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How do you argue that mere profanity is not obcene or lewd as defined in the "anoying phone call staute"
The defendant is charged with willfully with an intent to anoy telephoned and using obcene language phoned Jane Doe.
The people must prove 1. obscene language with intent to annoy. But Defendant used everyday profanity, obscene is defined as offensive to ones feelings, or to prevailing notions of modesty or decency:lewd.

Edited by Customer (name blocked for privacy) on May 30 2007 at 12:43 AM

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You would be hard presssed to do so since many people may consider "everyday profanity" to be obscene and offensive. It would seem that the argument may be that the statute is unconstitutionally overbroad and infringes upon free speech. Making a constitutional argument, however, is not an easy task and would entail a significant amount of research and legal writing to prevail.

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The information provided is general in nature only and should not be construed as legal advice or to create an attorney-client relationship. You should always consult with a lawyer in your state

Reply to Lawmoe's Post: One can't really argue the constitutionality of it in a jury trial, when they are given specific instructions, do you think the arguement ought to center on lack of intent to be obscene although he called her a number of names, like f...ing b...tch?

Constitutional issues are generally broached before a jury trial occurs in what is called a pretrial hearing. If you prevail, it never makes it to trial. If you don't , it is an appeallate issue. Intent is irrelevant, unfortunately,

Regardless, this is a case that will likely be plea bargained away without a record. A Stay of Prosecution also called a Continuance for Dismissal, is possible if not probable.. It means, don't do it again within a defined period (usually a year) and it is dismissed.

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Reply to Lawmoe's Post: I am a divorce lawyer helping a friend. first jury trial in 23 years.Tomaorrow we wrap up the jury trial. So if I discuss constituional arguements in closing that would be error and sanctionable?

Actually one of the elements of this "crime" is intent and it must be proved beyond a reasonalbe doubt. I willl go ahead and accept your ancwer after I hear from you next.

Ouch--23 years without a jury. That is tough sailing. Of course, after 14 years of family law, I decided , criminal law was better on the digestion. I was a 1991 grad.

Constitutional arguments may be raised at any time in a trial. That is an issue that cannot be waived. If you raise it, the Judge must entertain it. It is not done in closing, however, and I would ask for a chambers conference to raise the issue and how it might be handled. With a jury, it is a not a sanctionable offense but essentially you are asking for jury nullification.

If specific intent is an element, you have a prayer. However, general intent is something different. That means an intent to make the statement. My impression is that it is a general intent issue. You may want to run that through westlaw.

I am always happy to speak to lawyers. I am not sure this is appropriate here, but you can e-mail me at mbeaulier@hjlawfirm.com or find me online by googling Maury Beaulier.

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