Guide Beyond Knoches Law

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Reference person Andreea-Loredana Tudorache Co-author and co-trainer. If you want to contact reference persons, you have to be signed in. Validated The training activity took place in Sremski Karlovci, Serbia. Reference person Mark Taylor External Consultant. Awaiting validation requested The training activity took place in Sarajevo, Bosnia and Herzegovina. The training activity took place in Novi Pazar, Serbia. Reference person Andreea Loredana Tudorache Co-trainer. There were various types of surety.

1. Introduction

For example, the surety would guarantee with his own property the payment of a debt, and then join the plaintiff in enforcing a debt judgment if the debtor refused to pay. In that case, the debtor would have to pay double damages: one to the original creditor, and another as compensation to his surety. The victim would gather his sureties around him and proceed to apprehend the criminal or to proclaim his suit publicly and demand that the defendant submit to adjudication of their dispute with the brehons.

The criminal might then send his own sureties to negotiate a settlement or agree to submit the dispute to the brehons. As with Iceland and the Anglo-Saxons, restitution was of primary importance in Ireland. Law enforcement was the responsibility of private individuals, which they facilitated through reciprocal institutional arrangements similar to those of the Anglo-Saxons. Those unfamiliar with the history of law may find it inconceivable that law-making and law enforcement could occur outside the framework of government. However, laws have always been made — or discovered — by people.

Therefore, the question is which people should make the laws. When laws are made by people operating within the institutional framework of authoritarian governments, history shows the overwhelming tendency is for a small minority of people to be favoured at the expense of the masses discussed in Parts 9 and In contrast, under customary law, laws were not enacted by specific people.

Laws were discovered, not made. Through experience, people discovered that peaceful, prosperous, vibrant communities were impossible unless everyone observed certain rules of conduct — do not kill, assault, or steal. Thus, under customary law, laws were obeyed not because of written documentation of the law, but because everyone understood the law — everyone understood what constituted good behaviour.

In early Irish history, written records were not maintained, yet the law was enforced. Think of it another way — sureties would not assist the victim unless the specific type of offence was widely disapproved of by the people in the community. This is how people get the laws they want, and are prepared to enforce. Conversely, under authoritarian law, most murders, rapes, and robberies are NOT solved. The extent to which we can legitimately consider ourselves civilized has much to do with our process of lawmaking. A fair test of the sophistication of any legal system might be to examine the extent to which women enjoy legal capacity and property rights.

By this standard, Irish law in the 8th century may have had more sophistication than English law in the days of Queen Victoria. An affirmative answer would mean that it is possible for the state to do so, depending on the facts and circumstances of a particular case. A negative answer would mean that it is impossible for the state to do so, which would mean that the state always must obtain a confirmatory laboratory test if the state wishes to resist a defendant's challenge to probable cause.

We believe that the questions certified by the district court should be reframed slightly for reasons independent of those identified by Knoch and Watson. Specifically, we believe that the issues raised by Knoch and Watson can be analyzed more easily if the two questions are merged into a single question, as is reflected above in our statement of the issue. Knoch and Watson argue that, in a prosecution for possession of a controlled substance, if a defendant moves to dismiss for lack of probable cause, the state may not rely on a field test to identify the alleged controlled substance.

They argue that the state must, in all cases, perform a confirmatory laboratory test in order to have evidence sufficient to defeat the motion. A motion to dismiss a criminal complaint for lack of probable cause may be brought pursuant to the following rule:.

1. Introduction

Ortiz, N. June 27, State v. Florence, Minn. Hastings v. Bailey, Minn. Koenig, N. Knoch and Watson contend that, to defeat a motion to dismiss for lack of probable cause, the state must have evidence sufficient to support a conviction.


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Lopez, N. Simion, N. But a district court must "order the entry of a judgment of acquittal of one or more offenses charged in the tab charge, indictment or complaint if the evidence is insufficient to sustain a conviction of such offense or offenses. Slaughter, N.

Snežana Bačlija Knoch

To convict a defendant of possession of a controlled substance, the state must prove that the defendant possessed a substance that is a controlled substance. Olhausen, N. Vail, N. If "the identification of the drug is in question, the sufficiency of the evidence is examined on a case-by-case basis. Thus, whether the evidence is sufficient to support a conviction, or whether the evidence is sufficient to establish probable cause, necessarily depends on the particular facts of a given case. In light of the fact-intensive, case-by-case nature of a probable-cause determination, Knoch and Watson have a challenging task in seeking to establish a bright-line rule.

