Ian’s Legal Fact of the Week 2/23/15: Alienation of Affection

One of the most common 19th century civil suits was for alienation of affection, awarding damages to litigants whose marriages disintegrated due to the actions of a third party. In order for a plaintiff to prevail, he or she had to show that the marriage had been a loving one, that the relationship was alienated (i.e., destroyed), and that the defendant was responsible for this alienation. While long since abolished in most states, in 2010 a record $9 million judgment was awarded in North Carolina against the defendant who had seduced the plaintiff’s husband.

Ian’s Legal Fact of the Week 2/16/15: The Alford Plea

The Alford plea is a form of “alternative plea”, meaning that it does not correspond to traditional pleas of either guilty or not guilty. It is premised on the defendant’s acceptance of a plea bargain agreement while continuing to assert innocence. Typically, this involves a defendant’s acknowledgement that evidence of sufficient weight exists to result in a probable guilty verdict. The Alford plea derives from the 1970 Supreme Court case of North Carolina v. Alford, in which a defendant “concludes his interests require a guilty plea and the record strongly indicates guilt”, having received benefit of advice from a competent attorney. Alford please are accepted in virtually all state jurisdictions. While the civilian federal courts recognize Alford pleas, U.S. military courts do not.

For those who might want to read about this and other alternative pleas in more detail, please visit my earlier blog on the topic.





Ian’s Legal Fact of the Week 2/09/15: Reporters’ Privilege

Reporter’s privilege (also known as journalist’s privilege), is a limited First Amendment right of journalists to shield their confidential sources from discovery. Forty states and D.C. have enacted press shield laws that protect reporter’s privilege. While there is no federal press shield law, ten Courts of Appeals have upheld this privilege. Proposed bills to create a federal press shield law were last introduced in Congress in 2004-2005.

Ian’s Legal Fact of the Week 2/2/15: Flag Desecration Amendment

The Flag Desecration Amendment (aka “The Flag-burning Amendment”) was a proposed constitutional amendment stating “The Congress shall have power to prohibit the physical desecration of the flag of the United States.” It was first introduced in the House of Representatives in 1995, but the last attempt to pass it failed in the U.S. Senate by one vote in 2006. Legal commentators have pointed to ambiguities and interpretative issues with the proposed language that likely would have resulted in Supreme Court decisions that would have proven unsatisfactory to both supporters and opponents of the amendment.

Ian’s Legal Fact of the Week 1/26/14: Felony Murder

The common law felony murder rule holds that if a person kills another while committing or attempting to commit a felony, the killing is classified as murder. This can include unintended and accidental deaths caused during the felony, and also extends criminal liability to all participants in the felony for any deaths that occur during or in furtherance of that felony. The felony murder rule is therefore essentially a ‘strict liability’ criminal offense. In most states, felony murder is treated as first-degree murder. The origins of felony murder are often traced back to Lord Dacres’ Case in the U.K. in 1535, in which Lord Dacres was convicted of murder and executed after members of his hunting party killed a gameskeeper while unlawfully hunting game in a park. Despite its ancient origins, the U.K. abolished the felony murder rule in 1957.

Ian’s Legal Fact of the Week 1/19/15: Protective Orders, Restraining Orders, and Peace Bonds

There are three related, yet distinct, protectivetools available to applicants: a protective order compels the abuser to stay away from the applicant and her home, place of work or school. A temporary restraining order (TRO) orders another party not to harm the applicant’s property, or to threaten, harass or harm the applicant or her children. A peace bond orders a third party to deposit money with a court that he will lose if he commits the threatened crime. Typically, a protective order is sought when the applicant has already been harmed by the abuser and can last for up to two years; a TRO forms part of an on-going civil or criminal matter and lapses once the court proceedings have concluded; and a peace bond is issued when someone has threatened to harm the applicant or her property and they have a reasonable apprehension those acts will be carried out, and is typically valid for up to one year.

Ian’s Legal Fact of the Week 1/12/15: False Imprisonment v. Kidnapping

False imprisonment is the act of confining or detaining someone with no legal justification and against their will, and is treated as a felony in some (but not all) states In contrast, kidnapping involves moving a person against their will, through use of force or threats, to another location. The location may be only nominally distanct from the victim’s current location. A simple example will help to illustrate the difference: if you don’t like my class and lock me in the classroom, that’s false imprisonment. If you drag me into a classroom–even a short distance–and lock the door, that’s kidnapping.

Generally, kidnapping is considered a more serious offense and is usually punished as a felony. Both false imprisonment and kidnapping can be subject to aggravating circumstances that heighten the penalites, such as if the victim was a minor. A charge of kidnapping can include a charge of false imprisonment, as well. False imprisonment can lead to civil claims–for example, a person wrongly charged with shoplifting might file a civil suit for damages. False arrest is related to false imprisonment, but the distinction is that false arrest is premised on the actor claiming he or she has a legal basis for the detention which proves to be false. Examples of false arrest would include someone detaining a victim while impersonating a police officer, or an actual law enforcement officer conducting an invalid arrest (e.g., lacking probable cause, without warrant, etc). False arrests can also result in civil liability.


Ian’s Legal Fact of the Week 1/5/15: The Declaration of Independence

While some have argued that the Declaration of Independence is part of the “organic law” of the U.S., the prevalent view is that the Declaration is not a legal document. It did not create a new government or enact any laws, and none of its provisions have any legal force unless subsequently enacted into law. The Declaration is more accurately said to be a political document that severed ties with Great Britain and proclaimed the then-revolutionary concept that government derived its power from the people.

Ian’s Legal Fact of the Week 11/24/14: Presidents of the U.S.

While George Washington is known as the first president of the U.S., there were 8 “presidents of the United States in Congress Assembled” appointed under the Articles of Confederation and Perpetual Union, between 1781-1789. The name of only one of these is still generally recognizable: John Hancock, who had earlier served as president of the Continental Congress when the Declaration of Independence was adopted.

Ian’s Legal Fact of the Week 11/17/14: Massachusetts and the Bill of Rights

The Massachusetts delegation was deeply divided over ratifying the Constitution and was dominated by anti-federalists. The “Massachusetts compromise” to introduce amendments, led by John Hanckock and Samual Adams, convinced states such as New York, New Hampshire and Virginia to vote to ratify, and also led to Massachusett’s ratification in February 1788. Ironically, Massachusetts did not ratify the Bill of Rights until the 150th anniversary of the Constitution’s ratification, in 1939.

Ian’s Legal Fact of the Week 11/10/14–Some Facts About the Massachusetts Constitution

The Massachusetts Constitution is the world’s oldest continuously-operative constitution, having been approved in 1780 (9 years before the U.S. Constitution). Its principal author was John Adams, who insisted the state be referred to as a ‘commonwealth’. It was also the first to be created through constitutional convention rather than by a legislature, after an earlier draft constitution was rejected by voters in 1778. It has been amended 120 times, most recently in 2000.

Ian’s Legal Fact of the Week 11/3/14: Grand Jury Testimony

Clients subpoenaed to testify before a grand jury–whether as witnesses or suspects–are not entitled to be represented by counsel as the Sixth Amendment is not applicable to grand jury proceedings. As these are “closed” sessions, a witness or suspect wishing to have benefit of counsel can have their attorney wait outside of the grand jury room, but must request permission to leave the room to consult with counsel.