Pregnant Workers Benefit from Supreme Court Ruling in Discrimination Case Against UPS

The Supreme Court’s recent decision in Young v. United Parcel Service, Inc. is an important decision under the Pregnancy Discrimination Act of 1978. The Young decision will be important to employers and to pregnant women who request workplace accommodation from their employers. Retired Superior Court Judge Eugene Hyman explains the …

Child Abuse Cases: What Evidentiary Rules Apply to Testimony by Teachers and Day Care Workers?

The U.S. Supreme Court is considering limits on the kinds of evidence that may be admitted in child abuse cases. The high court is considering a Cleveland case that raises the issue whether statements made by a child to teachers and day-care workers can be used in evidence in trials …

Social Media and Criminal Trials: How Far Can a Court Go in Limiting Wireless Devices?

In February, during a murder trial in New York State, an illegal photo of a witness was taken and posted on Facebook. The trial judge then took the unusual step of banning all cell phones and electronic devices from the courtroom. The prosecuting attorney expressed concern about preventing witness intimidation …

Former Jailer Helped Plant Jailhouse Informants in Violation of Constitutional Law

A former official of the Santa Clara County, California jail has claimed that he routinely helped police officers and prosecuting attorneys gather information from defendants by planting jailhouse informants. Retired Lt. Frank Dixon said, in a sworn declaration in an appellate case, that he was involved in planting the informants …

Recent Articles:

Pregnant Workers Benefit from Supreme Court Ruling in Discrimination Case Against UPS

March 31, 2015 Uncategorized No Comments

The Supreme Court’s recent decision in Young v. United Parcel Service, Inc. is an important decision under the Pregnancy Discrimination Act of 1978. The Young decision will be important to employers and to pregnant women who request workplace accommodation from their employers. Retired Superior Court Judge Eugene Hyman explains the Young case and what it will mean.

The claim was brought by former UPS driver Peggy Young who requested lighter duty after she became pregnant and her doctor limited her lifting to 20 pounds (the UPS standard is up to 70 pounds). Judge Hyman points out that the Pregnancy Discrimination Act was passed by Congress to overcome an earlier Supreme Court ruling. The holding of the Young case is basically that an employer must accommodate a pregnant worker with a disability just as they accommodate other workers with disabilities.

The effect of the Supreme Court’s ruling is that Young will now be able to proceed with her claim. The district court had granted summary judgment against Young, and the court of appeals affirmed the ruling. Judge Hyman points out that, if UPS has a program to accommodate drivers who, for example, injure their backs and can’t lift 70 pounds, the company will have to offer similar accommodations to pregnant women who also have lifting restrictions.

Judge Hyman also notes that the jobs with lesser physical requirements often pay less than the delivery driver positions, so there could be an issue as to wages. But whatever is done, the company will have to be consistent. There is a union contract involved in the UPS situation, and that may come into play. An employer in a case like this will have to treat pregnant women as fairly as they treat disabled employees covered by the Americans with Disabilities Act.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Child Abuse Cases: What Evidentiary Rules Apply to Testimony by Teachers and Day Care Workers?

March 23, 2015 Uncategorized No Comments

The U.S. Supreme Court is considering limits on the kinds of evidence that may be admitted in child abuse cases. The high court is considering a Cleveland case that raises the issue whether statements made by a child to teachers and day-care workers can be used in evidence in trials where the child can’t testify. Retired Judge Eugene Hyman discusses the case in this report.

Judge Hyman

The problem is the Sixth Amendment right of an accused to confront and cross-examine witnesses against him. As Judge Hyman points out, most children will not be able to testify as witnesses because they will be unable to establish that they know right from wrong, knowing the truth from a lie. This raises the problem that the witness in unavailable to testify because of a qualification threshold rather than that the witness is out of the jurisdiction and thus unavailable.

Teachers and school nurses are required by law to report child abuse they become aware of. The issue is whether this makes them agents of law enforcement and the prosecution. Under Crawford v. Washington, testimony given by teachers or school nurses would have to be subject to cross-examination. This is testimony is distinguishable (because of its source) from a spontaneous statement (called an excited utterance) that could be admitted into evidence as an exception to the hearsay rule (assuming, again, that the speaker is unavailable to testify).

