As always, before reading this post, please review my disclaimer by clicking on the link above or clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia. Please also be aware that any opinions expressed in this blog post are solely that of the author.
Introduction
Since announcing in October that my regular blog posts would be coming to an end, I've occasionally been inspired to write posts, but just haven't gotten myself together enough to actually do one. Today, however, I was hit by inspiration to write on a topic of sufficient importance in family law that I actually have forced myself to sit down and post.
Adultery is a touchy subject in family law, but it is routinely present. In my own experience, it's responsible, in part or in whole, for probably about a third of divorces. Its impact on a divorce case is also substantial. An adulterer generally cannot receive spousal support, can get hit in the equitable distribution of property, and a divorce can be granted on adultery grounds right away instead of having to wait for a year of separation. However, adultery is very hard to prove in Virginia because a) the burden of proof is "clear and convincing evidence" (instead of just "more likely than not"), and b) the adulterer can plead the Fifth Amendment to refuse to answer questions about it. We have a chance right now, however, to make it easier to prove by taking away the Fifth Amendment as an adultery defense, and that is a topic I wanted to write about today.
How the Fifth Works for Adultery
The Fifth Amendment's famous protection against self-incrimination is one of the most powerful tools the Bill of Rights gives us against government. It plays a key role in preventing coercion, torture, and other means by which the state used to force confessions out of people. The way it works in a civil context is that in any civil case (such as divorce), if answering a question could result in you incriminating yourself, you simply refuse to answer on the grounds of the Fifth Amendment.
In Virginia, for adultery, this is crucial for two reasons. First, adultery is actually illegal in Virginia. Virginia Code Section 18.2-365 makes adultery a Class 4 misdemeanor. For reference, a class 4 misdemeanor means that the maximum punishment for conviction is a fine of up to $250. While it has been eight years since Virginia's last prosecution for adultery, and there have only been three prosecutions in the entire 21st century to date, this crime remains on the books, and as a result the Fifth Amendment is available as an option for those accused of adultery.
Now, in most states, this actually wouldn't be a huge problem. This is because unlike in criminal cases, in civil cases, while you still cannot be prosecuted for pleading the Fifth, the fact that you pled the Fifth can be used as an implied confessions and subsequently be used against you within the civil case itself. Virginia, however, prides itself (I think rightfully so) on the degree to which it supports constitutional governance. As a result, Code Section 8.01-223.1 forbids Virginia trial courts from using a person's invocation of a constitutional right (including the Fifth Amendment) against them even in a civil case.
What this means in a family law context is that adultery, while the lowest level of misdemeanor we have, and while rarely enforced, is still technically a crime, and subsequently the Fifth Amendment can be used as a shield and a sword by an adulterer in a divorce case to get that person rights and protections he or she should not have.
The Proposal to Change This
Now, looking at all of this, I would hope you agree that we should not weaken the impact of the Fifth Amendment in Virginia. So, while it's fairly unique amongst the states, I fully support keeping Code Section 8.01-223.1 in place. The obvious "solution," then, would seem to be, at least in this day and age, taking the crime of adultery off the books. This solution isn't as simple as it seems, though.
Take, for example, employment law. Virginia is an "at will" employment state - meaning that unless you have a contract specifically stating otherwise, you can be fired at any time for any reason (you can also quit at any time for any reason). As a result, it is very hard to sue for wrongful termination in Virginia. However, there are exceptions - and one of the biggest exceptions is that your termination "violated public policy." In general, however, to violate public policy, the termination has to involve a violation or potential violation of the laws of the Commonwealth.
The adultery statute, then, has been one of the strongest swords in bringing wrongful termination suits by employees fired after refusing sexual advances from a superior. If either the employee or the superior was married, then any sexual relationship would have been adultery, and subsequently the public policy exception is triggered. There's been extensive argument that removing adultery from the books would make these cases harder. Similarly, in some sexual assault cases, the availability of an adultery charge has helped ensure a case is not prematurely dismissed while additional evidence is collected. In short, taking adultery off the books would have some potentially damaging unforeseen consequences.
Instead, State Senator Scott Surovell has proposed SB 1124, which would change adultery from a criminal to a civil offense, with the maximum penalty being $250 which would be paid to the state literary fund.
A civil offense, unlike a criminal offense, does not go on your criminal record, does not have to be proven beyond a reasonable doubt, can be subject to bankruptcy proceedings, and failing to pay often is not contempt of court (unlike criminal fines). Of relevance to us, however, is that civil offenses are not afforded the protection of the Fifth Amendment.
Potential Impact of Change
The potential impact of SB 1124, then, is huge. While still protecting employees and preventing the other "bad effects" of taking adultery off the books completely, changing it to a civil offense would mean that adulterers in a family law case would have to choose between confessing and committing perjury (a felony). This will also make it easier to potentially question the paramours of an adulterous spouse. As a result, SB 1124 would, in my opinion, keep all the benefits of having adultery on the book as a crime, while getting rid of the drawbacks.
How You Can Help
So, this might seem like a no-brainer. But, unfortunately, it isn't. This is not the first time Senator Surovell has proposed this bill. Last year, our socially conservative General Assembly refused to pass the bill even out of committee because they feared the message it would send by saying we don't take adultery seriously in Virginia. As ridiculous as this may seem, the fact is most members of the General Assembly are not lawyers, and have no idea how badly the current law actually hurts the victims of adultery.
That's where you come in. Please consider contacting your State Senator and Delegate (especially if they are a Republican, but even if they aren't) and talk to them about this bill. Tell them how important it is to you to see the adultery loophole closed so that victims of adultery can get the justice that the law entitles them to.
Showing posts with label criminal law. Show all posts
Showing posts with label criminal law. Show all posts
Monday, January 16, 2017
Friday, December 18, 2015
A Brief Overview of Virginia Attorney-Client Privilege Law
As always, before reading this post, please review my disclaimer by clicking on the link above, or by clicking on this link. As always, any legal principles discussed in this post apply only to the Commonwealth of Virginia.
Introduction
Something I've learned over the years is that most people have heard of attorney-client privilege, but only have the faintest notion of what it means. I usually hear people explain it as meaning "my lawyer can't repeat anything I tell him to anyone else without my permission," or "no one can ever find out anything my lawyer and I discuss," or "there is no privilege unless I specifically tell my lawyer something is privileged," or some combination thereof. Of course, I wouldn't be using those examples here if they weren't all wrong to some extent or another.
Because it is critical if you are in a legal situation for you to be able to be candid with your attorney, and as a result it is critical that you understand at least the basics of privilege, with this post I hope to provide a brief overview of attorney-client privilege, how it works, and some of its exceptions.
A Brief History of the Privilege
As you probably know, attorneys have existed in some form or another since the Roman period. Much of what we think of as the concept of modern attorneys, however, dates back to the Middle Ages in England. There, leaders began to conclude that there was benefit to having individuals who were learned in laws represent people accused of violating laws so as to free the common people from having to learn all law themselves - and, more importantly, to ensure that courts reached accurate results, despite whatever level of sophistication or lack thereof a specific litigant had. Central to this idea was the notion that an attorney needed to know the details of his client's case in order to adequately represent them. The attorney-client privilege was borne out of the idea that a client will not be candid with his or her attorney unless they know that what they tell the attorney will not be told to anyone else.
This is still the philosophical underpinning of attorney-client privilege. It is so important a part of our adversarial system, that an attorney who violates the privilege can be both disbarred and sued personally for damages. It is recognized as an element of the Sixth Amendment right to counsel by the US Supreme Court, such that it would be unconstitutional for a court or police force to force your attorney to violate privilege.
So, What Does Privilege Cover?
Attorney-client privilege covers all communications that are exclusively made by a client to his or her attorney or any other attorney at that attorney's firm, any communications that are exclusively made by an attorney to his or her client in which the content of a privileged communication from client to attorney would be expressly or implicitly revealed, and all communications that are exclusively made by a potential client to his or her potential attorney or any other attorney at that attorney's firm. That's it.
So, a few important things to note about the above. First, privilege never expires. Unless and until it is waived, privilege lasts forever, including not only past the end of the attorney representing the client, it even continues past the client's death. Second, privilege only covers things your attorney says to you if those things necessarily reveal privileged things you have sent to your attorney - otherwise communications from your attorney to you are not privileged (though there are other rules that are weaker than privilege but nonetheless do exist to prevent premature revelation of communications from your attorney to you). Third, privilege only covers exclusive communications - this means any communication with your attorney where you have a friend listening in on the conversation, or an e-mail in which you have cc'ed a friend, is not privileged. Some courts (though not all) have ruled that simply sending an e-mail from your work e-mail address is enough to say that the e-mail is not privileged because your employer can presumably read your e-mails. Fourth, note that it covers all communications within the range of types of communications it covers - so there's no magic words you need to say in order to invoke privilege, it is automatically invoked every time you communicate exclusively with your attorney. Finally, note that the privilege only covers communications - not things - you cannot give your attorney a box of evidence and suddenly have that evidence be privileged (with some exceptions not worth getting into here).
How Privilege Works
So, now that we know what privilege covers, it's worth discussing how privilege actually works. So, at its most basic level, privilege means that your attorney not only is forbidden from revealing privileged communications on his or her own, he or she also cannot be compelled by anyone else to do this. This means your attorney's e-mails cannot be subpoenaed without redactions, your attorney cannot be compelled to testify against you with privileged information, etc. If the other side in a litigation seeks something that is privileged, your attorney can object, and that objection should be sustained. In other words, nothing privileged you tell your attorney can be used against you. Unless the privilege is waived.
How Privilege Gets Waived
So, with that all being the case, it's important to understand that a lot of privileged information loses its privileged status because the privilege gets waived. Privilege can be waived many ways and for many purposes, both intentionally and unintentionally. It's important to note, however, that once privilege is waived, it cannot be unwaived, and the covered privileged communications can never again be protected by privilege anywhere.
So, the simplest way to waive privilege is to sign a statement saying "I waive all of my attorney-client privilege rights" - but that would pretty much never make sense to do. The most common way that privilege actually gets waived is that your attorney reveals some privileged information to the other side, usually because you have specifically authorized your attorney to do this.
Privilege is waived any time privileged communications are revealed to someone other than you or your attorney (or other attorneys in his or her firm). It does not matter who does the revealing - it can be you or your attorney. It also does not matter if the revelation was intentional (with some exceptions), or, if it was your attorney who revealed the information, it does not matter if your attorney did it without your authorization. If your attorney does waive privilege without your authorization, you can report him or her to the bar, and the bar will frequently discipline such attorneys, possibly even disbarring them. If the revelation ends up hurting you, you can also sue your attorney for malpractice. Nonetheless, the privilege remains waived.
Now, fortunately, this rule about revelation is not nearly as harsh as it used to be. Courts recognize the supreme importance of the privilege, and protect it diligently. As a result, in order for a waiver to be found, it must first of all be the content of the communication that is revealed, not merely the subject matter. Your attorney telling the other side "my client talked to me today about x" without going into detail of what you said does not waive privilege for your conversation.
Similarly, where waivers are found, the scopes of those waivers are very limited. With very rare exception, the courts virtually never find privilege to be fully waived. Instead privilege will only be found to be waived to the extent necessary to reveal the full context of the communication for which privilege was revealed. For example, let's say you tell your attorney in confidence in one conversation, "I stole Tim's bike and sold it at Joe's pawn shop. I also stole Jerry's bike." Then let's say your attorney gets drunk at a party and tells his non-attorney buddy, "my client told me he sold Tim's bike at Joe's pawn shop." Well, the court is likely to say that privilege has been waived as to the statement "I stole Tim's bike and sold it at Joe's pawn shop," but that it still has not been waived as to the statement "I also stole Jerry's bike."
As you might imagine, privilege is actually waived routinely in most cases. This is especially true in civil cases, where you may often be telling your attorney something with the express purpose that they will pass that information on to the other side. Nonetheless, the way privilege gets waived and the limited scope of such waivers is worth remembering.
Exceptions to Privilege
Now, as you might imagine, there are some exceptions to privilege. These are situations where a communication would normally be privileged, but something about the communication itself or the situation in which it is potentially being used either makes it not privileged, or makes privilege inapplicable. There are a lot of exceptions to privilege, but most of them are very fact specific. Here are the most common exceptions I encounter:
Conclusion
Attorney-client privilege is one of the more complicated areas of legal representation, but also one of the most important for a client to understand. If you have any questions at all about how attorney-client privilege applies to your case, you should ask your lawyer.
Introduction
Something I've learned over the years is that most people have heard of attorney-client privilege, but only have the faintest notion of what it means. I usually hear people explain it as meaning "my lawyer can't repeat anything I tell him to anyone else without my permission," or "no one can ever find out anything my lawyer and I discuss," or "there is no privilege unless I specifically tell my lawyer something is privileged," or some combination thereof. Of course, I wouldn't be using those examples here if they weren't all wrong to some extent or another.
Because it is critical if you are in a legal situation for you to be able to be candid with your attorney, and as a result it is critical that you understand at least the basics of privilege, with this post I hope to provide a brief overview of attorney-client privilege, how it works, and some of its exceptions.
A Brief History of the Privilege
As you probably know, attorneys have existed in some form or another since the Roman period. Much of what we think of as the concept of modern attorneys, however, dates back to the Middle Ages in England. There, leaders began to conclude that there was benefit to having individuals who were learned in laws represent people accused of violating laws so as to free the common people from having to learn all law themselves - and, more importantly, to ensure that courts reached accurate results, despite whatever level of sophistication or lack thereof a specific litigant had. Central to this idea was the notion that an attorney needed to know the details of his client's case in order to adequately represent them. The attorney-client privilege was borne out of the idea that a client will not be candid with his or her attorney unless they know that what they tell the attorney will not be told to anyone else.
This is still the philosophical underpinning of attorney-client privilege. It is so important a part of our adversarial system, that an attorney who violates the privilege can be both disbarred and sued personally for damages. It is recognized as an element of the Sixth Amendment right to counsel by the US Supreme Court, such that it would be unconstitutional for a court or police force to force your attorney to violate privilege.
So, What Does Privilege Cover?
Attorney-client privilege covers all communications that are exclusively made by a client to his or her attorney or any other attorney at that attorney's firm, any communications that are exclusively made by an attorney to his or her client in which the content of a privileged communication from client to attorney would be expressly or implicitly revealed, and all communications that are exclusively made by a potential client to his or her potential attorney or any other attorney at that attorney's firm. That's it.
So, a few important things to note about the above. First, privilege never expires. Unless and until it is waived, privilege lasts forever, including not only past the end of the attorney representing the client, it even continues past the client's death. Second, privilege only covers things your attorney says to you if those things necessarily reveal privileged things you have sent to your attorney - otherwise communications from your attorney to you are not privileged (though there are other rules that are weaker than privilege but nonetheless do exist to prevent premature revelation of communications from your attorney to you). Third, privilege only covers exclusive communications - this means any communication with your attorney where you have a friend listening in on the conversation, or an e-mail in which you have cc'ed a friend, is not privileged. Some courts (though not all) have ruled that simply sending an e-mail from your work e-mail address is enough to say that the e-mail is not privileged because your employer can presumably read your e-mails. Fourth, note that it covers all communications within the range of types of communications it covers - so there's no magic words you need to say in order to invoke privilege, it is automatically invoked every time you communicate exclusively with your attorney. Finally, note that the privilege only covers communications - not things - you cannot give your attorney a box of evidence and suddenly have that evidence be privileged (with some exceptions not worth getting into here).
How Privilege Works
So, now that we know what privilege covers, it's worth discussing how privilege actually works. So, at its most basic level, privilege means that your attorney not only is forbidden from revealing privileged communications on his or her own, he or she also cannot be compelled by anyone else to do this. This means your attorney's e-mails cannot be subpoenaed without redactions, your attorney cannot be compelled to testify against you with privileged information, etc. If the other side in a litigation seeks something that is privileged, your attorney can object, and that objection should be sustained. In other words, nothing privileged you tell your attorney can be used against you. Unless the privilege is waived.
How Privilege Gets Waived
So, with that all being the case, it's important to understand that a lot of privileged information loses its privileged status because the privilege gets waived. Privilege can be waived many ways and for many purposes, both intentionally and unintentionally. It's important to note, however, that once privilege is waived, it cannot be unwaived, and the covered privileged communications can never again be protected by privilege anywhere.
