Protective Orders and Domestic Violence: Full Hearings Offer Expedited Justice
October 30, 2009
Next week, the Connecticut Supreme Court will officially release an opinion holding that people accused of domestic violence crimes will be entitled to an evidentiary hearing “within a reasonable time” before a full protective order would continue to restrain them from their homes – and from their children – while criminal proceedings are ongoing. Very often, in the context of divorce proceedings, an unfortunate occurrence will result in the arrest of one spouse or the other, with the result that a party is temporarily removed from the marital residence to protect the victim (and perhaps the children) from a threat of violence. However, whereas criminal defendants were and are always entitled to the presumption of innocence as well as a full evidentiary, adversarial proceeding to determine guilt or innocence (a trial), those individuals who are removed from the home by way of a criminal protective order were often not given the same opportunity for a “hearing,” beyond the limited oral argument of a defendant’s attorney and the opposition from the State’s Attorney and the Office of the Victim’s Advocate. Now, in the matter of State v. Fernando A., (SC 18045), the Supreme Court of this state has held that our statutes do indeed afford subjects of a protective order the right to a full evidentiary hearing, with witnesses and cross examination, “within a reasonable time” – so long as the defendant’s attorney timely requests such a hearing. This mechanism will serve to insure that full protective orders are properly issued only in cases in which imminent physical harm indeed faces a spouse or children within a household. While requiring an additional expenditure of judicial resources, these hearings (for so often as they are requested and not waived by defendants), should also act to minimize those regrettable cases where spouses initiate criminal proceedings in bad faith or upon false claims, in order to gain leverage in pending or future divorce proceedings. Whether by protecting the victims of abuse or by protecting those accused of the same, adversarial evidentiary hearings are the cornerstone of our judicial system. Those in contact with the system, under any circumstances, should be confident that their legal advisors are well-versed in the law and familiar with recent case developments.
If you have any questions about this posting or confidential inquiries concerning the subject matter, please contact Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.
Criminal Law Update: Drug Analysis Must Be Supported By Live Testimony
June 26, 2009
This week, the United States Supreme Court ruled that criminal laboratory reports may not be used at trial unless the laboratory analyst actually responsible for preparing the report physically appears to give testimony in court and to be subjected to cross-examination.
In a 5-4 decision, the Court ruled that the Sixth Amendment confrontation clause gives criminal defendants the right to challenge the validity of chemical analyses proffered by prosecutors by examining a live witness who would be compelled to appear at trial.
Prosecutors argue that the landmark decision adds a significant burden to the government’s ability to prosecute crimes in which lab reports are routinely submitted with little or no supporting testimony.
By contrast, the majority decision notes that convenience is not the measure of constitutionality, pointing out that “the confrontation clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination.”
The full decision can be found at: http://www.supremecourtus.gov/opinions/08pdf/07-591.pdf
GPS Evidence Stricken: A Victory for the Fourth Amendment
June 11, 2009
GPS units are not only handy devices which are, for many, becoming indispensable on the roads, but the technology is increasingly being utilized by law enforcement officials to track suspects, to gather evidence, and to ultimately build cases against criminal defendants. Advocates of individual civil liberties and opponents of excessive governmental intrusion argue that the surreptitious placement of a GPS device by the police under a private citizen’s automobile runs afoul of the Constitutional protections against unlawful searches and seizures. Prosecutors, on the other hand, contend that police have the right and option to view individuals operating their vehicles on private roads without a warrant, and the GPS device is merely an extension of such ability. A defendant’s constitutional challenge to the practice was recently upheld in the Court of Appeals in New York (resulting in a reversal of a conviction, and ultimately a dismissal of criminal charges). The issue is ripe to be challenged in Connecticut and other jurisdictions across the nation.
The legal future of this type of “surveillance” – whether utilized by a police department (with or without a warrant), or by a suspicious spouse or private investigator in anticipation of a divorce proceeding – is still unclear, but surely provokes thought and discussion.
Police GPS Surveillance Raises Legal Questions, D. Freedman, Connecticut Post, June 7, 2009: http://www.connpost.com/breakingnews/ci_12537316