The case has drawn considerable attention from several groups who have filed friend of the court briefs, including attorneys general. Judge Hyman suggests that this will be a very close call in the Supreme Court. The lower courts have favored this testimony. The Supreme Court might agree with the lower courts. The Court could also find that just because teachers and others are mandatory child abuse reporters, they are not agents of the police.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Social Media and Criminal Trials: How Far Can a Court Go in Limiting Wireless Devices?

March 23, 2015 Uncategorized No Comments

In February, during a murder trial in New York State, an illegal photo of a witness was taken and posted on Facebook. The trial judge then took the unusual step of banning all cell phones and electronic devices from the courtroom. The prosecuting attorney expressed concern about preventing witness intimidation in this electronic age. Retired Judge Eugene Hyman discusses the case in this report.

Judge Hyman

In the New York case, the witness was a gang member who was likely putting himself at risk by testifying, and that is what happened when the photo was published on Facebook and picked up by the local newspaper doing a story on the trial. As Judge Hyman notes, the witness wanted to avoid all publicity about his testifying in the trial. The publication of the photograph clearly confirmed his participation in the trial.

The judge’s actions raise several issues. One of them is the admonition to the jury not to discuss or broadcast to the world what is going on. As to whether a judge can take phones away from jurors during the day and return them at night, Judge Hyman believes that is permissible.

Of course, Judge Hyman points out, restricting the use of cell phones by jurors is of little use if—in cases like this one—photos are posted on the Internet immediately after a trial is concluded. That raises the question whether the judge can “prophylactically require that spectators surrender their phones while they are in the courtroom.” That may not be allowed, Judge Hyman opines. Every day, it seems, cell phones sound off during trials in courtrooms.

A separate problem is that, given the remarkable capabilities of modern wireless phones, someone could set up a phone to record an entire proceeding with any court official being aware of it. Judge Hyman says that the U.S. Supreme Court has forbidden the use of wireless phones in their courtroom. The question remains whether a judge can require all spectators to surrender their wireless devices during trial. Judge Hyman is unaware of any appellate decision upholding such an action by a trial judge.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Former Jailer Helped Plant Jailhouse Informants in Violation of Constitutional Law

March 10, 2015 Uncategorized No Comments

A former official of the Santa Clara County, California jail has claimed that he routinely helped police officers and prosecuting attorneys gather information from defendants by planting jailhouse informants. Retired Lt. Frank Dixon said, in a sworn declaration in an appellate case, that he was involved in planting the informants for a ten-year period ending in the late 1990s. The practice runs afoul of the U.S. Supreme Court case of Massiah v. United States. Retired Judge Eugene Hyman discusses the case in this report.

Judge Hyman

Judge Hyman explains that informants may be used in criminal cases, but the law makes a distinction between pre-arrest and post-arrest informants. In the Santa Clara County jail, informants were being specifically planted in or near certain people who were already under arrest for the express purpose of gathering information that might be used against them at trial.

Informants in these situations who are sent to gather incriminating information on others under arrest are generally begin offered some consideration from the prosecution for their assistance. Judge Hyman notes that, “if [prosecutors] were candid about the situation, they would express reservations” about the reliability of information from “snitches.” Informants have been known to make up statements in order to get favorable treatment from the state. Other problems snitches pose for prosecutors is that some of these informants have a history of testifying, and the criminal background of such informants must be released to defense counsel so that they can effectively cross-examine these witnesses. Judge Hyman says that there is a good possibility that some decided cases will have to be re reexamined in light of the statement from Lt. Dixon. The disclosure may raise constitutional questions that will require the reopening and possible retrial of some older cases.

Judge Hyman says that the most effective use of informants may be in helping a prosecutor decide whether to pursue criminal charges against someone who is suspected of criminal activity. The ideal situation would be one where an informant is involved with a targeted defendant prior to the defendant’s arrest for a serious crime, and the informant is aware of (but not involved in) the serious crime. An informant like that, testifying at the trial of the targeted defendant, can be very helpful.

Another scenario might be one where an arrested person says of John Doe that “John Doe told me he is dealing drugs.” A statement like that could not be used in evidence, but it might bring someone to the attention of police officers and prosecutors, and that might result in a charge and a conviction at some point down the road.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Judicial Elections: Should Judges Be Allowed to Pass the Hat Themselves?

