Northern Virginia Injury Lawyer & Attorney : Brien Roche Law Firm : Medical Malpractice, Product Liability, Car Accidents : Washington DC, North Virginia, Maryland

The double jeopardy clause of the Fifth Amendment provides that no person shall be tried twice for the same offense. Jeopardy is deemed to attach in jury trials once the jury is impaneled and sworn. The double jeopardy prohibition, however, is somewhat flexible. That is, if a mistrial is declared before a verdict is reached due to the inability of a jury to reach a unanimous verdict or for some other reason other than misconduct on the part of the prosecution, then a new trial would not be deemed to be a violation of the double jeopardy clause. Double jeopardy also only applies to the governmental entity who is bringing the charge. 
 

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After a sentence has been imposed, the defendant has the right to pursue an appeal. All states now provide for appellate review. The availability of that appellate review cannot be conditioned upon the convicted defendant’s financial status. If a trial transcript of the proceedings is required in order to pursue an appeal, then the government must provide that transcript for the indigent defendant. Likewise, the state must provide counsel for an appeal to an indigent defendant.

Once a defendant has been found not guilty, the government has no right to appeal that finding.

Once a defendant has been found not guilty, the government has no right to appeal that finding. The logic of this rule is that to allow appeals by the government would essentially allow the government to potentially utilize its vast resources to wear down the defendant.
 

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The final stage of a criminal case in the trial court is sentencing. The federal judiciary as well as many states now operate under sentencing guidelines. These sentencing guidelines are very detailed and very complex formulas that govern the parameters of a sentence that a judge can impose on a defendant for a specific crime. Within those sentencing guidelines there are a variety of factors that may be considered by the court including (but not limited to):

* the defendant’s prior criminal history;
* the defendant’s cooperation with the government in the investigation of other related crimes;
* the defendant’s feelings of remorse after conviction; and,
* the nature and seriousness of the offense itself.

The purpose of these sentencing guidelines is to eliminate the significant disparity that can exist from one judge to another in sentences for the same crime.

The judiciary, to some extent, has been rather critical of sentencing guidelines because they significantly restrict a judge’s discretion. The guidelines, however, do allow for exceptional circumstances when the sentence imposed may vary from what the guidelines call for. The purpose of the guidelines is admirable—to eliminate unfairness or gross disparity in the way that defendants are treated for similar crimes. But like any guidelines, they are not perfect.
 

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The standard of proof in a criminal case is what is referred to as proof beyond a reasonable doubt. Proof beyond a reasonable doubt is a higher standard than either preponderance of the evidence or the clear and convincing standard. Proof beyond a reasonable doubt does not mean that the jury has to be absolutely certain of the defendant’s guilt, but if a juror has a reasonable doubt as to whether the defendant is guilty then that juror should vote not guilty. Since a unanimous verdict is required in most jurisdictions in a criminal case, one juror with reasonable doubt can hang up a jury and prevent the government from getting a conviction. If the jury deliberations result in an eleven to one vote in favor of conviction (guilty), then typically the trial court will, on motion of the government, declare a mistrial and thereby allow the government to re-try the case.
 

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A defendant in any criminal case has the right to confront his or her accusers. This right of confrontation means that the defendant has an absolute right to be present at trial. If the defendant engages in outrageous behavior, then he or she can be restrained or placed in a separate room where he or she can see and hear the proceedings but not disrupt them. That, however, is a rather extraordinary measure in a criminal case.

That right of confrontation also means that the defense has a rather broad right as far as cross examining those witnesses who testify against the defendant. In addition, that right of confrontation restricts the right of the government to put in evidence statements of persons who do not testify at trial. Such statements generally would be classified as hearsay and therefore would not be admissible. In a criminal case those hearsay statements further become objectionable because they may violate the defendant’s right to confront his or her accusers.
 

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A trial, whether a civil case or a criminal case, is designed to be a truth seeking activity. The truth seeking capability of a trial on the civil side is frequently somewhat affected by the disparity in ability between lawyers. Similar disparities can apply in regard to a criminal case, but there are some aspects of a criminal case that are designed to level the playing field between the government and the defense. A prosecutor who is aware of information that is considered to be exculpatory—that would tend to show that the defendant is not guilty—must disclose that information to the defense prior to trial. The rationale behind that rule is based upon the truth seeking function of a trial.

A criminal trial is not simply a matter of gamesmanship, but is a matter of getting all of the pertinent facts out before the jury and then letting the jury decide whether the defendant is guilty or not guilty. During the course of the trial, a prosecutor is somewhat restricted in the vehemence of his or her arguments to the jury. A prosecutor is subject to the general due process prohibition against prejudicial and inflammatory remarks to the jury.

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Some criminal cases attract a good deal of press coverage. If the press coverage has been so intensive that the local pool of potential jurors has been influenced, it is conceivable that the case could be moved from that jurisdiction to another locale where the press coverage has not been as intense. The press cannot be excluded from a criminal proceeding involving an adult. The Sixth Amendment to the Constitution guarantees the accused the right to a public trial and likewise, the First Amendment guarantees the right of the public and the press to attend criminal trials. However, most courts in the U.S. do restrict the use of cameras in the courtroom. This is generally considered to be a means of controlling conduct in the courtroom and is not necessarily intended to restrict the right of the press to be present.
 

