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Saturday, January 31, 2015

New Supreme Court case allows officers to make a mistake of law -- but still have a valid stop.

Is the Supreme Court decision in HEIEN v. NORTH CAROLINA (574 U.S. ___ (2014), Case 13-604) really new law?


There has been a recent flurry of debate regarding the Supreme Court decision in Heien. This case dealt with two men who were stopped by a police officer while driving in North Carolina. Heien was the owner of the car. The officer stopped the vehicle because it had a burned out taillight. The officer issued a warning only, but was suspicious of the two men's conduct. He asked, and received permission, to search the car. Therein he found cocaine. The two were convicted to transporting cocaine across state lines. While this seems to be a relatively straight forward case, the rub comes in the North Carolinian law. On the books, the law does not require a driver to have two taillights working. In fact, the warning issued by the officer was incorrect, and he should not have stopped the vehicle for this "defect." The appeal to the Supreme Court asked whether an arrest stemming from an officer's stop based on an incorrect understanding of the law may still be considered valid. The Court said, "Yes."

Folks, this is not new law. While the Court made a point of indicating no similar cases had been so decided, in a landslide ruling (8 justices sided with the majority opinion), the Court reaffirmed the common-law principal of "reasonably articulable suspicion." According to Cornell Law School, reasonable articulable suspicion is defined as:
Reasonable [articulable] suspicion is sufficient to justify brief stops and detentions, but not enough to justify a full search. When determining reasonable suspicion, courts consider the events leading up to the brief stop and a decide whether these facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion.

Usually, this is the standard used by beat cops and officers on patrol; it is not a common concept in traffic offenses. However, it appears the Supreme Court extended the concept to cars. Essentially, the police officer only needs to have a reasonable belief that something untoward is happening. In this instant case, the officer believed the vehicle was unsafe based on the burned out light. A stop, under the mere guise of safety, would be appropriate, and certainly, his suspicion can be stated clearly.

However, there is an interesting corollary that defense attorneys should explore. If the Supreme Court found that a mistake of law was not grounds to disqualify a stop; could you use mistake of law (understanding thereof) as a defense to intent? It would seem what is good for the goose should be good for the gander.

Do you have a question about criminal, immigration, or other law? Give us a call! We'd be glad to help. You may reach us at 703-402-2723 or 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Friday, January 16, 2015

President Obama's Executive Action...illegal? I think not!

In an interesting twist to the ongoing debate about immigration, a Federal Court in PA held that President's Obama's executive action on immigration -- namely, shifting enforcement priorities and granting defacto status to illegal aliens -- including work authorization -- is illegal.
3. Conclusion
President Obama's unilateral legislative action violates the separation of powers provided for in the United States Constitution as well as the Take Care Clause, and therefore, is unconstitutional. (Case: 14-0180, Western District PA, Judge Arthur Schwab, 16 December 2014).

I tend to think this is a rather dim and narrow view of the President's ability to direct his agencies in the prosecution of their duties. However, it is an interesting case. See: PA Court challenges the President's immigration reform.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Wells, Esq.

Setting up the jury -- jury operations in DC, and tactics at the Bar

Jury Management = Trial Success


Beyond closing arguments, my trial experience has taught me that jury instructions and voire dire are probably the most important aspect of civil and criminal trials in state and federal courts. This stems from the simple fact that, the more complex a case, the less likely a jury member will be to remember the information presented. However, the more inclined a juror is to listen to one side or the other, the more likely that juror will be to vote in favor of the preferenced party.

How do you manage the voire dire process? This article is specific to the District of Columbia Court system. It is based on voire dire from the Bench - that is, the judge asks the jury "yes/no" questions based on a predefined set of questions. Prior to trial, it is the duty of the defense (plaintiff and prosecutor, too!) to submit proposed jury questions to the judge for consideration. Generally, the question must fit within the frame work of the general questions asked in Superior Court.

Sample Superior Court Civil Jury Instructions (DC)

  • 1. Do you know or recognize any of the lawyers, the parties, the witnesses, the judge, or court staff?
  • 2. Do you know anything about this particular case?
  • 3. Do you or any immediate family member live or work near or have any special familiarity with the Dunkin Donuts at 1101 4th Street NW or the immediate area where this case is alleged to have occurred?
  • 4. Do you know any other member of the jury panel?
  • 5. Have you ever previously served on a jury in any type of case?
  • 6. Have you ever been a party to or involved in a lawsuit?
  • 7. Have you ever testified as a witness in any trial?
  • 8. Have you or any immediate family member ever studied or been employed in the legal field?
  • 9. Have you or any immediate family member ever been trained or employed in any type of health care services?
  • 10. Have you or any immediate family member ever worked in the area of claims adjustment?
  • 11. Have you or any immediate family member ever witnessed, been involved in, or sustained personal injuries in a slip and fall?
  • 12. Have you or an immediate family member ever served on a corporate board?
  • 13. Have you or any immediate family member ever made a claim for personal injuries; OR filed, defended, or been a witness in a lawsuit involving a claim for personal injuries?
  • 14. Do you have strong feelings about personal injury cases and lawsuits in general that might affect your judgment in this case?
  • 15. Do you hold any convictions or beliefs concerning lawyers, judges, or the legal system that would impair your ability to fairly decide this case?
  • 16. Would you be unable to follow the Court’s instructions or render judgment in this case due to religious, moral, political, or philosophical beliefs?
  • 17. Do you have any type of personal health problem or are you taking medication that would make it difficult to serve on the jury?
  • 18. This trial will take approximately 4 days plus deliberations. Do you have important and/or pressing time commitments/conflicts that would make it difficulHave you or anyone in your family ever been “labeled” in an unpopular way?t for you to serve on this jury?
  • 19. Is there any other reason you could not be fair and impartial?

Other common jury instructions I use in civil trials:

Contract
(NOTE: I do not submit these questions in advance, as DC does not allow open ended jury questions. Instead, ask these when you are standing at the bench and the judge asks if there is anything else you would like inquire about)
  • Tell me a little about the neighborhood you live in.
  • What type of work do you do?
  • Do you supervise other people? How many” How do you feel about supervising other people?
  • Does anyone have current work related projects that are going to occupy your mind to the extent that you wouldn’t be able to concentrate on the evidence that will be presented in this trial?
  • Does your spouse work outside the home?
  • How much TV do you watch? What are your favorite shows?
  • Have you or anyone in your family ever been “labeled” in an unpopular way?

Vary the questions above based on whether the juror answered "yes" to any of the generic questions proposed by the judge. If the juror answered "yes" to none, you must ask further questions to ensure you can form an opinion about the juror!

Remember, in DC, there are no jury questionnaires. Although, you may ask for an exception to this rule in felony or capital cases. See Rule 24 of the Criminal Rules of the District of Columbia.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Wells, Esq.