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.

.

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.

Massachusetts and the right of privacy in our homes.

According to 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.   

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.

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.

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 Child Support 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 mother's. 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 financial 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.

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.   

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.  

My spouse cheated on me, can I sue for damages?

For most people, marriage means that the two spouses will not have sexual relations with any person except their spouse. Unfortunately, sometimes this right of exclusive sexual access is violated. When this occurs, there is a desire on the part of the innocent spouse to seek revenge against the third party who had sex with their spouse. Massachusetts law used to allow lawsuits for the harm to the marriage caused by the third party. The Common Law which was derived from old English law allowed lawsuits for “alienation of affection” and “criminal conversation.”

The tort of criminal conversation allowed the wronged spouse to sue the paramour for violation of the right of exclusive sexual access from the marriage. In other words, it was a lawsuit against the third party for sex with their spouse. The tort of alienation of affection was a lawsuit against the paramour for causing their spouse to stop having affections within the marriage. This usually resulted in a divorce as a result of the adultery. It was not uncommon for a lawsuit to allege both alienation of affection and criminal conversation.

In Massachusetts, when cheating occurs in a marriage, the wronged party can no longer sue for damages. Massachusetts General Laws Chapter 207, Section 47B prohibits lawsuits for both alienation of affection and criminal conversation. As a result, when cheating occurs in a marriage, the only recourse through the courts is an action for divorce against the spouse.

Cheating in a marriage can be devastating to the innocent spouse. Some couples manage to save their marriage after an affair. Others separate and end the marriage by divorce. When cheating occurs in a marriage, both spouses should consult an experienced family law attorney to determine their rights and understand divorce. Many people need to understand their rights in a divorce before deciding if they want to save their marriage.

General Alimony Begins With a Divorce Judgment.

In September, 2011 the Massachusetts enacted into Law the Alimony Reform Act of 2011. This law changed completely the law of alimony in the state. It created presumptive maximum lengths of time for alimony to be received, guidelines to determine the amount of alimony, four categories of alimony and other changes. Attorneys generally advise that there are many areas of this new law that are difficult to interpret without appellate court decisions. We now have the benefit of the first case to interpret the new law.

In the case of Holmes v. Holmes, SJC-11538 (April 2, 2014) the court addressed the question of when does general alimony start for purposes of the presumptive maximum length of time. The question may be restated as does temporary alimony count towards the maximum length of time for receiving general alimony. The court's answer was that temporary alimony does not count towards general alimony.

In the Holmes case, the wife had received temporary alimony for over two years during the pendency of the divorce. Since the couple had been married for under twenty years, the court set a termination date for alimony payments. This date did not take into account the money paid as temporary alimony during the divorce. The court did state that if the recipient of alimony had delayed the divorce then the court should consider a portion of the pre-judgment period towards the presumptive maximum limit. However, the two years of temporary alimony in the Holmes case did not seem so long that the Judge should consider a different outcome.

The Alimony Reform Act of 2011 changed alimony from a law that favored women to a law that favored men. The recent decision of the Supreme Judicial Court is a small step swinging the law back towards women. Alimony in Massachusetts remains a complicated subject. Anybody getting divorced in Massachusetts with questions about alimony should consult an experienced divorce attorney to understand their rights.

If I was married in Massachusetts can I get divorced in Massachusetts?

Same gender couples who were lawfully married in Massachusetts and have since moved to other states may find that they can't get divorced in the state where they reside. Their state of residence may define marriage as consisting of one man and one woman. As a result, this definition of marriage means that the state of residence may not recognize the same gender marriage. If the marriage is not recognized, then the couple can't get divorced. It is only natural to ask if the couple can return to Massachusetts for one day, appear in court, and get divorced. Unfortunately, this can't happen.

Massachusetts has a residency requirement before a person or couple can file for divorce. The person who files for divorce must reside in Massachusetts for one year prior to the filing. For many couples this means that they have the right to get married as a same gender couple but not the right to get divorced.

If a same gender couple finds themselves in a state that won't grant them a divorce, they have four options:

1. Stay married.
2. One party moves to Massachusetts for one year and then files for divorce.
3. Both parties move to Massachusetts. If both parties are bona fide Massachusetts residents they can file a divorce before the one year has passed.
4. Contact the ACLU or other organization and ask for assistance to file a court action to declare the law of your state in violation of the United States Constitution and unenforceable. The result of this would be to change the law of your state causing the state to recognize lawful same gender marriages from other states. A number of lawsuits of this nature have been filed around the country and have resulted in changing the law of some states.

An experienced Massachusetts divorce attorney can explain the residency requirements of Massachusetts. If you find that you live in a state that doesn't recognize same gender marriages and you can't get divorce you may want to contact the ACLU to find an attorney who can discuss litigation as a method to obtain the right to get divorced.

In Massachusetts, search warrants are required to obtain Cell Phone Location Data.