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Under the Sixth Amendment to the Constitution, a defendant in a criminal case has the right to a jury trial. That right to a jury trial is not unlimited—it may not apply to petty offenses. An offense may be characterized as petty if it carries a penalty of potential imprisonment of less than six months. Many states have expanded that right and grant jury trials for any offense that carries potential imprisonment. The right to a jury trial in some states applies to both sides. In other words, not only does the defendant have the right to request a jury trial but the government also has the right to request a jury trial.

The jury in a criminal case in most jurisdictions consists of twelve people. In most jurisdictions, the jury verdict must be unanimous.

The stages of a jury trial in a criminal case are much the same as those previously described in a civil case. Each side has the right to conduct voir dire of the jury in order to determine whether there are any members of the potential jury that may have any bias or predisposition about the case. Once a jury has been selected, the prosecution has the right to make an opening statement, followed by the defendant’s opening statement. Then the government begins its presentation of evidence. At the conclusion of the government’s case, the defendant has a right to make a motion to dismiss the government’s case on the grounds of it being insufficient to justify conviction. Typically, that motion is denied by the court and then the defendant has the right to present his or her evidence.

A distinguishing characteristic of a criminal trial is that the government may not call the defendant to the witness stand. The defendant has an absolute right to be free of self incrimination. Only the defendant can make the decision as to whether he or she testifies. Once the defendant chooses to testify, then he or she is subject to cross-examination by the prosecutor.
 

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A privilege that exists in the criminal context is the privilege against self-incrimination. Within the Fifth Amendment it is stated that a person cannot be forced to be a witness against him- or herself. Simply put, a person who is a potential suspect in a criminal investigation cannot be forced to testify against him- or herself.

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In some criminal prosecutions, pretrial discovery may be allowed. The discovery that is allowed in a criminal case is considerably more limited than what is allowed in a civil case. In a civil case, the prevailing philosophy is that a full disclosure of the facts and full discovery of the strong points and weak points of the other party’s case is desirable in order to allow the parties to make an intelligent decision as to whether the case should be settled and, if so, how much it should be settled for. In the area of criminal law, the prevailing philosophy is that too much discovery is not a good thing because the information gathered by the defendant could conceivably be used to intimidate witnesses and to otherwise bog down the criminal justice system. As such, the amount of discovery allowed in a criminal case is typically limited compared to what is allowed in a civil case.

The amount of discovery allowed in a criminal case is typically limited.

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There is a third category of criminal offenses called petty offenses. Most of the crimes that fall into this category are traffic related, such as speeding, and are handled by the traffic court.

Traffic offenses, although not normally thought of as such, really are criminal offenses because they involve a potential criminal penalty. That criminal penalty may consist simply of a monetary fine or there may be actual arrest and imprisonment for more serious traffic offenses.

In most jurisdictions traffic offenses are handled in a very perfunctory fashion with a single judge hearing perhaps hundreds of cases in the course of a few hours. In most instances, these cases are presented by a police officer who simply stands before the judge and tells the judge what he or she saw or determined based upon his or her investigation. If there are witnesses involved, then those witnesses may be called to briefly explain what happened. The defendant is then given an opportunity to explain what happened if he or she wishes. The defendant, however, has no obligation to testify since his or her Fifth Amendment right against self-incrimination would apply in this proceeding.

If you have ever been to traffic court, you probably recall seeing a multitude of police officers in the court room. Those police officers are there to testify in cases in which they have issued tickets or made arrests. If, for some reason, the officer issuing the ticket does not show up for the traffic court date, then the case may be dismissed for lack of prosecution by the government. Likewise, if there was a witness to the traffic offense and the witness is the only one who can establish the government’s case, the case may be dismissed if that witness does not show up for the traffic hearing. You may recall that the burden rests with the government to prove its case in a criminal prosecution. That burden applies in a traffic case. The government must present independent evidence either from a police officer or a witness to establish what happened. If the government cannot do that, then the government cannot meet its burden of proof and therefore the charge against you will be dismissed without you ever having testified.

In some jurisdictions, traffic court cases are handled administratively and are presided over by an administrative hearing officer. An administrative hearing officer is a type of quasi-judge who has some of the authority of a judge but does not necessarily have that title nor wear a robe in the hearing room.

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Criminal offenses can be divided into two general categories—felonies and misdemeanors. A felony is a crime for which a person can be imprisoned for more than a year. A misdemeanor is an offense for which a person can be imprisoned for up to a year. The criminal process regarding misdemeanors may differ dramatically from the criminal process as it applies to felonies. The defendant charged with a felony is entitled to greater protections and as such the procedure in regard to a felony case may be considerably more prolonged than that involving a misdemeanor. It is not at all unusual that for a misdemeanor charge the defendant simply appears in court on one occasion, and after being advised of his or her right to have an attorney, the case is tried on that one occasion. A felony charge may result, however, in several court appearances—first with a hearing in regard to the setting of bond, then an arraignment, then a preliminary hearing, then an appearance for the setting of a trial date, then the appearance for any pretrial motions, and then, finally, the appearance for trial.

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In most criminal prosecutions, the defendant has the right to appear at a preliminary hearing where some or all of the prosecution witnesses will be called for the purpose of presenting evidence to determine whether there is probable cause to support the arrest made by the police. This hearing is normally presided over by a judge or magistrate. The sole issue for determination at this preliminary hearing is whether probable cause exists. If probable cause is found to exist, then the next stage in the proceeding is presentation of the case to a grand jury.