So, the simplest way to waive privilege is to sign a statement saying "I waive all of my attorney-client privilege rights" - but that would pretty much never make sense to do. The most common way that privilege actually gets waived is that your attorney reveals some privileged information to the other side, usually because you have specifically authorized your attorney to do this.
Privilege is waived any time privileged communications are revealed to someone other than you or your attorney (or other attorneys in his or her firm). It does not matter who does the revealing - it can be you or your attorney. It also does not matter if the revelation was intentional (with some exceptions), or, if it was your attorney who revealed the information, it does not matter if your attorney did it without your authorization. If your attorney does waive privilege without your authorization, you can report him or her to the bar, and the bar will frequently discipline such attorneys, possibly even disbarring them. If the revelation ends up hurting you, you can also sue your attorney for malpractice. Nonetheless, the privilege remains waived.
Now, fortunately, this rule about revelation is not nearly as harsh as it used to be. Courts recognize the supreme importance of the privilege, and protect it diligently. As a result, in order for a waiver to be found, it must first of all be the content of the communication that is revealed, not merely the subject matter. Your attorney telling the other side "my client talked to me today about x" without going into detail of what you said does not waive privilege for your conversation.
Similarly, where waivers are found, the scopes of those waivers are very limited. With very rare exception, the courts virtually never find privilege to be fully waived. Instead privilege will only be found to be waived to the extent necessary to reveal the full context of the communication for which privilege was revealed. For example, let's say you tell your attorney in confidence in one conversation, "I stole Tim's bike and sold it at Joe's pawn shop. I also stole Jerry's bike." Then let's say your attorney gets drunk at a party and tells his non-attorney buddy, "my client told me he sold Tim's bike at Joe's pawn shop." Well, the court is likely to say that privilege has been waived as to the statement "I stole Tim's bike and sold it at Joe's pawn shop," but that it still has not been waived as to the statement "I also stole Jerry's bike."
As you might imagine, privilege is actually waived routinely in most cases. This is especially true in civil cases, where you may often be telling your attorney something with the express purpose that they will pass that information on to the other side. Nonetheless, the way privilege gets waived and the limited scope of such waivers is worth remembering.
Exceptions to Privilege
Now, as you might imagine, there are some exceptions to privilege. These are situations where a communication would normally be privileged, but something about the communication itself or the situation in which it is potentially being used either makes it not privileged, or makes privilege inapplicable. There are a lot of exceptions to privilege, but most of them are very fact specific. Here are the most common exceptions I encounter:
- Privilege does not apply during a lawsuit between an attorney and his or her client to the extent necessary for the attorney to be able to adequately represent his interests. This includes legal malpractice lawsuits by a client against his attorney, defamation lawsuits by an attorney against his client, or collections lawsuits by an attorney against his client.
- Privilege does not apply any time a lawyer faces criminal, civil or bar disciplinary proceedings arising out of his representation of a client to the extent necessary for the attorney to be able to adequately represent his interests.
- A lawyer may waive privilege without consent of the client and without facing discipline or civil action when the privileged communication reveals that the client has, while the lawyer was representing him, perpetrated a fraud on a third party in a matter related to the representation.
- Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing the intent of the client to commit a crime, so long as the lawyer has (if feasible) warned the client of the legal consequences of such actions and that the lawyer would have to reveal the information if the plan was not abandoned first.
- Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing that, while the lawyer was representing the client, the client had perpetrated a fraud upon the court related to the subject matter of the representation, so long as the lawyer has (if feasible) first requested that the client him or herself tell the court about the fraud.
- Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing that another attorney has engaged in misconduct in violation of the Rules of Professional Conduct.
Conclusion
Attorney-client privilege is one of the more complicated areas of legal representation, but also one of the most important for a client to understand. If you have any questions at all about how attorney-client privilege applies to your case, you should ask your lawyer.
Friday, June 19, 2015
Understading the Law of "Hate Crimes"
As always, prior to reading this post, please review my disclaimer by clicking on the link above, or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
I am not a criminal law attorney, nor do I seek criminal clients, but I am a lawyer who cares about the law. This is not the post I planned to write today, but it's one I feel compelled to write after watching in horror the aftermath of what happened in Charleston. The brutal hatred we've witnessed there is, to put it mildly, depressing, difficult to swallow. That being said, I don't pretend I have anything new or different or special to say, but I do want to talk about the law.
You see, this incident has caused a topic to come up that seems to come up every time there's an attack somewhere motivated by hate, or an effort to target hate legislatively - the topic of hate crimes. All too often I hear people who don't understand hate crimes laws asking questions like "how can you criminalize hate?" "Isn't this just criminalizing thought?" "What about free speech?" This ignorance of how hate crime laws work has become so prevalent that, when there was a debate about adding sexual orientation to the hate crimes laws, people started warning of the mass arrest of Christian preachers. Of course this was nonsense, and I'm aware of no Christian preachers arrested for preaching intolerance in the 6 years since the law passed.
So, what are hate crimes? How do they work? Most importantly, why don't they violate the constitution?
The first thing to understand about hate crime laws is that they do not criminalize anything new. There is literally nothing you can do to another person where, if you were not motivated by hate, the action would be legal, but if you were motivated by hate, the action would be illegal. This is a critical step that many people who are fearful of hate crimes miss. So, since it's important, let me repeat it: if something is not a crime if done without bigotry, it is not a hate crime when done with bigotry. So, a preacher commits no crime when preaching negatively about anyone, so if he does it about homosexuals and homosexual living, he is still not committing a hate crime. If the preacher tells his church members, however, to go and hunt down homosexuals and kill them, then he's committing a hate crime, but if he was just picking someone random from the community to hunt down and kill for, say, being rude, he's still committing a crime (incitement). There is literally nothing you can do to get charged with a hate crime that would not still get you charged with a crime if your action was not motivated by hate.
So, with that being the case, what do hate crimes do? Well, they do two things. First, federal hate crimes federalize the conduct. This is important because it allows prosecutors who fear that they cannot get an impartial jury in a particular community to move the trial further away than state prosecutors are usually able to do. Second, both federal and state hate crimes increase the severity of the penalty applied for the crime. While a regular crime might carry a sentence of up to 5 years, when the crime is motivated by hate, it might be up to 10 years.
So, why the sentencing aspect? Why should we punish people extra just because they were motivated by hate? Well, this gets to the broader question of what the purpose of jail time is to begin with. Most people ascribe four purposes to jail sentences - deterrence, punishing the offender, rehabilitating the offender, and protecting society from the offender. I would argue that hate crimes fit logically into the latter two purposes. Someone who is motivated by hate will take longer to rehabilitate (if rehabilitation is possible) than someone who is not. Moreover, someone who is motivated by hate (rather than a desire to harm a specific individual, for example) is a greater threat to society and has a greater likelihood of recidivism, so keeping them away from society for longer to protect society from them makes more sense.
So, in short, hate crimes laws fundamentally work by protecting the judicial process from potential undue local influences, as well as enhancing the penalties applied to offenders so as to allow more time to rehabilitate the offenders, and more time to protect society at large from the offenders. They do not seek to, nor do they in fact, regulate thought or speech. Moreover, they create no new crimes of their own - only applying to conduct that is already criminal, whether motivated by hate or not.
With that explanation it is my hope that more people understand what hate crimes laws are, what they seek to do, and why they play an important role in our country's continuing efforts to rid itself of the scourge of bigotry.
I am not a criminal law attorney, nor do I seek criminal clients, but I am a lawyer who cares about the law. This is not the post I planned to write today, but it's one I feel compelled to write after watching in horror the aftermath of what happened in Charleston. The brutal hatred we've witnessed there is, to put it mildly, depressing, difficult to swallow. That being said, I don't pretend I have anything new or different or special to say, but I do want to talk about the law.
You see, this incident has caused a topic to come up that seems to come up every time there's an attack somewhere motivated by hate, or an effort to target hate legislatively - the topic of hate crimes. All too often I hear people who don't understand hate crimes laws asking questions like "how can you criminalize hate?" "Isn't this just criminalizing thought?" "What about free speech?" This ignorance of how hate crime laws work has become so prevalent that, when there was a debate about adding sexual orientation to the hate crimes laws, people started warning of the mass arrest of Christian preachers. Of course this was nonsense, and I'm aware of no Christian preachers arrested for preaching intolerance in the 6 years since the law passed.
So, what are hate crimes? How do they work? Most importantly, why don't they violate the constitution?
The first thing to understand about hate crime laws is that they do not criminalize anything new. There is literally nothing you can do to another person where, if you were not motivated by hate, the action would be legal, but if you were motivated by hate, the action would be illegal. This is a critical step that many people who are fearful of hate crimes miss. So, since it's important, let me repeat it: if something is not a crime if done without bigotry, it is not a hate crime when done with bigotry. So, a preacher commits no crime when preaching negatively about anyone, so if he does it about homosexuals and homosexual living, he is still not committing a hate crime. If the preacher tells his church members, however, to go and hunt down homosexuals and kill them, then he's committing a hate crime, but if he was just picking someone random from the community to hunt down and kill for, say, being rude, he's still committing a crime (incitement). There is literally nothing you can do to get charged with a hate crime that would not still get you charged with a crime if your action was not motivated by hate.
So, with that being the case, what do hate crimes do? Well, they do two things. First, federal hate crimes federalize the conduct. This is important because it allows prosecutors who fear that they cannot get an impartial jury in a particular community to move the trial further away than state prosecutors are usually able to do. Second, both federal and state hate crimes increase the severity of the penalty applied for the crime. While a regular crime might carry a sentence of up to 5 years, when the crime is motivated by hate, it might be up to 10 years.
So, why the sentencing aspect? Why should we punish people extra just because they were motivated by hate? Well, this gets to the broader question of what the purpose of jail time is to begin with. Most people ascribe four purposes to jail sentences - deterrence, punishing the offender, rehabilitating the offender, and protecting society from the offender. I would argue that hate crimes fit logically into the latter two purposes. Someone who is motivated by hate will take longer to rehabilitate (if rehabilitation is possible) than someone who is not. Moreover, someone who is motivated by hate (rather than a desire to harm a specific individual, for example) is a greater threat to society and has a greater likelihood of recidivism, so keeping them away from society for longer to protect society from them makes more sense.
So, in short, hate crimes laws fundamentally work by protecting the judicial process from potential undue local influences, as well as enhancing the penalties applied to offenders so as to allow more time to rehabilitate the offenders, and more time to protect society at large from the offenders. They do not seek to, nor do they in fact, regulate thought or speech. Moreover, they create no new crimes of their own - only applying to conduct that is already criminal, whether motivated by hate or not.
With that explanation it is my hope that more people understand what hate crimes laws are, what they seek to do, and why they play an important role in our country's continuing efforts to rid itself of the scourge of bigotry.
Friday, January 16, 2015
Virginia Trial Courts - An Introduction
As always, before reading this post, please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Most of you who have been reading my blog for some time have seen me discuss on and off the various trial courts we have in Virginia. This can confuse many people, because most people not familiar with the law do not realize we have three separate and distinct trial courts. I have decided it is time for me to go into more detail, so I've planned a four-week, four part blog series to discuss this. Today, I will provide some basic background for each of the courts and talk about what kinds of cases those courts hear. For the next three weeks, I will go into depth in how civil (so not criminal, which I do not practice) cases are handled from beginning to end in each court.
So what are the three courts anyways?
If you're new to this blog, you may not realize that we have three separate and distinct trial courts in Virginia. The Circuit Court, the General District Court (GDC), and the Juvenile and Domestic Relations District Court (J&DR) are each different courts with (usually) different courtrooms and (always) different judges. The General District Court also has a small claims division, which is the small claims court in Virginia, but that is not a separate court, as the small claims division still meets in General District courtrooms and is overseen by General District Court judges.
The Circuit Court is the "highest" trial court. Its orders hold precedence over conflicting GDC and J&DR orders unless the GDC or J&DR court orders come after the Circuit Court order and the Circuit Court had yielded jurisdiction to the district court. The Circuit Court is also our "court of record," while the GDC and J&DR courts are "courts not of record." This is a distinction that used to be much more meaningful - courts of record would have a record of proceedings kept, while courts not of record would not - but since the advent of computers, most courts not of record still maintain an active record of their proceedings and hold on to exhibits for at least some time.
Perhaps the biggest difference between the Circuit Court and the GDC and J&DR courts are that the Circuit Court is the only trial court in which your case can be heard by a jury. You might think that this is unconstitutional considering the kinds of cases GDC and J&DR can hear (which I will get to shortly), but the reason it is acceptable is that cases from the GDC and J&DR courts can be appealed to the Circuit Court, and when they are, you get a whole new trial in the Circuit Court (as though the GDC or J&DR trial never happened), where you can get a jury.
What kinds of cases does the Circuit Court hear?
So, the Circuit Court is the Virginia trial court of "general jurisdiction." That means the Circuit Court has jurisdiction over all matters that can be heard in a trial court in Virginia. That being said, Circuit Courts have three kinds of jurisdiction: exclusive jurisdiction, concurrent jurisdiction, and appellate jurisdiction.
Cases over which a Circuit Court has exclusive jurisdiction are cases that can only be heard in the Circuit Court. These include, but are not limited to, adult felony trials (including juveniles charged as an adult), divorces, appeals from a ruling of your local Board of Zoning Appeals, almost all lawsuits that are cases "in equity" (for a brief, albeit incomplete, explanation of cases "at law" vs. cases "in equity" you can review this blog post), and almost all lawsuits for money where the base amount of compensatory damages being sought is more than $25,000.
Cases over which a Circuit Court has concurrent jurisdiction are cases that can be filed either in the Circuit Court or in a lower court, at the discretion of the person filing (although there are some rules about how this actually works). These cases include, but are not limited to, child support cases between married parents who are getting divorced (concurrent with the J&DR court), child custody/visitation cases between married parents who are getting divorced (concurrent with the J&DR Court), spousal support cases (concurrent with the J&DR court; in the Circuit Court this can come in the form of a divorce or a complaint for "separate maintenance"), and almost all lawsuits for money where the base amount of compensatory damages being sought is at least $4,500 but no more than $25,000 (concurrent with the GDC).
Finally, cases over which a Circuit Court has appellate jurisdiction are cases that must first be heard in a lower court, but can then be heard in the Circuit Court on appeal. These cases include, but are not limited to, criminal misdemeanor trials, juvenile felony trials (where the juvenile was not charged as an adult), protective order cases, any concurrent jurisdiction case where the case was initiated in the lower court, and almost all lawsuits for money where the base amount of compensatory damages being sought is at least $50 but no more than $4,499.
What kind of cases does the General District Court hear?
So, unlike the Circuit Court, the General District Court is a court of "specific jurisdiction." This means it can only hear cases specifically assigned to it by the Code of Virginia.
The General District Court hears preliminary hearings for all adult felony cases (except where the defendant is a juvenile, even if that juvenile is being charged as an adult) and hears criminal trials for all misdemeanors where the defendant is an adult and the victim (if there is one) is not a member of the defendant's family.
On the civil side, the General District Court's small claims division can hear any lawsuit for money where the amount being sought is $5,000 or less. Outside the small claims division, the General District Court can hear any lawsuit for money where the amount being sought is $25,000 or less. The General District Court can also hear unlawful detainer cases (lawsuits for eviction) in commercial landlord/tenant matters even when the amount in controversy is more than $25,000.
Finally, the other big area where the General District Court has jurisdiction is over protective orders where the defendant is not considered a "family member" (with that definition being as explained in this blog post) of the plaintiff.
The GDC has jurisdiction over a number of other matters, but those are the big ones.
What kind of cases does the J&DR Court hear?
The J&DR Court is also a court of "specific jurisdiction," though its jurisdiction is over a much broader array of cases than the GDC. Pretty much any case you can think of involving children or domestic relations (other than divorce) can be heard in the J&DR court.
