm building a barn which encroaches on his property. We go to court and the court finds in my neighbor's favor and gives me a cease and desist order. Can I continue to build because I honestly believe that I'm building on my own property and the court be damned?

[Ms. Toad]

34. claim what they say.

speaking is an act, not a mental state. People's actions may provide evidence of their mental state, but you have to prove the mens rea (guilty mind) in order to convict someone.

On the same claim, between the same parties, the court has the final say - in the sense that it cannot be relitigated. That isn't what is happening here. The parties are different. The claims are different. The courts decided (broadly) that - as a factual matter - Biden won the elections. The criminal charges aren't about factually who won the election. They are about whether Trump committed fraud (and related crimes) to stay in office. One of the elements of fraud is a state of mind - specifically that Trump knew he lost. It isn't about who actually won or lost - that element is about what Trump knew.

As to your second hypothetical, you've switched to civil law, an order that would never be issued (cease and desist is a colloquial term that refers to a letter from an attorney, not an order from a court), and a matter of enforcement of the court order by the court that issued it. It is not at all relevant to this matter.

As a basic starting point, Trump is about to be charged with new crimes - not with violating a civil order isused by the court in which enforcement is being sought.

But to answer your question, if the court determined that you were trespassing and issued an injunction (an order prohibiting you from building on your neighbor's property) and you continued to build your neighbor could go back to court to enforce the injunction. Trepass is a civil action. As to trespass the mental state is whether you intended to place your building in the physical location in which you placed it. It is irrelevant whether you knew the location was owned by your neighbor - only that you intended to put it in that location.

That is not the case with fraud. With fraud, knowledge that the facts you are asserting are false IS an element of the crime, so it has to be proven that you subjectively knew they were false.

Every crime has specific elements, and conviction requries proving that the accused committed each and every element of the crime.

[Pototan]

31. If you follow the thread...

...I got a different opinion from other lawyers. You don't mind if I get a second opinion, do you?

[Faux pas]

10. ...

Watching Ari he showed clips of some of the hump's peeps admitting he knew and just wanted to fight it.

[LetMyPeopleVote]

17. This may help

Link to tweet

[Ms. Toad]

25. Inaccurate because the analogy is not appropriate.

It is true that you cannot commit crimes "around" a fervent but inaccurate belief.

But the crimes he gave as an example do not require proving - as an element of the crime - the fervent but inaccurate belief. Robbery requires:

(1) the taking of the property of another (2) from his or her person or in their presence (3) by violence, intimidation or threat (4) with the intent to deprive them of it permanently. So the mens rea is an intent to deprive them of it permanently.

The setup was that the robber believed the bank has taken his money, so he robbed the bank. He fervently, but inaccurately, believed that. But to prove robbery, you don't have to prove what the robber believed about who owned the money. You simply have to prove that the bank actually had legal title to it (the first element). What you have to prove as the accused's a mental state here is that the robber intended to deprive the bank of that property permanently (it is completely irrelevant to the crime of robbery that the robber believed the bank had unlawfully taken the money from him).

That is not the case here, for at least some of the crimes Trump is expected to be charged with. In fraud, knowledge that what you are asserting is false is an element of the crime and must be proven. If you can't prove knowledge, you can't convict. Even if the accused is completely irrational in his belief.

[boston bean]

38. His mental state was to deprive a Biden presidency.

He states it daily.

[Ms. Toad]

39. That is still consistent with a belief that he won.

He can believe he won - and want to deprive a Biden presidency. (The same is true for believing he lost - and wanting to deprive a Biden presidency.)

But only one of those is fraud - as an element of the crime, you have to prove that he knew what he was saying was false - but said it anyway to deprive a Biden presidence.

[boston bean]

40. It's clear he knew he lost. He was told. Ignoring a truth doesn't mean one

Truly believes they lost

[Ms. Toad]

41. If it is clear that he knew he lost,

then there's no problem. The prosecution will just present the evidence and the jury will determine that the prosecution proved that element.

The challenge is that being told he lost is not direct proof of what he believes or knows. Unless he personally told someone that he knows he lost, what others said or did is circumstantial evidence. It can be use to support a conclusion that he knew it - but it doesnt' prove it directly. That's what the concern is - the circumstantial case may not be solid enough and his defense may be able to create enough doubt as to what he actually believed that the jury won't find beyond a reasonable doubt that he knew he lost. And if you can't prove he knew he lost - then you can't prove any crime that requires knowledge that he lost as an element of the crime.

[boston bean]

42. They charged him. They feel they can prove it.

[Ms. Toad]

43. So?

I was responding to a discussion of concerns raised by experts - and a question as to why it even matters.

My response was, essentially, when it is an element of the crime you have to prove it to a jury.

I have not opined one bit on whether the prosecution can prove it - or who the jury will believe. My contributions in this thread are solely about process: What has to be proven, how it can be proven, why his knowledge matters under the law, subjective v. objective knowledge, circumstantial v. direct evidence.

Whether the prosecution feels they can prove it (a matter on which I have not opined) doesn't alter the process (all I have opined on) one bit.

[boston bean]

45. They have to show the liar is is liar.

Not gonna be that difficult.

[Ms. Toad]

46. Not quite.

The informal version of the rules of evidence is that "once a liar always a liar" evidence cannot be introduced to prove that he lied as to a particular thing or on a particular occasion.

And proving what is in someone's mind is harder than proving objective facts.

I'm but saying it can't be done. It just can't be done via the means you are suggesting (his propensity to lie).

[boston bean]

47. He lies that is evident. It will be all the evidence of is his lies that will make it easy to prove

what is in his mind. and will and can all be taken into consideration by a jury. Lying shows guilt. So, you can legal mumbo jumbo it all up. But I have a fair understanding. Thank you.

[Fiendish Thingy]

26. It doesn't need to be proven that he believed he lost

Only that he had knowledge of the facts proving that he had lost.

His personally financed secret investigation that showed all the ridiculous claims of fraud were false should be sufficient evidence.

[brooklynite]

37. Proving he believed he lost is merely supplement evidence...

The critical point is: can the prosecution show that Trump advocated or intended for illegal actions to occur to allow the election to be overturned. Telling people to go to the Capitol isn't evidence unless you can prove that Trump intended for the crowd to disrupt the Electoral Vote counting.

[EndlessWire]

32. I don't think that

all of Donald's beliefs matter a hill of beans, except as a necessary element. This mess didn't spring up on election day. This was a contingency plan cooked up by the whole gang. This is what they were going to do if Trump lost--and he did. That's what shows he knew he had lost. I know there was an intervening period of time, but they set in motion this attempt to stop the transfer of power.

[Hortensis]

33. Go ahead and up willful ignorance or blindness too; there are other terms for it.

This isn't an arcane concept but in constant use. The law's far too sophisticated to let a scoundrel weasel out of culpability by just claiming he didn't know or believe he lost an election when he did.

The DoJ has mountains of evidence, including his own statements, that tRump did know.

[malaise]

36. Not a lawyer but

I think using the lies to steal from the American people would bring RICO into play as well