A grand jury is a group of citizens who are convened by the court for the purpose of reviewing criminal cases as presented to them by the prosecutor. They determine again whether there is probable cause to believe that the defendant committed the crime with which he or she is charged. The grand jury can choose to indict the defendant for that criminal offense or can choose not to indict. Grand juries are frequently referred to as being rubber stamps of the prosecutor’s office. The grand jury, although it is composed of unbiased citizens, only hears one side of the story. The evidence that is presented at a grand jury is chosen by the prosecutor. It normally comes through the testimony of police officers. The grand jurors do not hear from the defendant and do not hear the other side of the story. As one might expect, grand juries typically accept the recommendation of the prosecutor and indict the defendant for the crime charged.

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At any point during this process the defendant may plead guilty to the charge leveled against him or her. Likewise, at any stage during the process, the defendant or his or her attorney may conduct negotiations with the prosecutor to determine whether a plea to some lesser charge may be agreeable to the government. If such an agreement is reached, the plea agreement is brought to the attention of the court and the prosecution is concluded. The only thing left to be done is the imposition of whatever sentence has either been agreed to and accepted by the court or is otherwise established by the court. The judge has final control over what sentence is imposed regardless of what agreement the lawyers may have reached.

The judge has final control over what sentence is imposed.
 

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Early in the course of a criminal proceeding, the defendant will be brought into court and the charges brought against him or her by the government will be formally read. The defendant will be asked by the court whether he or she pleads guilty or not guilty to the charges. At that stage of the proceeding, the defendant is expected to have an attorney unless he or she has waived his or her right to have an attorney. If the defendant cannot afford to have an attorney and meets the local guidelines for the appointment of counsel, then the court will appoint an attorney to represent him or her in that criminal case.

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The prosecutor is a governmental employee charged with the responsibility of bringing suspects to trial. Prosecutors are attorneys. Of all the government officials that you may ever encounter, prosecutors are probably the most powerful. They have absolute discretion in deciding to prosecute an offense or not to prosecute an offense. If a murder has been committed in your hometown and a suspect has been arrested by the police, the prosecutor must decide whether the case will be taken to the next level. The decision of the local prosecutor is not subject to review by any other court officer or government employee. The only exception to that would be in the context of where a local crime involves some federal issue (e.g., violation of a federal civil rights law), then a federal prosecutor for that area may decide to prosecute for the federal violation.

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SETTLEMENT ARISING FROM FATAL HELICOPTER CRASH LEADS TO VOLUNTARY SAFETY IMPROVEMENTS.

Scolland v. Eurocopter, S.A.S., Neb., Lancaster Co. Dist., Nos. CI-02-2621, CI-02-2622, CI-02-2620, Apr. 1, 2008.

Medical helicopters play a vital role in quickly transporting patients from accident scenes to hospitals, where they can receive life-saving care sometimes hours before it would otherwise be possible. A defect in a medical helicopter, however, not only prevented it from carrying out such a mission, it also claimed the lives of three emergency responders.

After takeoff, the pilot, Phillip Herring, radioed that he was having a binding problem with the pedal that controlled the pitch of the tail rotor. Shortly after, witnesses saw the LifeNet medical helicopter spin out of control and crash. Phillip, 43, died on impact. Both flight paramedic, Patrick Scollard, 40, and emergency room nurse Lori Schrempp, 41, survived the impact. Patrick, who was able to talk, was crying out in pain for about five to 10 minutes after the crash as he lay in the wreckage. Emergency providers at the scene were hesitant to approach the wreckage because the helicopter was spewing fuel, and they were afraid it would blow up. They eventually reached Patrick and Lori, but both died en route to the hospital.

The three responders were survived by their spouses. Patrick was also survived by three children, and Lori by two. All were minors at the time. Each of the responders had been earning approximately $60,000 annually. The parties settled before trial, however, for $18.4 million, which includes recovery for lost earnings; loss of love, affection, and companionship; and their loved ones’ loss of enjoyment of life. Defendants’ contributions to the settlement and the apportionment among the plaintiffs are confidential.

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MAN ON CRUTCHES SLIPS, FALLS ON RESTAURANT FLOOR: FAILURE TO PLACE WARNING SIGNS: FRACTURES.

Daniels v. Steamplant Fam. Rest., Ill., Boone Co. Cir., No. 06-L-39, Oct. 19, 2007.

Daniels, 45, suffers from a congenital condition that makes him more susceptible to respiratory failure, fractures, severe curvature of the spine, and unstable knees, among other conditions. As a result, he has used crutches for his entire adult life. Daniels was exiting a restaurant when his crutches slid sideways on the ceramic floor, which was allegedly wet, and he fell forward. He suffered two comminuted fractures of his right humerus bone, which required open reduction surgery. Since the incident, Daniels has used a wheelchair because it is too painful to walk on crutches. He claimed about $70,800 in medical expenses. Daniels, who owns his own gas and oil supply company, made no claim for lost income.

Daniels and his wife sued the restaurant, alleging failure to place warning signs on a wet floor.

Defendant contended that the area where Daniels fell had not been mopped.

A jury awarded plaintiffs $1.08 million, paid by defendant’s insurer, including $75,000 to Daniel’s wife.

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CHILD EXPOSED TO LEAD-BASED PAINT IN APARTMENT: FAILURE TO MAINTAIN PREMISES: DANGEROUS CONDITION: BRAIN DAMAGE:

Perez v. 2246 Holding Corp., N.Y., Kings Co. Sup., No. 1683/04, Oct. 4, 2007.