Some of the big ones that the J&DR court hears are preliminary hearings for felony cases where the Commonwealth seeks to charge a juvenile as an adult, full criminal trials for felonies committed by juveniles who are not charged as adults, full criminal trials for misdemeanors where the defendant is a juvenile or where the defendant and the victim are related (regardless of the age of the defendant), child support cases (regardless of the relationship between the parents), child custody/visitation cases (regardless of the relationship between the parents), spousal support cases, termination of parental rights cases, juvenile consent for abortion cases (cases where a pregnant juvenile wishes to have an abortion and her parents are withholding consent), and protective order cases between parties that are considered "family members" (under the definition discussed in my previous blog post).
J&DR Courts also hear cases to make the findings of fact necessary for an undocumented, unaccompanied, non-citizen minor who lives in Virginia to be eligible for Special Immigrant Juvenile Status - a type of green card available to unaccompanied minors that has become a major source of interest in recent months, as Virginia has taken in a large number of the unaccompanied children that had crossed the southern border last year.
Again, these are not the only cases J&DR Courts hear, but in my experience, they are the biggest.
How do appeals from GDC and the J&DR court work?
So, almost every trial in the GDC and J&DR courts can be appealed to the Circuit Court. When an appeal is taken to the Circuit Court, the case is tried in the Circuit Court de novo, meaning the whole thing is done again, and the Circuit Court pretends no trial in the lower court ever happened (as opposed to an appeal from the Circuit Court to the Court of Appeals or the Virginia Supreme Court, where you must prove the Circuit Court did something wrong in order to get a new trial). In order to take an appeal, it must be a case eligible for appeal (again, this is nearly every case the lower courts hear, although in a lawsuit for money, for example, the difference between what you wanted and what the lower court ordered must be at least $50), and you must file your notice of appeal within 10 days of the judgment of the lower court being entered.
In many civil cases, however, that does not complete your appeal - you also must "perfect" your appeal by filing an appeal bond. If you were the civil plaintiff below, your appeal bond is usually only a filing fee ($130 or so). If you were the defendant, however, and it was a lawsuit for money, or a support case that found you had an arrearage, your appeal bond is usually going to be the full amount the court ruled you owe, and if you don't pay that bond to the court, you cannot appeal.
Your appeal bond is generally due within 30 days from the date the lower court judgment is entered, although in unlawful detainer cases, if you are the defendant, your appeal bond is due within the same 10 days that your notice of appeal is due.
Conclusion
Virginia's trial court system can be very confusing for someone who is not an attorney - this is why I am doing this four part series. Fortunately, attorneys are allowed to appear in all three courts, and while technically you cannot have an attorney in the GDC small claims division, if you are sued there you can get an attorney and move the case to outside the small claims division. If you are considering filing a case and cannot figure out where it should be filed, you should strongly consider consulting an attorney. If your case is in one of my firm's practice areas (family law, landlord/tenant law, contract law, etc.), you can call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Introduction
Most of you who have been reading my blog for some time have seen me discuss on and off the various trial courts we have in Virginia. This can confuse many people, because most people not familiar with the law do not realize we have three separate and distinct trial courts. I have decided it is time for me to go into more detail, so I've planned a four-week, four part blog series to discuss this. Today, I will provide some basic background for each of the courts and talk about what kinds of cases those courts hear. For the next three weeks, I will go into depth in how civil (so not criminal, which I do not practice) cases are handled from beginning to end in each court.
So what are the three courts anyways?
If you're new to this blog, you may not realize that we have three separate and distinct trial courts in Virginia. The Circuit Court, the General District Court (GDC), and the Juvenile and Domestic Relations District Court (J&DR) are each different courts with (usually) different courtrooms and (always) different judges. The General District Court also has a small claims division, which is the small claims court in Virginia, but that is not a separate court, as the small claims division still meets in General District courtrooms and is overseen by General District Court judges.
The Circuit Court is the "highest" trial court. Its orders hold precedence over conflicting GDC and J&DR orders unless the GDC or J&DR court orders come after the Circuit Court order and the Circuit Court had yielded jurisdiction to the district court. The Circuit Court is also our "court of record," while the GDC and J&DR courts are "courts not of record." This is a distinction that used to be much more meaningful - courts of record would have a record of proceedings kept, while courts not of record would not - but since the advent of computers, most courts not of record still maintain an active record of their proceedings and hold on to exhibits for at least some time.
Perhaps the biggest difference between the Circuit Court and the GDC and J&DR courts are that the Circuit Court is the only trial court in which your case can be heard by a jury. You might think that this is unconstitutional considering the kinds of cases GDC and J&DR can hear (which I will get to shortly), but the reason it is acceptable is that cases from the GDC and J&DR courts can be appealed to the Circuit Court, and when they are, you get a whole new trial in the Circuit Court (as though the GDC or J&DR trial never happened), where you can get a jury.
What kinds of cases does the Circuit Court hear?
So, the Circuit Court is the Virginia trial court of "general jurisdiction." That means the Circuit Court has jurisdiction over all matters that can be heard in a trial court in Virginia. That being said, Circuit Courts have three kinds of jurisdiction: exclusive jurisdiction, concurrent jurisdiction, and appellate jurisdiction.
Cases over which a Circuit Court has exclusive jurisdiction are cases that can only be heard in the Circuit Court. These include, but are not limited to, adult felony trials (including juveniles charged as an adult), divorces, appeals from a ruling of your local Board of Zoning Appeals, almost all lawsuits that are cases "in equity" (for a brief, albeit incomplete, explanation of cases "at law" vs. cases "in equity" you can review this blog post), and almost all lawsuits for money where the base amount of compensatory damages being sought is more than $25,000.
Cases over which a Circuit Court has concurrent jurisdiction are cases that can be filed either in the Circuit Court or in a lower court, at the discretion of the person filing (although there are some rules about how this actually works). These cases include, but are not limited to, child support cases between married parents who are getting divorced (concurrent with the J&DR court), child custody/visitation cases between married parents who are getting divorced (concurrent with the J&DR Court), spousal support cases (concurrent with the J&DR court; in the Circuit Court this can come in the form of a divorce or a complaint for "separate maintenance"), and almost all lawsuits for money where the base amount of compensatory damages being sought is at least $4,500 but no more than $25,000 (concurrent with the GDC).
Finally, cases over which a Circuit Court has appellate jurisdiction are cases that must first be heard in a lower court, but can then be heard in the Circuit Court on appeal. These cases include, but are not limited to, criminal misdemeanor trials, juvenile felony trials (where the juvenile was not charged as an adult), protective order cases, any concurrent jurisdiction case where the case was initiated in the lower court, and almost all lawsuits for money where the base amount of compensatory damages being sought is at least $50 but no more than $4,499.
What kind of cases does the General District Court hear?
So, unlike the Circuit Court, the General District Court is a court of "specific jurisdiction." This means it can only hear cases specifically assigned to it by the Code of Virginia.
The General District Court hears preliminary hearings for all adult felony cases (except where the defendant is a juvenile, even if that juvenile is being charged as an adult) and hears criminal trials for all misdemeanors where the defendant is an adult and the victim (if there is one) is not a member of the defendant's family.
On the civil side, the General District Court's small claims division can hear any lawsuit for money where the amount being sought is $5,000 or less. Outside the small claims division, the General District Court can hear any lawsuit for money where the amount being sought is $25,000 or less. The General District Court can also hear unlawful detainer cases (lawsuits for eviction) in commercial landlord/tenant matters even when the amount in controversy is more than $25,000.
Finally, the other big area where the General District Court has jurisdiction is over protective orders where the defendant is not considered a "family member" (with that definition being as explained in this blog post) of the plaintiff.
The GDC has jurisdiction over a number of other matters, but those are the big ones.
What kind of cases does the J&DR Court hear?
The J&DR Court is also a court of "specific jurisdiction," though its jurisdiction is over a much broader array of cases than the GDC. Pretty much any case you can think of involving children or domestic relations (other than divorce) can be heard in the J&DR court.
Some of the big ones that the J&DR court hears are preliminary hearings for felony cases where the Commonwealth seeks to charge a juvenile as an adult, full criminal trials for felonies committed by juveniles who are not charged as adults, full criminal trials for misdemeanors where the defendant is a juvenile or where the defendant and the victim are related (regardless of the age of the defendant), child support cases (regardless of the relationship between the parents), child custody/visitation cases (regardless of the relationship between the parents), spousal support cases, termination of parental rights cases, juvenile consent for abortion cases (cases where a pregnant juvenile wishes to have an abortion and her parents are withholding consent), and protective order cases between parties that are considered "family members" (under the definition discussed in my previous blog post).
J&DR Courts also hear cases to make the findings of fact necessary for an undocumented, unaccompanied, non-citizen minor who lives in Virginia to be eligible for Special Immigrant Juvenile Status - a type of green card available to unaccompanied minors that has become a major source of interest in recent months, as Virginia has taken in a large number of the unaccompanied children that had crossed the southern border last year.
Again, these are not the only cases J&DR Courts hear, but in my experience, they are the biggest.
How do appeals from GDC and the J&DR court work?
So, almost every trial in the GDC and J&DR courts can be appealed to the Circuit Court. When an appeal is taken to the Circuit Court, the case is tried in the Circuit Court de novo, meaning the whole thing is done again, and the Circuit Court pretends no trial in the lower court ever happened (as opposed to an appeal from the Circuit Court to the Court of Appeals or the Virginia Supreme Court, where you must prove the Circuit Court did something wrong in order to get a new trial). In order to take an appeal, it must be a case eligible for appeal (again, this is nearly every case the lower courts hear, although in a lawsuit for money, for example, the difference between what you wanted and what the lower court ordered must be at least $50), and you must file your notice of appeal within 10 days of the judgment of the lower court being entered.
In many civil cases, however, that does not complete your appeal - you also must "perfect" your appeal by filing an appeal bond. If you were the civil plaintiff below, your appeal bond is usually only a filing fee ($130 or so). If you were the defendant, however, and it was a lawsuit for money, or a support case that found you had an arrearage, your appeal bond is usually going to be the full amount the court ruled you owe, and if you don't pay that bond to the court, you cannot appeal.
Your appeal bond is generally due within 30 days from the date the lower court judgment is entered, although in unlawful detainer cases, if you are the defendant, your appeal bond is due within the same 10 days that your notice of appeal is due.
Conclusion
Virginia's trial court system can be very confusing for someone who is not an attorney - this is why I am doing this four part series. Fortunately, attorneys are allowed to appear in all three courts, and while technically you cannot have an attorney in the GDC small claims division, if you are sued there you can get an attorney and move the case to outside the small claims division. If you are considering filing a case and cannot figure out where it should be filed, you should strongly consider consulting an attorney. If your case is in one of my firm's practice areas (family law, landlord/tenant law, contract law, etc.), you can call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Thursday, December 4, 2014
What Happened in Ferguson and New York
Introduction
As sometimes happens on this blog, at times I feel it necessary to step out of my usual format of getting into the nitty-gritty of areas of law I practice, and talk about current events. These posts will cover practice areas I do not practice, and do not intend to provide any practical considerations for someone going through the process - just to offer an explanation of what's happening. These posts tend to also be imbued with my own opinions.
It's very hard right now for me to think of doing a post on something other than the events in Ferguson and New York. Two grand juries have refused to indict two white police officers who killed two black men in the line of duty. Since then, I have been inundated with questions from friends about what it all means and what I think. In today's blog post, I'll cover a little bit about what happened, why I believe the grand jury got it wrong in both cases, my best guesses on why the grand juries didn't indict, and some thoughts on where the cases go from here.
So, what happened?
In Ferguson, Missouri back in August, a young black man named Michael Brown was jaywalking on a local street. A police officer asked him to stop jaywalking, and that's about where the generally accepted version of events ends. It picks up again with Michael Brown lying dead on the street, having been shot by the officer. The officer claims Mr. Brown attacked him, even reaching for his gun in the police car, began to flee, then turned around and charged at the officer. Several witnesses back up this claim. Other witnesses, however, say that Brown was attempting to surrender, but having already had an altercation, the officer shot him dead.
In New York, back in July, Eric Garner, a middle-aged black man, was suspected by several police officers of selling loose cigarettes. This is illegal because cigarette sales are tightly regulated and taxed, and privately selling individual cigarettes out of the pack is a form of tax evasion. Nonetheless, it is a relatively minor crime. Garner denied selling cigarettes, and when the officers moved to arrest him, he swatted their arms away. Treating this as resistance, the officers attempted to force him to arrest, with one officer placing Garner in a chokehold. Garner, who suffered from asthma, started saying over and over again (nine times in total) that he couldn't breathe, but the officer kept him in the chokehold until the other officers had him in handcuffs. As a result, Garner went into cardiac arrest and died. The facts are much less in dispute in Garner's case, since this was all caught on video.
In both cases, the police resisted conducting a criminal investigation at first, but public pressure finally forced them to. In both cases, a grand jury was convened to decide whether to bring charges against the officers involved. In both cases, the grand jury ultimately decided not to charge.
What is a "grand jury" anyways?
A grand jury (as opposed to a "petite jury," which is the technical name for a jury during a trial) is a group of citizens brought together to consider bringing criminal charges. In many states a felony charge can only brought by a grand jury. Grand juries are usually larger than petite juries, and usually hear more than one case when they are composed - however, if a case is especially complicated, they may hear only that one.
The only right a potential defendant has at a grand jury is to give the grand jury a statement. Otherwise, only the prosecutor can present evidence, and the prosecutor chooses what evidence to present. The prosecutor is not required to show a grand jury any evidence that might point to innocence. Further, the grand jury's burden of proof is "probable cause," usually defined as saying there is enough evidence to say that a reasonable person would believe a crime has been committed. This is a very low standard of proof. Much lower than the "beyond a reasonable doubt" of a criminal trial, even below the "preponderance of evidence" of a civil trial. If you were to express burdens of proof as "percent certainty" that something happened, I've usually heard it said that "beyond a reasonable doubt" is 95%, "clear and convincing evidence" is 75%, "preponderance of the evidence" is 50.1% and "probable cause" is 25%.
So, as you can imagine, the deck is usually stacked against defendants in a grand jury. Only the prosecutor presents evidence, he can choose what evidence to present, and the jurors basically need to think there's only about a 25% chance that a crime was committed to indict.
Why I think the grand juries got it wrong
I've looked at the documents and evidence presented to the grand jury in Ferguson. That information still hasn't been released in New York, but we do have a pretty clear picture of events from the video. I am convinced the grand juries made the wrong decision in both cases.
In Ferguson, there was conflicting testimony as to what occurred. That being said, conflicting testimony shouldn't matter at the grand jury stage - judging which witnesses are more credible is for a petite jury at trial, not a grand jury. Instead, the grand jury needs only look at the evidence to see if there is enough there to say there's a probable cause of criminal action. We had witnesses who stated that Mr. Brown was surrendering (suggesting, at a minimum, negligent homicide), and combined with a clean toxicology report and the fact that Mr. Brown suffered multiple gunshot wounds, that should have been more than enough to say there was probable cause for an indictment. It's entirely possible, I'd even say probable, that a trial would have resulted in a not guilty verdict given the high burden of proof there, but again, the grand jury's job is only to determine probable cause, and there was plenty of it here.
The New York decision is even more baffling, considering it was caught on tape and minimal facts are in dispute. I do not doubt the officer's account that he did not mean to harm Mr. Garner, but intent only matters for murder charges, not manslaughter or other charges that could be brought. Mr. Garner is clearly audible that he can't breathe, and chokeholds have actually been banned within the NYPD since the 1990's. Again, those facts alone, especially coupled with the medical examiner's finding that the cause of death was homicide, amount to fairly clear probable cause.
So what went wrong?
Well, as you can imagine, the vast, overwhelming number of cases that go to grand juries return indictments. I've once heard the number 99% thrown around, but I don't have evidence to back that up. However, in several studies, grand juries have been found to almost never return indictments against police officers who kill in the line of duty. Interestingly, this seems to be little affected by race, of the officer or the victim - the grand juries actually seem more blinded by police blue than any other color. The racial aspect seems to exist more in the fact that police officers are substantially more likely to kill black men than anyone else in the first place, rather than in how the grand jury handles it.
So, why is the indictment rate so low for police officers? Well, frankly, people respect police officers, are inclined to believe them, and prosecutors who work with the local police every day of the week are very disinterested in prosecuting them. This is why special prosecutors are usually needed, but almost never actually brought in.
