Did Lindsay Lohan Violate Her Probation with Hit and Run Arrest? Featuring Judge Eugene Hyman

Lindsay Lohan has found herself in trouble again.  This time, the scene was set in New York City and she was the star in her very own hit and run accident.  After hitting an employee of a restaurant on the driveway shared by the restaurant and her residence and leaving the scene, the question of her probation comes up and whether or not she is in violation of her probation.

When you’re on formal probation, there is no official mechanism to get you back in front of the court when you’re in violation and historically, nothing happens unless the person picks up a new offense while on court probation, according to retired Superior Court Judge of Santa Clara, California Eugene Hyman.

To be convicted of a hit and run, a person needs to have reasonably known they were involved in an accident and according to the press Judge Hyman has read, Lohan claims she didn’t know she hit someone.  In terms of violation of probation, the standard of proof is a preponderance of more than 51%.  Judge Hyman says that it is very common when a case is more difficult to prove beyond a reasonable doubt standard to bring it in as a violation of probation because it is heard in front of judge, not a jury, thereby lowering the burden of proof.

Judge Hyman does not believe that a judge in California will get “excited” about this case, based on what he’s read in the press, especially when no drugs or alcohol have been involved.

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.

Can Brain Scans Keep Violent Criminals Out of Prison?

For those that may be genetically pre-disposed to violence, brain scans are becoming used more often as evidence in court. Can brain scans keep violent criminals out of prison?

Brain scans are becoming more common for mitigating purposes for either the crime itself to prove intent or for sentencing purposes, says retired Superior Court of California Judge Eugene Hyman. Mitigation would only be for first time offenders and if the victim has done a good job of recovering, he adds.

What the public doesn’t realize, Hyman says, is that judges usually don’t have the discretion to send someone to a mental hospital as a result of the violent crime. The only way there is a guarantee for someone to go to a mental hospital instead of prison is if they’re found to be insane at the time of the event or incompetent to stand trial.

“The largest mental health institutions in the U.S. are called county jails and state prisons,” Hyman says. There are huge numbers of people on anti-psychotic meds and under close supervision with regard to their mental health but that doesn’t mean they get into a state hospital, however, he notes.

According to Hyman, judges, when faced with these situations, have no choice but to send that person to prison, not because they want to punish that person for having a mental health condition, but their number one priority is about protecting the public. If indicated, the county will usually end up paying for the costs of the brain scan tests but if it’s a complex case, it can come from the court’s budget and with limited resources available to courts, they are hard-pressed to order tests, says Hyman.

Judge Hyman says that you can have all of the medical evidence in the world but if it doesn’t get you reasonable doubt, insanity or incompetency, “it is not going to make a difference with respect to sentencing. An average judge is extremely concerned with public safety and the only option is state prison.”

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.

Facebook and Privacy in the Workplace

What is the expectation of privacy with Facebook in the workplace? A case in New Jersey where an employee got fired over something a co-worker found on Facebook raises the question of civil liability when it comes to social media.

Recent California legislation says that, by statute, an employer may not require a username or password of an employee. That would suggest they shouldn’t be accessing accounts through a third party, such as Lexus Nexus or even a co-worker, says Eugene Hyman, retired Superior Court Judge of Santa Clara, California. The question is, he says, is what would the case be worth if the employer saw things and didn’t take action or if the employer saw things and did take action.

In the case in New Jersey, where a co-worker had privileges in accessing the plaintiff’s Facebook information, and in doing so, found something on there that was taken to the regulatory agency, there can be “huge consequences,” says Hyman.. The agency revoked the plaintiff’s license and thus, her right to earn a living.

Judge Hyman believes a foreseeability test is a reasonable one when it comes to legal consequences. “How foreseeable is it that this “private” information is going to be dispersed out there and with more Facebook friends or followers, there is more likelihood it will be shared,” says Hyman, and with that, there might be “potential consequences in terms of privacy.”

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.

Legal Actions Against Online Criticism

When negative comments are written online about a business, is that actionable in a court of law? The environment under which the comments are written and the exposure the comments receive come into question, according to retired California Superior Court Judge Eugene Hyman.

