In The News
Bail or Jail
After a defendant is arrested, he or she is required to appear before a judge or magistrate. At this time, the defendant may request or a judge may set bail for the defendant’s release. Bail is cash or a cash equivalent that is given to the court to ensure that he or she will appear in court when ordered. If the defendant appears when he or she was ordered to, bail is refunded. However, if the defendant fails to appear, the court keeps the bail and issues a warrant for his or her arrest.
Forms of Bail
Bail can be cash or can be in a number of different forms. Some examples are:
- A check in the full amount of the bail.
- Property worth the full amount of the bail.
- A bond.
- A waiver of bond by being released upon one’s own recognizance.
Determination of Amount of Bail
A judge or magistrate determines the amount of bail that the defendant will be required to post prior to his or her release. The judge takes numerous factors into account including, among other things, the nature of the offense, the dangerousness of the defendant, the defendant’s criminal history, and the defendant’s risk of flight. The Eighth Amendment of the United States Constitution forbids excessive bail. The amount of bail must be no more than is reasonably necessary to keep him or her from fleeing. However, many judges do impose high bail in particular types of cases to keep the defendant in jail.
How to Pay for Bail
There are two ways to pay bail. The defendant may either pay the full amount or buy a bail bond. A bail bond is a promise that you will appear in court when you are supposed to. The bond seller, known as a bail bondsman in some states, posts a bond with the court, and the court keeps the bond in case you don’t show up. A bail bond can usually be purchased for about 10 percent of the amount of the bail. The defendant may also be required to pay the bond seller a nonrefundable premium. Sometimes courts have lists of bond sellers or the defendant could look in the Yellow Pages. Typically, jails and bond sellers do not take credit cards or personal checks.
Released on Defendant’s Own Recognizance
Instead of posting bail, the defendant may be released upon his or her own recognizance. The defendant released on his or her own recognizance must sign a promise to show up in court. The court decides whether or not to release the defendant upon his or her own recognizance. The court is more likely to grant a request to be released upon one’s own recognizance if the defendant is not likely to flee. Factors that the court looks at to conclude whether to grant a request to be released upon one’s own recognizance are:
- The defendant’s ties to the community.
- Whether the defendant has family and friends residing in the community.
- Whether the defendant works within the community.
- Whether the defendant has a criminal history.
- Whether the defendant has appeared for prior court appearances in past cases, if applicable.
If the defendant is unable to post bail or be released upon his or her own recognizance or if the crime committed is too severe to warrant the posting of bail, the defendant will be required to remain in jail until trial.
Money laundering is a federal offense that is defined as the unlawful transfer of money that flows from racketeering or some other illegal sources into legitimate channels so that the original illegal source of the money cannot be traced.
The elements of money laundering are as follows:
- Defendant must conduct or attempt to conduct a financial transaction.
- Defendant must know that the property involved in the transaction was derived from proceeds of an illegal activity.
- Defendant must have one of the following levels of intent: to promote the carrying on of a specified unlawful activity, to engage in tax evasion or fraud, to conceal or disguise the nature or location of the original transaction, or to design a transaction to avoid the reporting requirements under the federal law.
- The property must be derived from a specified unlawful activity identified under federal statutes.
In order to establish that the defendant is guilty of money laundering, the prosecutor must prove the above-listed elements. In addition, the prosecutor must show by direct or circumstantial evidence that the defendant knew that the property involved was derived from an illegal source. The prosecutor is not required to show that the defendant knew of the specific offense from which the proceeds were derived.
The prosecutor must also show that the defendant initiated, concluded or participated in the initiation or conclusion of the financial transaction. A transaction is defined as a loan, sale or pledge, or with respect to a financial institution, a deposit, withdrawal or other transfer or exchange of currency. A financial transaction includes the following elements:
- Movement of money by any means.
- Use of monetary instrument.
- Transfer of title to some property.
- Use of a financial institution.
