20 February 2012

Objection Cheat Sheet

Sometimes you just run into something cool that you have to share. Mark walked past the prosecutor's desk and saw a cheat sheet for young prosecutors. I looked at it and thought maybe we should tape this to the desks we have in various courtrooms. That way we could all look down and scan quickly for the proper objection or maybe throw dice to choose.

Of course, we'd have to change some things. Since we don't yet have rules of evidence there is no "403" in Virginia, we'd have to replace it with "Overly Prejudicial." And, I'm pretty sure "Side Bar" isn't an objection (at least it's not in Virginia); so, I'd probably take it off the chart. I've only once heard a narrative objection, so I wouldn't put it in such a prominent place. Finally, I can't say I'm certain what "Improper Voir Dire: Expert Opinion" means exactly. Everything that I can think of falls under "Improper Commitment" (asking Jury to prejudge evidence), "Going Into the Facts of the Case", and "Argument."

Of course, now that the General Assembly has made certain that it has the final say on evidentiary rules, it looks like we are going to have brand new Rules of Evidence in Virginia (say goodbye to common law evidence and our friend Friend). So it might not just be brand new lawyers who need a sheet to tell them what objections are appropriate. Soon, everybody in Virginia will need an evidentiary cheat sheet.

13 February 2012

Castle Doctrine

The General Assembly has tried to make a statutory "castle doctrine" part of Virginian law for several years now. I discussed a previous version of this back in 2010. The difference between then and now is that it appears the current version will be enacted.

The House of Delegates Bill (HB48) mirrors the Senate version of the bill (SB4):
§ 18.2-91.1. Use of physical force, including deadly force, against an intruder; justified self-defense. 
Any person who lawfully occupies a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when (i) the other person has unlawfully entered the dwelling and has committed an overt act toward the occupant or another person in the dwelling and (ii) the occupant reasonably believes he or another person in the dwelling is in imminent danger of bodily injury.
It fails at some of the same things which I thought were shortcomings in the version I discussed previously.

(1)  "Injury" is a poor choice of words. It already has the specific meaning under Virginia law of serious internal bodily damage. This is as compared to "wound", which means bodily damage which breaks the skin, and "harm", which is less well defined but seems to mean causing pain and non-serious bodily damage. The General Assembly could do better to state "wounding or injury." It could also write a specific definition into the statute.  As it stands, bodily injury cannot mean only what the term of art "injury" has meant under current interpretation because it would be ridiculous to restrict this statute to bodily injuries that did not break the skin. This will mean that the meaning will be undefined and we get to spend time arguing over whether a punch in the face justifies deadly force under this statute.

(2)  I wish it stated "feloniously entered" instead of "unlawfully entered." I have visions of every yahoo who has his fight with his neighbor spill into his house or who gets into a fight with his cousin in the kitchen claiming he has the right to use deadly force because "He was trespassing in my house."

(3)  I wish there were presumptions in this that stated that entry into a residence at night (burglary), while the residents are asleep does not require an overt act.

All-in-all, I don't expect this statute to change much of anything. Virginia isn't the most forgiving Commonwealth when it comes to somebody who breaks into someone else's house. I can't remember any legitimate cases wherein I've seen someone prosecuted - or even sued - for taking care of an intruder in his house.

12 February 2012

Lilyhammer: An American Mobster in Norway

5 Second Review:  When an American mobster is hidden in Norway everything will go well, right?

30 Second Review:  An American mobster turns on his fellows (well, they tried to kill him first) and his only condition is that after he testifies he will be resettled in Lillehammer, Norway. Will he take over the whole country or just Lillehammer?

In Depth:  When the new boss tries to kill him, a high ranking mobster turns government witness on condition that he be resettled in Lillehammer, Norway.  He shows up in Norway where the government has given him a tiny row house, an electric car, and an invalid driver's license. He runs face first into an amazing level of bureaucracy and small town police. Being a mobster, he doesn't just sit around and take it; he starts to bend the entire system to his will.

There's a good bit of humor here which starts from goofiness surrounding the interaction between an Italian-American mobster and Norwegian society. However, there's also a dark humor which surfaces whenever someone gets in the way and when the Mob figures out where their turncoat is and sends a couple guys to take care of the situation.

Cons: This is not a show you can listen too in the background while you are doing something else. Unless you speak both Norwegian and English you have to read the captions at the bottom. I've watched all but one of the episodes and Norwegian may have replaced Arabic as my second best language. Also, this is only on Netflix, but everybody has Netflix by now so it shouldn't be too difficult to find.

08 February 2012

Porn doesn't "promote the Progress of Science and useful Arts"

Interesting. After years of copyright fighting over people copying videos and songs on the internet someone actually went back to the beginning and looked at what the U.S. Constitution has to say.
The Congress shall have the Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
The question then becomes, what is a "useful Art?" I cannot claim expertise in this area of the law, but it does seem to me that useful arts would be things such as mechanics, blacksmithing, sewing, etc.  This would exclude things such as acting, singing, dancing which are not meant to provide a product for further use, but to provide entertainment in the moment. It's an intriguing argument which seems to have teeth. Of course, there are a lot of arguments which seem to have teeth at first glance, yet are contrary to long established interpretation by the courts.