Most commonly, the people who are most concerned about this are dentists, doctors and lawyers, says Hyman. “Calling a physician a quack is obviously disparaging but the question is, is it actionable?,” he says. With Facebook, Hyman adds, there is a certain amount of priviledge that is recognized by the courts to the defendant, the person posting the comments, as this is deemed as free speech and there is a relatively small number of people reading it.

With Yelp, the online review site, the reviews are going to be seen by a much larger base because there are relationships involved, says Hyman, and there is some responsibility on Yelp to respond and remove inappropriate comments. There is a great deal of first amendment exercise that you have a right to state your opinion, says Hyman.

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.

Appealing Miranda Rights, Featuring Retired Superior Court Judge Eugene Hyman

In the California Supreme Court case of Sauceda Contreras, the issue of whether or not the statement made by Contreras was ambiguous is in question. In the California courts, the first step was to determine if he invoked his right to remain silent or if it was ambiguous and if it was ambiguous, under federal law, which California follows, they are allowed to do follow-up questioning to determine his true intention, according to retired Superior Court Judge Eugene Hyman.

The court of appeals felt there was a violation of miranda and that he was un-ambiguous regarding his intention of wanting a lawyer. The state, through the Attorney General’s office, then appealed the matter to the California Superior Court hoping they would reverse the court of appeals, which they did unanimously. The court of appeals then affirmed the conviction and Contreras’s sentence.

Judge Hyman feels that Contreras’s statement is not ambiguous and feels there’s been a natural progression to limit miranda. In the beginning of case law, not only did you have to say that you understood your right but you had to have these rights in mind when deciding to talk. Now, you just have to say you’ve understood them and that you’re willing to talk, without having the rights in mind, Hyman says. It’s assumed that since you’ve just been advised of your rights and you’ve understood them, that you’re going to consider those rights and the court has to make the determination that you “knowingly and intelligently and understandably” waive those rights, he adds.

According to Hyman, there has been a natural progression in liberalizing this waiver and in terms of finding that a statement is ambiguous and letting the police follow-up. The courts in the Contreras case found this wasn’t the best follow-up with the police but within the realm of reasonableness and that’s why Hyman thinks there’s room for this case to go through the federal system.

Hyman says that the general rule is if a person invokes their constitutional miranda rights, that they don’t want to talk, law enforcement may not come back and read the miranda rights again and hope that person will waiver. There’s a public policy reason for that, Hyman notes, such as delaying getting an attorney and the issue of harassment. In other words, if a person invokes miranda, they have to initiate by asking to speak to the detective and then they’re re-mirandized to make sure the person is in the right state of mind, Hyman adds.

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

Jared Loughner Pleads Guilty. What Should Arizona Do?

Jared Loughner pleaded guilty in federal court, after he was found to be mentally competent and he will be sentenced to life in jail without the possibility of parole. What remains to be seen is if Arizona will now seek the death penalty.

Eugene Hyman, retired Superior Court Judge in Santa Clara, California says that under the U.S. Constitution, there is nothing that prohibits another state on the same operative facts from prosecuting under its law. The issue of whether Arizona can prosecute him on the death penalty is up to the Arizona Constitution, not the U.S. Constitution. Hypothetically, if Loughner were to be found insane or incompetent to stand trial under the federal court, that would not prohibit the state on whether or not they would be required to find him insane, Hyman notes.

Hyman says that if he were representing Loughner, he would investigate what the state of Arizona was going to do first. “It would be crazy to go ahead and take care of the federal case and leave him vulnerable with respect to the state case,” he says. Hyman believes that the only reason Arizona would want to pursue the case is to seek the death penalty, considering Loughner is never getting out of jail.

In terms of who goes first, federal or state, in the federal constitution, it doesn’t matter but in the state constitution, it does make a difference, according to Hyman. If Loughner is found incompetent in the federal case, that can be pursued in the state case. A lot of evidence admitted in the federal case is going to be admitted in the state case and all of the testimony in the federal case, where people said he was competent, is going to come into play in the competency hearing with respect to Arizona, adds Hyman.

