Comments on Changes to Criminal Discovery

There was a great article in the Richmond Times-Dispatch this week on potential changes to what evidence people charged with a crime are entitled to receive. Currently those charged with a crime are not entitled to receive much of anything to aid them in their defense.  The full report can be found here.  The proposal's main recommendations are:

•    The Committee proposes that routine discovery shall be triggered by the filing of written notice by the accused rather than requiring the accused to file a motion seeking discovery.

•    The Committee proposes that police reports, including witness interviews, be subject to discovery, with broad provision for withholding, redacting or restricting disclosure of police reports for good cause.

•    The Committee proposes that witness statements be subject to discovery on a reciprocal basis, with broad provision for withholding, redacting or restricting disclosure of witness statements for good cause.

•    The Committee proposes that witness lists be provided by each party shortly before trial, subject to modification by the court for good cause shown.

•    The Committee proposes that a prosecutor's duty to disclose  exculpatory  information be set forth explicitly by rule.

•    The Committee proposes that the Rule governing subpoena duces tecums be modified:

(1) to set out in detail the trial court's authority to quash, prohibit or limit disclosure; (2) to define who is -- and who is not -- a "party" for purposes of a subpoena duces tecum;

(3) to incorporate statutory privacy provisions involving health records and certain other confidential information; and (4) to provide for ex parte proceedings in certain narrow circumstances.

•    The Committee proposes that the parties in a criminal case be required to provide on a reciprocal basis expert witness disclosures similar to that provided in civil cases.

If you have comments about this proposal, your can write to:

Patricia L. Harrington, Clerk
Supreme Court of Virginia
100 North Ninth Street, 5th Floor
Richmond, VA 23219

or you can send a copy of your copies via email to scvclerk@courts.state.va.us.

When can a juvenile be tried as an adult?

This blog is ADVERTISING MATERIAL for Charles R. Samuels, Attorney at Law, PLLC – 4908 Monument Ave., Ste. 100, Richmond, VA 23230; 804-342-1995

 
Last year the Richmond Times-Dispatch reported on a 11 year old charged with robbery would not be tried as an adult.  In Virginia there are a couple of laws that address whether or not a juvenile will be tried as a juvenile or adult. When a child will be tried as an adult, it is called a "transfer" because the child is being transferred from the juvenile system to the adult system.

 
The primary law is Virginia Code section 16.1-269.1. It outlines three types of transfer. It is important to note that children must be at least 14 years old at the time they are alleged to have committed a crime before they can even be considered to be tried as an adult.
Section A, B & C Transfers
Section A transfers begin when the Commonwealth Attorney files a motion with the Juvenile Court indicating they plan to try the child as an adult. The child must be alleged to have committed any felony and there must be a hearing regarding the proposed transfer. The judge decides, after hearing from both the Commonwealth and the defense, whether the child shall be tried as an adult. In determining whether the child should be treated as a child in the juvenile system or as an adult, the judge considers many factors including, the juvenile's age, the seriousness and number of the offenses, the criminal record of the child, "the extent, if any, of the juvenile's degree of intellectual disability or mental illness", the juvenile's school record, mental and emotional maturity, and his physical condition and maturity.
In Section A transfers the judge can keep the child in the juvenile system.
Section B transfers occur when the child is charged with specific types of murder or aggravated malicious wounding. The judge does not have the authority to prevent the transfer of the child to the adult system. All the judge can do it determine whether or not there is a preponderance of the evidence that the child committed the alleged crime.
Section C transfers include a litany of charges that could cause a child to be tried as an adult if the Commonwealth Attorney files motion indicating their intention to have the child tried as an adult.

If, after a preliminary hearing, the judge determines there is probable cause to believe the child committed the crime, the judge has to certify the charge and transfer the case to the adult system. If the judge determines there is not probable cause or if the petition is dismissed in the juvenile court after the hearing, then the case could remain in the juvenile court. However, the Commonwealth Attorney can then directly indict the child in the circuit court.

Charles R. Samuels is an attorney in Richmond, Virginia, practicing criminal, family & disability law.  He may be reached at 804-342-1995 x302.

Disclaimer:

ADVERTISING MATERIAL - Case results depend upon a variety of factors unique to each case.  Case results do not guarantee or predict a similar result in any future case undertaken by the lawyer.

"Law Enforcement - Leashed"

From the Times Dispatch:

Two years ago the Supreme Court put excessive faith in the alleged expertise of drug-sniffing dogs as a group. In a case in which a drug-detection dog “alerted” for one drug, but police found another, the High Court said police departments don’t need to demonstrate the reliability and accuracy of individual drug dogs.

That left the door open for abuse, since research has shown drug dogs can be wrong more than half the time; they also can be triggered to alert for drugs by a handler’s cues. Moreover, officers can claim a dog alerted them to the presence of drugs when it really didn’t. Who is going to contradict him? The dog?

Now the justices have made partial amends for that mistake by ruling that law-enforcement officers may not detain a motorist for the sole purpose of bringing a drug dog to the scene of a traffic stop. Once the officer has finished dealing with the matter that caused the stop (say, running a red light), then the stop is supposed to conclude and the motorist should be allowed to go on his or her way.