Consider Ferguson for a moment. Remember what I said about there being conflicting testimony? Why did the grand jury even hear about it? Again, prosecutors control what the grand juries hear, the only right an accused has is to present his own statement. In Ferguson, however, the prosecutor presented the grand jury with the entire case, including statements from witnesses who agreed with the police officer's account. While the grand jury, as I explained above, should have dismissed those witnesses anyways, the prosecutor should never have presented him - I would even say that it seems like dereliction of duty that he did. It is hard to read anything into that choice other than that the prosecutor was intentionally trying to make the grand jury uncomfortable with the idea of indicting the officer.
Prosecutors who tank cases and citizens who trust the police make a dangerous combination for a grand jury. If you want my opinion of why grand juries tend not to indict police officers - that combination is it.
What happens next?
So, what's next in these cases? Well, what many people don't realize is that the decision not to indict is not like an acquittal. Because the accused never had a chance of actually being sentenced to jail time from a grand jury hearing, "jeopardy" never "attached." I could write entire blog posts about what that means, but the short answer is that there is no double jeopardy implication. If a prosecutor wanted to, or a governor wanted to appoint a special prosecutor, a new grand jury could be convened. Further, both officers are being investigated for committing possible civil rights violations. That's important because civil rights violations are federal crimes, and federal prosecutors don't have relationships with local police like state prosecutors do. As I recall, in fact, most of the time when police officers have actually been convicted for killing on the job, it's been in federal court (for example, many people don't remember that after the four officers accused of beating Rodney King were acquitted, touching off the Los Angeles Riots, three of them were indicted in federal court, with two of them ultimately being convicted and sent to jail).
In addition to possible federal charges or even a new state grand jury, the families of both Brown and Wilson have the right to file civil lawsuits against the officers and police forces for "wrongful death." Such civil cases have had some success in the past, and I would not be surprised if either family went forward with such an approach.
Conclusion
The events in Ferguson and New York can be very confusing to people who don't know the law. Some don't understand what a grand jury is, others don't understand how people could say the grand jury got it wrong. In this post, I hope I've at least touched on an explanation for those of you who may be confused.
As sometimes happens on this blog, at times I feel it necessary to step out of my usual format of getting into the nitty-gritty of areas of law I practice, and talk about current events. These posts will cover practice areas I do not practice, and do not intend to provide any practical considerations for someone going through the process - just to offer an explanation of what's happening. These posts tend to also be imbued with my own opinions.
It's very hard right now for me to think of doing a post on something other than the events in Ferguson and New York. Two grand juries have refused to indict two white police officers who killed two black men in the line of duty. Since then, I have been inundated with questions from friends about what it all means and what I think. In today's blog post, I'll cover a little bit about what happened, why I believe the grand jury got it wrong in both cases, my best guesses on why the grand juries didn't indict, and some thoughts on where the cases go from here.
So, what happened?
In Ferguson, Missouri back in August, a young black man named Michael Brown was jaywalking on a local street. A police officer asked him to stop jaywalking, and that's about where the generally accepted version of events ends. It picks up again with Michael Brown lying dead on the street, having been shot by the officer. The officer claims Mr. Brown attacked him, even reaching for his gun in the police car, began to flee, then turned around and charged at the officer. Several witnesses back up this claim. Other witnesses, however, say that Brown was attempting to surrender, but having already had an altercation, the officer shot him dead.
In New York, back in July, Eric Garner, a middle-aged black man, was suspected by several police officers of selling loose cigarettes. This is illegal because cigarette sales are tightly regulated and taxed, and privately selling individual cigarettes out of the pack is a form of tax evasion. Nonetheless, it is a relatively minor crime. Garner denied selling cigarettes, and when the officers moved to arrest him, he swatted their arms away. Treating this as resistance, the officers attempted to force him to arrest, with one officer placing Garner in a chokehold. Garner, who suffered from asthma, started saying over and over again (nine times in total) that he couldn't breathe, but the officer kept him in the chokehold until the other officers had him in handcuffs. As a result, Garner went into cardiac arrest and died. The facts are much less in dispute in Garner's case, since this was all caught on video.
In both cases, the police resisted conducting a criminal investigation at first, but public pressure finally forced them to. In both cases, a grand jury was convened to decide whether to bring charges against the officers involved. In both cases, the grand jury ultimately decided not to charge.
What is a "grand jury" anyways?
A grand jury (as opposed to a "petite jury," which is the technical name for a jury during a trial) is a group of citizens brought together to consider bringing criminal charges. In many states a felony charge can only brought by a grand jury. Grand juries are usually larger than petite juries, and usually hear more than one case when they are composed - however, if a case is especially complicated, they may hear only that one.
The only right a potential defendant has at a grand jury is to give the grand jury a statement. Otherwise, only the prosecutor can present evidence, and the prosecutor chooses what evidence to present. The prosecutor is not required to show a grand jury any evidence that might point to innocence. Further, the grand jury's burden of proof is "probable cause," usually defined as saying there is enough evidence to say that a reasonable person would believe a crime has been committed. This is a very low standard of proof. Much lower than the "beyond a reasonable doubt" of a criminal trial, even below the "preponderance of evidence" of a civil trial. If you were to express burdens of proof as "percent certainty" that something happened, I've usually heard it said that "beyond a reasonable doubt" is 95%, "clear and convincing evidence" is 75%, "preponderance of the evidence" is 50.1% and "probable cause" is 25%.
So, as you can imagine, the deck is usually stacked against defendants in a grand jury. Only the prosecutor presents evidence, he can choose what evidence to present, and the jurors basically need to think there's only about a 25% chance that a crime was committed to indict.
Why I think the grand juries got it wrong
I've looked at the documents and evidence presented to the grand jury in Ferguson. That information still hasn't been released in New York, but we do have a pretty clear picture of events from the video. I am convinced the grand juries made the wrong decision in both cases.
In Ferguson, there was conflicting testimony as to what occurred. That being said, conflicting testimony shouldn't matter at the grand jury stage - judging which witnesses are more credible is for a petite jury at trial, not a grand jury. Instead, the grand jury needs only look at the evidence to see if there is enough there to say there's a probable cause of criminal action. We had witnesses who stated that Mr. Brown was surrendering (suggesting, at a minimum, negligent homicide), and combined with a clean toxicology report and the fact that Mr. Brown suffered multiple gunshot wounds, that should have been more than enough to say there was probable cause for an indictment. It's entirely possible, I'd even say probable, that a trial would have resulted in a not guilty verdict given the high burden of proof there, but again, the grand jury's job is only to determine probable cause, and there was plenty of it here.
The New York decision is even more baffling, considering it was caught on tape and minimal facts are in dispute. I do not doubt the officer's account that he did not mean to harm Mr. Garner, but intent only matters for murder charges, not manslaughter or other charges that could be brought. Mr. Garner is clearly audible that he can't breathe, and chokeholds have actually been banned within the NYPD since the 1990's. Again, those facts alone, especially coupled with the medical examiner's finding that the cause of death was homicide, amount to fairly clear probable cause.
So what went wrong?
Well, as you can imagine, the vast, overwhelming number of cases that go to grand juries return indictments. I've once heard the number 99% thrown around, but I don't have evidence to back that up. However, in several studies, grand juries have been found to almost never return indictments against police officers who kill in the line of duty. Interestingly, this seems to be little affected by race, of the officer or the victim - the grand juries actually seem more blinded by police blue than any other color. The racial aspect seems to exist more in the fact that police officers are substantially more likely to kill black men than anyone else in the first place, rather than in how the grand jury handles it.
So, why is the indictment rate so low for police officers? Well, frankly, people respect police officers, are inclined to believe them, and prosecutors who work with the local police every day of the week are very disinterested in prosecuting them. This is why special prosecutors are usually needed, but almost never actually brought in.
Consider Ferguson for a moment. Remember what I said about there being conflicting testimony? Why did the grand jury even hear about it? Again, prosecutors control what the grand juries hear, the only right an accused has is to present his own statement. In Ferguson, however, the prosecutor presented the grand jury with the entire case, including statements from witnesses who agreed with the police officer's account. While the grand jury, as I explained above, should have dismissed those witnesses anyways, the prosecutor should never have presented him - I would even say that it seems like dereliction of duty that he did. It is hard to read anything into that choice other than that the prosecutor was intentionally trying to make the grand jury uncomfortable with the idea of indicting the officer.
Prosecutors who tank cases and citizens who trust the police make a dangerous combination for a grand jury. If you want my opinion of why grand juries tend not to indict police officers - that combination is it.
What happens next?
So, what's next in these cases? Well, what many people don't realize is that the decision not to indict is not like an acquittal. Because the accused never had a chance of actually being sentenced to jail time from a grand jury hearing, "jeopardy" never "attached." I could write entire blog posts about what that means, but the short answer is that there is no double jeopardy implication. If a prosecutor wanted to, or a governor wanted to appoint a special prosecutor, a new grand jury could be convened. Further, both officers are being investigated for committing possible civil rights violations. That's important because civil rights violations are federal crimes, and federal prosecutors don't have relationships with local police like state prosecutors do. As I recall, in fact, most of the time when police officers have actually been convicted for killing on the job, it's been in federal court (for example, many people don't remember that after the four officers accused of beating Rodney King were acquitted, touching off the Los Angeles Riots, three of them were indicted in federal court, with two of them ultimately being convicted and sent to jail).
In addition to possible federal charges or even a new state grand jury, the families of both Brown and Wilson have the right to file civil lawsuits against the officers and police forces for "wrongful death." Such civil cases have had some success in the past, and I would not be surprised if either family went forward with such an approach.
Conclusion
The events in Ferguson and New York can be very confusing to people who don't know the law. Some don't understand what a grand jury is, others don't understand how people could say the grand jury got it wrong. In this post, I hope I've at least touched on an explanation for those of you who may be confused.
Thursday, November 13, 2014
True Virginia Law: Some Common Myths About the Law
As always, before reading my post please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
After I refused to watch for a great deal of time, last week my wife finally convinced me to watch an episode of ABC's How to Get Away with Murder. Honestly, I was horrified. The story was certainly captivating, and for artistic purposes, I don't fault it for that, but its portrayal of both law school and legal practice is not only completely unrealistic, it actually perpetuates some negative stereotypes about lawyers and the practice of law that I find appalling. In fact, in the one episode that I watched, completely ignoring the backstory of the murder of the professor's husband and just focusing on the cases dealt with in the episode, the professor and a US Attorney both engaged in conduct that in real life would get them disbarred, and one of the students also engaged in conduct that in real life would disqualify him from being barred.
To that end, it got me thinking about the many myths about the practice of law that exist out there, and how many of them are harmful to the legal profession. In today's blog post, I will address some of the pervasive myths about the legal profession I face - some of them will be directly inspired by this episode of How to Get Away with Murder, some will not - and the truth that these myths overlook.
Myth: Lawyers can lie to a witness while testifying to get them to admit to something damning.
Reality: Lawyers are strictly forbidden from lying, in any capacity, in their work. Lying during a trial or other official proceeding is a quick way to get disbarred.
In the episode of How to Get Away with Murder that I watched, Annalise (the professor/lawyer) represents a woman accused of insider trading. Annalise arranges for a deposition of two employees of the woman and works with the US Attorney (prosecutor) to get them to confess. First, Annalise presents a stack of papers she claims is the transcript of the other employee implicating the witness and then the US Attorney offers to give the witness a deal if he or she confesses. Both witnesses confess and are arrested, Annalise reveals the stack of papers were just notes, and the US Attorney admits he has no deal to offer.
I'm going to ignore the fact that there was a deposition - depositions are pretty much exclusively used in civil cases, not criminal cases - and focus on Annalise's and the US Attorney's conduct in the deposition. As stated above, attorneys cannot lie. My post on legal ethics gets into this in more detail. There's a reason that police officers conduct interrogations, rather than prosecutors - police officers can lie, prosecutors can't.
As a result, Annalise would be facing disbarment in the real world for her stack of papers lie and the US Attorney would be facing disbarment for his lie about offering a deal.
The takeaway is, when you are dealing with a lawyer who is acting as a lawyer, she cannot lie to you. If she does, you should report it to the Bar immediately.
Myth: Lawyers are generally greedy people who are only interested in you for your money.
Reality: Lawyers have many motivations in what they do, and while some are, in fact, greedy, just like in any other profession, most lawyers are in the profession because they find it interesting and rewarding on an emotional level. Like all professionals, however, lawyers do expect to get paid for their work.
This particular myth is one that bothers me. Once upon a time I had a client's father accuse me of being only interested in representing his daughter so I could milk as much money out of her as possible while she suffers in her conflict with her estranged husband. What he didn't know, and I couldn't tell him at the time, was that his daughter hadn't paid me in months, had no prospect of ever paying me for the work I was doing, and yet, there I still was, fighting for her every day.
We are professionals, like doctors, accountants and carpenters. We do expect to be paid for the services we provide - you sign a contract with us agreeing to do that before you hire us. That doesn't make us greedy. This is our job, just like you have yours, and this is how we make our living and feed our families. I have very low tolerance for people who assume lawyers are greedy because we, heaven forbid, ask them to pay us for the work we do for them. These same people don't bat an eye at paying their doctor, their accountant, their home contractor, etc., yet they expect us to somehow work for free.
If you believe your lawyer is really only in it for the money, then you've either done a bad job choosing your lawyer, or, more likely, you need to figure out why you're so offended that they want you to pay them to begin with.
Myth: We have way too much litigation today. We need tort reform to bring about some sanity.
Reality: Litigation rates in the United States peaked in the 1970's and have been dropping steadily since. Tort reform, in states that have enacted it, has led to substantial abuses of power by the powerful at the expense of the weak, and does practically nothing to prevent the filing of frivolous lawsuits.
My answer in the "reality" really covers this a great deal. The fact is, while sensational stories abound, litigation rates are dropping in the US, and have been for about forty years. While this is only my opinion, tort reform does practically nothing to reduce frivolous lawsuits. It doesn't help individuals who are sued, since the limits still tend to be high enough to still put individuals into bankruptcy, but it does protect mega-corporations, to whom the limits are laughable amounts of money that cause them to give no pause or concern about the potential costs of their actions.
All of this ignores the fact that many of the "frivolous" lawsuits we hear stories about aren't even frivolous. Let me give you an example.
Let's say a company made a commonly used product that is moderately dangerous. Everyone knew the danger level of this product, though, so they generally took precautions, and understood that if they didn't, they might get a little hurt.
Now, let's say that the company determined that it could make more money by making this product even more dangerous - and not advertising that they've done so - under the assumption that by the time someone actually uses the product after purchasing it, the product will be back to its normal danger level. Now, let's add on that dozens of experts have written to the company warning it about just how dangerous their product has now become, but the company ignores those warnings and continues to make their product that much more dangerous without warning consumers.
Finally, a woman purchases the product and injures herself with it. Her injuries are not what you would normally expect from this product under its normal danger level - in fact, she has to go to the hospital, have major surgery, and will be in pain the rest of her life. In court, it is conclusively proven that the extent of her injuries was caused by the increase in dangerousness of the product. Wouldn't you agree that this woman, who had no warning of how much more dangerous the product was, who had major surgery and will be in pain the rest of her life, deserves some very substantial compensation?
Well, I've just described to you the infamous "McDonald's Coffee" case. McDonald's knowingly made their coffee 20 degrees hotter than normal, and was repeatedly warned by experts that this was dangerous - yet they ignored the warnings. The woman that ultimately sued had third degree burns on six percent of her body, required extensive skin grafting, is permanently disfigured and in pain, and was disabled for two years following the accident. This was not a typical "coffee burn," yet so many people hear only the top line of the story and say "duh, coffee's hot, lawsuits are out of control." As an added fun fact, in this case, even though the jury awarded the woman $2.9 million (which is what got all the press), McDonald's ended up paying less than $600,000.
The fact is, when you investigate other frivolous lawsuit stories, you find similar flaws. This, the fact that tort reform does far more harm to the poor and powerless than the rich and powerful, not "greed," is why lawyers overwhelmingly oppose it.
Myth: It's a court's job to deliver justice and when a court makes an unjust ruling, the court itself is unjust.
