So, I'm trying to work my way through the new laws which have been passed by our General Assembly and signed by the Governor. These are always interesting because you get to see what has caught the attention of the law makers and you learn about things you didn't even know were in the law. So far, there does not seem to be anything too incredibly groundbreaking this year.

Probably, the biggest change I've run across is the fact that Virginia is going to have Rules of Evidence promulgated by the Virginia Supreme Court as of 01 July 2012 (HB-101). The claim is that these are merely codifying existing common law rules, but I've glanced over them and there appear to be changes to long held Virginia common law rules.

There are, of course, other important changes in the law. For instance, the County Treasurer is now allowed to carry a firearm into the courthouse (HB-288) and dogs can now be trained to hunt bear from 4 a.m. to 10 p.m. during bear hound training season - as long as no bear is captured or killed (HB-95). Because that was a law which desperately needed passing.

When I finish all my summaries of all the new laws I'll be sure to post them.

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Posted Originally at CrimLaw - http://crimlaw.blogspot.com

For those of you who believed that YouTube exists only to show officers behaving badly, here are three proving it's not (entirely) so.

1. The Maine State Trooper: This one's been around the web for years. This Trooper endures all sorts of abuse from the driver and his reaction? He just slowly, but surely tells the man everything he's supposed to. Slowly.



2. Chat 'em Up: There's nothing too spectacular about this one. Two protesters were pretty much being ignored until this state police officer came out to check on someone wearing an orange jump suit. The protesters seem impressed.



3. Open Carry: In this case it's fairly obvious that the guy walking around openly carrying a firearm is hoping to provoke something. The officer comes up and starts a typical safety check (you have a right to open carry - conversely, other citizens have a right to be worried when they see a guy walking down the street armed), but he quickly cottons to what's going on and turns it. By the end of the video he turns right into the camera, makes sure he's centered, and announces his name, badge number, and department.

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Posted Originally at CrimLaw - http://crimlaw.blogspot.com

Oops, ummm, Officer I was just, ummm . . .

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Posted Originally at CrimLaw - http://crimlaw.blogspot.com

What do you do when an airline breaks your expensive guitar and refuses, for over nine months, to make you whole? You do this:



Over 11 million hits and climbing.

via Volokh Conspiracy

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Posted Originally at CrimLaw - http://crimlaw.blogspot.com

Attorney: Judge, I don't want to beat a dead horse . . ."

Judge: "Well, somebody has to."

Attorney: "Okay, I guess there are just some horses that need to get beat, even post mortem."

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Posted Originally at CrimLaw - http://crimlaw.blogspot.com

Via SL&P, I came across a post by James Dole in which he proposes that prosecutors be split into two groups with different functions.

I tripped across this hypothesis on the internet (it was framed for the MPC) and thought I'd address it under Virginia law:
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A walks into the room knowing B has a gun on him, in fact, A also has a gun, but he wants to shoot B and get away with it in self-defense.

A provokes B by taunting him with vulgar words with the intent that B shoot him, miss, and then A would be able to shoot back in self-defense.

B shoots and misses. He has more bullets and A knows.

A shoots back and misses. He has more bullets and B knows.

B shoots back killing A. B claims self-defense.

What result?

The Dillema: B’s initial shooting wasn’t justified, because he had no indication that A was using deadly force.

But for A’s purposes if he would have been the killer, he was the provoker, so no self-defense.

Does the fact that A was the provoker allow B to use self-defense as a defense, because A was the initial aggressor? Or looking at him, his shooting wasn’t justified, he was the initial aggressor? Can we have 2 initial aggressors? How does this pan out?
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Under Virginia law:

Assuming, as the problem seems to, that A did not have his firearm in plain view or somewhere so that it was obvious, B has no right to shoot at A.

A has contributed to causing the problem. Under Virginia law, this means that he has a duty to retreat. Only if he retreats to the point that he cannot retreat any further is his defense of self "excusable." If A had killed B without retreating, he would be on the hook for a homicide conviction; the only question would be the degree. Assuming there is no evidence of A's intent, this would probably result in a voluntary manslaughter conviction. Of course, if there is evidence that A went to the residence with the intent to kill B while pretending to act in self defense then there is neither "excusable" (partially caused by victim; duty to retreat) or "justified" (victim entirely not at fault; no duty to retreat) self defense. This would most likely be Murder in the Second Degree. However, I am, again as the problem seems to, assuming this evidence does not exist.

B is definitely guilty of a homicide. He shot first with only verbal provocation. The fact that he was a bad shot and missed the first time does not absolve him. It would be a jury question as to whether he was guilty of Second Degree Murder (with malice aforethought) or Voluntary Manslaughter (heat of passion). I lean toward Second Degree Murder because the B already had the firearm out and aimed at A; it's hard to argue that he did that in heat of passion (voluntary manslaughter) instead of with malice aforethought (murder in the second degree).

That's how I see this panning out under Virginia law. Of course, we never adopted the MPC and have stuck by the common law (sort of). Does anyone see different results in other jurisdictions?

