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.


Sunday, June 22, 2014

My spouse is cohabitating.  Can I stop alimony payments?

In 2012, a new alimony law went into effect in Massachusetts. This alimony law contains a provision that reads:

General term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household, as defined in this subsection, with another person for a continuous period of at least 3 months

This language seems to say that if the ex-spouse cohabits for three months or longer that alimony is automatically terminated, reduced, or suspended. However, that is an incorrect interpretation of this law.

The payment or non-payment of alimony is controlled by court orders. Unless and until a Judge orders termination or suspension of alimony existing orders must be obeyed. This means that alimony must continue to be paid until a judge issues an order that changes the existing orders. Some separation agreements and divorce decrees have language that automatically terminates alimony upon cohabitation. Other agreements can't be modified by a Judge and alimony must continue to be paid despite the cohabitation. The rest of the orders of alimony must be presented to a judge in the form of a modification action in which the relief sought is termination of alimony. This allows the judge to hear facts to determine if cohabitation has occurred. In some cases, a judge may reduce alimony instead of terminating the payments.


This is a complicated area of law. Wrongful termination of alimony can result in a judgment of contempt against the payor. Before taking a unilateral action that violates a court order a family law attorney should be consulted. Such an attorney can review the existing orders and evidence of cohabitation and advise on the parties rights and obligations concerning future alimony.

Sunday, June 8, 2014

Don't fall for this child support trap!



It is not unusual for custody arrangements to need adjustments to change as the children get older. Visitation schedules often change. Children's friends and activities need to be taken into account. Sometimes children move from one parent's home to the other and primary custody changes. The courts encourage cooperation between parents and generally support all custody and visitation changes that occur through agreements. Even if these changes occur without approval from a Probate Court Judge they seldom are the cause for a contempt action in court. It is almost unheard of a court actually finding a parent in contempt for not returning a child to a parent where there is an agreement for a change of schedule.

Changes in child custody can effect the amount of child support paid. The current Massachusetts ChildSupport Guidelines use as a factor the amount of time spent with each parent. As a result, when child custody changes, the amount of child support changes as well. Parents who can cooperate to change custody and visitation for the benefit of the child may also cooperate to adjust child support. Just as parents change custody without judicial approval, they may also change child support by agreement and without judicial approval. This results in a trap for the parent who reduces or stops paying child support.

In the case of Taylor v. Taylor, Mass.App.Ct. 13-P-997 (5/13/2014) the daughter moved from father's home to mothers. The parties agreed that the mother would stop paying child support due to this change in custody. The father even signed a written waiver of child support. Three years later the father filed a contempt for unpaid child support. The court found that despite the written waiver by the father, the mother still violated a court order and was in contempt of that court order. As a result, she had to pay the three years of child support with interest and penalties even though the daughter lived with her and she supported the daughter. The trap is that despite an agreement of the parties, the mother paid to support he daughter and then paid years of child support to the father.

While Massachusetts encourages agreements between the parties, it is necessary to seek approval of such agreements by a Judge. There is a simplified procedure for approval of such matters. Frequently, the court approves these agreements without the necessity of a court appearance.

If parties are contemplating an agreement to modify a child support order, they should consult an experienced family law attorney to avoid falling into the child support trap.

Tuesday, May 20, 2014

What rights do gay spouses have in custody battles?

For centuries, the law has struggled with issues surrounding rights of spouses in custody battles. Of course, until recently, all of these battles have involved heterosexual couples. When a married woman gives birth, who is the father? What rights does a married man have to custody or visitation of young children? What rights does a husband have when children are conceived in a marriage through artificial insemination. All of these questions have been asked and answered for heterosexual couples. Now the same questions are being raised for same-gender couple who are getting divorced.

One of the first cases in Massachusetts to look at some of these issues for same-gender marriages has answered one of these questions. In the case of Della Carte v.Ramirez, question was raised of the rights of the non-biological parent in regards to a child born to the spouse through artificial insemination. The biological mother argued that her spouse had no rights to her child because she was not the father and had no biological connection and that the artificial insemination law, G.L.c. 46, § 4B provided no rights to the spouse because it used language about a child conceived with the “husband's” consent. In this case, the non-biological spouse was granted joint custody over the minor child. In doing so, the court made a ruling that the spouse was the legal parent of the child.

The result in this case established that for questions regarding paternity, custody, and visitation, there should be no difference between the law for heterosexual couples and the law for same-gender couples. In Massachusetts, marriage creates the same rights regardless of the gender make-up of the couple. Laws that use language that create rights for husbands should be interpreted to mean spouses. For Massachusetts, family court disputes should make no distinction based on the gender of the parties. Custody and paternity decisions should be based on concepts such as the best interests of the children without regard to the gender of the parents.


Paternity, custody and visitation in Massachusetts are complicated issues. An experienced family lawattorney can help parties understand the proper issues to raise in custody proceedings.   

Saturday, May 10, 2014

Attorneys beware!! You could pay your opponent's attorney fees.

Every Massachusetts attorney, like attorneys across the country, have ethical duties when representing clients. Some of these duties protect the client and others protect our legal system. Lawyers, as officers of the courts, have duties to the legal system itself. One of these duties is that a lawyer shall not bring or prosecute a claim or defense that is frivolous. This duty is established in the Massachusetts Rules of Civil Procedure and in the Massachusetts Rules of Professional Conduct. A recent case shows the dangers of lawyers bringing frivolous claims.

In the case of Callahan v. Bedard, the parties were unmarried parents of a young daughter. Their relationship resulted in litigation in Probate and Family Court relating to support of the child. The parties reached an agreement in which a condominium was transferred to a trust with half of the value to benefit the daughter and half to benefit the mother. In consideration of this transaction, the father paid lower child support. The agreement was approved by a Probate Court Judge and incorporated into a judgment. About six months later, the father sought to vacate the settlement by claiming that Probate Court lacked jurisdiction to approve the agreement. His lawyer prosecuted the action to vacate in Probate Court and then in the Appeals Court.

The Appeals Court had no trouble rejecting the father's argument. In doing so, the Appeals Court found the father's appeal to be frivolous. As a result, they looked at the actions of the father's attorney. The Court found that the attorney should have appreciated the meritless quality of the father's arguments. The attorney and the father wasted the resources of both the mother and the Court. The Appeals Court imposed a remedy for such wasteful action on both the father and the attorney. The Court ordered that both the father and the lawyer (in fact his law firm) “shall be jointly and severally liable for the payment of the appellate attorney's fees of the mother and for the sum of double her appellate costs.”

Jointly and severally liable means that the mother can collect the money owed for attorney fees from either the father or his attorney. In fact, she can collect the entire amount from the attorney if she chooses and the law firm has sufficient resources. Furthermore, she may go back to Probate Court and ask the Judge to award her additional attorney fees for the frivolous action in Probate Court. After the opinion from the Appeals Court, it will be difficult for a Probate Court Judge to deny this motion.

This should be a warning to attorneys. Don't bring frivolous actions for clients. Don't waste the time and resources of the courts or your opponents.  Attorneys should always act in good faith.