If you watch police shows on tv you have seen episodes where the police go to their computer and pull up a suspect's cell phone's number and then access cell tower information and show the physical location of the suspect. This scenario is somewhat different from real life in that law enforcement needs a court order to obtain this information. However, under theFederal Stored Communications Act (SCA) 28 U.S.C. § 2701, it is very easy for law enforcement to obtain this information. If the police show a reasonable suspicion, then under the SCA, they can obtain a court order to obtain access to cell phone location information (CSLI). As of February 18, 2014, in Massachusetts, police need more than reasonable suspicion. They need probable cause. This is the same standard that police need to obtain a search warrant to search a person's home.

In the case of Commonwealthv. Augustine, 467 Mass. 230 (2014), police, investigating a murder, sought and obtained an order for production of CSLI under the Federal SCA to "possibly include or exclude" the defendant "as a suspect.” The Court ruled that police must obtain a search warrant based on probable cause to obtain CSLI.

CSLI data is collected and maintained by cell phone companies in their ordinary course of conducting business. As a third party, the police may request the company to produce the information and, if they comply, would not violate any defendant's rights. However, companies don't have to produce this information as the SCA provides that companies can require court orders before producing this information. When police seek a court order, then the government is compelling the company to provide this information. Under these circumstances, the government is intruding into the private lives and expectations of people and need a warrant based on probable cause.

The Massachusetts court recognized that cell phones have become "an indispensable part of modern [American] life. It is also clear that cell phones act as GPS devices and track the movements of the user of the phone as they travel. The court wrote that “there is no question that it tracks the location of a cellular telephone user.” Americans should not have to worry about the government, as Big Brother, tracking their every movement. As such, at least in Massachusetts, police need a search warrant if they want to use cell phone data to track the movements of a suspect.

Any person who is arrested for a crime and it appears that the police used CSLI to gather evidence should hire an experienced criminaldefense lawyer to defend them.

Use of text messages as evidence in Massachusetts

     A few years ago I had a conversation with a prosecutor about proving a case with text messages. I represented a victim of a crime in which the perpetrator had confirmed that he had punched my client in a text message. The prosecutor told me that it was extremely difficult to use a text message as evidence. He said that he would have to subpoena the company that provides the cell phone service to obtain the text message. Then the cell phone company would have to send a witness who can testify that the records show that the text message came from the perpetrator's phone. Then, after that, they still have to prove that the perpetrator actually sent the message and not someone else who used the phone.

     A recent case from the Massachusetts Appeals Court establishes that in many cases, it is much easier to introduce text messages than this prosecutor thought. In the case of Commonwealth v. Toney, Mass.App.Ct. (No. 13-P-275, Feb. 5, 2014) the Court held that a text message may be introduced based on the testimony of the recipient of the message and does not require a subpoena to the cell phone company. However, this opinion is an unpublished opinion of the Court and can't be used as precedent. Nevertheless, the logic used by the Court should guide judges and lawyers in the future.

     The introduction of a text message as evidence can be broken down into two elements: foundation and contents. The Toney case only dealt with the foundation element as the prosecutor never tried to introduce the text message itself. The victim in this case testified that "since we were friends, her phone number was in my phone," and that "I know that when I got a text message with the name 'Chantelle Toney,' . . . it was from Chantelle Toney." The court held that this testimony was sufficient to allow the jury to determine if the text message was sent by Chantelle Toney.

     This case treats text messages the same way that telephone calls are treated. A telephone call can be introduced into evidence if the person testifies to the circumstances of the telephone and the totality of the circumstances show the identity of the caller. Essentially, this is what the Court did in the Toney case. Based on the totality of the circumstances, the Judge held that the witness could identify the person that she believed sent the text.

     While the Toney case did not seek to introduce the contents of the text message, this is usually very easy to do. I usually take the cellphone, display the text message, place it on a copy machine, and copy the text. I then make sure the actual cell phone is available in Court and offer the copied text as evidence.

     Introduction of evidence can be a complicated concept. This is particularly true for new technology like text messages. An experienced trial attorney should be prepared to apply the rules of evidence to this new technology.

Judges have to be careful about social media.

I have written about the dangers of social media and people who are in court in my blog.  Just as people who litigate in court must be careful about the use of social media, so do judges and lawyers.  The American Bar Association cautioned judges about this problem and now a Judge in Florida has been disqualified from a divorce case because of social media.

In the Florida case, a judge presiding over a divorce sent a "friend request" to the wife in the divorce before rendering a judgment.  This put the wife in a very difficult position.  If she rejected the request would the Judge retaliate in the Judgment?  If she accepted the request would that consitute improper ex-parte communications with the judge?  Could the husband attack the judgment because of the new relationship?

Judges are suppose to be impartial so that they can make a decision free of improper influences.  Connecting with someone in a non-professional manner on social media should be grounds for removing the judge from a case.  Judges should not friend lawyers or litigants unless they have a prior relationship with that person such that there is already a conflict of interest preventing the judge from hearing the case.  Lawyers must avoid the appearance of impropriety and should not ask Judges to friend them.  If a lawyer does have a social media relationship with a judge, they should reveal this to the other side as soon as possible.

To the extent possible, it is not a bad idea for a litigant to look at the social media identities of the opposing lawyer and the judge assigned to the case.  If some contact is found that raises questions, an experienced lawyer should be consulted to ask about any possible concerns as a result.