Perez, 4, was tested for blood lead concentration five months after the family moved into an apartment. The test revealed his concentration was more than double the accepted toxicity level. A subsequent investigation of the family’s apartment by the city department of health revealed lead-based paint and multiple city code violations. As a result of the lead poisoning, Perez allegedly suffers from brain damage that has impaired his cognitive functions, learning ability, and attentiveness such that he will not be able to complete high school. Perez claimed about $4.52 million in future lost earnings based on a four-year college degree and 47 years in the workforce.

Perez’s mother, on his behalf, filed suit against the building’s two owners, alleging their failure to maintain the premises resulted in a dangerous condition. Plaintiff also alleged violation of the state multiple dwelling law and a local law stating that a landlord of a building constructed before 1960 must presume the building’s paint contains lead and any peeling paint must therefore be removed from areas where children under 7 years of age live. Plaintiff also claimed that a city department of health inspection 10 years earlier uncovered similar violations and therefore put defendants on constructive notice of the present violations.

The jury found one of the defendants 70 percent liable and the other 30 percent at fault. They awarded plaintiff $4.65 million. After defendants moved to set aside the verdict, the court upheld the liability verdict, but reduced the award to $1.38 million.

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SHOOTING VICTIM AT WHOLESALE CLUB ALLOWED TO PROCEED WITH SUIT
A Circuit Court judge in Norfolk, Virginia has recently ruled that a woman who worked at a wholesale club can sue the club for negligence on the grounds that the store failed to adequately warn or provide security from her husband who shot her on store property. The violent assault that was the subject of this suit was the culmination of a pattern of abuse and threats from the Plaintiff’s husband. On several prior occasions store security personnel had removed the husband from store property at the direction of the manager of the store because of his aggressive behavior towards the wife. On the day of the assault the husband called the manager of the store several times demanding to speak with his wife, threatened to come to the store to find her in spite of his having been banned from the store. Later that day the husband showed up at the store, confronted the manager and demanded to see his wife. He then exited the store but remained in his vehicle in the parking lot. The Plaintiff intended to call her sister who was picking her up that night to advise her that her husband was in the parking lot. When the sister arrived the husband shot the sister and then entered the store and shot his wife.

The Circuit Court in this case ruled that the lawsuit could proceed on to trial.
 

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Once a person has been arrested and charged by the police, then his or her case is reviewed either by a prosecuting attorney or a magistrate. Magistrates are judicial officers who fulfill some of the functions of a judge but do not have the complete authority of a judge. The purpose of having the case reviewed by the prosecuting attorney or the magistrate in the early stages of the process is to determine whether the police had probable cause to believe that the person had committed the crime in question. If the magistrate or prosecuting attorney makes that determination, then
normally the case will move on to the next stage.

Also in the early stages of the process, the court will set bail. Bail is typically set by a magistrate or a judge who considers the seriousness of the offense and the likelihood of the defendant fleeing the jurisdiction, and then establishes a monetary amount that must be paid to secure the defendant’s appearance at all subsequent court hearings. Bail can be paid in a cash amount or may be paid in the form of security against a piece of real estate. More often, it is paid by the posting of a bond written by a bail bondsman.

A bond issued by a bail bondsman is a type of insurance policy with the court as the beneficiary of that policy. The defendant who obtains the bond from the bail bondsman pays a premium for that bond, which normally is a certain percentage of the face amount of the bond. If the defendant does not appear at subsequent court proceedings, then the bondsman has to pay that bond amount to the court. The bondsman then will frequently use a bounty hunter to go out and find that defendant and return him or her to the court so that the bondsman can redeem (get its
money back) its bond.

The Eighth Amendment provides that excessive bail shall not be required. That is a rather loose standard and indeed the amount of bail that will be set by the court is a very subjective matter.

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One of the most notable decisions of the U.S. Supreme Court involving criminal procedure is the Miranda decision. The Miranda case involved the Fifth Amendment to the U.S. Constitution and related specifically to the rights of a criminal suspect after he had been detained by the police. The Miranda case held that the Fifth Amendment right against self-incrimination meant that a person had the right to be advised of his or her right to remain silent, right to counsel, and right to terminate any police interrogation once it has begun after being arrested, before he or she could be questioned by the police.

Miranda does not require that these rights be given to every person who is arrested. Frequently, a person is arrested and the police have no intention of asking him or her any questions about the alleged criminal activity. If, however, the police do begin asking questions about the alleged criminal activity, then they are required to give the Miranda rights. If those rights are not given and the defendant divulges information in response to police questioning, that evidence may be excluded at trial. If the defendant spontaneously volunteers information, there is no Miranda requirement and therefore the evidence would not be excluded.

If the defendant spontaneously volunteers information, there is no Miranda requirement.

The scope of Miranda has been altered by different courts and generally is now held to apply not only to persons who have been arrested, but also to persons who have become the focus of a police investigation. Even if a suspect has not been arrested, if he or she has become the focus of a criminal investigation and the interrogation is what is deemed to be custodial—taking place in a police station or another type of police environment—then the police must give the Miranda rights to that suspect before conducting their interrogation.

A suspect or a defendant can waive the right against self-incrimination and is free to speak to the police about his or her involvement in criminal activities. Experienced police officers normally require that that waiver be in writing or be recorded so that there is no question that the suspect or defendant is voluntarily and knowingly waiving his or her rights.