If the defendant is convicted of money laundering, he may be sentenced to 20 years imprisonment and he may be fined. The fine may be $500,000 or twice the sum involved in the illegal transaction, whichever is the greater amount.
Alimony: Reimbursement Support
Reimbursement support is one way in which a spouse (the paying spouse) who received the other spouse’s (the receiving spouse’s) monetary support during marriage repays that support after the parties divorce. The benefit rendered could be in the form of educational costs, money spent toward establishing or operating a business for the supported spouse, and similar types of support. To be eligible for reimbursement support, the benefits should have been received during the marriage, and the receiving spouse should have provided most of the family support during the marriage period in question. Reimbursement support is not the same as basic alimony. Alimony, also called “spousal support,” is intended to allow the spouse who receives the alimony to live in a lifestyle similar to what he or she enjoyed during marriage. Reimbursement support may be provided for employment opportunities that the receiving spouse forfeited in order to care for the family while the paying spouse advanced his or her education or career. The sacrifice in the form of foregoing personal or professional goals in order to support the marriage is taken as the key factor for determining the reimbursement amount. Reimbursement support usually is based on the amount of money spent by the receiving spouse during the marriage, not on the enhanced future earning capacity of the paying spouse. The divorce court has discretion to grant reimbursement support and to quantify it. Either party may petition to modify the reimbursement support amount as time passes. Remarriage does not terminate the reimbursement support obligation. It is tax deductible for the payer, and is taxable as income to the receiving spouse. The paying spouse’s death terminates the reimbursement obligation, so it is wise to assure that the paying spouse carries life insurance payable to the receiving spouse. Courts consider the paying spouse’s ability to pay and the receiving spouse’s financial situation when awarding reimbursement support. Other factors may include the parties’ ages, health, retirement benefits, wastage of marital assets, and grounds for separation.
Defenses in Fault-based Divorce: Recrimination
Recrimination is a traditional equitable defense to fault-based divorce actions and is based on the principle that a person seeking justice must come to court with clean hands. It seeks to avoid divorce on the ground that the petitioner has engaged in conduct that would entitle the respondent spouse to a divorce. For example, if a wife files for divorce on the ground of her husband’s cruelty and if she herself is guilty of committing cruelty against her husband, then the recrimination defense would act to prevent dissolution on the ground of the husband’s cruelty. Some states consider or did consider recrimination to be a comparative defense, rather than an absolute defense, in fault-based divorce proceedings. Before the introduction of no-fault grounds of divorce, recrimination worked as a counterclaim defense. If the fault counter-alleged by the respondent is more severe than that the petitioner claims, then the court may grant divorce relief to the respondent. It is conceivable that such a scenario could shift the formulation for child custody and support, alimony, fees and costs, and perhaps even property division in a case. Most states have abolished or limited recrimination as a defense in fault-based divorce. One reason for the restriction is that the recrimination concept invites acrimony and exaggeration of the parties’ differences, which might make the marital relationship even less viable. Some states do not consider recrimination as a bar to granting divorce, but rather as one factor to be considered in a case. Of course, there is no role for recrimination in pure no-fault divorce states.
Property Division in Divorce: Treatment of Workers’ Compensation Benefits
Persons suffering a work-related injury may be entitled to workers’ compensation. It can be paid in installments or as a lump sum covering the costs incurred by the victim of on-the-job accident. For purposes of division in divorce, some states classify workers’ compensation as earnings. Other states treat part of such awards as earnings and part as compensation for pain and suffering resulting from the underlying injury. Under the so-called “wage replacement analysis,” some states characterize workers’ compensation as disability pay. Once classified, workers’ compensation is divided according to the respective states’ divorce property distribution schemes. In common law equitable distribution states, the general presumption is that workers’ compensation is treated as marital property if acquired during the marriage. In pure community property jurisdictions, it is treated as community property if acquired during marriage and as separate property if it is acquired before marriage or after marriage dissolution. Some states deal with workers’ compensation specifically. For example, Missouri sets aside a specified amount of workers’ compensation as the injured spouse’s separate property. The goal is to compensate the injured spouse for the future loss of post-divorce earnings. In pure community property states, workers’ compensation benefits paid in a lump sum after divorce may be divided between community property and separate property. In that scenario, the portion that relates to wages lost during the marriage would go to the community estate. The rest would go to the injured spouse’s separate estate. The individual states’ varying and evolving treatment of workers’ compensation benefits in divorces creates a patchwork system across the country. That makes it important for persons contemplating divorce in which workers’ compensation benefits are involved to consult the law in the state where the divorce will occur.
