Post: #51

(04-11-2013 08:32 PM)lurker Wrote:  

(04-11-2013 07:42 PM)soup Wrote:  Yes, enquiring testes want to know.

What does state law say about dick pics?

That I don't know. It undoubtedly depends on the state.

(04-11-2013 07:42 PM)soup Wrote:  If I send a dick pick to girl in Toronto or Oregon, will the federal government come after me?

Probably not.

(04-11-2013 07:42 PM)soup Wrote:  Am I technically the copyright owner of my dick pic?

If you took it.

(04-11-2013 07:42 PM)soup Wrote:  What if I send a dick pic of a dick that isn't mine?

Gray area. Did you produce the pic? Is the dick 18+? Do you have permission?

(04-11-2013 07:42 PM)soup Wrote:  If a girl consents to the dick pic being sent, am I at fault in anyway?

See the discussion of 18 USC 2257, supra. Supra is a fancy-ass Latin word lawyers use meaning "above." It's italicized as a reference signal, and because it's motherfucking Latin. Respeck.

Caveat. If she's under the age of 18 you're an idiot.

(04-11-2013 07:42 PM)soup Wrote:  Can I sue a girl if she sends my dick pick to the internet or to her friends?

Did she Photoshop it to make it look smaller? Truth is an absolute defense to libel.

(04-11-2013 07:42 PM)soup Wrote:  If a girl is so turned on by dick pic that she has sex with me, can she turn it around the next day and say that I essentially "rouphied" her with said dick pic?

Hmmm. Let's say YOU Photoshopped it to look bigger, proximately causing her to become aroused and seek you out for intercourse. She could claim rape by false pretenses, a claim that hasn't been so far successful in the USA but worked in Israel when a filthy godless Arab desecrated a holy Hebrew's Second Temple by telling her he was Jewish.

I believe this is incorrect. What is described above is "fraud in the inducement" which cannot negate consent re: rape. Fraud in the factum can negate consent, but this is limited to fraud in the actual act of sex, not misrepresentation in the inducement of sex. For example:

"Hey, I'm a record producer, let's have sex" = Fraud in the inducement. Woman still consented to sexual intercourse.

Woman is in the doctor's office. Doctor says turn around I am going to insert an instrument to examine you. Instead he inserts his penis. This is fraud in the factum, woman did not consent to intercourse.

Post: #52

(04-12-2013 01:33 PM)LowerCaseG Wrote:  

(04-11-2013 08:32 PM)lurker Wrote:  

(04-11-2013 07:42 PM)soup Wrote:  Yes, enquiring testes want to know.

What does state law say about dick pics?

That I don't know. It undoubtedly depends on the state.

(04-11-2013 07:42 PM)soup Wrote:  If I send a dick pick to girl in Toronto or Oregon, will the federal government come after me?

Probably not.

(04-11-2013 07:42 PM)soup Wrote:  Am I technically the copyright owner of my dick pic?

If you took it.

(04-11-2013 07:42 PM)soup Wrote:  What if I send a dick pic of a dick that isn't mine?

Gray area. Did you produce the pic? Is the dick 18+? Do you have permission?

(04-11-2013 07:42 PM)soup Wrote:  If a girl consents to the dick pic being sent, am I at fault in anyway?

See the discussion of 18 USC 2257, supra. Supra is a fancy-ass Latin word lawyers use meaning "above." It's italicized as a reference signal, and because it's motherfucking Latin. Respeck.

Caveat. If she's under the age of 18 you're an idiot.

(04-11-2013 07:42 PM)soup Wrote:  Can I sue a girl if she sends my dick pick to the internet or to her friends?

Did she Photoshop it to make it look smaller? Truth is an absolute defense to libel.

(04-11-2013 07:42 PM)soup Wrote:  If a girl is so turned on by dick pic that she has sex with me, can she turn it around the next day and say that I essentially "rouphied" her with said dick pic?

Hmmm. Let's say YOU Photoshopped it to look bigger, proximately causing her to become aroused and seek you out for intercourse. She could claim rape by false pretenses, a claim that hasn't been so far successful in the USA but worked in Israel when a filthy godless Arab desecrated a holy Hebrew's Second Temple by telling her he was Jewish.

I believe this is incorrect. What is described above is "fraud in the inducement" which cannot negate consent re: rape. Fraud in the factum can negate consent, but this is limited to fraud in the actual act of sex, not misrepresentation in the inducement of sex. For example:

"Hey, I'm a record producer, let's have sex" = Fraud in the inducement. Woman still consented to sexual intercourse.

Woman is in the doctor's office. Doctor says turn around I am going to insert an instrument to examine you. Instead he inserts his penis. This is fraud in the factum, woman did not consent to intercourse.

Sounds more like fraud in the rectum.

Post: #53

(04-12-2013 11:48 AM)Merenguero Wrote:  

(04-12-2013 03:38 AM)Viata Wrote:  If 2 americans get married in Slovenia, their divorce will be possible only in Slovenia? And which laws will apply? A prenuptial agreement made in slovenia before a notary will be 100% safe or it will depend on the mercy of some feminist jury which still can take half of your wealth despite the prenuptial agreement?

If two Americans get married in Slovenia, the divorce should be filed in the place where they are living at the time of the filing. If they got married in Slovenia, but have been continuously living in a particular state of the United States the requisite period of time (often several months or a year), the divorce can be filed in the state where they are living. In my state, one or both of the parties must be living here for one year immediately prior to the filing of the divorce. It doesn't matter where the parties are married. When people are also citizens or residents of another country, the divorce can also be filed in that country.

