Northern Virginia Personal Injury Lawyer Blog

Criminal Law-Double Jeopardy

BrienRoche@aol.com (Brien Roche) — Thu, 04 Dec 2008 12:13:08 -0500

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.

Criminal Law-Appeal

BrienRoche@aol.com (Brien Roche) — Wed, 03 Dec 2008 09:58:33 -0500

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.

Criminal Law-Sentencing

BrienRoche@aol.com (Brien Roche) — Tue, 02 Dec 2008 11:28:11 -0500

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.

Criminal Law-Standard of Proof

BrienRoche@aol.com (Brien Roche) — Wed, 26 Nov 2008 09:18:42 -0500

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.

Criminal Law-Right of Confrontation

BrienRoche@aol.com (Brien Roche) — Tue, 25 Nov 2008 09:32:30 -0500

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.

Criminal Law-Aspects that Level the Playing Field

BrienRoche@aol.com (Brien Roche) — Mon, 24 Nov 2008 13:47:35 -0500

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.

Criminal Law-The Press

BrienRoche@aol.com (Brien Roche) — Fri, 21 Nov 2008 11:25:31 -0500

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.

Criminal Law-Jury Trial

BrienRoche@aol.com (Brien Roche) — Thu, 20 Nov 2008 09:34:20 -0500

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.

Criminal Law-Privilege

BrienRoche@aol.com (Brien Roche) — Wed, 19 Nov 2008 09:57:25 -0500

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.

Criminal Law-Discovery

BrienRoche@aol.com (Brien Roche) — Mon, 17 Nov 2008 11:31:10 -0500

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.

Criminal Law-Traffic Court Cases

BrienRoche@aol.com (Brien Roche) — Fri, 14 Nov 2008 11:15:38 -0500

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.

Criminial Law-Felonies and Misdemeanors

BrienRoche@aol.com (Brien Roche) — Thu, 13 Nov 2008 09:49:24 -0500

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.

Criminal Law-Pretrail Proceedings

BrienRoche@aol.com (Brien Roche) — Wed, 12 Nov 2008 10:01:40 -0500

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.

Criminal Law-Pleas

BrienRoche@aol.com (Brien Roche) — Tue, 11 Nov 2008 11:46:03 -0500

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.

Criminal Law-First Court Appearance

BrienRoche@aol.com (Brien Roche) — Fri, 07 Nov 2008 11:46:38 -0500

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.

Criminal Law-Prosecutors

BrienRoche@aol.com (Brien Roche) — Wed, 05 Nov 2008 09:16:05 -0500

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.

Wrongful Death

BrienRoche@aol.com (Brien Roche) — Tue, 04 Nov 2008 15:18:36 -0500

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.

Premises Liability

BrienRoche@aol.com (Brien Roche) — Mon, 03 Nov 2008 09:18:27 -0500

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.

Premises Liability

BrienRoche@aol.com (Brien Roche) — Fri, 31 Oct 2008 09:57:42 -0500

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.

Premises Liability

BrienRoche@aol.com (Brien Roche) — Thu, 30 Oct 2008 11:46:26 -0500

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.