Alimony: Temporary Support
Temporary alimony is the same as temporary spousal support, and both provide sustenance to the dependent party through the course of a divorce case. During the proceedings, the dependent spouse and the parties’ children may require financial support, and courts may grant temporary support for that purpose. Dependant spouses can seek temporary support during legal separation as well. There usually is not a precise formula for calculating temporary support. Courts should evaluate the independent spouse’s ability to pay and the reasonableness of the temporary support claim before awarding temporary support. Courts usually consider the dependent spouse’s needs along with the parties’ ordinary standard of living in determining an award. Limited-term support sometimes is called “rehabilitative maintenance,” as it is designed to maintain a supported spouse’s financial stability for the time it takes him or her to be rehabilitated. This sort of maintenance often is awarded during times in marriage where one spouse has deferred career and/or education for the family’s welfare. Temporary spousal support can be defined for a specific period of time, and a specific date usually is identified for the court’s approval. Spousal support can be terminated by the occurrence of an event such as remarriage, death of another spouse, court order, and financial windfall. For federal income tax purposes, temporary support is tax deductible to the paying spouse and is ordinary income to the receiving spouse. In many states, support also can be made payable in a single lump sum. Some states use a statutory formula for calculating support awards based on parties’ financial status during the marriage. Temporary support is awarded to the supported party to minimize financial hardship and unfairness, usually when the supported spouse is not as strong financially as is the supporting spouse. In that way, the legal system strives to provide equal treatment for both the spouses involved in divorce or separation proceedings. Temporary support helps protect the supported spouse’s assets and credit during the proceedings. Some states grant support for up to three years for supported spouses with more than ten years of marriage, but this can differ with circumstances and the case. The parties also can waive alimony, provided that it is understood that support generally is not sufficient to cover the supported spouse’s expenses or outstanding debts.
Lump-Sum Spousal Support
Spousal support can be one of the most difficult issues to resolve in divorce. Spousal support, which is also referred to as alimony, involves an obligation by one spouse to make financial payments to the other spouse. Permanent spousal support involves the payment of support after a divorce is granted and until a further court ruling modifies or terminates the obligation. Permanent spousal support may be ordered in situations involving long-term marriages or in situations where one party cannot earn a living due to a disability or injury. Such spousal support can be paid in lump sum or on monthly basis. Courts consider certain factors when ordering the payment of spousal support, including the length of the marriage, the age of the parties, their relative incomes, the tax implications of the support award, any economic advantage or disadvantage due to marital breakdown, and arrangements with regards to child support and custody. Several states allow lump sum support, including: Alaska, Florida, Kansas, Louisiana, Maine, Michigan, Nevada, New Mexico, North Carolina, Ohio, Oregon, South Carolina, Virginia, West Virginia, and Wyoming. Lump Sum Payments Once the court has determined who is to pay spousal support, the next issue that arises is the method of payment and duration of spousal support. Spousal support generally is payable on a monthly basis until terminated by court order or remarriage. However, an agreement allowing for a single lump sum payment may be reached depending on the circumstances of the case, the parties’ desire to have such an arrangement, and the paying spouse’s financial ability to make a single payment. There are advantages of lump sum spousal support, including the parties’ peace of mind and closure. Once the lump sum amount is paid, the payor spouse may obtain a release from the recipient spouse from further obligations of spousal support. In this way, the payor spouse avoids or considerably reduces the risk of later claims by the recipient spouse to vary the spousal support arrangements earlier agreed upon. Additionally, the recipient spouse has a lump sum amount available which he or she can immediately use and/or invest for financial stability. The recipient spouse would not have to rely upon someone sending him/her a check every week or every two weeks or every month. However, there are also certain disadvantages to lump sum spousal support, including the tax implications of receiving a large support payment that is referred to as “alimony.” Another disadvantage is the lack of a guaranteed income in the future and the possibility that the lump sum payment is less than the total payout possible under a monthly support schedule. Conclusion In light of all of the different factors that can impact the award of spousal support, including the varying requirements under state laws, the advice and counsel of an experienced family law attorney can help explain your rights and obligations with respect to such awards.