Courts in the United States can, but do not always, accept divorces which were obtained in foreign countries as long as those divorces were in compliance with all applicable laws of the country which granted the divorce. I often see these Dominican Republic divorces advertised in the United States as a way to obtain a divorce quickly and to get around the divorce laws of the United States. The problem with these divorces is that Dominican law requires at least one of the parties to be in Court at the time of the divorce. Often, neither party leaves the United States for this type of divorce and the divorce is therefore not in compliance with Dominican law and its validity could be easily contested in a United States court. A bit of personal experience there.

As for your question about the pre-nup, even if it were made in Slovenia, the United States court would still have jurisdication over determining its validity if the divorce is filed in the United States. The factors which determine its validity are whether it is freely and voluntarily entered into, whether there is a full and frank disclosure of all assets, whether it is fair and equitable, and whether both parties are advised of their right, though not the necessity of obtaining counsel.

This is consistent with everything I am learning in class. The couple could also return to Slovenia to get a divorce but it isn't necessary. It is also possible for a US court to review a foreign divorce, enforce a portion of it, but not another. It's not all or nothing. Children's issues (Custody & child support) are always reviewable. Parents cannot contract away children's rights.

Post: #54

If you work overseas for a US based corporation that you own, do you have to pay personal income taxes if you're out of the country for the mandatory nine months? I know there's a cap on how much income is nontaxable, but is there an issue with you owning the company?

Post: #55

(04-12-2013 02:09 AM)lurker Wrote:  

(04-11-2013 11:59 PM)NY Digital Wrote:  what about in a case? let's say you record yourself having sex with every woman without them knowing.

you get accused of rape and go to court and show them the tape showing consent.

would you still get charged for invasion of privacy?

and, not sure if I need to ask this, but, would the video hold up as evidence?

Merenguero would probably be the better choice to answer this one, but I'd make damn sure I brought it out well before any court date - like I would show it to my lawyer as soon as possible after I got together with him (before which I would shut up and not answer ANY police questions), and then he and I would sit down with the DA, police, and the complaining witness (from the defense perspective, NEVER "victim") and all watch it together. Maybe this is a suboptimal strategy, but I would rather attempt to short-circuit the possibility of trial altogether, especially in a charged atmosphere like a rape case. DAs are SUPPOSED to be searching for truth, not crusading. On the other hand, crusader DAs don't like getting bitchslapped by clear and convincing evidence of innocence.

As a side, I would watch it pretty carefully first to see if it supported my innocence - that it unequivocally shows her consenting, able to consent, enjoying herself, etc.

Would you still get charged? It's possible, but it beats a rape conviction.

Would the video hold up as evidence in the courtroom? Video can come in as long as anybody familiar with the video can authenticate it. That can be as easy as you taking the stand and describing what the video is as it's playing -

Atty: Do you recognize this video?
You: Yes.
Atty: Can you describe it for the jury?
You: It's my bedroom at [address]. It was taken on [date] at [time]. (Note: timestamps would probably be a good idea.) The naked guy is me. The naked girl moaning is [chick]. Those curtains were a gift from my mother.

This is a really good response, but I would just like to add my two cents. All evidence must be authenticated in order to be admissible. Authentication requires that the proponent of evidence show that the evidence represents what it proports to represent. If you are trying to get a video into evidence, the party seeking admission of the video (probably you) must properly authenticate the video. Lurker illustrated the questions which need to be asked in order to properly authenticate a video. A potential problem with that is that under the United States Constitution, a criminal defendant has a 5th Amendment Privilege against self incrimination, which is waived upon the Defendant taking the stand and deciding to testify. A criminal defendant is not permitted to say that he will be testifying for the limited purpose of authenticating an exculpatory video. If he waives his 5th Amendment privilege by choosing to testify, he leaves his nose open for self-incrimination, cross-examination, and/or impeachment of his credibility. Impeachment can be done by introducing evidence of a witness' prior convictions, cross-examining him about a prior inconsistent statement (if the prior inconsistent statement was made under oath, it can also be admitted substantively), showing evidence of bias, etc. It all depends on the case. Many criminal defendants would be illadvised to testify. You must weigh the need for the Defendant to testify in order to authenticate evidence against the risk involved in the Defendant incriminating himself and/or having his credibility impeached.

If the Defendant has a video which is exculpatory and the video is shown to the prosecutor well in advance of the trial, the prosecutor may realize that the Defendant is not guilty of the offense and may drop the case based on seeing the video. The obvious risk associated with videotaping a sexual encounter is the possibility of being charged with invasion of privacy and/or a peeping tom type offense. As Lurker alluded to, such offenses are less serious than rape. You sometimes have to take risks in order to protect yourself. The good thing about all this is if you are charged with a rape and you have an excuplatory video which you show to the prosecutor and which leads to you any proceedings against you being terminated in your favor, the prosecutor may be so disturbed by the conduct of the accuser and may believe that the accuser has such serious credibility issues that the prosecuter may decide not to pursue any charges against you. I will say this: I almost never see anyone charged with invasion of privacy and/or under a peeping tom statute as a result of taping himself having sex. That's not to say that it cannot and will not happen. I am just saying that it is not nearly as common as being charged with drug offenses, assault, disorderly conduct, or alcohol-related traffic offenses.

Post: #56

(04-12-2013 02:26 PM)Katatonic Wrote:  If you work overseas for a US based corporation that you own, do you have to pay personal income taxes if you're out of the country for the mandatory nine months? I know there's a cap on how much income is nontaxable, but is there an issue with you owning the company?

I can see a number of different scenarios depending on whether the corporation is a C- or S-Corporation. As a basic primer:

C-corporations are taxed at the corporate level on profits. They then may pay their employees, at which time the employee pays income tax on those receipts. C-corp owners are thus "double-taxed" - once at the corp level, once at the personal level.

S-corps are pass-through entities. All income to the corporation "passes through" and is imputed as income directly to the owner.