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Posted Originally at CrimLaw - http://crimlaw.blogspot.com

Since the the creation of the iPad companies have been trying to make it work in the court room. In particular, we want something that will work in jury trials. JuryStar is a more recent competitor in this space.

In Virginia, we have a two tier trial court system. The lower trial courts are General District Court (GDC) and Juvenile and Domestic Relations Court (JDR). The upper trial court is Circuit Court. Both the GDC and JDR are constitutionally defective. Their primary flaws are that the lower courts don't have a court reporter and do not have an option for a jury trial. Consequently, everyone convicted in the lower courts has an absolute right to appeal to the Circuit Court and get a brand new trial (trial de novo).

The lower courts are also where preliminary hearings are held. Everyone who is arrested in Virginia is entitled to a preliminary hearing by statute. This entitlement is tenuous since the prosecution can drop a case prior to the preliminary hearing and thereafter indict the defendant. This allows prosecutors to get around the hearing and there is no remedy for it under Virginia law. See Kolesnikoff v. Commonwealth, JUL09, VaApp No. 3202-06-4. Nevertheless, preliminary hearings are quite often held because the prosecution does not want the defendant released from jail (because his charge is dropped until the grand jury next meets) and/or because it often serves as a good reality check for the defendant.

Here we get to something of a tricky point. There is no court reporter in GDC or JDR so there is no record of the preliminary hearing. There are two possible solutions to this. The first is provided under § 16.1-69.35:2 - "Proceedings in a general district court may be tape recorded by a party or his counsel." The second is under § 19.2-185 - "The judge of the court of record to which the case may be or has been certified may order the testimony of the witnesses at the preliminary hearing to be reduced to writing." Of course, under this statute the defense counsel must go to the judge in the Circuit Court and get an order requiring a court reporter to be in GDC or JDR before the preliminary hearing or there won't be recorded testimony to be transcribed. Circuit Courts in some jurisdictions have, in the past, pretty much refused to order court reporters for anything less than murder or rape; this is why I always had a tape recorder with me while I was a defense attorney. In other jurisdictions Circuit Courts have treated the request for a court reporter in a preliminary hearing as a pro forma matter and signed off on everything put in front of them.

A couple years ago the Virginia Court of Appeals put another layer upon this in Asfaw v. Commonwealth, APR10, VaApp No. 2496-08-4. Here's my summation of the case.
(1) There are two factors to be considered in deciding whether an indigent defendant is entitled to a state financed transcript of a preliminary hearing: (a) the strategic value the transcript provides to the defense, and (b) the availability of alternative devices that would fulfill the same functions as a transcript. (2) The strategic value of a transcript from a prior hearing can be presumed because of its potential use in impeachment. (3) All an indigent defendant has to assert is a reasonable basis for believing the transcript would (a) serve as a valuable discovery device in preparation for trial or (b) as a tool at trial itself for the impeachment of prosecution witnesses. (4) An indigent defendant's right to a transcript is waived if it is asserted so late that it would disrupt a scheduled trial. (5) When a transcript is requested so that the defense does not have to have a continuance to get it or cost the State extra money for expedited transcription the defendant has not waived his right to a transcript.In Asfaw there had been a court reporter at the preliminary hearing so the argument was entirely about whether the judge should have given the defendant a copy of the transcript. However, the court founded its decision in equal protection principles, so it could apply to situations wider than itself. On the other hand, it could also be a very limited decision. After all, there is clearly a statutory right for the defense to record any hearing and that is an "alternative device which would fulfill the same functions as a transcript." After all, wouldn't it be better to play a recording of the defendant's own voice to impeach him rather than introducing page 27 of the transcript into evidence?

I've been asked whether I think Asfaw means that an indigent defendant is entitled to a transcript of testimony during a misdemeanor trial in lower court when the case has been appealed for a de novo trial in circuit court. It's a sensible question since Asfaw seems open to wider application. However, I must say that I don't see the courts applying the case in this manner. To begin with, the circuit court judge has not been given the power by the General Assembly to give the indigent defendant a transcript of a misdemeanor trial in lower court. As we all know from watching the ability of courts to deal with cases equitably thru taking cases under advisement being shorn away, unless the General Assembly has written a statute specifically allowing the judge to do something, he cannot. The argument against this would be that the requirement of a transcript is constitutional and therefore trumps Virginia law. I think this fails because of the statute allowing defendants and their attorneys to record the trials in lower courts by themselves.

I think Asfaw might be an orphan case. The Court of Appeals saw a case wherein the transcript was easily available and denied for no particular reason. It slapped down the judge for arbitrarily denying the transcript to the indigent defendant. Notably, it has not been mentioned in any case since it was issued. While it has only been a couple years, when a case is issued and no other case mentions it that often indicates that the case will be limited to its fact pattern.

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Posted Originally at CrimLaw - http://crimlaw.blogspot.com

Pitcairn County: Suppresion Hearing
Sometimes it is interesting to see different perceptions of reality clash in the courtroom. Big City Attorney has traveled several hours from Metropolis to the the County of Pitcairn.