Once upon a time, conservatives would have decried such a ruling as an affront to law, order and perhaps even civilization itself. But the increasing militarization of law enforcement, along with several recent high-profile deaths at the hands of police officers, is leading many to reconsider their views. And why not? If you believe in limited government, and recognize that the police are a part of the government, then it stands to reason they should operate within limits, too.

http://m.richmond.com/opinion/our-opinion/article_cef08ad6-0b34-52e6-ab30-94a39bc4d17b.html?mode=jqm

From Evil Comes Good?

This blog is ADVERTISING MATERIAL for Charles R. Samuels, Attorney at Law, PLLC – 4908 Monument Ave., Ste. 100, Richmond, VA 23230; 804-342-1995

Yesterday King Richard III of the Plantagenet dynasty was buried in Leicester Cathedral - over half a millennia after his first burial without a coffin in a church that was demolished to create a parking lot.

Richard III was much maligned over the 1/2 thousand years since his death.  Shakespeare described him as, "poisonous bunch-back’d toad"; Sir Thomas More, "a miserable spectacle".  

And yet there is a reason to celebrate this King of England as well, for without his attempts to reform the criminal justice system, ours may have looked very different.

Richard III instituted two specific policies that we continue to enjoy and expect today:

The right to bail & better access to the judicial system for all people.  

Richard III, the alleged murderer, child killer and all around evil man, also made it possible for those who could not afford an attorney access to one and for those accused of a crime the opportunity to be free until the trial.

Disclaimer:

ADVERTISING MATERIAL - Case results depend upon a variety of factors unique to each case.  Case results do not guarantee or predict a similar result in any future case undertaken by the lawyer.

What happens when a child misses too much school?

This blog is ADVERTISING MATERIAL for Charles R. Samuels, Attorney at Law, PLLC – 4908 Monument Ave., Ste. 100, Richmond, VA 23230; 804-342-1995

In the Richmond Times-Dispatch recently there was an article about new approaches to address truancy in the City of Richmond. I applaud the City's work to encourage parents to send their children to school.  Over the years I have represented a number of children who have been alleged to be a child in need of supervision due to truancy and there is even a codified process to ensure school attendance. 

The Juvenile and Domestic Relations District Courts have jurisdiction per Va. Code § 16.1-228:

"“Child in need of supervision” means: A child who, while subject to compulsory school attendance, is habitually and without justification absent from school, and (i) the child has been offered an adequate opportunity to receive the benefit of any and all educational services and programs that are required to be provided by law and which meet the child's particular educational needs, (ii) the school system from which the child is absent or other appropriate agency has made a reasonable effort to effect the child's regular attendance without success, and (iii) the school system has provided documentation that it has complied with the provisions of § 22.1-258." (emphasis added).

Va. Code § 22.1-258 provides criteria and procedure for filing a "CHINSup-Truancy" petition with the court.  The student must have missed 5 days of school without indication that parent is aware of and supports absence AND a reasonable effort to notify the parent has failed.  The school also must make  reasonable efforts to ensure that direct contact is made with the parent, either in person or through telephone conversation, to obtain an explanation for the pupil's absence and to explain to the parent the consequences of continued nonattendance.  Next, school representatives along with the student and his parent need to develop a plan to address the absences.  

If, after all this is completed, the student misses another day of school, then the school has 10 days to schedule a conference with the student and the parent and the actual conference must be held within 15 days.  If the student misses another day then the school can file the "CHINSup-Truancy" petition with the Juvenile Court.

This process is not a quick fix.  It requires diligence by the school administration and at least two to three court appearances.  If the school system proves their case then the child is found to be in need of supervision due to truancy.  The impacts of that finding will be discussed in a later posting.  

Charles R. Samuels is an attorney in Richmond, Virginia practicing disability law.  He may be reached at 804-342-1995 x302.

Disclaimer:

ADVERTISING MATERIAL - Case results depend upon a variety of factors unique to each case.  Case results do not guarantee or predict a similar result in any future case undertaken by the lawyer.

Is a Juvenile's Record Really Sealed?

This blog is ADVERTISING MATERIAL for Charles R. Samuels, Attorney at Law, PLLC – 4908 Monument Ave., Ste. 100, Richmond, VA 23230; 804-342-1995

  

I have spent a lot of time over the last 10 years representing children in the Juvenile and Domestic Relations District Courts.  One question I hear time and time again is, "Will a guilty verdict affect me later in life?"  Sometimes folks are worried about having to explain a criminal act to colleges, others are worried they could get evicted.  

Virginia law does make certain provisions for sealing and expunging a juvenile's criminal record, but there are many ways in which it could follow one into adulthood.  A few examples are:

• If a juvenile is convicted of a felony, or if the judge takes the matter under advisement for a period of time and then dismisses the charge, the juvenile's record is not expunged.  See Virginia Code 16.1-299.  
• The state legislature has also adopted laws which prevent people convicted or who's juvenile felony has been taken under advisement from obtaining employment in certain fields including those careers which provide care to children, the disabled or the elderly.
• If a juvenile was 14 years of age or older at the time of a felony offense, all court records regarding that case and any subsequent case will be a matter of public record. See Virginia Code 16.1-305(B1).

While most juveniles will not have to deal with any long term repercussions from a conviction in Juvenile and Domestic Relations District Court, some will deal with repercussions for years.

Charles R. Samuels is an attorney in Richmond, Virginia practicing disability law.  He may be reached at 804-342-1995 x302.

Disclaimer:

ADVERTISING MATERIAL - Case results depend upon a variety of factors unique to each case.  Case results do not guarantee or predict a similar result in any future case undertaken by the lawyer.