In this example, my guess is that an S-corp would pass all money earned abroad through as international income and the owner would be tax-exempt up to the current 95K or so threshold, while a C-corp would pay whatever income it decided to the owner, but any residual stock gains or dividends would be taxable in the US at the capital gains rate. The issue with you owning the company would thus be in any appreciation of the company itself in asset value. Should the US adoption of IFRS standards really force mark-to-marketing of company booked assets next year like they're supposed to, this could result in a deemed cap gain (unless I'm wrong on the accounting principles - it's been a while since I took an accounting class).

Don't quote me on this one. The fact that the companies are American (so the $$ goes "through" the US) might force a different result and international tax issues are waaaay beyond my pay grade. The best solution in that case may be to have the company take on a foreign subsidiary that pays the owner completely outside the US. ***now, kids, make sure not to use the total inability of the Treasury Department to track your revenues in that situation to evade taxes!!!***

Post: #57

(04-12-2013 01:33 PM)LowerCaseG Wrote:  

(04-11-2013 08:32 PM)lurker Wrote:  Hmmm. Let's say YOU Photoshopped it to look bigger, proximately causing her to become aroused and seek you out for intercourse. She could claim rape by false pretenses, a claim that hasn't been so far successful in the USA but worked in Israel when a filthy godless Arab desecrated a holy Hebrew's Second Temple by telling her he was Jewish.

I believe this is incorrect. What is described above is "fraud in the inducement" which cannot negate consent re: rape. Fraud in the factum can negate consent, but this is limited to fraud in the actual act of sex, not misrepresentation in the inducement of sex. For example:

"Hey, I'm a record producer, let's have sex" = Fraud in the inducement. Woman still consented to sexual intercourse.

Woman is in the doctor's office. Doctor says turn around I am going to insert an instrument to examine you. Instead he inserts his penis. This is fraud in the factum, woman did not consent to intercourse.

Probably why it hasn't worked in the US. The Israeli court's conviction of the "I'm a Jew, let's produce more chosen children" poonraider threw a lot of legal academics for a loop.

Post: #58

(04-12-2013 06:50 PM)Merenguero Wrote:  

(04-12-2013 02:09 AM)lurker Wrote:  

(04-11-2013 11:59 PM)NY Digital Wrote:  what about in a case? let's say you record yourself having sex with every woman without them knowing.

you get accused of rape and go to court and show them the tape showing consent.

would you still get charged for invasion of privacy?

and, not sure if I need to ask this, but, would the video hold up as evidence?

Merenguero would probably be the better choice to answer this one, but I'd make damn sure I brought it out well before any court date - like I would show it to my lawyer as soon as possible after I got together with him (before which I would shut up and not answer ANY police questions), and then he and I would sit down with the DA, police, and the complaining witness (from the defense perspective, NEVER "victim") and all watch it together. Maybe this is a suboptimal strategy, but I would rather attempt to short-circuit the possibility of trial altogether, especially in a charged atmosphere like a rape case. DAs are SUPPOSED to be searching for truth, not crusading. On the other hand, crusader DAs don't like getting bitchslapped by clear and convincing evidence of innocence.

As a side, I would watch it pretty carefully first to see if it supported my innocence - that it unequivocally shows her consenting, able to consent, enjoying herself, etc.

Would you still get charged? It's possible, but it beats a rape conviction.

Would the video hold up as evidence in the courtroom? Video can come in as long as anybody familiar with the video can authenticate it. That can be as easy as you taking the stand and describing what the video is as it's playing -

Atty: Do you recognize this video?
You: Yes.
Atty: Can you describe it for the jury?
You: It's my bedroom at [address]. It was taken on [date] at [time]. (Note: timestamps would probably be a good idea.) The naked guy is me. The naked girl moaning is [chick]. Those curtains were a gift from my mother.

This is a really good response, but I would just like to add my two cents. All evidence must be authenticated in order to be admissible. Authentication requires that the proponent of evidence show that the evidence represents what it proports to represent. If you are trying to get a video into evidence, the party seeking admission of the video (probably you) must properly authenticate the video. Lurker illustrated the questions which need to be asked in order to properly authenticate a video. A potential problem with that is that under the United States Constitution, a criminal defendant has a 5th Amendment Privilege against self incrimination, which is waived upon the Defendant taking the stand and deciding to testify. A criminal defendant is not permitted to say that he will be testifying for the limited purpose of authenticating an exculpatory video. If he waives his 5th Amendment privilege by choosing to testify, he leaves his nose open for self-incrimination, cross-examination, and/or impeachment of his credibility. Impeachment can be done by introducing evidence of a witness' prior convictions, cross-examining him about a prior inconsistent statement (if the prior inconsistent statement was made under oath, it can also be admitted substantively), showing evidence of bias, etc. It all depends on the case. Many criminal defendants would be illadvised to testify. You must weigh the need for the Defendant to testify in order to authenticate evidence against the risk involved in the Defendant incriminating himself and/or having his credibility impeached.

If the Defendant has a video which is exculpatory and the video is shown to the prosecutor well in advance of the trial, the prosecutor may realize that the Defendant is not guilty of the offense and may drop the case based on seeing the video. The obvious risk associated with videotaping a sexual encounter is the possibility of being charged with invasion of privacy and/or a peeping tom type offense. As Lurker alluded to, such offenses are less serious than rape. You sometimes have to take risks in order to protect yourself. The good thing about all this is if you are charged with a rape and you have an excuplatory video which you show to the prosecutor and which leads to you any proceedings against you being terminated in your favor, the prosecutor may be so disturbed by the conduct of the accuser and may believe that the accuser has such serious credibility issues that the prosecuter may decide not to pursue any charges against you. I will say this: I almost never see anyone charged with invasion of privacy and/or under a peeping tom statute as a result of taping himself having sex. That's not to say that it cannot and will not happen. I am just saying that it is not nearly as common as being charged with drug offenses, assault, disorderly conduct, or alcohol-related traffic offenses.