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In a recent decision of the Virginia Supreme Court it was decided that wrongful death settlements must be made public pursuant to a prior decision of the Supreme Court dating back to 1988. In this particular case, even though the parties had agreed that the terms of the settlement be kept confidential the Supreme Court concluded that the public interest in disclosure of wrongful death settlements was more important than the agreement of the parties and, as such, the terms of the wrongful death settlement are to be made public.
 

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DOGS ATTACK NEIGHBOR: STRICT LIABILITY: FAILURE TO CLOSE FENCE: BITES: SCARRING: POSTTRAUMATIC STRESS DISORDER.

Johnson v. Johnson, N.J., Essex Co. Super., No. ESX-L-6874-07, December 11, 2007.

Johnson, 14, was outside on his porch when two of his next-door neighbor’s dogs escaped from the rear yard and attacked him. He suffered about 24 bites to his arms, legs, and face, requiring surgery. One of the dogs had not been vaccinated for rabies, and Johnson had to undergo rabies treatment. He now has residual and permanent scarring and suffers from posttraumatic stress disorder, causing difficulties sleeping and problems at school. He incurred an unspecified amount of medical expenses.

The parties settled before trial for $280,000, to be paid by defendant’s insurer.

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CAR CATCHES FIRE: FAILURE TO INSPECT, REPAIR OVERHEATING PROBLEM: WRONGFUL DEATH.

Mulligan v. Barrett, Ky., Jefferson Co. Cir., No. 06-CI-03827, March 13, 2008.

Mulligan, 67, had his vehicle towed to Don’s Auto Clinic twice for overheating. The second time, the repair shop owner decided to install a rebuilt engine. Two days later, Mulligan left his car idling for about 30 minutes while he was sitting in it. A fire erupted in the engine compartment, engulfing Mulligan in flames. He suffered third-degree burns over 45 percent of his body, including his airway, and died three days later. His medical expenses were about $102,000, and his funeral expenses were about $3,900. Mulligan had been a butcher earning $12 per hour and is survived by his five adult children.

The jury awarded plaintiffs $3.26 million.

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PHOTOGRAPHER REPEATEDLY SENDS DESTROYED WEDDING PHOTOS TO NEWLYWEDS: HARASSMENT: EMOTIONAL DISTRESS: VERDICT: PUNITIVE DAMAGES.

Vickers v. Elden, W. Va., Ohio Co. Cir., No. 02-C-290, November 28, 2007.

When the Vickers got married in 2000, they hired Elden and his photography studio to take the wedding pictures. They paid Elden in full for his work. The next year, however, he began sending the Vickers and the groom’s parents, the Murrays, as well as other members of the family, cut up photo negatives and photos with the faces scribbled out. He also sent shattered photo CDs. The dozens of mailings were allegedly sometimes accompanied by poetry written by Elden and became increasingly threatening and disturbing. The Vickers and the Murrays repeatedly asked Elden to stop sending the materials, but he continued. They suffered emotional distress as a result of the alleged harassment.

The jury awarded plaintiffs $550,000, including $400,000 in punitive damages. The bride was awarded $100,000, the groom $25,000, his mother $20,000, and his father $5,000.

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TRACTOR-TRAILER STRIKES VEHICLE IN INTERSECTION: FAILURE TO OBEY SPEED LIMIT: VICARIOUS LIABILITY: WRONGFUL DEATHS

Powell v. Dean Foods Co., Ill., Cook Co. Cir., Nos. 03-L-015077 & 03-L-016261, Nov. 2, 2007.

Chakonas, 17, was driving her car with two passengers in it, Kakidas and McDonald, also both 17. As Chakonas attempted to make a left-hand turn at an intersection, a tractor-trailer, allegedly traveling approximately 10 m.p.h. over the speed limit, struck Chakonas’s car. All three occupants suffered fatal injuries.

The jury awarded plaintiffs $20.2 million, finding defendants 60 percent liable. It awarded $8 million each to the Kakidas and McDonald family, and $7 million to the Chakonas family, which was reduced to $4.2 million because of the jury’s finding that she was 40 percent contributorily negligent.

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GIRL, MOTHER STRUCK IN INTERSECTION: FAILURE TO STOP AT RED LIGHT: FTCA LIABILITY: QUADRIPLEGIA: BRAIN INJURY:

Gutierrez v. USA, U.S. Dist. Ct., C.D. Cal., No. 8:04-cv-01045, September 27, 2007.

Gutierrez, 4, was with her mother in their SUV. Gutierrez was properly restrained in a child booster seat in the back seat on the driver’s side. As they entered an intersection on a green light, another vehicle going about 30 m.p.h. ran a red light and broadsided their car on the passenger side, causing Gutierrez’s mother to lose control of the car. It struck a utility pole on the passenger side and flipped over onto the driver’s side. Gutierrez sustained a disk injury at C2, causing ventilator-dependent quadriplegia. She also suffered other injuries, including a brain injury with a subarachnoid hemorrhage, traumatic instability at C6-7, a collapsed left lung, abdominal trauma, and a laceration of her spleen. Gutierrez required a total of 25 surgeries and other procedures and was hospitalized for about 250 days.

Her past medical expenses were about $3.55 million and her future life-care costs, based on a 40-year life expectancy, are estimated to be approximately $22.6 million. Gutierrez will never be able to work and claimed about $1.37 million in lost earing capacity.

After a bench trial, the court entered judgment for plaintiffs in the amount of $55.18 million, including $54.14 million to Gutierrez and the remaining amount to her mother. Defendant has appealed the portion of the judgment awarding Gutierrez $31 million in noneconomic damages.

