26 October 2012

In This Era of Unemployment, Can Criminals Provide a New Job Source?

According to a Cali Court they could (if police could not pull over a car if they saw a passenger who was a wanted felon):

"Appellant contends that since Officer Hopkins had no suspicion of criminal activity or wrongdoing by him, the officer may not stop his vehicle. He argues [that] an investigatory stop [is allowed] only if there is a reasonable suspicion that the person driving was involved in a completed felony. Therefore, he argues, he could not be stopped. If we were to adopt such an untenable rule, then legions of criminals throughout the land could hire drivers, who are upstanding citizens with no past criminal involvement, to chauffeur them around our streets and highways in open, notorious view. As smug passengers they could wave to the police who could only watch in frustration as they passed by. A momentary stop of an automobile by police to investigate a passenger reasonably believed to be involved in a past crime is proper. It creates a minimal inconvenience to the driver of that automobile, when balanced against the government's interest in apprehending criminals." In re William J., 171 Cal. App.3d 72 (1985).

I wonder if the pay scale increases depending on how serious the crime the fugitive is accused of?

22 October 2012


While you are in law school you are taught that the way that evidence is presented in court is simple: Evidence then Counter then Rebuttal. This occurs both in macro and micro formats. In the macro format it is prosecutor's case in chief then defense's case in chief then prosecutor's rebuttal. In the micro it occurs during questioning and argument. For example, in argument the moving party argues its motion, the other side offers counter argument and the moving party gets to argue in rebuttal.  However, there is this thing which isn't talked much about in law school (if at all), surrebuttal.

Surrebuttal is a fourth step in the courtroom dance.  It allows the party who has just seen his evidence or argument rebutted to present more evidence.

Surrebuttal is something that I'd not thought much when I first started practicing law. The courts wherein I practiced looked upon surrebuttal with strong disfavor.  An attorney had to ask for it and (I am fairly certain) had to have pictures of the judge in a compromising situation in order to get surrebuttal.  I only actually saw it asked for a few times and can't remember ever seeing a judge allow it.

Then I moved to a different area of the Commonwealth and learned how differently courtroom procedure can be even in the same State.  Routinely, the pattern in this area of Virginia the judges allow back and forth until the attorneys exhaust themselves. In other words questioning of a witness goes like this: prosecutor questions, defense attorney cross examines, prosecutor asks rebuttal questions, defense attorney asks surrebuttal questions, prosecution asks more questions, defense attorney asks more questions, prosecutor asks even more questions, defense attorney asks even more questions, and prosecutor asks even more questions, &cetera.  Usually the number of questions winnows down until one side or the other runs out of things to ask.  The attorneys don't even have to ask permission to keep questioning; they just stand up and start questioning.  In fact, I've seen judges prompt attorneys until one side finally admits he can't think of anything else to ask.

Now, surrebuttal is at the trial judge's discretion and a judge never allowing it isn't correct, but always allowing it isn't either.  The answer is somewhere in the middle.  It's difficult to suss it out because it is not addressed anywhere in either Virginia's statutes or Virginia Supreme Court's Rules.  There are a lot of gaps like this in Virginia's procedure; it's a rather large flaw which means the courts have to fill the gaps.  So, we have to look to case law and the pickings are slim.

The cases which address surrebuttal address the same situation: After the Commonwealth has presented its rebuttal when can the defense present surrebuttal? The rule from the two whole cases which address this procedure is:
If the prosecution introduces evidence for the first time during its rebuttal then the defense can introduce evidence that contradicts or alters the import of that evidence as long as the defense's evidence is not cumulative.  Quintana v. Commonwealth, 224 Va. 127 (1982).  However, if the defendant's evidence has touched upon the topic the defendant is not entitled to surrebuttal.  Hardyman v. Commonwealth, 153 Va. 954 (1930).
So, that's the extent of Virginia's law on this procedure. The key elements are that the prosecution must have introduced new evidence and the defense isn't entitled to surrebuttal if it brought the topic up first.  While there will always be arguments as to whether the prosecution introduced new evidence or if the "new" evidence introduced by the prosecution is in rebuttal to evidence first introduced by the defense, this rule would seem to limit rebuttal to a specific circumstance and thus make it less common.

15 October 2012

CrimLaw Roundup

1)  Virginia judges want nicer attorneys.  This story pops up once or twice a year and yet we attorneys remain obstreperous and contrary. Probably has something to do with the fact we have trials rather than inquisitions.

2)  If you fly from Japan to L.A. with a grenade, leg irons, and body bags, the police are going to want to talk to you.

3)  The President of Egypt tries to fire his Attorney General and gets told "Over my dead body." Literally.

4)  "Kid was in the right place, wrong side of the fence."  Warden's son caught burglarizing houses near the prison.

5)  Phones getting too secure to be hacked - by the government.

6)  Is having "Asperger's syndrome and [being] on the autism spectrum" enough to keep you from being extradited to the US for breaking into the Pentagon's computers?

7)  Australia starts sex offender website.

8)  Police enforcement of the anti-smoking ban in the strip clubs.

9)  In Japan, apparently if you want to film up a woman's skirt you just need to make sure you are on a plane so they can't figure out the proper jurisdiction.

04 October 2012

Crime Costs How Much?

$3,216,000,000,000 per year.