Beware state wiretapping laws. A number of states have two-party consent laws, requiring everyone being recorded to know of and consent to the recording. Even if the evidence were admissible (as it was illegally recorded, probably not happening in a criminal proceeding), you'd be trading in acquittal on one felony for a likely prosecution and conviction on another.

Everything else in this thread is impressive.

Post: #59

My understanding is these 2 party consent laws refer to audio recordings. So if you were video someone without sound, it shouldn't be a crime.

Post: #60

(04-12-2013 11:58 PM)jdevoy Wrote:  

(04-12-2013 06:50 PM)Merenguero Wrote:  

(04-12-2013 02:09 AM)lurker Wrote:  

(04-11-2013 11:59 PM)NY Digital Wrote:  what about in a case? let's say you record yourself having sex with every woman without them knowing.

you get accused of rape and go to court and show them the tape showing consent.

would you still get charged for invasion of privacy?

and, not sure if I need to ask this, but, would the video hold up as evidence?

Merenguero would probably be the better choice to answer this one, but I'd make damn sure I brought it out well before any court date - like I would show it to my lawyer as soon as possible after I got together with him (before which I would shut up and not answer ANY police questions), and then he and I would sit down with the DA, police, and the complaining witness (from the defense perspective, NEVER "victim") and all watch it together. Maybe this is a suboptimal strategy, but I would rather attempt to short-circuit the possibility of trial altogether, especially in a charged atmosphere like a rape case. DAs are SUPPOSED to be searching for truth, not crusading. On the other hand, crusader DAs don't like getting bitchslapped by clear and convincing evidence of innocence.

As a side, I would watch it pretty carefully first to see if it supported my innocence - that it unequivocally shows her consenting, able to consent, enjoying herself, etc.

Would you still get charged? It's possible, but it beats a rape conviction.

Would the video hold up as evidence in the courtroom? Video can come in as long as anybody familiar with the video can authenticate it. That can be as easy as you taking the stand and describing what the video is as it's playing -

Atty: Do you recognize this video?
You: Yes.
Atty: Can you describe it for the jury?
You: It's my bedroom at [address]. It was taken on [date] at [time]. (Note: timestamps would probably be a good idea.) The naked guy is me. The naked girl moaning is [chick]. Those curtains were a gift from my mother.

This is a really good response, but I would just like to add my two cents. All evidence must be authenticated in order to be admissible. Authentication requires that the proponent of evidence show that the evidence represents what it proports to represent. If you are trying to get a video into evidence, the party seeking admission of the video (probably you) must properly authenticate the video. Lurker illustrated the questions which need to be asked in order to properly authenticate a video. A potential problem with that is that under the United States Constitution, a criminal defendant has a 5th Amendment Privilege against self incrimination, which is waived upon the Defendant taking the stand and deciding to testify. A criminal defendant is not permitted to say that he will be testifying for the limited purpose of authenticating an exculpatory video. If he waives his 5th Amendment privilege by choosing to testify, he leaves his nose open for self-incrimination, cross-examination, and/or impeachment of his credibility. Impeachment can be done by introducing evidence of a witness' prior convictions, cross-examining him about a prior inconsistent statement (if the prior inconsistent statement was made under oath, it can also be admitted substantively), showing evidence of bias, etc. It all depends on the case. Many criminal defendants would be illadvised to testify. You must weigh the need for the Defendant to testify in order to authenticate evidence against the risk involved in the Defendant incriminating himself and/or having his credibility impeached.

If the Defendant has a video which is exculpatory and the video is shown to the prosecutor well in advance of the trial, the prosecutor may realize that the Defendant is not guilty of the offense and may drop the case based on seeing the video. The obvious risk associated with videotaping a sexual encounter is the possibility of being charged with invasion of privacy and/or a peeping tom type offense. As Lurker alluded to, such offenses are less serious than rape. You sometimes have to take risks in order to protect yourself. The good thing about all this is if you are charged with a rape and you have an excuplatory video which you show to the prosecutor and which leads to you any proceedings against you being terminated in your favor, the prosecutor may be so disturbed by the conduct of the accuser and may believe that the accuser has such serious credibility issues that the prosecuter may decide not to pursue any charges against you. I will say this: I almost never see anyone charged with invasion of privacy and/or under a peeping tom statute as a result of taping himself having sex. That's not to say that it cannot and will not happen. I am just saying that it is not nearly as common as being charged with drug offenses, assault, disorderly conduct, or alcohol-related traffic offenses.

Beware state wiretapping laws. A number of states have two-party consent laws, requiring everyone being recorded to know of and consent to the recording. Even if the evidence were admissible (as it was illegally recorded, probably not happening in a criminal proceeding), you'd be trading in acquittal on one felony for a likely prosecution and conviction on another.

Everything else in this thread is impressive.

I honestly hadn't heard the term "wiretapping" since first semester of second year of law school. Wiretapping refers to the monitoring of telephone and internet conversations, usually by covert means. Video evidence is admissible as long as it is relevant and can be properly authenticated. Wiretapping is a whole other issue for a whole other type of behavior. As I said before, the risk you run with videotaping sexual activity is possibly being charged with invasion of privacy and/or a peeping tom type offense.

