The U.S. legal system is, for lack of a better word, confusing. Even some of the most experienced attorneys find themselves scratching their heads when faced with certain legal issues.
But this is understandable. The law is a complex creature. It’s based, in large part, on a human being’s individual interpretations. It’s evolution spans hundreds of years, even before there was a United States.
Because of it’s complex and confusing nature, certain aspects of the law have a tendency to be misunderstood or misstated. This has led to misconceptions. Thus, I thought I might attempt to correct and explain some of those misconceptions.
Below are, in my opinion, some of the more common misconceptions about the law. You may have heard of some of them yourself. You may have even believed some of them yourself. Either way, my goal with this post is to inform, not to lecture. So, with that in mind….Enjoy!!!
Number 1: “POSSESSION IS 9/10’s OF THE LAW”
This is one of my favorite misconceptions about the law because it’s not all that wrong….but it’s close.
First we need to define some terms:
- Chattel: “Chattel” is the legal term for personal property. Things like your watch, your bed, your car…those are all called “chattel.”
- Ownership: The measure of rights in chattel as against all the world.
- Custody: Physical control of chattel
So, now that we’ve got our definitions, let’s discuss this for a moment.
First and foremost, there is no law in existence (in Tennessee at least) that reads “Possession is 9/10’s of the Law.” That phrase does not exist in the legal world.
What does exist in the legal world is a “presumption.” The law says that “possession” is custody plus an intention to assert a right of dominion over the chattel. AND…….Chattels are presumed to be in the possession of the possessor of the place where the property is located.
So, instead of saying “possession is 9/10’s of the law,” replace that with “possession raises a presumption that the property (or chattel) is owned by the possessor of the place where the property is located (and I get that the latter doesn’t sound as good as the former).”
The presumption possession in chattel raises is a “rebuttable presumption.” This means that another person can offer evidence to the contrary and re-take their chattel back (assuming they are the true owner). Perhaps this is 1/10 out of the 9/10!!!
Number 2: “FAILURE TO READ MIRANDA RIGHTS WILL RESULT IN THE CASE BEING DISMISSED”
This is another popular misconception. I’ve had many criminal defendant’s tell me that their case will be easy because they were never read their miranda rights. When confronted with that statement, this is my response:
First off, the requirement of reading a criminally accused his/her miranda rights does not apply across the board. The main purpose is to ensure that a criminal defendant understands (1) their right to remain silent and (2) their right to legal counsel.
The miranda right requirement therefore only becomes important if police attempt to interrogate a criminal defendant while that criminal defendant is in custody. If police do so without first reading those rights, anything a criminal defendant says in response to police interrogation will not be admissible in court.
To simplify it a bit more-failure to read miranda rights simply prevents a defendant’s statements from being introduced to a jury. If there is other evidence of the defendant’s guilt, the case will likely continue.
Number 3: “CHEATING ON A SPOUSE IS A CRIMINAL OFFENSE”
No……just no. It may be a moral offense, but it’s not criminal.
Number 4: “IGNORANCE OF THE LAW IS A LEGAL DEFENSE”
This is misconception is used all the time by folks charged with a crime. “I didn’t know that was illegal….” As a criminal defense attorney I wish this was a valid defense, but unfortunately…..it’s not.
The second you reach a certain age (and that age varies from state to state, but it’s usually between 6 and 13), the law presumes that you know what is legal and what is not. And this presumption is usually not rebuttable.
Now, for some folks with certain mental disorders and other limitations, ignorance can be somewhat of a defense. However the defense typically only deals with mental states, intent, etc.
And the “ignorance of the law is no defense” concept applies not only to criminal offense but also in the civil law arena. For example, it is not a defense to say that you didn’t read a contract before signing it. Once again, the law will presume that you read and understood the entire agreement.
Number 5: “HAVING A PRESCRIPTION IS A LEGAL DEFENSE TO DUI”
Again, as a criminal defense attorney, I wish that were true….but it’s not. The law says that it is illegal to operate a vehicle while under the influence of a drug or alcohol, PERIOD.
If you’ve been prescribed a drug that comes with a warning label that says “do not operate heavy machinery,” then do not operate heavy machinery. Those types of drugs are also known as “mind altering” drugs because they can impact your ability to make decisions and the time it takes you to react to something.
If a drug has a tendency to be “mind altering,” it will usually be given the legal label “control substance.” A drug is a “control substance” regardless of whether it is prescribed or not. The prescription part just makes it legal for you to possess it….that’s it.
A prescription does not, however, allow you to get into your vehicle and drive around town. So, if you’ve been prescribed a medication that can alter your reaction times, decision making, etc., DO NOT DRIVE. If you get pulled over you can, and likely will, be arrested.
So there you have it. 5 common misconceptions about the law. Now you’ll be ready to inform the next person who argues one of these points. Just try not to embarrass them to badly (wink, wink).
Good Legal Health.
TN LEGAL DOCS 