Reality: It's a court's job to apply the law to a given situation presented to the court and when a court makes an unjust ruling, frequently it is because the law is unjust.
I can't count the number of times I've heard a judge say "well, I understand your point, but that's something to raise with Richmond [where our General Assembly sits], not with the court." The reality is, if an unjust result is dictated by the law, unless you can find an actual constitutional principle that is violated, the court is powerless to do anything but make an unjust ruling. In fact, ignoring the law and making the just ruling would be good grounds for the judge's removal from the bench.
When a court rules against someone I always tell them to listen carefully to why the court is doing so. Most judges will give some explanation of their ruling. Nine times out of ten, where a result is unfair, it's still the result mandated by the law. In January, I wrote a blog post about a case I was handling where the other side was unrepresented, and didn't get most of her evidence even considered by the court because it was inadmissible. Now, I believe in that case I was representing the right side regardless, but the fact is it was not an injustice by the court that her evidence was not considered - its inadmissibility was clearly required by the law and the Rules of Evidence. What I remember most, however, was the exasperated exchange she finally had with the judge. When the judge asked her what theory of the case she was possibly proceeding on, she responded, "I'm seeking justice, this is a court of justice!"
The judge responded, "I'm sorry, ma'am, but this is a court of law. It is only a court of justice when that justice is authorized by the law."
That judge was exactly right. We do not have "courts of justice" in this country, we have "courts of law," and when the law requires injustice, injustice is what you will get in court.
Myth: The courts are biased against men/women, minorities, the poor, etc.
Reality: In my experience, I have seen almost no evidence indicating that the courts are biased against anyone. Some individual judges, maybe, but the courts or legal system as a whole? Almost definitely not. That being said, I do think there is, oddly enough, a flaw in our system that produces extra difficulties for litigants and defendants who are lower middle class.
I hear this myth all the time. Most of the time it's from people who have had their own bad experiences in court, and really I am left with little else to do than smile and nod. I know there are judges here and there who have clear biases - they definitely exist - but imputing those judges on the whole system is ridiculous. Nonetheless, psychologically, I've discovered that not only is it easier for someone to believe that his or her loss in court was someone else's fault due to bias, but it's also easier to believe that they are not alone. As a result, while it's much easier for that person to believe that "the system" is stacked, rather than that they deserved to lose, it's also easier to believe that "the system" is stacked rather than just that that person's particular judge was biased.
Nonetheless, my own experience tells me otherwise regarding "the system." I see many more cases than the individuals who come through the court, and with only one exception I can think of, I have never seen a judge I believed was biased, and I have seen no sign that "the system" is stacked. Certainly judges make rulings I disagree with all the time, but even then I have never seen anything to lead me to believe it is due to systemic bias.
Now, as I said above, there is one flaw with our legal system that I do wish would be fixed and that I think tends to harm the lower middle class (the "working class"). This has to do with lawyers, and the inherent disadvantage you are at in court if you do not have a lawyer.
In criminal law, as you probably already know, poor defendants are entitled to have a lawyer appointed for them, but how do you determine who gets to have an appointed lawyer? Well, they fill out a questionnaire about their income and assets, and if they fit below certain thresholds, they are considered poor and get a lawyer appointed. What about the people right at the threshold? The people who have little money, but just enough to not get a court-appointed attorney? Well, they're out of luck - they have to hire their own attorney, and pay just as much as the rich defendant has to pay.
The same is true to some extent in civil cases. While poor people do not get court appointed attorneys in civil cases, they can often get free attorneys from their local legal aid or a law firm doing pro bono hours. Again, there are income qualifications, and those on the cusp are left out to dry.
What often ends up happening in those situations is that the client doesn't hire an attorney at all - and then gets harmed badly in the legal proceedings. This is a problem, and one that begs a more creative solution.
Some areas have experimented with what I'd call "partial appointment," and this is something I'd love to see expanded. The idea is that after your income and assets hit a certain level in a criminal case, you could still get a court-appointed attorney, but you would be responsible for paying a portion of that attorney's fees, with that portion being determined by how far above the threshold for a free attorney you are. That way, you can hire an attorney you can actually afford.
Some legal aid agencies also do this. The legal aid agency still provides the attorney, but you pay the agency part of the cost of that attorney. I don't know if any agencies in Northern Virginia do it, but I have heard of others throughout the country. I think this would be a worthwhile experiment for the legal system, and one to help curtail the one systematic disadvantage I do encounter regularly.
Conclusion
There are many more pervasive myths about the legal world, but this post is already getting long, so I will wrap it up here. You can look for this to be a continuing series in the future.
Introduction
After I refused to watch for a great deal of time, last week my wife finally convinced me to watch an episode of ABC's How to Get Away with Murder. Honestly, I was horrified. The story was certainly captivating, and for artistic purposes, I don't fault it for that, but its portrayal of both law school and legal practice is not only completely unrealistic, it actually perpetuates some negative stereotypes about lawyers and the practice of law that I find appalling. In fact, in the one episode that I watched, completely ignoring the backstory of the murder of the professor's husband and just focusing on the cases dealt with in the episode, the professor and a US Attorney both engaged in conduct that in real life would get them disbarred, and one of the students also engaged in conduct that in real life would disqualify him from being barred.
To that end, it got me thinking about the many myths about the practice of law that exist out there, and how many of them are harmful to the legal profession. In today's blog post, I will address some of the pervasive myths about the legal profession I face - some of them will be directly inspired by this episode of How to Get Away with Murder, some will not - and the truth that these myths overlook.
Myth: Lawyers can lie to a witness while testifying to get them to admit to something damning.
Reality: Lawyers are strictly forbidden from lying, in any capacity, in their work. Lying during a trial or other official proceeding is a quick way to get disbarred.
In the episode of How to Get Away with Murder that I watched, Annalise (the professor/lawyer) represents a woman accused of insider trading. Annalise arranges for a deposition of two employees of the woman and works with the US Attorney (prosecutor) to get them to confess. First, Annalise presents a stack of papers she claims is the transcript of the other employee implicating the witness and then the US Attorney offers to give the witness a deal if he or she confesses. Both witnesses confess and are arrested, Annalise reveals the stack of papers were just notes, and the US Attorney admits he has no deal to offer.
I'm going to ignore the fact that there was a deposition - depositions are pretty much exclusively used in civil cases, not criminal cases - and focus on Annalise's and the US Attorney's conduct in the deposition. As stated above, attorneys cannot lie. My post on legal ethics gets into this in more detail. There's a reason that police officers conduct interrogations, rather than prosecutors - police officers can lie, prosecutors can't.
As a result, Annalise would be facing disbarment in the real world for her stack of papers lie and the US Attorney would be facing disbarment for his lie about offering a deal.
The takeaway is, when you are dealing with a lawyer who is acting as a lawyer, she cannot lie to you. If she does, you should report it to the Bar immediately.
Myth: Lawyers are generally greedy people who are only interested in you for your money.
Reality: Lawyers have many motivations in what they do, and while some are, in fact, greedy, just like in any other profession, most lawyers are in the profession because they find it interesting and rewarding on an emotional level. Like all professionals, however, lawyers do expect to get paid for their work.
This particular myth is one that bothers me. Once upon a time I had a client's father accuse me of being only interested in representing his daughter so I could milk as much money out of her as possible while she suffers in her conflict with her estranged husband. What he didn't know, and I couldn't tell him at the time, was that his daughter hadn't paid me in months, had no prospect of ever paying me for the work I was doing, and yet, there I still was, fighting for her every day.
We are professionals, like doctors, accountants and carpenters. We do expect to be paid for the services we provide - you sign a contract with us agreeing to do that before you hire us. That doesn't make us greedy. This is our job, just like you have yours, and this is how we make our living and feed our families. I have very low tolerance for people who assume lawyers are greedy because we, heaven forbid, ask them to pay us for the work we do for them. These same people don't bat an eye at paying their doctor, their accountant, their home contractor, etc., yet they expect us to somehow work for free.
If you believe your lawyer is really only in it for the money, then you've either done a bad job choosing your lawyer, or, more likely, you need to figure out why you're so offended that they want you to pay them to begin with.
Myth: We have way too much litigation today. We need tort reform to bring about some sanity.
Reality: Litigation rates in the United States peaked in the 1970's and have been dropping steadily since. Tort reform, in states that have enacted it, has led to substantial abuses of power by the powerful at the expense of the weak, and does practically nothing to prevent the filing of frivolous lawsuits.
My answer in the "reality" really covers this a great deal. The fact is, while sensational stories abound, litigation rates are dropping in the US, and have been for about forty years. While this is only my opinion, tort reform does practically nothing to reduce frivolous lawsuits. It doesn't help individuals who are sued, since the limits still tend to be high enough to still put individuals into bankruptcy, but it does protect mega-corporations, to whom the limits are laughable amounts of money that cause them to give no pause or concern about the potential costs of their actions.
All of this ignores the fact that many of the "frivolous" lawsuits we hear stories about aren't even frivolous. Let me give you an example.
Let's say a company made a commonly used product that is moderately dangerous. Everyone knew the danger level of this product, though, so they generally took precautions, and understood that if they didn't, they might get a little hurt.
Now, let's say that the company determined that it could make more money by making this product even more dangerous - and not advertising that they've done so - under the assumption that by the time someone actually uses the product after purchasing it, the product will be back to its normal danger level. Now, let's add on that dozens of experts have written to the company warning it about just how dangerous their product has now become, but the company ignores those warnings and continues to make their product that much more dangerous without warning consumers.
Finally, a woman purchases the product and injures herself with it. Her injuries are not what you would normally expect from this product under its normal danger level - in fact, she has to go to the hospital, have major surgery, and will be in pain the rest of her life. In court, it is conclusively proven that the extent of her injuries was caused by the increase in dangerousness of the product. Wouldn't you agree that this woman, who had no warning of how much more dangerous the product was, who had major surgery and will be in pain the rest of her life, deserves some very substantial compensation?
Well, I've just described to you the infamous "McDonald's Coffee" case. McDonald's knowingly made their coffee 20 degrees hotter than normal, and was repeatedly warned by experts that this was dangerous - yet they ignored the warnings. The woman that ultimately sued had third degree burns on six percent of her body, required extensive skin grafting, is permanently disfigured and in pain, and was disabled for two years following the accident. This was not a typical "coffee burn," yet so many people hear only the top line of the story and say "duh, coffee's hot, lawsuits are out of control." As an added fun fact, in this case, even though the jury awarded the woman $2.9 million (which is what got all the press), McDonald's ended up paying less than $600,000.
The fact is, when you investigate other frivolous lawsuit stories, you find similar flaws. This, the fact that tort reform does far more harm to the poor and powerless than the rich and powerful, not "greed," is why lawyers overwhelmingly oppose it.
Myth: It's a court's job to deliver justice and when a court makes an unjust ruling, the court itself is unjust.
Reality: It's a court's job to apply the law to a given situation presented to the court and when a court makes an unjust ruling, frequently it is because the law is unjust.
I can't count the number of times I've heard a judge say "well, I understand your point, but that's something to raise with Richmond [where our General Assembly sits], not with the court." The reality is, if an unjust result is dictated by the law, unless you can find an actual constitutional principle that is violated, the court is powerless to do anything but make an unjust ruling. In fact, ignoring the law and making the just ruling would be good grounds for the judge's removal from the bench.
When a court rules against someone I always tell them to listen carefully to why the court is doing so. Most judges will give some explanation of their ruling. Nine times out of ten, where a result is unfair, it's still the result mandated by the law. In January, I wrote a blog post about a case I was handling where the other side was unrepresented, and didn't get most of her evidence even considered by the court because it was inadmissible. Now, I believe in that case I was representing the right side regardless, but the fact is it was not an injustice by the court that her evidence was not considered - its inadmissibility was clearly required by the law and the Rules of Evidence. What I remember most, however, was the exasperated exchange she finally had with the judge. When the judge asked her what theory of the case she was possibly proceeding on, she responded, "I'm seeking justice, this is a court of justice!"
The judge responded, "I'm sorry, ma'am, but this is a court of law. It is only a court of justice when that justice is authorized by the law."
That judge was exactly right. We do not have "courts of justice" in this country, we have "courts of law," and when the law requires injustice, injustice is what you will get in court.
Myth: The courts are biased against men/women, minorities, the poor, etc.
Reality: In my experience, I have seen almost no evidence indicating that the courts are biased against anyone. Some individual judges, maybe, but the courts or legal system as a whole? Almost definitely not. That being said, I do think there is, oddly enough, a flaw in our system that produces extra difficulties for litigants and defendants who are lower middle class.
I hear this myth all the time. Most of the time it's from people who have had their own bad experiences in court, and really I am left with little else to do than smile and nod. I know there are judges here and there who have clear biases - they definitely exist - but imputing those judges on the whole system is ridiculous. Nonetheless, psychologically, I've discovered that not only is it easier for someone to believe that his or her loss in court was someone else's fault due to bias, but it's also easier to believe that they are not alone. As a result, while it's much easier for that person to believe that "the system" is stacked, rather than that they deserved to lose, it's also easier to believe that "the system" is stacked rather than just that that person's particular judge was biased.
Nonetheless, my own experience tells me otherwise regarding "the system." I see many more cases than the individuals who come through the court, and with only one exception I can think of, I have never seen a judge I believed was biased, and I have seen no sign that "the system" is stacked. Certainly judges make rulings I disagree with all the time, but even then I have never seen anything to lead me to believe it is due to systemic bias.
Now, as I said above, there is one flaw with our legal system that I do wish would be fixed and that I think tends to harm the lower middle class (the "working class"). This has to do with lawyers, and the inherent disadvantage you are at in court if you do not have a lawyer.
In criminal law, as you probably already know, poor defendants are entitled to have a lawyer appointed for them, but how do you determine who gets to have an appointed lawyer? Well, they fill out a questionnaire about their income and assets, and if they fit below certain thresholds, they are considered poor and get a lawyer appointed. What about the people right at the threshold? The people who have little money, but just enough to not get a court-appointed attorney? Well, they're out of luck - they have to hire their own attorney, and pay just as much as the rich defendant has to pay.
The same is true to some extent in civil cases. While poor people do not get court appointed attorneys in civil cases, they can often get free attorneys from their local legal aid or a law firm doing pro bono hours. Again, there are income qualifications, and those on the cusp are left out to dry.
What often ends up happening in those situations is that the client doesn't hire an attorney at all - and then gets harmed badly in the legal proceedings. This is a problem, and one that begs a more creative solution.
Some areas have experimented with what I'd call "partial appointment," and this is something I'd love to see expanded. The idea is that after your income and assets hit a certain level in a criminal case, you could still get a court-appointed attorney, but you would be responsible for paying a portion of that attorney's fees, with that portion being determined by how far above the threshold for a free attorney you are. That way, you can hire an attorney you can actually afford.
Some legal aid agencies also do this. The legal aid agency still provides the attorney, but you pay the agency part of the cost of that attorney. I don't know if any agencies in Northern Virginia do it, but I have heard of others throughout the country. I think this would be a worthwhile experiment for the legal system, and one to help curtail the one systematic disadvantage I do encounter regularly.
Conclusion
There are many more pervasive myths about the legal world, but this post is already getting long, so I will wrap it up here. You can look for this to be a continuing series in the future.
Wednesday, September 3, 2014
A Brief Primer on Virginia Rules of Evidence - Or, How Not to Lose Before You Walk in the Courtroom
As always, before reading this post, please review my disclaimer by following the link above, or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Since starting this blog I have lost count of the number of e-mails I have received saying, "Hey, I took your blog's advice to do x, but I lost because of y - what's your opinion of what happened?" First, let me be crystal clear. As it says in my disclaimer, and at the top of each and every page of my blog, this blog is not advice. It is a presentation of how, from my perspective, things work in the legal world in Virginia. It is general information - I cannot predict every situation that might come up, and so the odds are very high that there is something about your case that makes the general information applicable, yes, but also incomplete. Please do not take my blog posts as advice - except for the one piece of advice I always give: hire an attorney, or at least speak to one.