At least once or twice a week, I have shoplifting cases where the loss prevention officer for a retail store shows up in court with a video which supposedly contains footage of my client committing a theft. If the state seeks to introduce that video into evidence, could I claim that the video should be suppressed because there are "wiretapping" laws and my client did not consent to being videotaped? Hell no. When the police have a video of my client performing field sobriety tests (surprisingly rare) and the state seeks to introduce that video into evidence, could I try to get the video suppressed on the ground that there are "wiretapping" laws and that my client did not consent to being filmed? Hell no. When a person who is with my client videotapes the police severely beating my client, could the police claim that "wiretapping" laws make it a "felony" for the police's actions to be recorded without the consent of the police and that the video is also[/b] inadmissible. Hell no. I hope this is clear now.

Post: #61

(04-13-2013 01:11 PM)Merenguero Wrote:  

(04-12-2013 11:58 PM)jdevoy Wrote:  

(04-12-2013 06:50 PM)Merenguero Wrote:  

(04-12-2013 02:09 AM)lurker Wrote:  

(04-11-2013 11:59 PM)NY Digital Wrote:  what about in a case? let's say you record yourself having sex with every woman without them knowing.

you get accused of rape and go to court and show them the tape showing consent.

would you still get charged for invasion of privacy?

and, not sure if I need to ask this, but, would the video hold up as evidence?

Merenguero would probably be the better choice to answer this one, but I'd make damn sure I brought it out well before any court date - like I would show it to my lawyer as soon as possible after I got together with him (before which I would shut up and not answer ANY police questions), and then he and I would sit down with the DA, police, and the complaining witness (from the defense perspective, NEVER "victim") and all watch it together. Maybe this is a suboptimal strategy, but I would rather attempt to short-circuit the possibility of trial altogether, especially in a charged atmosphere like a rape case. DAs are SUPPOSED to be searching for truth, not crusading. On the other hand, crusader DAs don't like getting bitchslapped by clear and convincing evidence of innocence.

As a side, I would watch it pretty carefully first to see if it supported my innocence - that it unequivocally shows her consenting, able to consent, enjoying herself, etc.

Would you still get charged? It's possible, but it beats a rape conviction.

Would the video hold up as evidence in the courtroom? Video can come in as long as anybody familiar with the video can authenticate it. That can be as easy as you taking the stand and describing what the video is as it's playing -

Atty: Do you recognize this video?
You: Yes.
Atty: Can you describe it for the jury?
You: It's my bedroom at [address]. It was taken on [date] at [time]. (Note: timestamps would probably be a good idea.) The naked guy is me. The naked girl moaning is [chick]. Those curtains were a gift from my mother.

This is a really good response, but I would just like to add my two cents. All evidence must be authenticated in order to be admissible. Authentication requires that the proponent of evidence show that the evidence represents what it proports to represent. If you are trying to get a video into evidence, the party seeking admission of the video (probably you) must properly authenticate the video. Lurker illustrated the questions which need to be asked in order to properly authenticate a video. A potential problem with that is that under the United States Constitution, a criminal defendant has a 5th Amendment Privilege against self incrimination, which is waived upon the Defendant taking the stand and deciding to testify. A criminal defendant is not permitted to say that he will be testifying for the limited purpose of authenticating an exculpatory video. If he waives his 5th Amendment privilege by choosing to testify, he leaves his nose open for self-incrimination, cross-examination, and/or impeachment of his credibility. Impeachment can be done by introducing evidence of a witness' prior convictions, cross-examining him about a prior inconsistent statement (if the prior inconsistent statement was made under oath, it can also be admitted substantively), showing evidence of bias, etc. It all depends on the case. Many criminal defendants would be illadvised to testify. You must weigh the need for the Defendant to testify in order to authenticate evidence against the risk involved in the Defendant incriminating himself and/or having his credibility impeached.

If the Defendant has a video which is exculpatory and the video is shown to the prosecutor well in advance of the trial, the prosecutor may realize that the Defendant is not guilty of the offense and may drop the case based on seeing the video. The obvious risk associated with videotaping a sexual encounter is the possibility of being charged with invasion of privacy and/or a peeping tom type offense. As Lurker alluded to, such offenses are less serious than rape. You sometimes have to take risks in order to protect yourself. The good thing about all this is if you are charged with a rape and you have an excuplatory video which you show to the prosecutor and which leads to you any proceedings against you being terminated in your favor, the prosecutor may be so disturbed by the conduct of the accuser and may believe that the accuser has such serious credibility issues that the prosecuter may decide not to pursue any charges against you. I will say this: I almost never see anyone charged with invasion of privacy and/or under a peeping tom statute as a result of taping himself having sex. That's not to say that it cannot and will not happen. I am just saying that it is not nearly as common as being charged with drug offenses, assault, disorderly conduct, or alcohol-related traffic offenses.

Beware state wiretapping laws. A number of states have two-party consent laws, requiring everyone being recorded to know of and consent to the recording. Even if the evidence were admissible (as it was illegally recorded, probably not happening in a criminal proceeding), you'd be trading in acquittal on one felony for a likely prosecution and conviction on another.

Everything else in this thread is impressive.

I honestly hadn't heard the term "wiretapping" since first semester of second year of law school. Wiretapping refers to the monitoring of telephone and internet conversations, usually by covert means. Video evidence is admissible as long as it is relevant and can be properly authenticated. Wiretapping is a whole other issue for a whole other type of behavior. As I said before, the risk you run with videotaping sexual activity is possibly being charged with invasion of privacy and/or a peeping tom type offense.

At least once or twice a week, I have shoplifting cases where the loss prevention officer for a retail store shows up in court with a video which supposedly contains footage of my client committing a theft. If the state seeks to introduce that video into evidence, could I claim that the video should be suppressed because there are "wiretapping" laws and my client did not consent to being videotaped? Hell no. When the police have a video of my client performing field sobriety tests (surprisingly rare) and the state seeks to introduce that video into evidence, could I try to get the video suppressed on the ground that there are "wiretapping" laws and that my client did not consent to being filmed? Hell no. When a person who is with my client videotapes the police severely beating my client, could the police claim that "wiretapping" laws make it a "felony" for the police's actions to be recorded without the consent of the police and that the video is also[/b] inadmissible. Hell no. I hope this is clear now.

