Sunday, November 23, 2014

Does Massachusetts have a remedy for revenge porn?

For many people, sending a naked picture of yourself to someone is an act of commitment. It shows the degree of affection and trust by sending a picture showing oneself in their most vulnerable exposure. Yet this act of trust can become a nightmare if this picture is posted on the internet. A posting of this nature is called “revenge porn.” It frequently occurs when the relationship terminates. Not only can a posting of this nature cause emotional distress, it can also cause financial harm as it can effect employment and future relationships. Wikipedia definesrevenge porn as sexually explicit media that is publicly shared online without the consent of the pictured individual.” It includes selfies showing a person naked as well as explicit pictures of sexual conduct.

The best way to prevent revenge porn is to not create explicit pictures of yourself. If the relationship that is terminating is a marriage, then the parties may be able to obtain a court order prohibiting distribution of pictures. I have named such orders as “sexting restraining orders” and routinely include such language in my divorces. However, most people who are concerned with revenge porn are in the horrible position of trying to take action once a posting has occurred.

Some states have created laws that impose criminal penalties for revenge porn. Massachusetts has not created any law, civil or criminal, that specifically addresses revenge porn. Instead, a victim of revenge porn, must look to other remedies after their picture appears on the internet.

A civil lawsuit against the person who posted the pictures for damages can be filed. Such a suit can seek damages for intentional infliction of emotional distress or violation of a right of privacy. However, such a lawsuit can only result in a money award against the person who posted the information. If that person has no assets or files bankruptcy, the judgment may result in no recovery of money. A better way to proceed is to sue the web site that hosts the offending pictures.

Congress created broad protections for web site operators in the Communications Decency Act. However, web site operators are not protected against copyright violations. Under federal copyright law, a picture is the property of the person who created or took the picture. A selfie remains the property of the person who took the picture and not the person who received the picture in a text message. If a selfie appears on a web site, the web site operator can be sued to remove the picture as a violation of copyright law. Unless new laws are passed, this may be the only way to force the removal of the picture.

If you want to prevent revenge porn or find yourself the victim of revenge porn you should consult a lawyer as soon as possible to limit the damage.





Saturday, November 1, 2014

In Massachusetts, the odor of marijuana is the same as the odor of alcohol.

In 2008 Massachusetts decriminalized possession of one ounce or less of marijuana. Possession of more than one ounce is still a crime. Needless to say, it is not an unusual occurance for police to encounter automobiles with the smell of marijuana. In the past, the smell of marijuana was basis for a full search of the automobile and the occupants.

Two cases in Massachusetts make it clear that the odor of marijuana, burnt or fresh, by itself, does not constitute probable cause to search the car. In Commonwealth v.Cruz, 459 Mass. 459 (2011), the court held that the odor of burnt marijuana could not be the basis of a search of a car. More recently, in Commonwealth v. Craan, 469Mass. 24 (2014), the court reached the same result for fresh marijuana. Since possession of less than an ounce of marijuana is not a crime and smoking marijuana is not a crime, then the odor of marijuana does not mean that a crime is or has been committed under state law. Mere possession of small amounts of marijuana is still a federal crime but Massachusetts police officers are not permitted to search for evidence of this federal crime since the equivalent crime was decriminalized in Massachusetts.

Both decisions indicate that the smell of marjuana, by itself, does not mean that a crime has been committed. However, operating a motor vehicle under the influence of marijuana is a crime in Massachusetts just as operating under the influence of alcohol is a crime. The odor of marijuana is now equivalent to the odor of alcohol.

If a police officer stops a car and smells alcohol, this does not mean a crime has been committed. However, if the police officer detects symptoms of impairment along with the odor of alcohol, then the police officer may have probable cause to believe that a crime has been committed. If a driver has slurred speech, glassy eyes, exhibited irregular driving, or other symptoms of impairment, coupled with the odor of alchol or marijuana, then the officer may have reason to believe that the crime of operating under the influence occurred. In Massachusetts the odor or alcohol and the odor of marijuana are not treated the same. Odor, by itself, is not a reason to search a car. The odor with some indication of impaired driving can be sufficient reasons to search a car.

Any person who is arrested after a police officer smells marijuana and then searches a car should contact an attorney immediately.






Saturday, October 18, 2014

Is sexting naked pictures distribution of pornography?

From time to time I hear stories of the prosecution of teenagers for possession and distribution of child pornography as a result of sending or re-sending pictures through text messaging. Typically, these stories involve a young teenager who takes a naked “selfie” and then texts it to a friend. The friend then sends it to a lot of friends with the result that school officials hear of the distribution of the picture. The police get notified and arrests are made for possession and distribution of child pornography. So, are naked selfies child pornography? Can a person be arrested for texting these naked pictures?

