Flagstaff Lawyer answers Arizona criminal law questions…

Question: What is a “Thayer presumption”? What is “prosecutorial misconduct”? What is the mercy rule? How about the adverse interest rule? And what is an Alford Plea?

Mr. Stevens’ Answer: The Thayer presumption refers to a certain type of a presumption, commonly understood as a burden of production but not persuasion. Under the Thayer approach, the purpose of a presumption is to require a party against whom a presumption operates to come forward with any evidence of the nonexistence of the presumed fact. This concept is rarely argued in criminal law because it relates to procedure, and the Arizona Rules of Criminal Procedure clearly define what types of presumptions occur in Arizona criminal law.

Prosecutorial misconduct is generally a procedural defense in which a defendant claims that the prosecutor acted inappropriately. Usually you’d have to prove that the prosecutor knowingly and intentionally violated constitutional rights or Arizona law in favor of the prosecution. This does occur but is not simple to prove. The only “mercy rule” that I know of relates to sports events, not criminal law, so I can’t help you there.

The adverse interest rule is a legal principle saying that if a party fails to produce a witness who is within its power to produce and who should have been produced, the judge may instruct the jury to infer that the witness’s evidence is unfavorable to the party’s case. This is rarely used in criminal law. However, for example, if the prosecutor has a witness with relevant information and fails to produce that witness, there is a presumption that the evidence was favorable to the defendant. Usually, the defendant can call the witness instead, thus defeating the need for the rule.

An Alford Plea is a “no contest” plea where a criminal defendant does not admit committing the crime (i.e., does not admit guilt), but admits that the prosecution could prove guilt. Usually, an Alford Plea is accepted where a defendant was so drunk or drugged out that he/she cannot remember committing the crime. In that case, the defendant cannot knowingly plead guilty (because he/she doesn’t remember committing the crime!), so the Court accepts a “no contest” plea. You should never enter a plea of guilty or an Alford plea without a lawyer!

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