That's a very narrow view of the word "wiretap" that isn't necessarily supported in every state. Nevada's statute specifically contemplates all forms of transmission of "writings" and "photos." http://www.leg.state.nv.us/nrs/NRS-200.h...200Sec610, albeit by wire. However, this hasn't stopped overzealous prosecutors and civil attorneys from threatening wire-tapping actions even where the statute doesn't fit (and especially in states like California where there's a generous civil remedy). All of these laws are driven by state statutes and my only advice is to be cautious of what the state law allows.

Recording in a public place is a different matter. I don't see a problem with the examples you provided, such as a traffic stop or store footage, because those are places of public accommodation and there's low-to-no expectation of privacy (with a limited exception for, say, changing rooms).

I admit I'm overly cautious about these things. However, I wouldn't automatically assume recording someone without their knowledge is A-OK in every state.

Post: #62

(04-13-2013 01:53 PM)jdevoy Wrote:  

(04-13-2013 01:11 PM)Merenguero Wrote:  

(04-12-2013 11:58 PM)jdevoy Wrote:  

(04-12-2013 06:50 PM)Merenguero Wrote:  

(04-12-2013 02:09 AM)lurker Wrote:  Merenguero would probably be the better choice to answer this one, but I'd make damn sure I brought it out well before any court date - like I would show it to my lawyer as soon as possible after I got together with him (before which I would shut up and not answer ANY police questions), and then he and I would sit down with the DA, police, and the complaining witness (from the defense perspective, NEVER "victim") and all watch it together. Maybe this is a suboptimal strategy, but I would rather attempt to short-circuit the possibility of trial altogether, especially in a charged atmosphere like a rape case. DAs are SUPPOSED to be searching for truth, not crusading. On the other hand, crusader DAs don't like getting bitchslapped by clear and convincing evidence of innocence.

As a side, I would watch it pretty carefully first to see if it supported my innocence - that it unequivocally shows her consenting, able to consent, enjoying herself, etc.

Would you still get charged? It's possible, but it beats a rape conviction.

Would the video hold up as evidence in the courtroom? Video can come in as long as anybody familiar with the video can authenticate it. That can be as easy as you taking the stand and describing what the video is as it's playing -

Atty: Do you recognize this video?
You: Yes.
Atty: Can you describe it for the jury?
You: It's my bedroom at [address]. It was taken on [date] at [time]. (Note: timestamps would probably be a good idea.) The naked guy is me. The naked girl moaning is [chick]. Those curtains were a gift from my mother.

This is a really good response, but I would just like to add my two cents. All evidence must be authenticated in order to be admissible. Authentication requires that the proponent of evidence show that the evidence represents what it proports to represent. If you are trying to get a video into evidence, the party seeking admission of the video (probably you) must properly authenticate the video. Lurker illustrated the questions which need to be asked in order to properly authenticate a video. A potential problem with that is that under the United States Constitution, a criminal defendant has a 5th Amendment Privilege against self incrimination, which is waived upon the Defendant taking the stand and deciding to testify. A criminal defendant is not permitted to say that he will be testifying for the limited purpose of authenticating an exculpatory video. If he waives his 5th Amendment privilege by choosing to testify, he leaves his nose open for self-incrimination, cross-examination, and/or impeachment of his credibility. Impeachment can be done by introducing evidence of a witness' prior convictions, cross-examining him about a prior inconsistent statement (if the prior inconsistent statement was made under oath, it can also be admitted substantively), showing evidence of bias, etc. It all depends on the case. Many criminal defendants would be illadvised to testify. You must weigh the need for the Defendant to testify in order to authenticate evidence against the risk involved in the Defendant incriminating himself and/or having his credibility impeached.

If the Defendant has a video which is exculpatory and the video is shown to the prosecutor well in advance of the trial, the prosecutor may realize that the Defendant is not guilty of the offense and may drop the case based on seeing the video. The obvious risk associated with videotaping a sexual encounter is the possibility of being charged with invasion of privacy and/or a peeping tom type offense. As Lurker alluded to, such offenses are less serious than rape. You sometimes have to take risks in order to protect yourself. The good thing about all this is if you are charged with a rape and you have an excuplatory video which you show to the prosecutor and which leads to you any proceedings against you being terminated in your favor, the prosecutor may be so disturbed by the conduct of the accuser and may believe that the accuser has such serious credibility issues that the prosecuter may decide not to pursue any charges against you. I will say this: I almost never see anyone charged with invasion of privacy and/or under a peeping tom statute as a result of taping himself having sex. That's not to say that it cannot and will not happen. I am just saying that it is not nearly as common as being charged with drug offenses, assault, disorderly conduct, or alcohol-related traffic offenses.

Beware state wiretapping laws. A number of states have two-party consent laws, requiring everyone being recorded to know of and consent to the recording. Even if the evidence were admissible (as it was illegally recorded, probably not happening in a criminal proceeding), you'd be trading in acquittal on one felony for a likely prosecution and conviction on another.

Everything else in this thread is impressive.

I honestly hadn't heard the term "wiretapping" since first semester of second year of law school. Wiretapping refers to the monitoring of telephone and internet conversations, usually by covert means. Video evidence is admissible as long as it is relevant and can be properly authenticated. Wiretapping is a whole other issue for a whole other type of behavior. As I said before, the risk you run with videotaping sexual activity is possibly being charged with invasion of privacy and/or a peeping tom type offense.