Now, with that out of the way, 9 times out of 10 I've found that I have to agree with the judge that the person should have lost. While there have been exceptions, the vast majority of times that this is the case, it is because the judge wouldn't look at the person's evidence - and I have to agree that the judge was right, because the person did violate the rules of evidence. This is one more reason that it's so important to have an attorney - an attorney will save you from these pitfalls. If your opponent has an attorney, this is especially true. Attorneys know that pro se parties rarely know the rules of evidence, and will take advantage of that fact at trial - something they are perfectly allowed to do. Heck, it's something I've done myself, and then wrote about on this blog.
To that end, I feel like it's necessary to cover some of the basics of the Virginia Rules of Evidence. Note, however, that I cannot hope to cover nearly all of the rules in one blog post (or even several), so my advice remains to have an attorney represent you in court. Nonetheless, with the information on this blog you can hopefully avoid at least some of the pitfalls of not knowing the rules of evidence - and maybe even figure out when to object if your opponent violates the rules.
Where to Find the Rules
You, my friend, are currently living in a Golden Age in terms of evidence rules in Virginia. Why? Because back when I started practicing law, Virginia had no set rules of evidence (unlike basically every other state, plus the federal courts). All we had was a disconnected mish-mash of statutes and common law rules that we basically had to memorize. In 2012, however, that all changed when the Virginia General Assembly adopted the Virginia Rules of Evidence. The Rules are now entirely collected in Part 2 of the Rules of the Supreme Court of Virginia. The Rules as adopted tried to incorporate the rules as they previously existed, although some minor changes were made, but the revolutionary component was that now the rules are all in one place, so someone can go and learn them.
Hearsay
So, by far the most common complaint I hear is about application of the rule against hearsay. Most people know that hearsay is inadmissible, but almost no one outside the legal profession seems to know what hearsay is. Hearsay, quite simply, is any statement made by any person, unless it is made by that person on the witness stand while testifying at the trial, when that statement is offered as evidence to prove the truth of the matter asserted.
So, there's a lot in there to break down. First, what's a statement? A statement is defined in Virginia rules as "an oral or written assertion" or "nonverbal conduct of a person, if it is intended as an assertion." In other words, something is a statement if it asserts that something is true.
Now, what does it mean that the statement is "offered as evidence to prove the truth of the matter asserted"? It means a statement is not hearsay if the content of the statement is relevant for some reason other than the truth of the matter asserted in the statement. In other words, if the statement is just as relevant and important if the statement is a lie as it would be if it were true, then it is not hearsay.
This is a confusing point for many people, so I'll take two examples. The first is one we learned about in law school. Some time ago there was a plane crash with a husband and wife aboard. Both died, but it was important to establish who died first for the purposes of distributing the couple's assets in inheritance. A police officer testified that when he went to the scene the wife was dead, but the husband told him "I'm alive." There was a hearsay objection that was actually sustained, but this was overturned on appeal. Why? Because it didn't matter whether the statement was true or not. The husband's statement could have been "I'm Genghis Khan back to rule my Empire" and it would have been just as relevant. The fact that the husband made a statement at all meant he was alive and the content of the statement was thus irrelevant, so it was not hearsay.
A second example would be where you are accused of fraud for claiming in a loan application that you had more money than you actually had. If you present a statement from your financial advisor saying that you had the higher amount of money, that statement should not be subject to a hearsay objection because whether or not the statement was true (and in this case, it wasn't) is not important - the fact that you had this statement, so you believed it, provides evidence on its own that you did not have the necessary intent to commit fraud.
Exceptions to Hearsay Rule
So, now that you hopefully have a better understanding of hearsay, you might be wondering how all sorts of evidence you hear about ever gets into evidence. Well, that's because there are a large number of exceptions to the hearsay rule - in other words, situations where a statement is hearsay, but is still admissible.
The Virginia Rules of Evidence separately list 29 exceptions, but if you read each one, many of them have separate exceptions as well. Here are some of the most important for you to know:
A Brief Word About Double Hearsay
We often encounter in law "double hearsay" or "hearsay within hearsay." The easy breakdown of this is that direct testimony is saying "I saw Tommy do it," while hearsay is "Dave told me he saw Tommy do it." Well, double hearsay would be, "John told me that Dave told him that he saw Tommy do it." So, how do you handle double hearsay? You have to look at each hearsay component and decide if an exception applies. If it applies to both (for example, a business record quoted an opposing party admission), then it's still admissible. If either one of the hearsay examples, however, does not fit an exception (for example, a business record quotes prior testimony where the person giving that testimony is available to testify at the current trial, or a police report quotes an opposing party admission), then the double hearsay is not admissible.
Authentication of Evidence
Most situations where a party has failed to understand the rules of evidence fall in the above category, but I occasionally find that a person has, in fact, found an exception but still didn't get their evidence admitted because it was not properly authenticated. So, what is authentication? Authentication is the requirement that evidence must be sufficiently proven to actually be what it is before it can be admitted. For example, the letter showing your job offer which you introduce to prove your income may be a business record, but your word alone is not sufficient authentication that this is actually your employer's business record - only your employer's testimony or an affidavit can meet this condition.
In other words, it is not enough to make sure your evidence does not violate any of the rules that would exclude it - you must also make sure you can authenticate it, that you can prove that it is what you say it is. Otherwise, it will not be admitted. That all being said, some documents are what we call "self-authenticating," meaning that as long as certain conditions are met, no further authentication is necessary. A full list of such documents can be found in Rule 2:902, but some of them are public records which are certified in the manner required by law, medical records and bills in certain cases where certain conditions are met, and business records where the custodian of records has signed an affidavit confirming the authenticity of the documents and no objection has been filed to the affidavit.
Settlement Discussion
The other problem I see people encounter, although much less frequent than problems with hearsay or authentication, is the presentation of settlement discussions. I see quite often with pro se parties they want to tell the judge "well, I offered to do this, and they wouldn't even do that!" to try to prove how unreasonable the other side is. Well, the courts decided long ago that settlements will be much harder to have happen if the statements made while negotiating them could then be used against the parties. As a result, offers and responses in the course of settlement negotiations are not admissible evidence.
There are two key exceptions to the above. If, in the course of settlement negotiations, you actually admit you are liable, then that admission (and only that admission) becomes admissible. Also, where attorneys' fees are collectible by one or both parties, the settlement negotiations may be admitted as evidence as to whether or not the attorneys' fees are reasonable (as unreasonably refusing a good settlement offer may make your trial fees unreasonable), but in such cases that is all that the negotiations can be considered for.
Conclusion
For many people who represent themselves at trial, their biggest pitfall is the rules of evidence. With this blog post, I hope you understand at least some of the complex panoply of rules you will face if you go to court alone. This is yet another reason why you should almost always try to have an attorney. If you are facing a civil trial and recognize that you don't understand the rules of evidence well enough to protect yourself, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Introduction
Since starting this blog I have lost count of the number of e-mails I have received saying, "Hey, I took your blog's advice to do x, but I lost because of y - what's your opinion of what happened?" First, let me be crystal clear. As it says in my disclaimer, and at the top of each and every page of my blog, this blog is not advice. It is a presentation of how, from my perspective, things work in the legal world in Virginia. It is general information - I cannot predict every situation that might come up, and so the odds are very high that there is something about your case that makes the general information applicable, yes, but also incomplete. Please do not take my blog posts as advice - except for the one piece of advice I always give: hire an attorney, or at least speak to one.
Now, with that out of the way, 9 times out of 10 I've found that I have to agree with the judge that the person should have lost. While there have been exceptions, the vast majority of times that this is the case, it is because the judge wouldn't look at the person's evidence - and I have to agree that the judge was right, because the person did violate the rules of evidence. This is one more reason that it's so important to have an attorney - an attorney will save you from these pitfalls. If your opponent has an attorney, this is especially true. Attorneys know that pro se parties rarely know the rules of evidence, and will take advantage of that fact at trial - something they are perfectly allowed to do. Heck, it's something I've done myself, and then wrote about on this blog.
To that end, I feel like it's necessary to cover some of the basics of the Virginia Rules of Evidence. Note, however, that I cannot hope to cover nearly all of the rules in one blog post (or even several), so my advice remains to have an attorney represent you in court. Nonetheless, with the information on this blog you can hopefully avoid at least some of the pitfalls of not knowing the rules of evidence - and maybe even figure out when to object if your opponent violates the rules.
Where to Find the Rules
You, my friend, are currently living in a Golden Age in terms of evidence rules in Virginia. Why? Because back when I started practicing law, Virginia had no set rules of evidence (unlike basically every other state, plus the federal courts). All we had was a disconnected mish-mash of statutes and common law rules that we basically had to memorize. In 2012, however, that all changed when the Virginia General Assembly adopted the Virginia Rules of Evidence. The Rules are now entirely collected in Part 2 of the Rules of the Supreme Court of Virginia. The Rules as adopted tried to incorporate the rules as they previously existed, although some minor changes were made, but the revolutionary component was that now the rules are all in one place, so someone can go and learn them.
Hearsay
So, by far the most common complaint I hear is about application of the rule against hearsay. Most people know that hearsay is inadmissible, but almost no one outside the legal profession seems to know what hearsay is. Hearsay, quite simply, is any statement made by any person, unless it is made by that person on the witness stand while testifying at the trial, when that statement is offered as evidence to prove the truth of the matter asserted.
So, there's a lot in there to break down. First, what's a statement? A statement is defined in Virginia rules as "an oral or written assertion" or "nonverbal conduct of a person, if it is intended as an assertion." In other words, something is a statement if it asserts that something is true.
Now, what does it mean that the statement is "offered as evidence to prove the truth of the matter asserted"? It means a statement is not hearsay if the content of the statement is relevant for some reason other than the truth of the matter asserted in the statement. In other words, if the statement is just as relevant and important if the statement is a lie as it would be if it were true, then it is not hearsay.
This is a confusing point for many people, so I'll take two examples. The first is one we learned about in law school. Some time ago there was a plane crash with a husband and wife aboard. Both died, but it was important to establish who died first for the purposes of distributing the couple's assets in inheritance. A police officer testified that when he went to the scene the wife was dead, but the husband told him "I'm alive." There was a hearsay objection that was actually sustained, but this was overturned on appeal. Why? Because it didn't matter whether the statement was true or not. The husband's statement could have been "I'm Genghis Khan back to rule my Empire" and it would have been just as relevant. The fact that the husband made a statement at all meant he was alive and the content of the statement was thus irrelevant, so it was not hearsay.
A second example would be where you are accused of fraud for claiming in a loan application that you had more money than you actually had. If you present a statement from your financial advisor saying that you had the higher amount of money, that statement should not be subject to a hearsay objection because whether or not the statement was true (and in this case, it wasn't) is not important - the fact that you had this statement, so you believed it, provides evidence on its own that you did not have the necessary intent to commit fraud.
Exceptions to Hearsay Rule
So, now that you hopefully have a better understanding of hearsay, you might be wondering how all sorts of evidence you hear about ever gets into evidence. Well, that's because there are a large number of exceptions to the hearsay rule - in other words, situations where a statement is hearsay, but is still admissible.
The Virginia Rules of Evidence separately list 29 exceptions, but if you read each one, many of them have separate exceptions as well. Here are some of the most important for you to know:
- Opposing Party Admission - The short version of this is that if you are a party to a lawsuit (or a criminal trial), anything you've said can be used against you. Not for you, just against you. Of course, the reverse is true - you can use anything the other party has said against them to.
- Statement for the Purpose of Medical Treatment - Any statement you made to a doctor or anyone else for the purpose of obtaining medical treatment is admissible evidence. Note, however, this is limited to only that information necessary (or reasonably believed necessary), not extraneous information given.
- Business Records - One of the most important exceptions, this allows any documents produced by a person or business in the course of running their business and which is of a type that is usually produced by such a person or business when running their business is admissible.
- Public Records - Records of observations made by government agencies or courts, except for police reports, which do not qualify for the exception.
- Former Testimony - Any testimony previously given under oath where the party against whom the evidence is offered had the chance to cross-examine that person, and that person is not available to testify at the current trial.
- Prior Inconsistent Statements - While not listed in the hearsay exceptions, this is an important one - if a witness on the stand has previously made a contradictory statement, that statement can be brought up and used to challenge the credibility of the witness on cross-examination.
A Brief Word About Double Hearsay
We often encounter in law "double hearsay" or "hearsay within hearsay." The easy breakdown of this is that direct testimony is saying "I saw Tommy do it," while hearsay is "Dave told me he saw Tommy do it." Well, double hearsay would be, "John told me that Dave told him that he saw Tommy do it." So, how do you handle double hearsay? You have to look at each hearsay component and decide if an exception applies. If it applies to both (for example, a business record quoted an opposing party admission), then it's still admissible. If either one of the hearsay examples, however, does not fit an exception (for example, a business record quotes prior testimony where the person giving that testimony is available to testify at the current trial, or a police report quotes an opposing party admission), then the double hearsay is not admissible.
Authentication of Evidence
Most situations where a party has failed to understand the rules of evidence fall in the above category, but I occasionally find that a person has, in fact, found an exception but still didn't get their evidence admitted because it was not properly authenticated. So, what is authentication? Authentication is the requirement that evidence must be sufficiently proven to actually be what it is before it can be admitted. For example, the letter showing your job offer which you introduce to prove your income may be a business record, but your word alone is not sufficient authentication that this is actually your employer's business record - only your employer's testimony or an affidavit can meet this condition.
In other words, it is not enough to make sure your evidence does not violate any of the rules that would exclude it - you must also make sure you can authenticate it, that you can prove that it is what you say it is. Otherwise, it will not be admitted. That all being said, some documents are what we call "self-authenticating," meaning that as long as certain conditions are met, no further authentication is necessary. A full list of such documents can be found in Rule 2:902, but some of them are public records which are certified in the manner required by law, medical records and bills in certain cases where certain conditions are met, and business records where the custodian of records has signed an affidavit confirming the authenticity of the documents and no objection has been filed to the affidavit.
Settlement Discussion
The other problem I see people encounter, although much less frequent than problems with hearsay or authentication, is the presentation of settlement discussions. I see quite often with pro se parties they want to tell the judge "well, I offered to do this, and they wouldn't even do that!" to try to prove how unreasonable the other side is. Well, the courts decided long ago that settlements will be much harder to have happen if the statements made while negotiating them could then be used against the parties. As a result, offers and responses in the course of settlement negotiations are not admissible evidence.
There are two key exceptions to the above. If, in the course of settlement negotiations, you actually admit you are liable, then that admission (and only that admission) becomes admissible. Also, where attorneys' fees are collectible by one or both parties, the settlement negotiations may be admitted as evidence as to whether or not the attorneys' fees are reasonable (as unreasonably refusing a good settlement offer may make your trial fees unreasonable), but in such cases that is all that the negotiations can be considered for.
Conclusion
For many people who represent themselves at trial, their biggest pitfall is the rules of evidence. With this blog post, I hope you understand at least some of the complex panoply of rules you will face if you go to court alone. This is yet another reason why you should almost always try to have an attorney. If you are facing a civil trial and recognize that you don't understand the rules of evidence well enough to protect yourself, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Thursday, August 28, 2014
Violations of Virginia Divorce and Support Orders - What Comes Next?
As always, before reading this post please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
I've discussed previously in this blog the difference between a court judgment and a court order, including the difference between a money judgment and an order to pay. The biggest difference between the two, as I've said before, is that judgments require some other action to enforce, while orders present requirements for the party so ordered to follow, and the violation of an order carries the risk of jail time due to contempt of court, while judgments carry no such risk. Finally, I've at least alluded to the fact that it's not necessarily a simple process for someone to be held in contempt when they violate an order.
In today's blog post, I will discuss what to do when someone has violated a court order (as opposed to a judgment). I will be discussing it in the family law context (so, divorce orders, support orders, custody/visitation orders, etc.) since that is what I practice, but a good deal of the principles here can apply to other forms of court orders.
Also, please note that in some cases, the case may get referred to the Commonwealth's Attorney for pursuit of a criminal contempt charge. In that case, the case proceeds like a normal prosecution, and your attorney is no longer involved. Because the vast majority of contempt charges in civil cases, including divorce, proceed as "civil contempt" charges - and because when I am involved in a contempt proceeding it is always in a "civil contempt" context - I will only be discussing civil contempt in this blog post.