In most cases, naked pictures of one self or “selfies” are not pornography. Even full frontal nudity pictures of young children and young teenagers are probably not pornography. In other words, in order to be considered pornographic, there must be more than just nudity. It doesn't matter if it is a boy or a girl, full nudity or partial nudity, there must be more than nudity to make the picture pornographic.
Since 1973 the United States has had one basic definition of obscenity (which includes pornography):
"(a) whether the 'average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest,
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."  M
iller v. California, 413 U.S. 15 (1973),
Legal disputes over selfies taken by children usually focus on the second element of depiction in a patently offensive way of sexual conduct. Naked selfies taken by teenagers are usually pictures of the teenager alone. No other person is in the picture. While some selfies could involve more than mere nudity, the vast majority of these pictures are just nude pictures. In a recent case in Massachusetts, the Court looked at this issue in the context of a convicted sex offender who possessed a number of pictures of naked children while he was in prison. Commonwealth v. Rex, No. SJC–11480 (July 9, 2014). The court found that merely naked pictures cannot be considered pornography. There must be more. Even in the context of a convicted sex offender in prison, nude pictures were not considered obscene. The Court describe six factors to consider to determine if the pictures could be considered pornographic:
1) whether the focal point of the visual depiction is on the child's genitalia or pubic area;
2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
4) whether the child is fully or partially clothed, or nude;
5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; [and]
6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.” The Court took these factors from a prior case: United States v. Dost, 636 F.Supp. 828, 832 (S.D .Cal.1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir.), cert. denied, 484 U.S. 856 (1987).

Nude selfies, without something in addition to the nudity, cannot be considered obscene or pornographic. Texting pictures of this type can not be considered distribution of child pornography. Possession of these pictures on a cell phone or computer can not be the basis for a criminal prosecution.
Hopefully this article will not encourage anybody to take naked pictures of themselves and to text them to others. It is a bad idea and hopefully recent stories of the leaking of naked pictures of celebrities from hackers should be a deterent to people. However, if someone is approached by the police for sending or receiving naked pictures, then they should consult an attorney who can advice them on the laws concerning pornography. It is better to have an attorney intervene and maybe stop a prosecution than having a prosecution started, published in newspapers, and then dismissed. Consulting an attorney quickly may prevent injury through stories in local media.




Sunday, September 21, 2014

What is the legal residence of a child of divorced parents?

Many people who get divorced live in different towns from their ex-spouse. They will sometimes choose between the two school systems and send their children to the better school. This means that the better school system will have more students and incur more costs. If a child of divorced parents requires additional services due to special needs, the cost can be substantial. As a result, many school systems try to exclude some students under the argument that they don't reside in the town where they attend school.

According to the law, adults are allowed one domicile or legal residence. Domicile is the place where a person intends to permenently reside. There is a long history of case law that sets forth rules to , determine the residency of adults. The law is much simpler as it applies to children: Children have the domicile of their parents. If their parents don't live together then children can have two domiciles. If the parents are divorced and the parents have joint legal custody then children will have two domiciles. This is true even if they never sleep at one parent's home.

In a recent case, the Town of Wayland formulated a rule to determine if children of divorced parents can attend school in Wayland.  Ames v. Town of Wayland, Middlesex Superior Court (No. 14-6717) (August 13, 2014.) The rule was called the “pillow count” rule and required children to sleep in Wayland for at least three out of five nights. When this rule resulted in a child of divorced parents becoming excluded from the Wayland schools, the child's parents appealed. A Superior Court Justice held that the child may attend the Wayland schools despite the fact that he lived in Wayland only three out of fourteen nights.

In Massachusetts, the Department of Education has always ruled that children can attend school in the school system where one of the parents reside and that the decision belongs to the parents and not the school system. In my practice, I have encountered this problem from time to time. I have found that schools generally drop their opposition when faced with the threat of litigation. Unfortunately, I found that parents have to hire attorneys to make the schools follow the law.


When a couple gets divorced and they have school age children, they should consider the choice of school system at the time of divorce. If you are getting divorced and have school age children, you should consult an experienced divorce attorney who understands the options of school choice.