At least once or twice a week, I have shoplifting cases where the loss prevention officer for a retail store shows up in court with a video which supposedly contains footage of my client committing a theft. If the state seeks to introduce that video into evidence, could I claim that the video should be suppressed because there are "wiretapping" laws and my client did not consent to being videotaped? Hell no. When the police have a video of my client performing field sobriety tests (surprisingly rare) and the state seeks to introduce that video into evidence, could I try to get the video suppressed on the ground that there are "wiretapping" laws and that my client did not consent to being filmed? Hell no. When a person who is with my client videotapes the police severely beating my client, could the police claim that "wiretapping" laws make it a "felony" for the police's actions to be recorded without the consent of the police and that the video is also[/b] inadmissible. Hell no. I hope this is clear now.

That's a very narrow view of the word "wiretap" that isn't necessarily supported in every state. Nevada's statute specifically contemplates all forms of transmission of "writings" and "photos." http://www.leg.state.nv.us/nrs/NRS-200.h...200Sec610, albeit by wire. However, this hasn't stopped overzealous prosecutors and civil attorneys from threatening wire-tapping actions even where the statute doesn't fit (and especially in states like California where there's a generous civil remedy). All of these laws are driven by state statutes and my only advice is to be cautious of what the state law allows.

Recording in a public place is a different matter. I don't see a problem with the examples you provided, such as a traffic stop or store footage, because those are places of public accommodation and there's low-to-no expectation of privacy (with a limited exception for, say, changing rooms).

I admit I'm overly cautious about these things. However, I wouldn't automatically assume recording someone without their knowledge is A-OK in every state.

I see your point regarding the distinction between recording in a private place as opposed to a public place, but I still don't see how videotaping a sexual act constitutes wiretapping. I took a look at the Nevada statutes and it appears that such activity may constitute a violation of the "peeping" statute, which is similar to the peeping tom statute in my jurisdiction. Has anyone ever been charged with violating the wiretapping laws as a result of videotaping themselves having sex? I don't know of any such case, but that's not to say that it hasn't happened. I have seen cases (few and far between) in my jurisdiction where people have been prosecuted under the peeping tom statute for videotaping themselves having sex. In such cases, there may be authentication issues because the proponent of the video evidence is obviously the state and not the person who did the videotaping. As I keep repeating, your main risk in videotaping a sex act is possibly being charged with invasion of privacy and/or under a peeping tom statute.

Post: #63

(04-13-2013 01:53 PM)jdevoy Wrote:  because those are places of public accommodation

Somewhere, some enterprising young video-secure player is painting ADA-compliant van parking in his driveway, putting a welcome mat near the ramp to his door, moving his furniture to provide pathways, and installing a grab rail next to his toilet. Problem... solved.

Post: #64

Have you had the opportunity to say "The proof is in the pudding" in the courtroom?

Post: #65

Great thread...Couple questions...

1) Owning real estate in CA for a high-income individual (living in CA)- Best way to structure it? I really would hate to pay 800 dollars each year in corporation fees plus the headaches of taxation. Trusts? What do you recommend? Is it really worth it for s-corp /c-corp/ LLC? What this business about holding companies (C-corp)? Does the increased taxation/increased complexity negate benefits for a small RE investor (say 3-4 houses)?

2) Can you go more into Nevada LLC owning CA property? How about if its a CA resident who owns a Nevada LLC, which in turns owns RE in CA.

3)Foreign-holding corporations. Would this be any benefit for a single owner USA resident. Would it raise a bunch of red flags?

Post: #66

You can accomplish the same liability protection a business entity would afford you buy purchasing umbrella insurance. A business entity should not effect your tax rate except for a C-corp, the rest are pass through taxation.

Post: #67

Do any of you guys know if the IRS will look into a business that is set up as a DBA (doing business as) if the person is paying the correct amount of taxes on the money that is deposited into the account?

This is probably a question for an accountant.

Post: #68

I was told in class that DBA/sole proprietors are the most often audited class of taxpayers.

Post: #69

I can vouch for that. Those assholes have a hard-on for me. I'm to the point now where I have to protect myself through corporations. If they say you owe a certain amount, even if it's some arbitrary number they just pulled out of their ass, you have to pay that amount just to deal with them.

Post: #70

Thanks so much for the thread. I had a question about irrevocable trusts in which someone grants it and then is the beneficiary (self-settled, I believe it is called). From what I have read it seems that at best it works and at worst it can at least result in a smaller amount of pain than if you held assets in just your name. Also, I have read it is a good form of a pre-nup since you are only the beneficiary and not the owner.

What I thought was unusual but seems perfectly legal is that your irrevocable trust can own all the assets through one or more LLCs and you can be the manager of the LLCs and continue to control the assets that you no longer have title to. And you continue to benefit from the assets. True?

After all that rambling...what do you think of an irrevocable trust, is it worth the effort and can it be drafted in a way where I can be happy I did it vs. "dammit my trust is giving me nothing!" I also think it is a good estate planning tool, right?

Thanks.

Post: #71

Not sure if anyone will have an answer to this, but worth a shot. When I got my license at 17, they fucked up my date of birth by one year. Meaning at 17 I was 18. When I noticed, I never had it changed. Im also a year older in the police database. I've never had a problem with anything untill I had to provide my social security and driver license Id for a few applications. They came back denied because the birthdays didnt match.
Obv now I have to get it changed. My only worry is me getting into some shit when I come to the DMV. (Rem I could have bought cigs at 17, booze at 20). I've also renewed my license, writing down the wrong DOB. Obviously stupid but after waiting in line for 3 hours, I just wanted to gtfo.
I've googled around but couldn't find too much info on this topic. I'd appreciate any input.

Post: #72

(04-16-2013 03:30 PM)DVY Wrote:  Great thread...Couple questions...