Hyman says there is a big distinction between the definitions of insanity and competency. Insanity asks if a person was culpable at the time the offense was committed and if that person knew right from wrong. Competency to stand trial asks without any consideration whether a person knew they were insane at the time of the offense and if that person is able to appreciate what is going on with the prosecution and if that person is able to assist their advocate in their defense. Also, insanity is decided upon by a jury after being found guilty. Incompetency, on the other hand, is for a judge to decide, not a jury, notes Hyman.
Source: dailymail.co.uk

If a person is found to be incompetent, they can be sent away for many years to get rehabilitated and the prosecution can still pursue the case. Hyman says that a lot of prosecutors fight incompetency because the strength of their case may not be the same down the line. “Delay of a case always favors the defense, never the prosecution,” he says.

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.

What are Restrictive Covenants, Featuring Wendi Lazar of Outten and Golden, LLP

Restrictive covenants are contract clauses that can appear in an employment agreement, offer letter or equity agreement that will obligate and restrict that employee from competing with his or her employer during the course of their employment as well as after the employment term ends.

Wendi Lazar, partner at employment law firm Outten and Golden, LLP, who co-heads the Professionals and Executives Group, spent some time with The Legal Broadcast Network discussing the ins and outs of restrictive convenants.

The person coming into the job really needs to know if the company has a protective interest in restricting them from competing. Wendi explains that certain high-level employees will have a lot of
confidential information and be exposed to a lot of secrets and intellectual property that the company may be worried about them sharing. On the other hand, a certain employee may not be exposed to confidential information and a restrictive convenant may be too broad for them and restrict them from ever getting a job in the future. Wendi emphasizes how important it is for every employee to read the fine lines when it comes to both confidentiality and restrictive convenants.

A non-compete is a type of restrictive convenant and is an obligation on the part of the employee not to compete with the employer in the workplace during employment but more so after employment ends. Wendi adds that these non-competes generally have a term and may be very specific for that industry, so one needs to know how broad and specific the non-compete is. It can also be limited in scope, time and geography. A reasonable non-compete clause is if the company has a legitimate interest in enforcing it but also if it doesn’t stop an employee from getting a job in their field.

Another restriction is a non-solicitation clause, which have two components, the first of which is restricting an employee from soliciting clients, customers or relationships from that particular company. These can generally be from three months to 18 months. The other component is after an employee leaves, for them not to solicit employees of the former company. Wendi says that courts are more likely to enforce non-solicitation provisions than non-competes because courts generally feel that clients, customers and relationships are a protected interest of the company.

A component to enforcability of a non-compete is that the employer provides a form of consideration. Every good contract must have a meeting of the minds and good consideration and consideration in the non-compete arena is during employment and is the employment itself. Salary is consideration, as one is getting paid to stay with the employer and not go somewhere else. However, Wendi adds, post-employment is very different, ie severance, which gives you a salary after termination, and that severance can be consideration for the enforcability of a non-compete.

Wendi says that it is standard practice to negotiate restrictive convenants, especially for high-level employees. She says that it’s important to note that in terms of restrictive convenants, they are enforcable depending on the state laws and that most non-compete and non-solication laws revolve around common law and what the law says in that state. More and more states are putting on state statutes that enforce non-competes, Wendi says.

For more information about Wendi Lazar and Outten and Golden, LLP in New York, click here. She is a contributor on the Employment Channel, hosted by The Legal Broadcast Network.

Boys suspended for 1 year after bullying bus monitor

Source: www.thehollywoodgossip.com

The bus monitor from upstate New York, who was bullied by four seventh grade boys, says she is satisfied with the one-year suspension they received as punishment for their actions.  Is this just punishment?

Retired Superior Court Judge of California Eugene Hyman says that as the punishment goes, there are still a lot of unknowns in the case.  It is not clear if these boys have had prior problems and as juvenilles, this information would not be released.  He would want to know what their psychological profile is and would hope that the school, in viewing the video, would have them evaluated by the school psychologist.  He would also like to know what their home life is like.

Judge Hyman feels that being removed from their home school for an entire year and receiving 50 hours of community service is a severe consequence, which, in certain cases is merited, but that is also not to say that there shouldn’t be some accountability.   If they were being criminally prosecuted, under California law, one of the burdens of the prosecutor is to prove what they did is illegal.  An average 14-year-old knows what they engaged in is wrong but it goes to show that how you set up the system, that the presumption for someone under the age of 14 is that they are not responsible for their conduct.  Judge Hyman says this needs to be put into perspective, however, as these boys are young and foolish and again, he would need to know more about them.

