A Brief History
On June 13, 1966 the US Supreme Court ruled in favor of Miranda in Miranda v Arizona, creating the requirement for police to inform people of their rights before questioning. On March 13, 2014, we ran an article about that, and on May 20, 2014, we wrote a list about things commonly misunderstood about the law. Here we list another 10 of those commonly misunderstood legal things. Remember, laws may vary from state to state and local laws might have differences as well, so we are talking what is generally the case, not always. If you need actual legal advice, get it from a lawyer and get it in writing! As always, give us your nominations about legal misunderstandings.
10. Breaking and Entering.
A common misconception is that you have to actually break something and enter a place to be guilty of this crime. In Ohio and most states merely trespassing to commit a felony, or trespass to commit a theft offense constitutes B&E. A burglary on the other hand concerns a dwelling place or occupied place. The term “home invasion” is an invention of the media.
9. I’ve Been Robbed!
Robbery does not mean stealing stuff, that is theft. If you come home and your house is ransacked, you are the victim of a burglary, not a robbery. Robbery is when the thief uses force or the threat of force to steal from you. A shoplifter that resists arrest can be charged with robbery, and a mugger will be charged with armed (aggravated) robbery even if he did not really have a weapon but said or pretended he did.
8. An Accident is an Accident, Not a Crime.
If you cause a car crash, especially if someone is killed, you will be charged with a crime. Accidentally shoot your hunting buddy, and you will be charged with a crime. Even if you did not mean it, many crimes have what is called a culpable state defining the crime, and in the case of accidents it can be just doing it period with no culpable state (example: driving left of center), or with negligence (should have been more careful) or recklessness (disregard for the safety of others).
7. Off Duty and Retired Police Can Carry Concealed Weapons.
This one is quite true! In 2004 President Bush signed HR 218, the Law Enforcement Officers Safety Act that allows any police officer or retired officer in good standing and that qualifies with a firearm at least once per year to carry a concealed weapon in any jurisdiction in the country. Limitations are certain federal and court buildings, airplanes and the like. If your state allows businesses to prohibit firearms, the off duty or retired police officer can still carry legally there. Not only does this protect police officers from vindictive criminals, it also provides hundreds of thousands of responsible people with guns that could conceivably help protect the public.
6. Income Tax is Unconstitutional and Illegal, therefore You do Not Have to Pay It.
This bad advice from the “Freemen” and others will get you prosecuted and tossed in the clink. Just ask actor Wesley Snipes. Enough court cases have been tried over the years that it is safe to say the income tax is the law of the land.
5. You Can Kill Someone as Long as They Are in Your House.
This claim is not true. Even in states that have a “stand your ground” or “castle doctrine” law you cannot kill people for merely being in your house. In most places you have to be defending your life or the life of another, or at least be in reasonable fear of your life (not just because you say so). The old adage about dragging the burglar you just shot into your house will get you charged with tampering with evidence, obstructing official business, and who knows what else.
4. Police Need a Warrant to Come on Your Property.
No, they do not. In response to a call they will investigate whether you like it or not. If they have to go into your house to check on the welfare of occupants they will, without a warrant. If they are in hot pursuit (fresh pursuit, whatever) they can follow the suspect where ever he goes. If police need to be in your yard to surround your neighbor’s house they will not leave because you said so. If a 911 call comes from your house and you tell the police at the door it was a mistake, they can still look around the house to be sure everything is ok.
3. A Spouse Cannot Testify Against a Spouse
The law is that a spouse cannot be forced to testify against a spouse. Of course a battered wife can testify against her abusive husband, or a husband can testify against his wife for abusing the children, you just cannot make them do it.
2. The Victim Has to “press charges” For You to be Prosecuted.
This misunderstanding is so pervasive that many policemen operate as if it is law. Especially as regards to felonies, the police and prosecutors are obligated to pursue charges whether the victim wants the perpetrator prosecuted or not. Realistically, it is often difficult or impossible to get a conviction without the cooperation of the victim, but that does not mean it cannot happen. This is amply demonstrated with cases such as child abuse where the victim may be too young to testify or too scared.
1. Double Jeopardy.
Although you are theoretically protected against being tried for the same crime twice, there are ways around that. When the LAPD officers were acquitted in the Rodney King beating, the federal government tried them for civil rights violations and they ended up in the slammer, which has been done before when an unpopular acquittal comes down and makes the government appear vindictive, but it is legal and they do it. Also, there is the civil lawsuit aspect, as O.J. Simpson found out when he was found liable for the murders that he was acquitted for in criminal court. Also, as demonstrated in the 1999 movie, Double Jeopardy, starring Ashley Judd, you would think that if someone is convicted of murder and the victim turns out not to be dead, the convicted person could then go ahead and kill the “victim” for real and not get prosecuted. It does not work like that!
Question for students (and subscribers): Did you believe any of these misconceptions? Please let us know in the comments section below this article.
Your readership is much appreciated!
For more information, please see…
Frater, Jamie. I Call Bullshit: Debunking the Most Commonly Repeated Myths. Ulysses Press, 2011.