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Many contracts that are entered into by consumers contain mandatory arbitration clauses. They can be found in health insurance plans, franchise agreements and many other types of contracts. Several states including Maryland, the District of Columbia, Alabama and Connecticut have introduced or passed legislation that would limit mandatory arbitration clauses or provide protections for consumers including people who are injured as a result of the conduct of corporate entities.

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In the Supreme Court decision of Riegel v. Medtronic, Inc. the U. S. Supreme Court granted manufacturers of certain FDA approved medical devices immunity for product related deaths and injuries, finding that State law claims are preempted under the Medical Device Amendments of 1976. Dozens of members of the U. S. House of Representatives have now signed on to co-sponsor an amendment to that statute which would allow injured consumers and patients to hold medical device manufacturers accountable for defective devices resulting in personal injury.

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In the criminal field, there are two different types of warrants that may be issued—arrest warrants and search warrants. An arrest warrant is an order issued by a judge or magistrate authorizing the arrest of a particular person for a particular crime. A search warrant is an order issued by a judge or magistrate authorizing the police to conduct a search of a specific premises looking for specific objects. Although the police do not always need to have a search warrant before conducting a search of a premises, it is generally preferred that they do, especially if time permits. In some circumstances, however, time does not permit the police to go to the local courthouse, find a judge who has time to review the situation, and obtain a search warrant. In those types of emergency circumstances—when evidence is about to be destroyed or when the crime is in progress—the police may enter the premises and conduct a search without a warrant.

If a search warrant has been issued, then the warrant may actually indicate when the search is to be conducted. Typically, when the search warrant is to be served and executed is a matter of discretion for the police. Once the police have arrived at the premises, they are expected to announce their entry. However, if they have some reasonable cause to fear that evidence is being destroyed or that the police themselves may be in danger as a result of announcing their presence, then the police may enter without notice. Once the police have entered the premises, anyone in the premises is detained pending the completion of that search. If illegal materials or the items that are sought are found in the premises, and if there is probable cause to believe that the persons on the premises have something to do with the crime at issue, then they may be arrested and charged with a criminal violation.

Sometimes the police may request a citizen to consent to a search either of their person or of their premises. Nobody has to give such consent. If a person does consent to the search of his or her physical person or his or her home, it is considered to be a consensual search and the police do not need a warrant.

Police sometimes are called upon to utilize various types of surveillance techniques, consisting of wire tapping and electronic eavesdropping. That type of surveillance is controlled by specific state or federal statutes and as a general rule a warrant is necessary before the police can engage in that type of activity.

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The general criteria for making an arrest is what is referred to as probable cause. Probable cause arises when there is sufficient evidence to cause a reasonable person to believe that the accused probably committed the crime in question. The key word is probable. That is, the accused is more likely than not to have committed the crime in question.

The police may rely upon a variety of different sources of information to arrive at probable cause. For instance, a police investigator who relies upon an informant that has been used in the past regarding drug activities may determine that there is probable cause that narcotics are being sold at a particular location. That may justify not only the issuance of a search warrant for those premises, but also justify the arrest of the persons inside the premises if narcotics are found. Probable cause may also be founded upon police surveillance, wherein the police have actually seen suspicious activities going on at a particular location. Many things may justify the issuance of a warrant and a search of the premises.

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Once a person has been arrested, the arresting officer is allowed to search that person and to search the area within arm’s reach of that person. Anything that is found as a result of that type of search may be used against the defendant. Likewise, if there is some illegal substance or item that is within plain view of the officer while he or she is lawfully in the premises, then that substance or item may be seized and used against the defendant.

Vehicle searches are frequently the subject of controversy. When a motor vehicle operator is arrested and taken to the police station, his or her vehicle is typically impounded. The police are then authorized to conduct an inventory search of the vehicle. Since the vehicle has come into their possession, it is in the interest of the police to determine whether there are any items of value in that vehicle, so that they are not later charged with a misappropriation of those items. They typically will conduct an inventory search of the vehicle and if there is some illegal substance or material found in the vehicle, it could be the basis of a criminal prosecution.
 

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A rule that has evolved over the years (and that is the subject of a good deal of controversy) is the so-called exclusionary rule. The exclusionary rule states that the courts will exclude evidence that was obtained as the result of an unreasonable search or seizure. The exclusionary rule is a rather general one, and over the years, the courts have applied several exceptions to the exclusionary rule.

The intent of the exclusionary rule is to control police behavior.

The intent of the exclusionary rule is to control police behavior. It is felt that if the police realize that evidence they obtain in violation of someone’s constitutional rights cannot be used in a criminal prosecution, they will control their behavior from that point forward, assuring that the constitutional rights of defendants are observed. The battle over the exclusionary rule has raged for nearly forty years, with some people arguing that it makes no sense to allow the criminal to go free simply because the police have bungled. People on the other side of the issue argue that the only way that the police can be controlled is by excluding evidence that they obtain illegally.

In order for a defendant to rely on the exclusionary rule, he or she must assert and prove that he or she has standing to challenge the alleged constitutional violation. This requirement of standing, or having an appropriate interest in the outcome of the case, is a general requirement for asserting any constitutional right. An example of where a defendant would not have standing arises when an illegal seizure of narcotics in the home of Defendant A leads to the subsequent arrest of Defendant B at another location. The narcotics in that case could not be used in evidence against A, because A has standing to object to the illegal arrest. The narcotics could be introduced against B, as B has no standing to object because it was not his home that was illegally searched and he was not the one who was illegally arrested. In that case, B would not have standing to raise a constitutional objection in order to exclude the evidence.
 