With One Exception, Don't Bother Calling the Police
The natural instinct for many people when faced with a violation of a court order is to call the police. After all, violating a court order, committing contempt of court, is a crime. The police, however, do not consider enforcing court orders to be part of their job - nor should they. The presumption of innocence applies just as much to contempt as to any other crime, and the fact that you have another avenue (as explained later) to enforce the order means the police really have no place stepping in themselves.
There is an exception to this, however, and that is in the custody context. If the non-custodial parent with visitation is refusing to return the child, or has absconded with the child, you are no longer just dealing with contempt, but also kidnapping. The police frequently will intervene in such a case (after all, there is the possibility that a life could be in danger), especially if it is not a matter of the parent delaying returning the child but rather the parent actually refusing to return the child. Now, there is also an exception to that exception - if the parent refusing to return the child is doing so because that parent fears the child is actually in danger from the custodial parent, the police generally will not intervene so long as the non-custodial parent goes straight to the courthouse (or, if the courthouse is closed, does so as soon as it opens) to file an emergency to motion to get legal custody.
These are, of course, general rules, and different police departments behave differently, but generally, it is not worth calling the police over a violation of a court order (especially if that violation only involves money). I would note, however, that violations of court orders that also involve a danger to your life or safety (or the life or safety of anyone else), and violations of court orders that also involve the violation of a protective order, are violations that also involve other crimes, and as a result police intervention would be warranted in those cases as well.
Get an Attorney
Now, I always advise people to get an attorney, but in this context it is even more important. The reason for this is that, frankly, the rules surrounding contempt proceedings are complicated, and even worse, they generally vary from county to county, so you want an attorney who knows the local rules. If you are dealing with the violation of a Juvenile & Domestic Relations District Court order, this is slightly less important because the court's intake office will probably be willing to guide you through the process, but this still has pitfalls. If you are dealing with a Circuit Court order, you definitely want an attorney.
Figure Out if the Violation is Worth Pursuing
The next step is to discuss with your attorney if this violation is actually worth pursuing. Judges are very busy, and in general don't want to see your nit-picky case in front of them. If you are taking action over something minor, you are likely to get nothing from the judge but that judge's anger. In support cases, for example, a few dollars should probably just be let go. In a visitation case, the child being brought to you thirty minutes late probably also isn't a big deal.
That being said, there's no rule that says a contempt proceeding has to be limited to one incident - it can be cumulative. If, for example, the support payor is paying $25 less every month then after a year you've got a $300 arrearage - for some people that's a lot of money and may be worth pursuing, even though the individual $25 shortages weren't. In a visitation situation, one half hour delay may not be worth pursuing, but 20 might be. This is really something to discuss with your attorney and assess whether or not you should really move forward.
File a Petition for Rule to Show Cause
So, let's say you and your attorney decide you should go forward. The next step is to file a petition for a rule to show cause. This is a petition that you sign under oath (so lying could subject you to a perjury charge) stating what the other party has done to violate the order. You then submit it to the court, asking the court to issue a "Rule to Show Cause." A Rule to Show Cause is a court order requiring the other party to appear in court at a certain date and time and explain to the judge ("show cause") why he or she should not be held in contempt of court. That order must then be served on the other party. Note that you really need to have the person personally served (instead of having the rule posted to their door), since if they are personally served and don't appear, a warrant for their arrest can be issued.
Appear at the Hearing
You should also be at the hearing on the date listed in the rule to show cause. This is because you will likely also be testifying. The judge at the hearing will hear your testimony as to what happened to violate the order, the other side's testimony as to why he or she did not violate the order (or why the violation was justified), and hear any other testimony either side thinks is necessary. At the end of the hearing, the judge will decide whether or not the judge is convinced that contempt has occurred, and will act accordingly.
So - what can the judge do? If you are dealing with a non-support violation, the judge can jail the other party for up to ten days, fine them, make them pay your attorneys' fees, and even change the underlying court order. The judge's powers are the same for support order violations, except that the jail time can be up to 12 months, and if you are in the Juvenile Court and the other party owes at least three months' worth of support, the judge is required (as opposed to just allowed) to make them pay your attorneys' fees.
As a general rule, however, a judge will rarely impose jail time for a first offense unless there is a very large support arrearage. It is not uncommon, however, for a judge to impost a "suspended sentence," meaning the person is sentenced to jail time, but he or she doesn't actually have to serve that time unless they commit another offense. It's worth noting this can make the next offense more severe, since the judge could then sentence you (in a non-support case) to ten days in jail for that offense and ten days in jail for the previous offense. Of course, this is part of the point of issuing a suspended sentence - having a minimum amount of time that person knows he or she will serve in jail if they commit another violation.
What's the Point?
So, you may look at all of this and say "so, what's the point?" The point, of course, is the same as with much of criminal law. The ability to have someone held in civil contempt makes them more likely to comply with orders to begin with, and the enforcement of a violation makes them less likely to commit further violations. Additionally, sometimes contempt proceedings also get you judgments, which you can use to garnish paychecks and bank accounts. All in all, unless you are dealing with minor violations, civil contempt charges are usually worth pursuing.
Conclusion
If the other party has violated a court order and you wish to have them held in contempt - or you, yourself, have been accused of violating a court order - it's critical that you have the assistance of an attorney going forward. If you would like to consider our services, please call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Introduction
I've discussed previously in this blog the difference between a court judgment and a court order, including the difference between a money judgment and an order to pay. The biggest difference between the two, as I've said before, is that judgments require some other action to enforce, while orders present requirements for the party so ordered to follow, and the violation of an order carries the risk of jail time due to contempt of court, while judgments carry no such risk. Finally, I've at least alluded to the fact that it's not necessarily a simple process for someone to be held in contempt when they violate an order.
In today's blog post, I will discuss what to do when someone has violated a court order (as opposed to a judgment). I will be discussing it in the family law context (so, divorce orders, support orders, custody/visitation orders, etc.) since that is what I practice, but a good deal of the principles here can apply to other forms of court orders.
Also, please note that in some cases, the case may get referred to the Commonwealth's Attorney for pursuit of a criminal contempt charge. In that case, the case proceeds like a normal prosecution, and your attorney is no longer involved. Because the vast majority of contempt charges in civil cases, including divorce, proceed as "civil contempt" charges - and because when I am involved in a contempt proceeding it is always in a "civil contempt" context - I will only be discussing civil contempt in this blog post.
With One Exception, Don't Bother Calling the Police
The natural instinct for many people when faced with a violation of a court order is to call the police. After all, violating a court order, committing contempt of court, is a crime. The police, however, do not consider enforcing court orders to be part of their job - nor should they. The presumption of innocence applies just as much to contempt as to any other crime, and the fact that you have another avenue (as explained later) to enforce the order means the police really have no place stepping in themselves.
There is an exception to this, however, and that is in the custody context. If the non-custodial parent with visitation is refusing to return the child, or has absconded with the child, you are no longer just dealing with contempt, but also kidnapping. The police frequently will intervene in such a case (after all, there is the possibility that a life could be in danger), especially if it is not a matter of the parent delaying returning the child but rather the parent actually refusing to return the child. Now, there is also an exception to that exception - if the parent refusing to return the child is doing so because that parent fears the child is actually in danger from the custodial parent, the police generally will not intervene so long as the non-custodial parent goes straight to the courthouse (or, if the courthouse is closed, does so as soon as it opens) to file an emergency to motion to get legal custody.
These are, of course, general rules, and different police departments behave differently, but generally, it is not worth calling the police over a violation of a court order (especially if that violation only involves money). I would note, however, that violations of court orders that also involve a danger to your life or safety (or the life or safety of anyone else), and violations of court orders that also involve the violation of a protective order, are violations that also involve other crimes, and as a result police intervention would be warranted in those cases as well.
Get an Attorney
Now, I always advise people to get an attorney, but in this context it is even more important. The reason for this is that, frankly, the rules surrounding contempt proceedings are complicated, and even worse, they generally vary from county to county, so you want an attorney who knows the local rules. If you are dealing with the violation of a Juvenile & Domestic Relations District Court order, this is slightly less important because the court's intake office will probably be willing to guide you through the process, but this still has pitfalls. If you are dealing with a Circuit Court order, you definitely want an attorney.
Figure Out if the Violation is Worth Pursuing
The next step is to discuss with your attorney if this violation is actually worth pursuing. Judges are very busy, and in general don't want to see your nit-picky case in front of them. If you are taking action over something minor, you are likely to get nothing from the judge but that judge's anger. In support cases, for example, a few dollars should probably just be let go. In a visitation case, the child being brought to you thirty minutes late probably also isn't a big deal.
That being said, there's no rule that says a contempt proceeding has to be limited to one incident - it can be cumulative. If, for example, the support payor is paying $25 less every month then after a year you've got a $300 arrearage - for some people that's a lot of money and may be worth pursuing, even though the individual $25 shortages weren't. In a visitation situation, one half hour delay may not be worth pursuing, but 20 might be. This is really something to discuss with your attorney and assess whether or not you should really move forward.
File a Petition for Rule to Show Cause
So, let's say you and your attorney decide you should go forward. The next step is to file a petition for a rule to show cause. This is a petition that you sign under oath (so lying could subject you to a perjury charge) stating what the other party has done to violate the order. You then submit it to the court, asking the court to issue a "Rule to Show Cause." A Rule to Show Cause is a court order requiring the other party to appear in court at a certain date and time and explain to the judge ("show cause") why he or she should not be held in contempt of court. That order must then be served on the other party. Note that you really need to have the person personally served (instead of having the rule posted to their door), since if they are personally served and don't appear, a warrant for their arrest can be issued.
Appear at the Hearing
You should also be at the hearing on the date listed in the rule to show cause. This is because you will likely also be testifying. The judge at the hearing will hear your testimony as to what happened to violate the order, the other side's testimony as to why he or she did not violate the order (or why the violation was justified), and hear any other testimony either side thinks is necessary. At the end of the hearing, the judge will decide whether or not the judge is convinced that contempt has occurred, and will act accordingly.
So - what can the judge do? If you are dealing with a non-support violation, the judge can jail the other party for up to ten days, fine them, make them pay your attorneys' fees, and even change the underlying court order. The judge's powers are the same for support order violations, except that the jail time can be up to 12 months, and if you are in the Juvenile Court and the other party owes at least three months' worth of support, the judge is required (as opposed to just allowed) to make them pay your attorneys' fees.
As a general rule, however, a judge will rarely impose jail time for a first offense unless there is a very large support arrearage. It is not uncommon, however, for a judge to impost a "suspended sentence," meaning the person is sentenced to jail time, but he or she doesn't actually have to serve that time unless they commit another offense. It's worth noting this can make the next offense more severe, since the judge could then sentence you (in a non-support case) to ten days in jail for that offense and ten days in jail for the previous offense. Of course, this is part of the point of issuing a suspended sentence - having a minimum amount of time that person knows he or she will serve in jail if they commit another violation.
What's the Point?
So, you may look at all of this and say "so, what's the point?" The point, of course, is the same as with much of criminal law. The ability to have someone held in civil contempt makes them more likely to comply with orders to begin with, and the enforcement of a violation makes them less likely to commit further violations. Additionally, sometimes contempt proceedings also get you judgments, which you can use to garnish paychecks and bank accounts. All in all, unless you are dealing with minor violations, civil contempt charges are usually worth pursuing.
Conclusion
If the other party has violated a court order and you wish to have them held in contempt - or you, yourself, have been accused of violating a court order - it's critical that you have the assistance of an attorney going forward. If you would like to consider our services, please call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Thursday, July 3, 2014
Proving Adultery in Virginia Divorce Cases
As always, before reading this post, please review our disclaimer by following the link above or by clicking on this link. As always, legal principles I discuss apply only to the Commonwealth of Virginia.
Update: Some portions of this blog post are outdated due to changes in the law since this post was first made. Please see my 2020 relevant changes in the law post for details.
Introduction
Despite the onset of the availability of no-fault divorces, adultery remains a very important part of divorce law in Virginia. Adultery, for example, is the only divorce ground, fault or no-fault, for which a full divorce can be granted without any waiting period. Moreover, if adultery is proven, the person committing adultery is generally barred from receiving spousal support (although there can be exceptions to this), and can get pretty harshly penalized in the division of property. If it is the payor of spousal support who committed the adultery, that too can be a factor used by the court in determining how much spousal support to award. Finally, if children are involved, adultery can play a substantial role in the awarding of custody and visitation.
Proving adultery, however, remains challenging. Under Virginia law, adultery must be proven by "clear and convincing evidence," a standard tougher than your typical civil "preponderance" ("more likely than not"), although still not all the way to the criminal "beyond a reasonable doubt." Add to that the additional obstacles that are in place, and you've got adultery being nearly impossible to prove. Nearly impossible and impossible are not the same thing, however, and in this blog post I will discuss some of the obstacles to proving adultery that exist and some ways around them.
Confessions
Obviously, the fastest way to prove adultery is by having the adulterer confess. Note that this is actually not sufficient for getting a divorce granted on the basis of the adultery - the confession would need to be corroborated - but for other purposes it is. Also obviously, this is not an easy thing to do. If the person was willing to betray your trust, why would you expect him or her to be truthful just because they are under oath?
Moreover, in Virginia we have another problem. Despite practically no prosecutions in decades, we still have on the books Virginia Code Section 18.2-365 which makes adultery a class 4 misdemeanor. This means that, when pressed, an accused adulterer has the ability to plead the fifth. In most states that wouldn't be a huge problem since pleading the fifth only protects the plea from being used against you in a criminal case, not a civil case, but in Virginia we have Code Section 8.01-223.1 which forbids the assertion of any constitutional right, including pleading the fifth, from being used against you in even a civil case.
Now, there is a potential, but imperfect, way around the fifth amendment issue. Virginia Code Section 19.2-8 states that for all misdemeanors for which another time is not prescribed (which includes the adultery misdemeanor), there is a statute of limitations of one year. Because the fifth amendment only protects you from being compelled to give testimony about a crime for which you could actually be prosecuted, it would theoretically not survive a situation where the adultery occurred more than a year ago. Some judges have held, however, that if adultery is ongoing, then the adultery older than a year could be used as evidence of ongoing adultery, and thus would still be covered by the fifth amendment.
In short, it is unlikely you will be able to procure a confession by any means, forcing you to resort to other means.
Paramour
The next best way to prove adultery is confession from the paramour (the person with whom the adultery was committed) him or herself. I've been surprised in my work how often the paramour actually is willing to testify. Usually this occurs if the paramour did not know that the person was married at the time of the affair, or they are no longer together and the breakup was particularly unpleasant.
Now, a paramour's testimony is not inherently considered reliable by the court. If the adulterer pleads the fifth, then there's a good chance the testimony will be accepted, but if the adulterer denies it and you get into a he said/she said, reaching the clear and convincing evidence standard of proof becomes difficult. Usually the paramour will have to have some real evidence, which can range from pictures and videos (yes, we have to deal with those when we work in family law... and no, it's not as "fun" as you might think - "horrifying" is probably closer to the word I use when it comes up) to descriptions of anatomy that become very uncomfortable for everyone in the courtroom. Nonetheless, if the paramour can back up the story, you've got a very strong case.
Obviously, there are obstacles here too. Unless the paramour did not know your spouse was married, the criminal code applies equally to the paramour and he or she can just as readily plead the fifth. Moreover, if the relationship is ongoing, the paramour might not be willing to testify truthfully. Even if the relationship is no longer ongoing, if they are still friendly, it can still be hard to get testimony. And that's all ignoring the fact that many paramours simply don't have the back-up to win a he said/she said (especially if it was a one night stand, instead of a prolonged affair).
Circumstantial Evidence
If you don't have a confession from the spouse or the paramour, you are left with circumstantial evidence. Many people admit defeat if they are at this point, but the reality is circumstantial evidence can still win. If criminals are convicted "beyond a reasonable doubt" on circumstantial evidence, why shouldn't you be able to prove adultery by "clear and convincing evidence" with only circumstantial evidence?
Obviously, some circumstantial evidence is more powerful than others. If your husband is named as the father on the birth certificate of another woman's baby, for example. I still remember a case where a client found out about her husband's affair when she was served as a family member (a valid form of process service in Virginia) with the other woman's petition for our client's husband to pay child support - so these things do happen. However, without a baby and a DNA test on your side, spending nights in a single bed hotel room together, being loud enough for the neighbors to hear, being seen in public holding hands, etc., can all serve as circumstantial evidence to build a case.
