Generally, a defendant's or witness's out of court statements are not admissible to prove their truth in court.  This is the hearsay rule.  There are many exceptions to the hearsay rule, however, including an adoptive admission.

An adoptive admission is generally where the defendant, knowing the content of an accusation against him, adopts the truth of the accusation by his words or conduct.

This often comes up when the police plant someone in a jail cell with or next to the suspect.  The cellmate will ask the suspect questions about the crime.  The suspect may simply agree with the cellmate or may boast about his crimes. 

For example, let's say the defendant makes a statement, "Yeah, man, that guy didn't know who he was messing with."  That statement is admissible by itslef as an admission. But it becomes much more powerful as an adoptive admission when it is coupled with the cellmate's question, "You shot the guy because of the way he looked at you?"

Sometimes a defendant can adopt an accusation by his silence.  If someone is accused of a crime under circumstances where he could hear, understand, and reply to the accusation, and he does not respond, both the accusation and his response (or lack thereof) may be admitted in court.  The prosecutor can argue from this that the defendant admitted the crime.

Similarly, if the defendant responds to an accusation in a way that is evasive or equivocal, that can be admitted in court.

The factors to look for to determine if silence can be admitted as an adoptive admission include:
1.   whether the accusation was made in the defendant's presence;
2.  whether the defendant heard and understood the accusation;
3.  whether, in the circumstances, the defendant naturally would have denied the accusation; and
4.  whether the defendant could deny but didn't.

The idea behind an adoptive admission by silence is that most people, if falsely accused of a crime, would immediately deny it.  When someone does not deny it, that is an indication that the person has a guilty conscience.  A person's own words, or under these circumstances, their lack of words, can be powerful evidence against the defendant.

On an important note, if there is an indication that the defendant's silence was based on him invoking his right to remain silent under the Fifth Amendment, his silence cannot be used against him. 

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I have previously discussed the general requirements to reduce an intentional killing from murder to voluntary manslaughter under a heat of passion theory. 

Yesterday, I set out  several examples of acts that may constitute sufficient provocation by the victim to justify a voluntary manslaughter conviction in lieu of murder.

To recap, a murder may be reduced to voluntary manslaughter under a heat of passion theory where:  1) the victim provoked the defendant, 2) the provocation caused the defendant to act rashly and under the influence of intense emotion, obscuring his judgment and reasoning, and 3) the provocation would have caused the average person to act rashly.

Some examples of acts by the victim that generally DO NOT constitute sufficient provocation (so the defendant will be on the hook for murder) include:

1.  A simple or slight assault.
2.  A simple trespass.  (However, a trespass combined with a physical attack or physical resistance to an eviction may suffice.)
3.  A victim's refusal to engage in sex.
4.  Molestation of a stranger.  In other words, where the defendant kills someone he believes sexually molested a child who was not related to or emotionally close to the defendant, the molestation is not sufficient provocation, and the defendant must be convicted of murder.
5.  Mere words or gestures, unless accompanied by something more.

 For more in-depth information about the differences between murder and voluntary manslaughter, check out this article.

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When someone kills another in the heat of passion, the murder may be reduced to voluntary manslaughter. 

The elements, or requirements, necessary to find heat of passion voluntary manslaughter are:  1) the victim provoked the defendant, 2) the provocation caused the defendant to act rashly and under the influence of intense emotion, obscuring his judgment and reasoning, and 3) the provocation would have caused the average person to act rashly.

Not everything a victim does can be sufficiently provocative that it will support a voluntary manslaughter conviction (as opposed to murder).  Acts that may constitute adequate provocation (depending on the circumstances) include:

1.  A violent physical attack by the victim.
2.  Mutual combat or a fight between the defendant and victim, as long as the defendant did not start the fight.
3.  The victim's murder of a member of the defendant's family.
4.  A spouse's adultery.

Check out this post for examples of acts that will not justify reduction of murder to voluntary manslaughter.

For more in-depth information about the differences between murder and voluntary manslaughter, check out this article.

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To aid and abet means to aid, help, facilitate, promote, instigate, or encourage another person to commit a crime.  The other person who commits the crime is called the direct perpetrator.

To be found guilty under a theory of aiding and abetting, the defendant generally must know of the direct perpetrator's criminal purpose, must intend to aid and abet the perpetrator, and must do or say something that in fact aids and abets the crime.

Someone who aids and abets a crime is generally just as guilty as the direct perpetrator.  This is true whether the aider and abettor had a minor role in the crime or was the most culpable person.

Examples of aiding and abetting include someone who is a lookout, who drives the getaway car, or who stays with the direct perpetrator during the crime as show of force or to help give the direct perpetrator courage to commit the crime. 