Of course, the woman in this case is accused of violating copyright regarding porn, which technically could be related to a useful art (sex) meant to provide a product (child). I'd love to see how that argument played out in court.

05 February 2012

Change the Court of Appeals - Don't Delete It

Senator Creigh Deeds introduced a bill calling for the elimination of the Virginia Court of Appeals. Per the VLW blog Senator Deeds "said few of the Court of Appeals judges had experience in criminal, domestic or workers compensation practice before going on the bench. 'We’ve used the court as a place to reward folks.'" There's nothing terribly shocking about that. The old chestnut in Virginia runs something like: "How do you become a judge in Virginia? You grow up with a friend who becomes a Delegate." For those of you from outside the Commonwealth, the kernel of truth in that comes from the fact that in Virginia the General Assembly decides who will be judges in Virginia. Somehow, I just don't see the Court of Appeals going away because of cronyism. If it did, how would cronies be rewarded?

However, the Court of Appeals could use some direction from the General Assembly in order to make it a better institution.

1) Require all Appellate Courts Virginian to have a strong presumption for the addressing the actual issue presented instead of dismissing cases because of errors in the filing. The appellate courts in Virginia have long had the reputation for denying appeals on grounds other than substantive. This is unjust because it denies the appellant his day in court because of error by the appellant's attorney. I have previously suggested a statute meant to deal with this and answered questions concerning my position.

2) Mandate that all criminal conviction appeals must be accepted for a three judge decision by the Court of Appeals. However, establish a presumption against oral argument.

There's really no reason for oral arguments except as an ego boost for attorneys and judges. If all but extraordinary cases were proceeded upon via court filings it would be more efficient.

There will be those who argue that mandating that all criminal convictions be accepted will bog down the Court. It will probably add some work to the Court. However, all the paperwork and fuss that now goes on with petitions for appeals will go away and this combined with doing away with almost all oral argument would make things close to even.

3) Set a specific format for appellate opinions. This should be something like

A. Error accepted for argument. List it exactly as accepted without comment.

B. Holding. No more than one paragraph.

C. Disposition. No more than one paragraph.

D. Facts. No more than 1 page.

E. Legal Rationale. No more than 4 pages. Most well written decisions follow a format similar to this already. Yet, there are scads of opinions where the judge or justice just plunges into the facts and analysis and doesn't tell you what the actual holding is until 17 pages later.

A set format would make it easy to quickly understand a case's holding and those of us in the middle of a trial need to quickly understand a case's holding.

The page limitation is something I wish that legislatures everywhere would impose on appellate courts. Decisions get filled with tons of irrelevant boilerplate and footnotes and circular reasoning going round and round and round. If the appellate courts were forced into brevity, and God is merciful, a lot of that would be shorn away. Look back at opinions from 100 years back or further. They were able to use two or three pages to be less obtuse and confusing than our current appellate courts are in fifteen. I am confident our current judges are capable of writing concise, well written opinions.


These three changes could be written into law by the General Assembly in order to make the Virginia Court of Appeals a much better court. The first two would make it more just. The third would make it easier to actually use its opinions.

Of course, there would be myriad objections to these changes, but they would all basically boil down to (a) "Wah! You're going to make us work harder!" and (b) "Change how we do things?!?! OMG! It's the end of the world!!!" I know Virginia is resistant to any change, but change for the better is a good thing.

Now on to some less important things that could be changed.


4) Assign areas of the Commonwealth from which each Court of Appeals judge must be appointed. Whenever a position opens up on the Court of Appeals candidates pop up from all over the Commonwealth. The obvious danger here is that the large urban areas can soak up all the slots and leave the more remote areas unrepresented on the Court of Appeals.

5) Mandate that Court of Appeals judges must have spent at least three years as a defense attorney and three years as a prosecutor. Yes, I know this is a pipe dream, but it would be really nice if appellate judges charged with deciding most criminal law issues understood both sides. I don't care how much time someone's spent as a trial judge, prosecutor, or defense attorney, without having worked on both sides he does not understand the system in its entirety. Ideally, the Court of Appeals judges should have previously been a defense attorney, a prosecutor, and a trial judge, but I think that the marginalization of the trial judge in the era of guidelines, plea agreements, and mandatory sentences probably mean that serving as a trial judge is not as important a prerequisite as it should have been in the past.

6) Require all decisions, published or unpublished (including denials of petitions) to have a judge's name on them; do not allow any court except the Supreme Court of Virginia to use "per curiam." Admittedly, this is a pet peeve of mine. Back when I was doing defense work, the use of "per curiam" by the Court of Appeals was adopted on denials of petitions for appeals (previously they had been each attributed to a particular judge). I wouldn't have wanted my name on the vast majority of denials I got either. 80% of the denials were a page or two of boilerplate with a paragraph or two that were tailored for the petition I wrote; some displayed such a disconnect that I wondered if the argument I made had been read or understood. It seemed obvious these were being written by the clerks and the "per curiam" label wasn't being used as intended (the answer to this issue is so obvious that all the judges agree it is X), but as a way for individual judges to avoid having to put their names on these denials. Of course, of all the issues I write about today, this is the one of least importance. It just annoyed me.

04 February 2012


There's no way I would have thought my German Shepherd, Holly, could have had so many puppies. I think she's a little overwhelmed herself.