Comments During Closing Arguments and Curative Instructions
If the defendant suspects that the prosecutor has made an inappropriate comment or remark during closing arguments, the defendant should make an immediate and contemporaneous objection. If the defendant fails to immediately object to the comment or remark, the defendant’s later objection to the comment or remark will be deemed waived. However, there are exceptions to the rule of contemporaneous objection. First, the defendant may still be able to object to the prosecutor’s comments at a later time if the prosecutor’s comments resulted in plain error. Second, even if the defendant fails to make a contemporaneous objection to the prosecutor’s comments, if the comments were so improper that they could not have been corrected at the trial court level, the appellate court may review the comments. Third, if the prosecutor’s comments were so flagrant resulting in prejudice to the defendant, an appellate court may also review the comments. Last, if the prosecutor engaged in a persistent pattern of improper conduct such that the defendant did not want to object to the prosecutor’s comments as to bring more attention to the prosecutor’s conduct, an appellate court may review the comments. Curative Instructions A curative instruction is a jury instruction given in an attempt to rectify or correct an improper comment or statement made by a witness or counsel. In the case of closing arguments, a curative instruction may be given if the prosecutor makes a misstatement during closing arguments that may result in a prejudicial effect on the defendant. Curative instructions are used in both federal and state court settings. The defendant may object after the curative instruction is given. However, if the defendant fails to object after the curative instruction is given, any later objection by the defendant regarding the prosecutor’s comments may be deemed waived because the defendant failed to object to the curative instruction.
Wiretaps and Electronic Surveillance Devices
Under the United States Code wiretaps are permitted after a proper application has been made for their usage. A wiretap is defined as a form of electronic surveillance whereupon law enforcement officers listen to phone conversations or other communications of certain individuals. States have enacted their own statutes that cover the procedures and issuance of permits to conduct a wiretap. State court judges are permitted to issue wiretaps in conformity with the Code and in conformity with their own state statute. However, a state court’s order suppressing a wiretap request is not binding on federal courts and does not establish that the evidence obtained by the wiretap was obtained in violation of the Code. Foreign Wiretaps The United States Code does not apply with respect to foreign wiretaps. Wiretap evidence obtained by a foreign country may be admissible if a foreign official acts on their own in accordance with the laws of their country. However, there are two exceptions to this rule. First, if the foreign officials’ acts were so extreme as to shock the conscience of the court, or second, if the foreign official’s cooperation with the United States’ law enforcement would violate constitutional privileges enjoyed by the potential defendant. Electronic Surveillance Devices Pen registers are used in electronic surveillance. A pen register is a device that records the numbers dialed by a phone without overhearing the actual conversation or communication that took place. Trap and trace devices record the numbers of telephones that make phone calls to certain other telephone numbers. Under the PATRIOT Act both of the aforementioned types of surveillance methods have been extended to Internet communications as well. Pen registers and trap and trace devices may be used to retrieve routing information for electronic communications. The use of a pen register does not constitute a search under the Fourth Amendment to the United States Constitution. Because no search is conducted, law enforcement officials are not required to obtain a warrant or have probable cause to use pen registers. The use of pen registers and trap and trace devices may be authorized if it is shown that the information sought is relevant to an ongoing criminal investigation. The use of pen registers and trap and trace devices may be used anywhere within the United States.
