Steve Palmer: The podcast Q and A is flooding in with questions

>> Steve Palmer: All right, Lawyer Talk, Off The Record on the air, sitting here at the roundtable, you would wonder why there's two of us here. I will get to that shortly. Steve Palmer here, lawyertalkpodcast.com, where you can go submit your questions, give us your comments. If, uh, you want me to cover a topic, just let me know. The questions, the comments, things are flooding in, so we do appreciate it. All sorts of other back episodes there, too. Check them out. I have been doing this Q and a series, uh, where I answer people's questions. That phone in or that, uh, email in. And, you know, it dawned on me is that I've got, uh, Troy here. Troy is a law student at Capitol University. Yes, capital University, law and graduate center, second year. About to start for you, right? Yep.

>> Troy Henriksen: Start next week.

>> Steve Palmer: So, a second year law student. Now, Troy's been working for me over the summer as a, quote, law clerk. So anybody who's ever heard that term, really what it means is some generic description of a law student who's working for a lawyer over the summer.

>> Troy Henriksen: That's accurate.

>> Steve Palmer: Yeah, doing research, clerical, uh, work. Uh, I look at these as teaching opportunities. I love to teach. Uh, I try to help my law, uh, clerks out not only in their career, professionally, figure out where they want to go, but also teach them what I know. And believe it or not, what they're teaching in Law School may not always apply in the real world. It gives you a foundation to go learn what the real world is all about, but it doesn't always teach you what exactly is going on. And it dawned on me when Troy is asking me questions, when we're talking about cases upstairs, uh, it's a lot like what I do on the podcast Q and A. So, every now and then, you're going to see Troy at the table asking me questions, and maybe we'll do something more with it at some point.

Why would you ever want a bench trial instead of a jury trial

But, uh, there was a question you had the other day that I thought was well worthy of a discussion down here at the podcast table. So why don't you go ahead and shoot?

>> Troy Henriksen: So, I was reviewing an appeal, and it was talking about how.

>> Steve Palmer: All right, so an appeal. What he's doing is he's reading a decision by a court of appeals on a case that somebody was convicted of a crime and later went up to the court of appeals, and the court of Appeals wrote a decision either saying, yay, the conviction was accurate or the conviction was correct, or the law was followed or nay, we send it back, do it right next time.

>> Troy Henriksen: That's correct. Um, she was facing an issue that I see all the Time online where the police come up to her and they start asking her questions.

>> Steve Palmer: So online, you mean like tick tock?

>> Troy Henriksen: Yeah, he's on the.

>> Steve Palmer: Tick tock, he's on the YouTube. And you know, there's a whole generation of these and they're probably like, what? Little 1015 2nd clips wherever I. Yeah. What do you do when a police comes up and asks you for your identification? A lawyer has the answer.

>> Troy Henriksen: Yeah, we call it brain rot. Is, uh, just falling.

>> Steve Palmer: Brain rot, doom. Scrolling.

>> Troy Henriksen: Yeah. And, um, so the police come up to her, they're asking her for identification, everything, and she's not complying with them. She's like, here's my first name. And in return they charge her with, I believe it was some type of.

>> Steve Palmer: Charge, saying obstruction of justice. Uh, yeah, obstruction of official business, uh.

>> Troy Henriksen: Failing to disclose information in violation, and then list the Ohio revised code all.

>> Steve Palmer: Ah, right.

>> Troy Henriksen: And so then she has a bench trial over this issue.

>> Steve Palmer: So bench trials, let's break it down. So a, uh, bench trial. Some people have jury trials. Some people have bench trials. What's a jury trial on a misdemeanor offense like this? In Ohio, that means eight jurors sit in judgment of the facts of the case. In a bench trial, sometimes the lawyers will say, or the litigant will say the defendant. I, uh, don't need a jury trial. I'm gonna let the judge figure it out. So you're gonna try it to the bench. And literally, the judge is sitting on the bench. And that's why it's called a bench trial, not a jury trial.

>> Troy Henriksen: And, um, so she loses the bench trial, and then she's.

>> Steve Palmer: Hold on a second. So there's more there. Why then would you ever want to have a bench trial instead of a jury trial? Well, that's a good question. If you don't have a good answer to it and your lawyer doesn't have a good answer to it, then you probably want a jury trial. But sometimes there is a good answer to it. In this case is one of these times, because this is already, I know this is something that, in my head, I'm thinking this is a legal issue. And sometimes the legal issues sort of overlap, uh, with the factual issues. So, like, if the issue is, was this assault in self defense or, um, did somebody really do something? Uh, well, typically you want a jury for that, but sometimes it's like these quasi legal issues. Like if a police comes up to me and asks me for my identification, can I say no? And is it a crime if I don't have, um, um. That's going to require a certain legal finding before you can make the factual finding. And that's why I believe already that this was a bench. See what happens when you practice law for like 30 years? Anyway, go ahead.

>> Troy Henriksen: And uh, uh, she loses the bench trial.

>> Steve Palmer: Nobody taught you that in Law School.

>> Troy Henriksen: No, they didn't. And uh, uh, she loses the bench trial. And uh, uh, now she appealed it and the whole reason that the cops were there was because allegedly her dog bit a neighbor's kidney.

>> Steve Palmer: All right? So the cops come up to her on the street or in her house.

>> Troy Henriksen: On her porch.

>> Steve Palmer: On her porch. So the cops approach. There's an out. Somebody has called. Somebody called the police and said, that woman's dog bit my kid.

>> Troy Henriksen: Police?