Sunday, July 13, 2014

Jury mistrials caused by the Internet

Many people think that jury trials are proceedings in which a jury looks to discover the truth. In practice, jury trials are a search for justice and fairness. Justice does not necessarily mean a search for truth. Justice, in a court setting is search for a conclusion based on a limited amount of information. The process of a trial is designed to control the flow of information to eliminate information that is unreliable, speculative, and unduly prejudicial. Findings by a jury result in justice and not necessarily the truth because the flow of information is limited. The final result is suppose to be fair with due regard to constitutional rights, statutory limitations, and the system of justiceJudges instruct jurors to avoid outside sources of information. They are prohibited from talking to other people about the case and are prohibited from researching the case. Independent research by jurors can result in a mistrial.
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Some jurors ignore instructions and research facts or law on the internet. Internet usage by jurors sitting on a trial is so common that is has a name: “mistrial by Google.” Research on the internet has become second nature to many people. It is also considered a private matter. Since nobody will search a juror's smart phone or tablet, jurors feel that they are free to research the case. They can look up the lawyers, the parties, news articles, legal concepts, geographic facts, and other matters. Using Wikipedia, jurors can learn legal definitions and history. With Google Maps, they can look at the scene of a crime.

A rule that prohibits jurors from using the internet is doomed to fail. No matter what instructions a judge gives, some jurors will use their computers to research on the internet. Perhaps the courts should encourage some internet use and allow the judge and lawyers to review the material found and work with the information. The judge can instruct that the Wikipedia definition of a legal concept is not the definition in the jurisdiction. This would allow the judge to explain the difference instead of jurors relying on bad law. It is better for lawyers to address incorrect statements in news articles instead of jurors relying on facts created by a reporter.

The Internet has changed many institutions in society. It is time for jury trials to recognize the influence of the Internet and adapt to this technology.







Tuesday, July 8, 2014

Massachusetts and the right of privacy in our homes.

File photo of small drone (Pierre Andrieu/AFP/Getty Images)According to a recent stories on the internet, a drone was used to spy on a woman in her home. Two men were seen flying a drone with a video screen showing a display from a camera on the drone. In other words, using the drone as a high-tech Peeping Tom. If this happened in Massachusetts, the men flying the drone could be sued for invasion of privacy.

Massachusetts has a statute, G.L. c.214, § 1B which provides that individuals in Massachusetts have a right of privacy. This right of privacy is greatest in a persons home. In the recent case of Polay v. McMahon, the court held that in the home, “all details are intimate details.” Even if a person's conduct in their home is observable by the public, the right of privacy may still protect against the use of electronic surveillance. Most people should consider using a drone to spy into a person's home to be a violation of the right of privacy.

Drones pose a real and substantial threat to the right of privacy. Private individuals can purchase drones with cameras and use them to look into high rise apartment buildings, spy through skylights, and hover outside windows to look inside. If private individuals can do this, image what law enforcement can do. Based on this recent case, it appears that Massachusetts residents have protection against Peeping Drones.


A person who is victimized by electronic spying should consult an attorney concerning their rights based on their situation. The right of privacy can be difficult to understand and apply.   

Thursday, June 26, 2014

Criminal Law and Double Jeopardy by Michael S. Berg, guest blogger

One commonly misunderstood concept in criminal law is that of double jeopardy. The Fifth Amendment to the United States Constitution states that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." However, this is narrowly read and there are some exceptions, and it applies only to cases where a final decision has been entered.

First, it only applies to the same sovereign, meaning the same government. So the same state cannot put you on trial for the same conduct more than once. However, you can be put on trial by two different states or by a state and the federal government. So, say you're accused of running a scam from your house in Florida over the internet. The government claims that you convinced a woman in Georgia to send you money. Even if you're acquitted in Florida, Georgia can still try you without violating double jeopardy, because it's a separate state. The federal government can also try you for any federal crimes you may have committed at this point. 
Double jeopardy also does not apply when you win an appeal. Appealing is when you ask a higher court to review the procedure or decisions of the court that had your trial. If the appeals court agrees with you, they will send your case back to the trial court with instructions on what they need to change. In this case, the court is allowed to have another trial.
The court is also permitted to retry you if there was a hung jury or if the judge had to declare a mistrial. A hung jury means the jury couldn't come to an agreement. Because there must be a legal decision, the case will be retried with a new jury. A mistrial means something went so wrong that it compromised the entire trial. For example, in some high profile cases the jury is sequestered and not allowed to speak with anyone about the case or access any news or media. If a juror violates this rule, the judge may declare a mistrial. Since the trial wasn't completed, there will generally be a new trial.

This article on Double Jeopardy is a guest post from Michael S. Berg , a San Diego based Certified Specialist in Criminal Law who focuses on criminal cases.