An aider and abettor can also be someone who orders the direct perpetrator to commit the crime (like a senior gang member directing a junior gang member to commit a crime).

The aider and abettor does not need to be present when the crime occurs.  On the flip side, mere presence at the scene of a crime, standing alone, is not enough to find someone guilty as an aider and abettor.

If someone only helps the direct perpetrator after the crime has been completed, such as by hiding the person, or destroying or disposing of evidence, that person is an accessory after the fact, not an aider and abettor.

If someone intends to aid and abet one crime, but a different crime occurs, the aider and abettor may still be guilty of that other crime, if the other crime was reasonably foreseeable under the circumstances.  This is called the natural and probable consequences doctrine.

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Question from a reader:  If person A threatens person B with the loss of B's job if B does not cut the brake line of C's car, who can be held liable for the crime?

The short answer is that, if B actually cuts the brake line, both A and B can be convicted.  That would at least be a vandalism charge, and possibly attempted murder, depending on the specific circumstances. 

B would be liable as the direct perpetrator, since he did the criminal act of cutting the brake line.  A would be liable as an aider and abettor or an accesory because he got B to do it.  (Although we usually think of an accessory as being less culpable than the direct perpetrator, that is not necessarily so, as this example demonstrates.)

That leads to the question, if B was basically forced to commit the crime, why would he still be criminally liable? 

There are only limited circumstances where the law allows someone to "get away with" committing a crime.  Generally, if someone is being threatened or forced to commit a crime, they would be expected to report it to the police.  That's true even if reporting the crime would have dire consequences, such as the loss of a job.   

There are some defenses where a person is basically forgiven for committing a crime.  However, the crime must be committed to prevent something worse from happening, and it must be the only real option.  Self-defense  or defense of others would be such a defense.

There are also the defenses of duress and necessity.  These defenses have strict requirements, and generally only permit someone to commit a crime if the crime would help prevent some bigger wrong, and if there was no other reasonable alternative. 

For example, if someone has planted a bomb and threatens to blow up a school if you do not rob a bank, and you have no way to notify authorities or get away, you would probably not be liable for the bank robbery. 

Being threatened with losting one's job would not qualify under any defense.

Note that in teh scenario above, A did not commit blackmail or extortion by threatening B's job to force B commit a crime like cutting a brake line.  Extortion involves threatening someone to force them to give you money or property (or to get a public officer to perform an official act).

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I added an article about where to draw the line between simply thinking about or planning a crime, and doing enough to be convicted of an attempt.  What is an attempted crime?  Learn about what constitutes an attempt, as well as other criminal law concepts, in the Resources section.

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Most people are familiar with a trial jury.  A trial jury is usually made up of 12 people who listen to a trial and decide the defendant's guilt or innocence.  In law, a trial jury is called a "petit jury," to distinguish it from a grand jury. 

A grand jury has many differences and similarities with a trial jury.  The grand jury is generally much larger, often comprised of at least 23 people.  Like a petit jury, a grand jury is made up of regular citizens who respond to a jury summons. 

The  grand jury usually meets once a week for many months or even a year.  This schedule is different from a petit jury, which usually meets every court day until a trial is over.

The grand jury is an investigative body that can issue subpoenas for witnesses or documents.  The evidence is generally presented by prosecutors.  The grand jury reviews the evidence and determines whether a person should be charged with a crime, or indicted.  

A person being investigated, called "a target" of a grand jury, is not allowed to have an attorney present evidence to the grand jury.  Neither the target nor the target's attorney may be present in the grand jury proceedings unless subpoenaed (or ordered to testify).  

A target, if called to testify, or any other witness before the grand jury, may "plead the Fifth," or invoke their right to remain silent.  A person may not later be punished for remaining silent because it is a constitutional right.  Grand jury proceedings are kept secret until someone is charged.  It is therefore possible a target may not know he or she is being investigated.

Ostensibly, the grand jury's purpose is to prevent overzealous prosecutors from charging people with crimes without sufficient evidence.  However, in reality, grand juries usually follow the prosecutor's lead and do whatever the prosecutor suggests.

All federal criminal charges are made through a grand jury.  Many states use grand juries as well.  States are not required to use a grand jury.  States may use other means of "checking" the prosecutor's exercise of charging discretion.  For example, in California, prosecutors can use a grand jury, but they usually use a preliminary hearing instead. 

In a preliminary hearing, the prosecutor presents evidence before a judge, who must decide whether there is probable cause to believe the defendant committed the charged crimes.  A defendant may cross-examine witnesses and present evidence at a preliminary hearing, which is different than a grand jury.

The role of the grand jury is written into the U.S. Consitution.  The Fifth Amendment states in part, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury."

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