Had this video not been publically viewed online, Judge Hyman feels they would not be punished as harshly.  “When cases become public, they take on a life of their own and a result, there is a cry for very serious retribution and this needs to be tempered with due consideration to all of the factors that are part of a 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, visitwww.judgehyman.com.  He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network.

Judge Gives Temporary Custody to Tito Jackson

As the battle over Michael’s Jackson’s estimated $1 billion estate continues, temporary guardianship has been granted to his brother Tito, after concerns of the well-being of Michael’s mother Katherine arose, the children’s guardian, while she was away in Arizona.

Retired Superior Court Judge of Santa Clara, California, Eugene Hyman says that the courts look at what’s in the best interest of the children first and unfortunately, a lot of parents think it’s about them.  In dependency court, you have social workers who generate information and investigations for the judge.  In probate court, however, it is a party that is moving.  Someone is coming forward and saying the court needs to be aware that something is going on and as a result, there is an emergent situation and the court needs to make temporary orders.

Source: www.abcnews.go.com

Judge Hyman says the court has probate investigators and depending on the the local culture, the court may be using those investigators to get some independent information for the court or may not, depending on the financial situation of the court and the availability of the investigators.  He says that in L.A., they probably won’t be able to do that because of financial difficulties.  In Santa Clara, where he resided, he would have had an investigator get him some information, even in a temporary situation.

Looking at the declarations, it’s always going to be painted in a direction of seriousness in order to get the court to do something, Hyman says.  He adds that in most of these situations, the respondant has not had a chance to respond because the moving parties say there isn’t time.   In this case, although the kids are older, they still are alone and the actual guardian is out of state and has not put something in play for the kids to be safe and so, the court needs to do something on an emergency basis.

Ulimately, Hyman says, there will be another hearing where the actual guardian will give her information to the court.  While he is not aprised as to whether or not the temporary guardian is requesting to be permanently replaced in terms of Mrs. Jackson, right now it’s only a temporary request.  Being that Mrs. Jackson is elderly, however, Hyman thinks that at some point, someone is going to try and replace her.

Hyman speculates that this very well could be a vieled attempt to get control of Michael’s estate but without more information, it’s hard for him to say.  If he was the probate judge, he would want to get a lot more information before he would do any changing with respect to guardianship.

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.

Cruise/Holmes divorce settlement & celebrity privacy

For celebrities, being a public figure comes with the territory. The question is, what part of their private lives should remain private?

No one likes airing out their dirty laundry and high-profile people are no exception. That’s why most celebrities and high-profile figures keep the details of their divorce settlements private, especially when child custody issues are involved. Unless it is a juvenile case, it is impossible to seal an entire judgment, according to notable retired Superior Family Court Judge of California Eugene Hyman. With good, smart lawyers however, parts of the judgment can be sealed.

There are different laws in different states in terms of allowances of what and what cannot be filed in terms of a judgment. Judge Hyman says that what can be done is to start with a basic document and that document makes reference to other documents that is the existence of other documents, without the specificity of what those other documents provide.

Another alternative to keep judgments private is going to private judges, through arbitration or mediation where orders are made by the arbitrators or mediators and these orders reference certain documents. It takes some effort if both parties want things private but as soon as one says no, it’s public.

Regarding child custody issues, in the divorce case of Tom Cruise and Katie Holmes, if Tom wanted to hypothetically send their daughter Suri to scientology camp and Katie says no and it can’t be resolved themselves, they would need to go to a courtroom, decreasing the likelihood it would remain private. Source: www.celebuzz.comValuations of a child would remain private but the decision a judge would make would likely be public. Parties can go to a private judge to keep things private as well.

Typically, when there is a child involved, both parties usually want to keep things private, as this is in the best interest of the child. When this is the motivating factor, it is more likely both parties will work together to achieve that.

Eugene Hyman is a retired Superior Court Judge of California for the County of Santa Clara. In addition to his numerous appearances on tv news shows, he is a featured commentator with The Legal Broadcast Network. For more information, visit www.familylawchannel.com and www.judgehyman.com.