>> Steve Palmer: Mhm. Come up to the house and they want to talk to the girl.

>> Troy Henriksen: Yes.

>> Steve Palmer: What does the court say?

>> Troy Henriksen: The court said that, yes, in a criminal matter she does have to provide this, um, at least her last name, other forms of documentation, all that. However, this was not a criminal matter. The court's determined this was a civil matter, which in my head, if your dog bites somebody, I would view that as criminal. Um, but they determined this was civil and she didn't have to disclose any of that.

>> Steve Palmer: All right, so the court says this woman was convicted at trial by the judge of failing to provide identification in some sort of investigation, whatever nonsense code that is. And it goes up to the court, appeals court. Appeals says nuh uh um, because this is a civil case, it's not a criminal investigation. Therefore that statute doesn't apply and you don't have to supply identification.

The US Supreme Court has weighed in on stop and frisk laws

Here's, there's a, there's a, this is an enormously, this is like a huge iceberg under the water, right? This is like the tip of the iceberg of a huge constitutional issue. And anybody that is older than you will remember back in the eighties, a guy named Rudy Giuliani. You know the name?

>> Troy Henriksen: Yes.

>> Steve Palmer: All right, so Rudy is, becomes a, he was a uh, he was the um, united, uh, states Attorney in one of the New York districts. And uh, he comes in and he becomes the mayor of New York and he's going to clean up the streets. So he starts creating all these sort of stop and frisk laws or stop and identify laws. And these are all over the place. Lots of states have them. Uh, and the issue is, can the police just come up to any general citizen and say, identify yourself. And as you might expect, the US Supreme Court has weighed in on this and basically, here's how it shakes out. If the police are investigating a criminal case and they have something called reasonable suspicion, uh, to investigate. Now, what is reasonable suspicion? Sort of like pornography. I don't, I can't define it, but I know it when I see it. But the Supreme Court defines it as a reasonable, articulable suspicion that criminal activity may be afoot, which is fancy talk, to say they think something's wrong and they can actually point to a few facts, as opposed to, quote, an inarticulate hunch. That's not reasonable suspicion. Again, what does all that mean? I don't know, but, uh, you know it when you see it. So if the police have reasonable suspicion and they're investigating a crime, uh, then it, those identified laws stop and identify laws have been upheld. I, where they are just asking somebody sort of in the context of a civil case. For instance, hey, I want your id. I want you to tell me who you are. Uh, and you say no. Well, they can't punish you for that. They can't make it a crime. This comes up all the Time. So it's not just that you have a constitutional right to say no, it's that the government can't punish you for exercising a constitutional right. So that becomes the violation. Or if you're chilled based upon some law or some activity or some conduct by the government from exercising your right, that can become a constitutional violation as well. So underpinning all of these decision and all these laws is this constitutional notion, uh, that the police can't just stop and frisk anybody on the side of the road and ask them for identification. Those laws, by and large, uh, when they are, when there is not reasonable suspicion to investigate some crime, have been struck down as unconstitutional. And that's why this case came out that way. I haven't read the decision, but I would almost guess that underpinning all of this is that logic. Now, that's the legal side. There's the practical side to this. If you think, uh, uh, and, uh, people, for me say this all the Time, when you're engaged with the police, when you have the police knocking on your door or staring at you through your driver's side window, guess what? They got the badge, they got the gun, they got the handcuffs, and they have the power to put those handcuffs on you, drag your ass to jail and charge you with crimes. I'm not saying that's right. I'm not saying they always do that correctly. And I'm not saying they might not be flat out wrong. And unconstitutionally arresting, uh, people. But the point is, don't make a mess out of something that doesn't need to happen. Don't be controversial just because you can. On tick tock, you see all these idiots, like, cracking their window. What's your name, sir? I don't have to tell you anything. Well, guess what? You don't. But it's like you're not also going to go up to a guy on the street who's twice as big as you and say, hey, go screw your mother. I'm allowed to say that like you are. But there's a practical side to this. Now, there are certain people that just like to be antagonists to go make a point. And I suppose activists might be the right word for that. Um, you know, if you didn't have people challenging the bounds of things, if you didn't have people doing that, then we wouldn't ever, the law wouldn't emerge and we wouldn't have these rights. But you don't want to be that person. You don't want to play law student when you're pulled over and say, you're not allowed to pull me over because blah, blah, blah, blah, blah. Well, guess what? They don't give a crap. They're going to put your ass in handcuffs and take you to jail. Now you got to call me to help fix it, and it's going to cost you thousands of dollars to defend yourself. If this gal would have just identified herself, because why not?

>> Troy Henriksen: Mhm.

>> Steve Palmer: None of this happens. None of it. She never gets charged with a crime. She never has to pay for a lawyer. She doesn't have to decide whether to have a jury trial or bench trial. She doesn't have to lose the trial, go all the way to the court of appeals, have, uh, the case reversed, only to come back down and be right back where she started when all she had to do is say, yes, I'm Jennifer and I live here. Now, the next question she doesn't have to answer, did you let your dog out? Now she needs to say, I'm not going to answer that question because I have a constitutional right not to incriminate myself. Giving her name was not incriminating. Identifying herself was not incriminating. Sometimes it is. This time it wasn't. And that's why all this happened. Easily could have been avoided.

>> Troy Henriksen: Absolutely.

>> Steve Palmer: They didn't tell you that in law. So. All right, Steve Palmer here, Lawyer Talk, off the record, on the air, taking the Law School questions and educating the public with them, until now.