1) Owning real estate in CA for a high-income individual (living in CA)- Best way to structure it? I really would hate to pay 800 dollars each year in corporation fees plus the headaches of taxation. Trusts? What do you recommend? Is it really worth it for s-corp /c-corp/ LLC? What this business about holding companies (C-corp)? Does the increased taxation/increased complexity negate benefits for a small RE investor (say 3-4 houses)?

2) Can you go more into Nevada LLC owning CA property? How about if its a CA resident who owns a Nevada LLC, which in turns owns RE in CA.

3)Foreign-holding corporations. Would this be any benefit for a single owner USA resident. Would it raise a bunch of red flags?

I took a practicum class in law school about structuring RE transactions for tax purposes. Here's the distilled version:

For a CA resident, hold the CA property in separate NV LLCs. You want each property to have its own LLC. There should be zero taxation headaches or increases holding the companies, as single-shareholder LLCs are disregarded entities. You will pay about $200-250 per year in fees to NV and to rent a registered agent. The income passes through and is included in your personal income. The answer to your question number two is "it's fine." NV LLCs can hold CA property, and the state of CA only gets involved for its nut when the company "does business" in-state. Holding an asset isn't doing business. Selling it might be.

You want LLCs and not corporations holding your property. Even though they're all liability shields, C-corps will double tax your rents, as discussed earlier in this thread. S-corps have complicated ownership restrictions and tax basis limitations that can flare up if you refinance, borrow, or try to leave the property through your estate.

Umbrella insurance can protect you, but only to the extent of the policy limitations. Keeping each property separate prevents asset cross-contamination in a doomsday lawsuit.

The more properties you have, the more crucial entity ownership is for tax planning. Essentially, income is treated one of two ways in the Revenue Code: (1) if it's the product of a Section 1221 or 1231 capital asset which was held for more than a year before realization of the income, it's taxed as a long-term capital gain. (2) Otherwise, it's ordinary income (short-term cap gains are the same rate). What this means is that if you sell a $500K house you've owned for eight months, you're looking at $500K of gross income to pay tax on at the graduated, up to 39.6% rate.

Fuck that, right? It gets worse. If you're a dealer in real estate, all your RE sales are considered ordinary income. How does the IRS decide if you're an RE dealer? Two ways.

One, it looks at the stated purpose of your RE holding companies. If your LLC says it exists to "sell RE," you're looking at a hefty tax bill. The correct language is "to hold and maintain RE for investment purposes, and, if and when necessary, to sell." Or you could just throw in the minimal statutory language required by NV law, which is probably something like "to conduct business and any other lawful activity associated with it... etc."

Two, if you sell a number of properties in a year - and there's no magic number - the IRS just sort of pulls the designation out of its ass - you're "dealing in RE." Let's say you want to cash out and move to the FSU. With 3-4 properties, you might be fine. 6-8 and we're taking on more risk; more than 10 and you're probably triggering an OI determination. How we can get around that is to throw all the properties into one holding LLC and sell off the company. You can even sell the LLC to an S-corp that you hold nor more than 80% of the shares in* and then have that company sell off the individual houses. The first sale steps up the tax basis to the FMV of each house and results in a long-term capital gain for the lion's share of the profit. The second sale of each house results in unrecaptured depreciation from the LLC holding term plus ordinary income on the profits from the second sale only.

Example: you buy house at 100K. Sell from LLC to S-Corp at 500K. Sell to outside buyer at 510K. Cap gains on 400K, unrecaptured depreciation on tax breaks taken during LLC holding, ordinary income gain of 10K.

versus

Buy house at 100K. Sell to buyer at 510K. Ordinary income on 410K. Ouch.

*this has complicated requirements to work, but has passed muster.



------

separate consideration: it becomes much more important for tax planning to LLC-up projects where you're doing construction, anything involving different classes of debt finance, or nonresidential/mixed RE as well.

Post: #73

(04-16-2013 04:21 PM)samsamsam Wrote:  Thanks so much for the thread. I had a question about irrevocable trusts in which someone grants it and then is the beneficiary (self-settled, I believe it is called). From what I have read it seems that at best it works and at worst it can at least result in a smaller amount of pain than if you held assets in just your name. Also, I have read it is a good form of a pre-nup since you are only the beneficiary and not the owner.

What I thought was unusual but seems perfectly legal is that your irrevocable trust can own all the assets through one or more LLCs and you can be the manager of the LLCs and continue to control the assets that you no longer have title to. And you continue to benefit from the assets. True?

After all that rambling...what do you think of an irrevocable trust, is it worth the effort and can it be drafted in a way where I can be happy I did it vs. "dammit my trust is giving me nothing!" I also think it is a good estate planning tool, right?

Thanks.

From what I understand, that's basically the purpose of this kind of trust arrangement. However, I really don't know much about trust and estate law. Sorry. I think that if it's irrevocable, it's a lot harder to pierce to pay your liabilities, alimony, debts, etc., while revocable trusts are easy.

Post: #74

Great thread. I give personal services (nothing illegal) to 2 clients for pay 2-3x a week and I average about $50/week in unreported income aside from main gig. How advantageous would it be to start an LLC? If my clients decided to report me and tried to litigate for a refund, how deep of shit would I be in? I have no lawyer/accountant/pay no taxesetc.

Post: #75

(04-16-2013 11:07 PM)RougeNoir Wrote:  Great thread. I give personal services (nothing illegal) to 2 clients for pay 2-3x a week and I average about $50/week in unreported income aside from main gig. How advantageous would it be to start an LLC? If my clients decided to report me and tried to litigate for a refund, how deep of shit would I be in? I have no lawyer/accountant/pay no taxesetc.

Do you have contracts? Are you getting paid in cash? Are you sticking that cash in your bank accounts?