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The criminal process can be initiated by both state and federal prosecutors. The Bill of Rights (the first ten amendments to the Constitution) initially only restricted the power of the federal government and was not considered to have any application to criminal prosecutions in state court. But over the last fifty years, there has been a process of selective incorporation, wherein the rights guaranteed to defendants in federal criminal prosecutions have been selectively incorporated into state prosecutions.

Today, virtually all the rights set forth in the Bill of Rights apply not only to federal criminal prosecutions, but also to state criminal prosecutions. As such, a defendant’s right to remain silent, the right to competent counsel, the right to confront his or her accusers, the right to be free from cruel and unusual punishment, and most of the other rights set forth in the Fourth, Fifth, Sixth, and Eighth Amendments have been made applicable to defendants charged with crimes in the state court system.

Many of the rights associated with a criminal prosecution are rights that come into play before an arrest is ever made. The Fourth Amendment says that you have a right to be free of unreasonable police searches and seizures. The police cannot stop you while you are walking down the street unless they have some reasonable justification for believing that you either have committed a criminal offense or are about to commit a criminal offense. If a police officer sees you walking down the street engaging in some unusual behavior, stops you to question you about this, and sees a conspicuous bulge under your coat that looks like it may be a pistol, then he or she may detain you and pat you down to determine if it is in fact a pistol. If it is a pistol and you are not allowed to be carrying such a concealed weapon, then you may be arrested.

Suppose a police officer receives a report that a bank has just been robbed and hears a description of the perpetrators broadcast over the police radio. If that police officer feels that you fit the description, then he or she may stop you and ask where you have been, where you are going, and request your identity. If the police officer is not satisfied at that point that you are not the suspect, he or she may even take you back to the scene of the crime to see if you can be identified by any of the witnesses. If you are then identified by one of the witnesses, you will be arrested.

A police officer, however, may not stop you and detain you while you walk down the street simply because you look suspicious or unsavory. Instead, he or she must have some reason that can be articulated that would cause a reasonable person to conclude that you have committed some criminal offense or are about to commit a criminal offense.

You have probably heard the saying a man’s home is his castle. Indeed, that is true insofar as police searches are concerned. The police cannot randomly come into your home and conduct a search. Generally, the police need to have a search warrant to conduct a search of the premises. In certain emergency circumstances, they may be allowed to come into the premises and conduct a search. This is only allowed if it is necessary in order to accomplish an arrest of a person whom they believe has committed a crime or if it is necessary to prevent the destruction of evidence. If time permits, however, the police are required to obtain a warrant issued by a judge or magistrate authorizing the search and entry into a home.

Generally, the police need to have a search warrant to conduct a search of your home.
 

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There are several players in the criminal justice system—the police, the prosecutors, the judges, the parole and probation officers, and the accused, who is also called the defendant. Criminal prosecutions are typically initiated by the police by making an arrest. That arrest may be made as a result of a crime witnessed by a police officer or as a result of an investigation by the police. Once the police have made an arrest, the person arrested will begin to wind his or her way through the criminal justice system.

To describe the journey through the state criminal justice system (and for the most part, the federal system as well), the best place to begin is at the beginning. As with every aspect of the legal system, the beginning is the Constitution. The most frequent encounter with constitutional law is found in the criminal context. Criminal law and procedure, to a great extent, is constitutional law.

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A federal court may have subject matter jurisdiction, but no personal jurisdiction over the defendant.

Lawyers frequently argue over the respective merits of bringing a civil claim in state court versus federal court. Some lawyers maintain that it is always to the advantage of the plaintiff to litigate a claim in federal court for the following reasons.

* The Federal Rules of Evidence typically are a bit more lenient, and therefore more favorable to a plaintiff than are the state rules of evidence.

* The federal courtrooms are much grander and larger than the typical state courtrooms, and therefore juries are likely to be more impressed with a case brought in federal court and more likely to return a verdict favorable to the plaintiff.

* Federal judges are sometimes considered higher caliber than state court judges.

Those reasons are very subjective and there are probably as many lawyers across the nation who feel that it is better for a plaintiff to file suit in state court than it is in federal court. In any event, since the plaintiff initiates the lawsuit, the plaintiff has the opportunity, to some extent, to choose the forum. Even though a suit may be initiated in state court, if the federal subject matter jurisdiction requirements have been met, then the defendant may remove that case from state court to federal court.

Once a case has been initiated in federal court, the process that is followed is much the same as what has been described previously in the state court system. The particular procedural rules that are followed in federal court may differ from what are followed in state court, but the basic procedure is much the same once the lawsuit has been initiated.

When hearing a diversity case, a federal court is, in essence, sitting as if it were a state court. The federal judge who is called upon to make rulings of law has to apply the pertinent state law that governs that transaction. If a citizen of Connecticut sues a citizen from Massachusetts in a federal court in Massachusetts for an automobile accident that occurred in the state of Connecticut, then the federal judge in Massachusetts is going to apply Connecticut law to that claim. Massachusetts law on the particular issues in questions may be markedly different than Connecticut law.

A federal judge, however, who hears a federal question case typically is going to apply federal law, since the claim itself arose under federal law.