January 30, 2015 Uncategorized No Comments

 

The U.S. Supreme Court is taking up the question whether candidates running for judicial office should be permitted to directly solicit campaign contributions. The Court has heard arguments in Williams-Yulee v. The Florida Bar, in which the petitioner was reprimanded by the Florida Supreme Court for having sent out solicitation letters. She has appealed, and the Court has heard arguments. Retired Judge Eugene Hyman discusses the problems presented in this report.

Judge Hyman

The central question in this case is whether Florida’s restriction on the fund-raising activities of judicial candidates is a lawful infringement on their right to free speech. If the Court strikes down the Florida restriction, it could affect similar provisions in 29 other states. Judge Hyman notes that he has been on both sides of the election issue, having been an appointed judge and later and elected judge who had to stand for reelection.

Judge Hyman agrees with comments by Justice Sotomayor during oral argument that it is very hard for a lawyer to say “no” to a judge, whether it’s a request to serve on a committee or to give money. The Florida regulation allows judges to have committees that perform direct solicitation. Under Florida law, a judge may know who is contributing (and how much) and may write thank you letters to contributors. And, of course, anyone who makes a contribution in virtually any state will be in a database showing names of contributors and names of recipients. A prospective client might decide to seek out a lawyer who made a generous contribution to a judge on the theory that the lawyer would have an inside track with the judge.

Judge Hyman says that it is awkward asking lawyers for campaign contributions. It is reasonable to assume that lawyers will make the bulk of the contributions because they are interested in courts. Judge Hyman, confronting the issue, would recuse himself for two years in cases involving a lawyer who gave $250 or more and, in the case of lawyers who gave $1,000 or more, would recuse himself throughout his time on the bench. It is important for judges to avoid the appearance of evil.

The free speech aspect of this case is important because of previous Supreme Court rulings that giving political contributions is a form of free speech, and strict scrutiny will be applied to any restriction on that freedom. For example, the Court has ruled that limits on the amounts of contributions infringe on free speech. The issue in this case is not on donation limits, but whether candidates can solicit themselves. Judge Hyman is inclined to think that the Court will decide judicial elections are not like most other elections and will uphold the Florida rule.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Supreme Court Backs Police In Brake Light Mistake Case

January 7, 2015 Uncategorized No Comments

The Supreme Court ruled that a police officer’s mistake of law doesn’t necessarily mean the suspect goes free.The justices ruled 8-1 that a North Carolina police officer made a “reasonable” error when he stopped a driver on the basis of one busted brake light — which, as it turned out, isn’t illegal under state law as long as the other light is working. The traffic stop turned up a sandwich bag containing cocaine and resulted in a drug-trafficking conviction. Retired Santa Clara California Superior Court Judge Eugene Hyman said “the court is saying that this is a mistake of fact not a mistake of law” and upheld the lower court rulings.

Facebook Death Threat Case: What Will the Supreme Court Do?

December 3, 2014 Uncategorized No Comments

The U.S. Supreme Court is considering a ground-breaking case about threats made on Facebook by Anthony Elonis. The issue is whether death threats posted on the social media are protected free speech under the First Amendment. Judge Eugene Hyman discusses the case and the issues facing the Supreme Court.

Judge Hyman

As Judge Hyman points out, there first must be someone who feels threatened—the subjective part of the matter. Then there must be an objective part: is it reasonable that someone could have felt threatened? If these tests are met, there is a criminal threat case, which is what a jury found in this case. Another possibility in cases like these is a finding of attempted criminal threat, which the jury did not need to consider. The offense of attempted criminal threat requires a specific intent, which was not required in this case.

The government’s position has been that “a threat is a threat.” In this case, Elonis has argued that he didn’t mean what he said. Judge Hyman points out that, in most states, the law does not require that a defendant must have been able to carry out the threat in order for there to be a conviction, but only that the defendant meant what was said. The other thing, notes Judge Hyman, is that Elonis has tried to draw an analogy to comments made by rap stars, comments that are not criminal. This position did not prevail at trial.

Judge Hyman opines that the Supreme Court will sustain the conviction and will find that punishing threats like theses does not run afoul of the Constitution.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.

The Ferguson Grand Jury and How Grand Juries Work

December 3, 2014 Uncategorized No Comments

Grand juries play an important role in the criminal process, but they do not determine guilt or innocence. Rather, the grand jury’s role is to decide, with assistance by and guidance from a prosecuting attorney, whether a suspect should be charged with a crime. In St. Louis County, Missouri, a grand jury recently decided not to indict Officer Darren Wilson for the fatal shooting of Michael Brown. Retired Judge Eugene Hyman discusses the case.