They ask this court to hold, despite the caselaw requiring a case-by-case approach, that a field test that indicates the presence of a controlled substance never can be sufficient to establish probable cause or to establish guilt.

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In support of their argument, Knoch and Watson rely primarily on Vail, in which the supreme court reversed a defendant's conviction for sale and possession of marijuana after concluding that the evidence was insufficient to identify the substance as marijuana beyond a reasonable doubt. The supreme court reviewed findings of fact made by the district court after a bench trial. The district court found that the two laboratory tests were "only screening tests not adequately specific to identify marijuana.

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The district court found that another test "is capable of identifying marijuana beyond a reasonable doubt, but that test was not used in this case. The supreme court reversed the district court's finding of guilt, reasoning that "the additional considerations relied upon by the trial court," i.

Knoch and Watson contend that Vail established the principle that a defendant cannot be convicted of possessing a controlled substance unless the state has sufficient scientific evidence to prove the identity of the substance. But that statement begs the question of what evidence is sufficient. But even so, the Vail opinion, which concerned marijuana, did not establish a bright-line rule that applies to a case involving methamphetamine; there is no rule of law arising from Vail that would require a district court to grant a motion for judgment of acquittal if the state's scientific evidence was limited to the result of a NIK Test U.

In fact, the Vail court expressly stated the contrary proposition: "We have not prescribed minimum evidentiary requirements in identification cases, preferring to examine the sufficiency of the evidence on a case-by-case basis. Thus, Vail does not forbid the state from establishing probable cause with a field test of an alleged controlled substance, without a confirmatory laboratory test. Knoch and Watson also rely, to a lesser extent, on State v. Robinson, N. In that case, the defendant was convicted of the offense of selling 10 grams or more of a cocaine mixture.

The defendant possessed 13 packets of cocaine, which weighed a total of A chemist combined the contents of six or seven of the packets and tested the resulting mixture. The supreme court inferred that less than 10 grams of the mixed substance was tested and concluded that the evidence was "insufficient to establish the total weight required of the mixture containing a controlled substance.

Contrary to Knoch's and Watson's argument, Robinson also does not establish any evidentiary standard or rule of law that forbids the state from establishing probable cause with a field test of an alleged controlled substance without a confirmatory test. The supreme court's subsequent opinion in Olhausen also is inconsistent with Knoch's and Watson's argument.

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The defendant in that case was convicted of three offenses relating to the possession and attempted sale of methamphetamine based solely on circumstantial evidence. The state was unable to conduct any scientific testing on the alleged methamphetamine because the defendant escaped from the scene of a controlled buy with the alleged methamphetamine in his possession.

The state introduced other evidence of the defendant's possession of methamphetamine, including the testimony of an undercover officer concerning the defendant's intention to sell one pound of methamphetamine and the defendant's possession of a package weighing approximately one pound.

The supreme court upheld the jury's verdict of guilty, distinguishing Vail and Robinson in the process. The supreme court reiterated that the sufficiency of the evidence of identification of a controlled substance is a case-by-case matter that is best resolved by a factfinder. We need not apply the above-stated principles to the facts of these consolidated cases because they are before us on a certified question. Nonetheless, the district court proceedings in these cases illustrate why the state is not foreclosed from establishing probable cause with evidence of a field test.

The state presented evidence that the field test used in these cases, the NIK Test U, is reliable enough to establish probable cause. These findings easily satisfy the Florence standard, which asks only "whether the evidence worthy of consideration, in any aspect for the judicial mind to act upon, brings the charge against the [defendant] within reasonable probability.

In sum, we reiterate that a probable cause determination is a fact-intensive determination that must be made on a case-by-case basis. We therefore reject Knoch's and Watson's request that we impose a bright-line rule forbidding the use of a field test of a controlled substance to establish probable cause.

Nothing in this opinion, however, precludes a defendant from challenging the existence of probable cause by introducing evidence of a confirmatory test indicating that a particular substance is not a controlled substance. Rud, N. In a prosecution for possession of a controlled substance, the state may, depending on the facts and circumstances of a particular case, establish probable cause based on evidence of a positive field test of a substance alleged to be a controlled substance, without evidence of a confirmatory test of the substance. Knoch and Watson offered evidence in support of this argument after the evidentiary hearing, when they moved for reconsideration and submitted 32 pages of documents relating to seven criminal prosecutions in the Minnesota state courts in which a field test purportedly generated a false positive test result.

Knoch and Watson did not offer any testimony to explain the circumstances of those seven cases or any written statements in lieu of testimony. The state responded by arguing that the documents were submitted too late, did not have probative value, and did not establish that the NIK Test U is unreliable.