Even though a federal judge may be called upon to apply state law in a diversity claim, he or she is still bound by the Federal Rules of Procedure, which govern the civil procedure in that court system. He or she is also bound by the Federal Rules of Evidence, which are the rules that govern the admissibility of evidence in the federal court system. As such, a federal judge, when sitting in a diversity claim, is called upon to apply a number of different types of law—both state law and federal law—to different aspects of the case.

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In order to file suit against a person in the state of Massachusetts, for example, either in state or federal court, you have to assert and be able to prove that the court (state or federal) has personal jurisdiction over that defendant. Personal jurisdiction can be obtained in a number of different ways.

* If the defendant committed the alleged wrong in the state of Massachusetts, then that would give the courts (state or federal) within that state personal jurisdiction over him or her.

* If the defendant lives in the state of Massachusetts, then the courts (state or federal) in that state would have personal jurisdiction over him or her.

* If the defendant has engaged in a course of conduct wherein he or she has substantial contacts with the state of Massachusetts and the claim in question “arose out of those contacts,” then that may likewise give the courts (state and federal) personal jurisdiction over him or her in the state of Massachusetts.

The concept of personal jurisdiction is entirely separate and distinct from the concept of subject matter jurisdiction. Subject matter jurisdiction of the federal courts (in terms of civil claims) must be founded upon diversity or a federal question. That relates exclusively to what is called subject matter jurisdiction. Personal jurisdiction deals with the issue of whether the court has authority over that defendant to litigate that claim.

The concept of personal jurisdiction is founded on the idea that it would be unfair for a citizen of California to have to litigate a claim in Massachusetts unless that citizen of California had done something that would constitute some substantial contact with the state of Massachusetts that gave rise to the claim in question. The mere fact that a federal court may have subject matter jurisdiction to litigate your claim does not necessarily mean that it has personal jurisdiction over the defendant to litigate that claim.

Personal jurisdiction deals with the issue of whether the court has authority over a particular defendant.
 

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The second way of bringing a civil claim into federal court is by suing under a federal statute or a federal constitutional provision. For instance, if you file a civil rights claim against your employer, even though you may be a citizen of Ohio and you employer may be a citizen of Ohio, you can still bring that claim in federal court because the claim is brought under federal law. Likewise, if you pursue a claim against a defendant under a theory involving a violation of your constitutional rights, then that type of claim may be brought in federal court because it is founded upon a federal constitutional issue.

Unlike diversity claims, federal question cases do not have any monetary jurisdictional limits. That is, the discrimination claim that you bring against your employer may only be worth one hundred dollars, but you can still bring that claim in federal court.

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A diversity claim is one wherein the parties are of diverse citizenship. A citizen of the state of Connecticut may sue a citizen of the state of Massachusetts in the federal court in Massachusetts. That difference or diversity of citizenship establishes one of the elements of a diversity claim. The diversity claim, however, must also involve a monetary controversy in which the amount at stake is in excess of $75,000 (not including any interest or any attorneys fees that may be claimed).

The civil jurisdiction of the federal courts is legislated by Congress. Congress has chosen to limit the overall civil jurisdiction of the federal courts. The logic is that civil litigants can always go into state court to resolve their disputes, and as such the federal courts should be reserved only for certain types of disputes. Disputes between citizens of different states may be subject to some local or regional prejudice if brought in state court, and therefore Congress has decided that these types of civil claims, provided they meet the monetary amount set forth above, can be brought in federal court in order to avoid the potential prejudice or bias.

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The federal court system is quite different from the state court system. You will recall from what was said previously that the federal courts are courts of limited jurisdiction. On the other hand, the state courts are courts of general jurisdiction, or, to put it another way, virtually of unlimited jurisdiction. The term jurisdiction in this sense refers to subject matter jurisdiction—the types of claims that the court has the authority to hear.

There are some claims arising under federal law that can be asserted only in federal court, but the general rule is that virtually any type of civil claim (under state or federal law) can be brought in the state court system. That is not true of the federal court system. In order to bring a civil claim in the federal court, there are certain requirements that have to be met. There are two ways to bring a civil claim into federal court. You can bring a diversity claim or you can bring a claim involving a federal question.

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An expert witness is simply a witness who has expertise in a particular area, whose testimony the court has determined may assist the jury in understanding the issues of the case and therefore fairly deciding the issues. Expert testimony has been abused over the years in that it is sometimes presented on issues that do not require expert testimony. The rule of thumb for the admissibility of expert testimony is that it must relate to a subject matter that the jury might have difficulty understanding without expert testimony. The expert must assist the jury in understanding the issue. In a medical malpractice case in which there is an issue as to whether the surgery should have been conducted one way or another, the jury needs to hear expert testimony from medical doctors as to how the surgery should have been conducted. The jury does not have the expertise to decide that issue on its own, and therefore must hear from medical experts who will educate the jurors as to what the medical issues are and how the surgery either should have or should not have been conducted. It is then up to the jury to decide which of those experts they believe and to render a verdict.

Certain types of expert testimony have been ruled inadmissible by some courts. For instance, in some jurisdictions, expert testimony of how a particular automobile accident may have occurred is considered to be inadmissible because that is normally considered to be something that a jury can understand and determine on its own, without the aid of expert testimony.

There is a tendency within the legal profession to offer expert testimony on as many issues as possible in order to bolster the claim or defense being asserted. Recently, many courts have taken a somewhat dim view of that tendency and have endeavored to restrict the admissibility of expert testimony. The reasoning is that in many of these types of cases, the jury has sufficient expertise or common sense to understand and resolve the issues.

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