Judge Hyman

Judge Hyman explains that criminal cases can usually proceed one of two ways: The first way is that, following an arrest, a prosecuting attorney can issue a criminal complaint against the suspect. If the crime is a felony, a probable cause, or preliminary, hearing must be afforded the defendant. The prosecution must call witnesses to show probable cause that a crime was committed, and the defense attorney may cross-examine. The standard is not “beyond a reasonable doubt.”

The other procedure—the only procedure in some jurisdictions—is for a grand jury, selected from the community, to determine if there is probable cause. Under the grand jury procedure, the prosecuting attorney is in charge, presenting as much evidence as the state believes is needed and instructing the grand jury on the law. The grand jury may ask questions of witnesses, but there are no defense attorneys present to cross-examine the witnesses, typically police officers.

Judge Hyman points out that, if a grand jury refuses to indict a defendant—to issue a “true bill”—there is no appeal. That is the end of the process. If a grand jury does indict, however, the defense has some options to challenge the procedure before the case goes to trial. Also, Judge Hyman notes, the fact that a particular grand jury refuses to indict does not preclude the prosecuting attorney from trying again with a new grand jury or from having the suspect arrested and issuing a criminal complaint. Judge Hyman suggests that nothing further will be attempted in the Ferguson case.

In the Darren Wilson case, several things were unusual. First, it is unusual for a grand jury not to indict a suspect. Also, the proceedings in this case went on for months, and that is unusual. Sometimes, Judge Hyman says, grand juries don’t precisely understand their role and look for guilt beyond a reasonable doubt. This case was also unusual, Judge Hyman suggests, because all the evidence was later released to the public, something that is not done in a typical case.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Domestic Violence—Can Abusers Really Reform?

September 23, 2014 Uncategorized No Comments

The video of Ray Rice assaulting the woman who is now his wife has received a lot of attention. It raises the question whether someone like this can be treated and reform so as to have a happy, normal relationship. Retired Judge Eugene Hyman discusses the matter, which is also the subject of a recent Wall Street Journal article.

Judge Hyman

Some offenders need multiple treatment regimens in order to change their behavior. Others never succeed. Judge Hyman believes that the studies showing favorable outcomes in treating people with abusive behavior need to be taken with a grain of salt. “Give me a substance abuser anytime. That person is much easier to treat.” Judge Hyman’s experience suggests that people prone to domestic violence are much harder to treat successfully.

The studies cited in the Wall Street Journal article are based upon people who successfully complete a program. The problem, says Judge Hyman, is that people who enter these domestic violence treatment programs often don’t complete them. Those people are reoffending at a high rate.

The problem seems to be to get people to complete these programs. Judge Hyman says that completion must be court-ordered if there is to be any realistic hope of success. There also needs to be follow-up, the judge says. The problem will surely not go away. The NFL is now struggling to get on top of it, as is the NBA. Domestic violence in the NFL is the subject of another Legal Broadcast Network report.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.

Arrest Records—They Can Last a Lifetime

August 23, 2014 Uncategorized No Comments

Americans are finding that arrest records can haunt them for their whole lives, even for arrests where no charges were filed. The problem is discussed in a recent Wall Street Journal article. Retired Judge Eugene Hyman discusses the problem in this report.

Judge Hyman

Statistics suggest that one out of three Americans has an arrest record of some kind. The problems can be very serious, especially if a prospective employer turns you down for a job because of a spurious arrest record and does not tell you why you were passed over. Judge Hyman says that is especially the case for job applicants who don’t even get an interview.

Another problem, says Judge Hyman, is that people will sometimes run record checks through one of several websites that offer the service. This can especially be a problem if a state law does not permit a record check for the kind of job someone is applying for, where there is no sensitivity to the job. About 25% of the records are inaccurate, so that merely aggravates the problem.

Judge Hyman points out that errors occur because human beings are in charge of preparing and handling the records. Also, he says, people who complete their probation often assume that their records are sealed and will not be discovered. But in a number of states, affirmative action is required to get a conviction expunged from a person’s record.

Mug shot websites are another problem. These sites can hurt people with inaccurate information. Judge Hyman opines that such a site might be liable to a class action lawsuit.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.