Federal Volunteer Protection Act – Preemption of State Law
The federal Volunteer Protection Act (VPA) preempts state laws to the extent that such laws are inconsistent with the VPA. However, state laws that offer additional protections to volunteers are not preempted by the VPA. The following laws are not inconsistent with the VPA: (1) a state law that requires a nonprofit organization or governmental entity to adhere to risk management procedures, including mandatory training of volunteers; (2) a state law that makes the nonprofit organization or governmental entity liable for the acts or omissions of its volunteers to the same extent as an employer is liable for the acts or omissions of its employees; (3) a state law that makes a limitation of liability inapplicable if the civil action was brought by an officer of the state or local government under state or local law; and (4) a state law that makes a limitation of liability applicable only if the nonprofit organization or governmental entity provides a financially secure source of recovery for persons who suffer harm as a result of actions taken by a volunteer on behalf of the organization or entity. A state may avoid the preemption of the VPA for lawsuits against volunteers in which all of the parties are citizens of the state. In order to avoid preemption for these types of lawsuits, a state must enact legislation declaring its intention to opt out.
Tort Action for Sale of Habit-Forming Drug to a Spouse
Most states have enacted statutes that prohibit the sale of intoxicating liquors to a person who is intoxicated or who is known to be addicted to alcohol. These statutes may also extend to the sale of a habit-forming drug to a person who is known to be addicted to drugs. A spouse may be entitled to an action under these statutes, which action is similar to the common law tort action for the sale of a habit-forming drug to a spouse. A spouse who files an action for the sale of a habit-forming drug to his or her spouse is known as the deprived spouse. The spouse who has been sold the habit-forming drug is known as the impaired spouse. A deprived spouse’s action against a defendant for the sale of a habit-forming drug is different than an action against the defendant for a tort that is committed against the impaired spouse. The deprived spouse’s action is not a derivative action. Even if the impaired spouse consents to the sale or is contributorily negligent, the deprived spouse is entitled to the action. A defendant who sells a habit-forming drug to an impaired spouse is liable to a deprived spouse if he or she knew that the habit-forming drug would be used by the impaired spouse in a manner that would be injurious to the impaired spouse’s health, if he or she knew that the drug would not be used for proper medicinal purposes, or if he or she knew that the drug would be used to satisfy the impaired spouse’s addiction. The deprived spouse does not need to forbid the sale. The deprived spouse only needs to show that he or she did not consent to the sale and that the sale was not made in accordance with a valid prescription. The fact that the sale did not violate a criminal statute is not a defense. A defendant who sells a habit-forming drug to an impaired spouse is liable to a deprived spouse for the harm that results to the deprived spouse’s marital interests. Such marital interests include a loss of the services or support of the impaired spouse. The marital interests also include a loss of the impaired spouse’s affections and sexual relations. The deprived spouse is also entitled to damages for medical expenses that he or she incurs for the impaired spouse’s medical treatment as a result of the habit-forming drug. The deprived spouse is further entitled to any other expenses that he or she incurs as a result of the sale, such as the cost of a drug rehabilitation program.
Liability of Partners and Joint Venturers
Generally, each member of a partnership or joint venture is vicariously liable for the wrongful conduct of another member if the wrongful conduct occurs within the scope and course of the affairs of the partnership or joint venture. Therefore, each member of a partnership or joint venture will be liable for personal injuries caused by another member’s negligence if the negligence occurs within the scope and course of the affairs of the business. For example, A and B form a general partnership for the purpose of establishing a chain of tanning salons. A and B buy a company car with partnership funds. While driving to a partnership meeting in the company car, B runs into a pedestrian. The pedestrian files a personal injury action against both A and B. If the pedestrian establishes that the accident was a result of B’s negligence, then both A and B will be liable for the pedestrian’s injuries because the accident occurred within the scope and course of the affairs of the partnership. Therefore, the pedestrian may recover damages from either A or B, or both of them.