Of course, you might be thinking "how would I know?" Beyond credit card bills and phone records, a private investigator is frequently the best way to find out. A private investigator can follow your spouse and provide evidence of an affair, or, at least, names of people who could provide evidence. Private investigators are not cheap, and signal a severe breakdown in trust in a relationship, so you should always be cautious before hiring one, but if you think an affair is likely, that can be the way to go.
Conclusion
Adultery still plays a large role in family law, even in our current no-fault era. Proving adultery, however, is very difficult, and takes some level of expertise. If you are suspicious that your spouse is cheating, or you know your spouse has cheated, or you are being accused of cheating, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour.
Update: Some portions of this blog post are outdated due to changes in the law since this post was first made. Please see my 2020 relevant changes in the law post for details.
Introduction
Despite the onset of the availability of no-fault divorces, adultery remains a very important part of divorce law in Virginia. Adultery, for example, is the only divorce ground, fault or no-fault, for which a full divorce can be granted without any waiting period. Moreover, if adultery is proven, the person committing adultery is generally barred from receiving spousal support (although there can be exceptions to this), and can get pretty harshly penalized in the division of property. If it is the payor of spousal support who committed the adultery, that too can be a factor used by the court in determining how much spousal support to award. Finally, if children are involved, adultery can play a substantial role in the awarding of custody and visitation.
Proving adultery, however, remains challenging. Under Virginia law, adultery must be proven by "clear and convincing evidence," a standard tougher than your typical civil "preponderance" ("more likely than not"), although still not all the way to the criminal "beyond a reasonable doubt." Add to that the additional obstacles that are in place, and you've got adultery being nearly impossible to prove. Nearly impossible and impossible are not the same thing, however, and in this blog post I will discuss some of the obstacles to proving adultery that exist and some ways around them.
Confessions
Obviously, the fastest way to prove adultery is by having the adulterer confess. Note that this is actually not sufficient for getting a divorce granted on the basis of the adultery - the confession would need to be corroborated - but for other purposes it is. Also obviously, this is not an easy thing to do. If the person was willing to betray your trust, why would you expect him or her to be truthful just because they are under oath?
Moreover, in Virginia we have another problem. Despite practically no prosecutions in decades, we still have on the books Virginia Code Section 18.2-365 which makes adultery a class 4 misdemeanor. This means that, when pressed, an accused adulterer has the ability to plead the fifth. In most states that wouldn't be a huge problem since pleading the fifth only protects the plea from being used against you in a criminal case, not a civil case, but in Virginia we have Code Section 8.01-223.1 which forbids the assertion of any constitutional right, including pleading the fifth, from being used against you in even a civil case.
Now, there is a potential, but imperfect, way around the fifth amendment issue. Virginia Code Section 19.2-8 states that for all misdemeanors for which another time is not prescribed (which includes the adultery misdemeanor), there is a statute of limitations of one year. Because the fifth amendment only protects you from being compelled to give testimony about a crime for which you could actually be prosecuted, it would theoretically not survive a situation where the adultery occurred more than a year ago. Some judges have held, however, that if adultery is ongoing, then the adultery older than a year could be used as evidence of ongoing adultery, and thus would still be covered by the fifth amendment.
In short, it is unlikely you will be able to procure a confession by any means, forcing you to resort to other means.
Paramour
The next best way to prove adultery is confession from the paramour (the person with whom the adultery was committed) him or herself. I've been surprised in my work how often the paramour actually is willing to testify. Usually this occurs if the paramour did not know that the person was married at the time of the affair, or they are no longer together and the breakup was particularly unpleasant.
Now, a paramour's testimony is not inherently considered reliable by the court. If the adulterer pleads the fifth, then there's a good chance the testimony will be accepted, but if the adulterer denies it and you get into a he said/she said, reaching the clear and convincing evidence standard of proof becomes difficult. Usually the paramour will have to have some real evidence, which can range from pictures and videos (yes, we have to deal with those when we work in family law... and no, it's not as "fun" as you might think - "horrifying" is probably closer to the word I use when it comes up) to descriptions of anatomy that become very uncomfortable for everyone in the courtroom. Nonetheless, if the paramour can back up the story, you've got a very strong case.
Obviously, there are obstacles here too. Unless the paramour did not know your spouse was married, the criminal code applies equally to the paramour and he or she can just as readily plead the fifth. Moreover, if the relationship is ongoing, the paramour might not be willing to testify truthfully. Even if the relationship is no longer ongoing, if they are still friendly, it can still be hard to get testimony. And that's all ignoring the fact that many paramours simply don't have the back-up to win a he said/she said (especially if it was a one night stand, instead of a prolonged affair).
Circumstantial Evidence
If you don't have a confession from the spouse or the paramour, you are left with circumstantial evidence. Many people admit defeat if they are at this point, but the reality is circumstantial evidence can still win. If criminals are convicted "beyond a reasonable doubt" on circumstantial evidence, why shouldn't you be able to prove adultery by "clear and convincing evidence" with only circumstantial evidence?
Obviously, some circumstantial evidence is more powerful than others. If your husband is named as the father on the birth certificate of another woman's baby, for example. I still remember a case where a client found out about her husband's affair when she was served as a family member (a valid form of process service in Virginia) with the other woman's petition for our client's husband to pay child support - so these things do happen. However, without a baby and a DNA test on your side, spending nights in a single bed hotel room together, being loud enough for the neighbors to hear, being seen in public holding hands, etc., can all serve as circumstantial evidence to build a case.
Of course, you might be thinking "how would I know?" Beyond credit card bills and phone records, a private investigator is frequently the best way to find out. A private investigator can follow your spouse and provide evidence of an affair, or, at least, names of people who could provide evidence. Private investigators are not cheap, and signal a severe breakdown in trust in a relationship, so you should always be cautious before hiring one, but if you think an affair is likely, that can be the way to go.
Conclusion
Adultery still plays a large role in family law, even in our current no-fault era. Proving adultery, however, is very difficult, and takes some level of expertise. If you are suspicious that your spouse is cheating, or you know your spouse has cheated, or you are being accused of cheating, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour.
Thursday, May 22, 2014
Virginia Protective Orders and Restraining Orders - A Brief Overview
As always, before reading this post please review my disclaimer by clicking the link above or by clicking on this link. As always, any legal principles discussed here apply only to the Commonwealth of Virginia.
[Please note that as of July 1, 2016, some of the information in this post will be out of date due to changes in the law. For more information, click here.]
Introduction
Those of us who practice family law often find we have a lot to laugh about. We frequently find ourselves dealing with the absurd and the ridiculous - not too surprising, given the nature of what we do. Unfortunately, sometimes situations come up where there is nothing at all to laugh about - where serious abuse has occurred or is threatened, and action has to be taken to protect the well-being, or even the very lives of our clients and/or their children.
In Virginia, the means for this protection is a "protective order." A protective order is largely the same as what is commonly referred to in public usage as a "restraining order." It is an order from the court that bars the respondent (the one against whom the order is sought) from having contact with the petitioner (the one seeking the order), along with a good number of collateral rules. In today's post, I will cover the basics of protective orders in Virginia - but be aware there are many nuances that I simply cannot cover in one blog post.
When Can a Protective Order Be Sought?
So the first question to ask is under what circumstances can you actually get a protective order? Well, you can always get a protective order if you have been subjected by anyone to "an act of violence, force or threat," a broad definition that includes, but is not limited to, forceful detention, sexual assault, physical assault, stalking, or any criminal offense that injures you or puts you in reasonable fear of injury, sexual assault or death. So, stalking, threatening phone calls and e-mails, brandishing a weapon at you, etc., all qualify. The only catch is that you must seek the protective order "within a reasonable time" after the event that qualifies you for one occurs (so, not months later if no new attacks or threats have occurred in the meantime).
Where Do You Go To Get a Protective Order?
So, say you think you qualify for a protective order, where do you get one? Well, the simplest approach is to go down to your courthouse and go to the intake office of the correct court and file for one. If your allegations on their own are sufficient, you will likely get a preliminary protective order, which will take effect immediately, and stay in place until a hearing can be held on a full protective order. Said hearing is required to be held no more than 15 days after the issuance of a preliminary protective order.
Now, how do you know what the "correct court" is? Well, that depends on whether or not you are filing against a "family or household member." If you are, then you go to the Juvenile & Domestic Relations District Court. If you are not, then you go to the General District Court. A "family or household member" is defined as one of the following:
What Happens After the Petition is Filed?
Well, once your petition is filed and your preliminary protective order is issued (and I will say, if you don't have enough to get a preliminary protective order, it's probably not worth pursuing, since it is very unlikely you have enough to win a full protective order), both will be served on the respondent and a hearing will be held. The judge must decide if it is more likely or not that you have been subjected to "an act of violence, force or threat" (which is called "family abuse" if you are in the J&DR Court) within a reasonable time prior to filing. If the judge decides not, then the preliminary protective order is dissolved and your case is dismissed (although you have a right to an appeal and new trial in the Circuit Court).
If the judge decides you have proven your case, a full protective order can be issued, which will last for two years (although you can have it extended for another two if you file before the end of those two years and prove you are still reasonably fearful of the person).
What Does a Protective Order Do?
So, what does a protective order actually do? Well, in every case, it forbids unnecessary contact with you by the respondent, and it forbids the respondent from purchasing or transporting any firearm while the order is in effect (so if he already has a firearm, it must be kept at home at all times) - and requires him to surrender any concealed carry permit he may have. The court has the power to do a large number of other things as well. No matter what the court can also, if it so chooses:
Enforcement of Protective Order
So, after you have a protective order, the question becomes "so what?" Specifically, what makes it more than just a piece of paper? After all, when someone violates a court order, it takes a long time, sometimes months, to get a court hearing to hold them in contempt. So, what good does a Protective Order do?
Well, a Protective Order is different from other court orders - you don't have to follow normal contempt proceedings. This is because violation of a protective order is, itself, a criminal act. If you see the respondent within the distance he's allowed, you can call the police right away and they will arrest him. No further threats or action by him is necessary. That is the value of a protective order.
Even more importantly, protective orders are uploaded into a database and enforced nationwide. Every state has a criminal statute prohibiting violation of a protective order, even another state's protective orders, so if you are in Maryland, and he shows up, you can call the police there and your order will be enforced.
Conclusion
The reality of practicing family law is that sometimes we find ourselves dealing with very unpleasant situations - cases of actual abuse, or, in some ways even worse, completely fabricated abuse. The protective order is a very valuable tool to protect someone who is a victim of abuse, but is also a bit of a whirlwind of a process, and representation by an attorney could be the difference between success and failure. If you wish to prosecute a protective order, or defend against one, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
[Please note that as of July 1, 2016, some of the information in this post will be out of date due to changes in the law. For more information, click here.]
Introduction
Those of us who practice family law often find we have a lot to laugh about. We frequently find ourselves dealing with the absurd and the ridiculous - not too surprising, given the nature of what we do. Unfortunately, sometimes situations come up where there is nothing at all to laugh about - where serious abuse has occurred or is threatened, and action has to be taken to protect the well-being, or even the very lives of our clients and/or their children.
In Virginia, the means for this protection is a "protective order." A protective order is largely the same as what is commonly referred to in public usage as a "restraining order." It is an order from the court that bars the respondent (the one against whom the order is sought) from having contact with the petitioner (the one seeking the order), along with a good number of collateral rules. In today's post, I will cover the basics of protective orders in Virginia - but be aware there are many nuances that I simply cannot cover in one blog post.
When Can a Protective Order Be Sought?
So the first question to ask is under what circumstances can you actually get a protective order? Well, you can always get a protective order if you have been subjected by anyone to "an act of violence, force or threat," a broad definition that includes, but is not limited to, forceful detention, sexual assault, physical assault, stalking, or any criminal offense that injures you or puts you in reasonable fear of injury, sexual assault or death. So, stalking, threatening phone calls and e-mails, brandishing a weapon at you, etc., all qualify. The only catch is that you must seek the protective order "within a reasonable time" after the event that qualifies you for one occurs (so, not months later if no new attacks or threats have occurred in the meantime).
Where Do You Go To Get a Protective Order?
So, say you think you qualify for a protective order, where do you get one? Well, the simplest approach is to go down to your courthouse and go to the intake office of the correct court and file for one. If your allegations on their own are sufficient, you will likely get a preliminary protective order, which will take effect immediately, and stay in place until a hearing can be held on a full protective order. Said hearing is required to be held no more than 15 days after the issuance of a preliminary protective order.
Now, how do you know what the "correct court" is? Well, that depends on whether or not you are filing against a "family or household member." If you are, then you go to the Juvenile & Domestic Relations District Court. If you are not, then you go to the General District Court. A "family or household member" is defined as one of the following:
- Your spouse
- Your ex-spouse
- Your parents, step-parents, children, step-children, siblings, half siblings, grandparents and grandchildren
- Your parents-in-law, children-in-law, and siblings-in-law, only if they live in the same house as you
- The other parent of any of your children, whether or not you were ever married to that person
- Anyone who "cohabits" with you, or has "cohabited" with you within the past 12 months, and any of their children if those children simultaneously lived with you
What Happens After the Petition is Filed?
Well, once your petition is filed and your preliminary protective order is issued (and I will say, if you don't have enough to get a preliminary protective order, it's probably not worth pursuing, since it is very unlikely you have enough to win a full protective order), both will be served on the respondent and a hearing will be held. The judge must decide if it is more likely or not that you have been subjected to "an act of violence, force or threat" (which is called "family abuse" if you are in the J&DR Court) within a reasonable time prior to filing. If the judge decides not, then the preliminary protective order is dissolved and your case is dismissed (although you have a right to an appeal and new trial in the Circuit Court).
If the judge decides you have proven your case, a full protective order can be issued, which will last for two years (although you can have it extended for another two if you file before the end of those two years and prove you are still reasonably fearful of the person).
What Does a Protective Order Do?
So, what does a protective order actually do? Well, in every case, it forbids unnecessary contact with you by the respondent, and it forbids the respondent from purchasing or transporting any firearm while the order is in effect (so if he already has a firearm, it must be kept at home at all times) - and requires him to surrender any concealed carry permit he may have. The court has the power to do a large number of other things as well. No matter what the court can also, if it so chooses:
- Define the only circumstances in which contact may be "necessary"
- Forbid the respondent from coming within a certain distance of the petitioner
- Also apply the same contact restrictions to any other members of the petitioner's household (forbidding the respondent from contacting them as well)
- Make additional orders that the court thinks is necessary to protect the petitioner and his family members
- Grant the petitioner exclusive use and possession of the joint residence
- Require the respondent to pay all utility bills for the joint residence
- Grant the petitioner exclusive use of a jointly owned vehicle
- Require the respondent to pay to house the petitioner in a new residence
- Award the petitioner temporary legal and/or physical custody of any children
- Award the petitioner temporary child support and/or spousal support
Enforcement of Protective Order
So, after you have a protective order, the question becomes "so what?" Specifically, what makes it more than just a piece of paper? After all, when someone violates a court order, it takes a long time, sometimes months, to get a court hearing to hold them in contempt. So, what good does a Protective Order do?
Well, a Protective Order is different from other court orders - you don't have to follow normal contempt proceedings. This is because violation of a protective order is, itself, a criminal act. If you see the respondent within the distance he's allowed, you can call the police right away and they will arrest him. No further threats or action by him is necessary. That is the value of a protective order.
Even more importantly, protective orders are uploaded into a database and enforced nationwide. Every state has a criminal statute prohibiting violation of a protective order, even another state's protective orders, so if you are in Maryland, and he shows up, you can call the police there and your order will be enforced.
Conclusion
The reality of practicing family law is that sometimes we find ourselves dealing with very unpleasant situations - cases of actual abuse, or, in some ways even worse, completely fabricated abuse. The protective order is a very valuable tool to protect someone who is a victim of abuse, but is also a bit of a whirlwind of a process, and representation by an attorney could be the difference between success and failure. If you wish to prosecute a protective order, or defend against one, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
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