Tuesday, October 30, 2007

Employee Rights During Investigation

Today's Boston Globe reports that the prosecution of Blackwater employees for shootings in Iraq might be difficult because the guards received immunity before speaking to State Department employees. Federal law provides key protection for government employees facing an internal investigation.

1. Garrity v. New Jersey, 385 US 493 (1967). Under Garrity, a government employee cannot be faced with the choice between self-incrimination and termination. If the employee is coerced to speak under threat of termination, the statements cannot be used against him in a subsequent prosecution. According to an FCC source, employees faced with an investigation should be given a "Garrity Warning," in which "The individual is apprised of his or her right to remain silent if the answers may tend to incriminate him or her; that anything said may be used against him or her in either a criminal or administrative proceeding; and he or she cannot be disciplined for remaining silent. " So, in a Garrity situation, the employer gives up their right to discipline the employee for their silence, but retains the right to prosecute the employee for anything they might say. Thus, Garrity is said to cover "voluntary statements."

2. Kalkines v. United States, 473 F.2d. 1391 (1973). Under Kalkines, a government employer can be required to answer questions, and subject to discipline by the employer for his responses, if the possibility of prosecution has been removed. Apparently, in the Blackwater case, the contractors were given a promise of immunity from prosecution under Kalkines and so were required to answer questions, but now would face only disciplinary, and not criminal, consequences.

It is unclear from reports whether the fact that the individuals involved in the shootings were not government employees, but were employees of a government contractor, would affect their rights under Garrity and Kalkines.

Information on other employment issues in Massachusetts is available at Mass. Law About Employment Termination.

Friday, October 26, 2007

Expert Witness Jury Instruction

In Commonwealth v. Hinds, issued today, the Supreme Judicial Court reversed the conviction of a man convicted of first degree murder because of a faulty jury instruction on the evaluation of expert testimony. In the opinion, the court goes on to question the instruction previously "cited with approval" in Commonwealth v. Rodriguez, 437 Mass. 554 (2002) from Section 4.7.1. of the Massachusetts Superior Court Criminal Practice Jury Instructions (Mass. Continuing Legal Educ. 1999). The SJC then provides this "better instruction":

"There is one more point about witnesses to address: expert witnesses. This term refers to witnesses who have specialized training or experience in a particular field. Generally, in cases that are tried in our courts, both civil and criminal, witnesses may testify only to facts that are within their own personal knowledge--that is, things that they have personally seen or heard or felt. However, in a variety of cases, issues arise that are beyond the experience of lay persons, and in those types of cases, we allow a person with specialized training or experience, called an expert witness, to testify, and to testify not only to facts, but also to opinions, and the reasons for his or her opinions, on issues that are within the witness's field of expertise and are relevant and material to the case.

"Because a particular witness has specialized training and experience in his or her field does not put that witness on a higher level than any other witness, and you are to treat the so-called expert witness just like you would treat any other witness. In other words, as with any other witness, it is completely up to you to decide whether you accept the testimony of an expert witness, including the opinions that the witness gave. It is also entirely up to you to decide whether you accept the facts relied on by the expert and to decide what conclusions, if any, you draw from the expert's testimony. You are free to reject the testimony and opinion of such a witness, in whole or in part, if you determine that the witness's opinion is not based on sufficient education and experience or that the testimony of the witness was motivated by some bias or interest in the case. You must also, as has been explained, keep firmly in mind that you alone decide what the facts are. If you conclude that an expert's opinion is not based on the facts, as you find those facts to be, then you may reject the testimony and opinion of the expert in whole or in part.

"You must remember that expert witnesses do not decide cases; juries do. In the last analysis, an expert witness is like any other witness, in the sense that you alone make the judgment about how much credibility and weight you give to the expert's testimony, and what conclusions you draw from that testimony."

Thursday, October 25, 2007

New Mortgage Broker Regulations

Attorney General Martha Coakley has issued new regulations for mortgage brokers, amending 940 CMR 8. According to her site, the regulations prohibit "certain unfair and deceptive advertising practices used by some mortgage lenders and brokers," and "expand the scope of previous home improvement loan regulations to apply to all mortgage loans and to prohibit a number of practices used in recent years by some lenders and brokers, which have contributed to the current foreclosure crisis." The amendments "shall be effective on November 15, 2007, except that the provisions of Section 8.05 (requiring new disclosure forms) shall be effective on January 2, 2008. " These and all other Massachusetts regulations available on the web are linked from our Code of Mass. Regulations pages.

Thursday, October 18, 2007

Pit Bull Won't Justify No-Knock Warrant

In Commonwealth v. Santiago, the Massachusetts Appeals Court ruled yesterday that the mere presence of a pit bull is insufficient to justify a no-knock entry. The court said, in part, "While we agree with the Commonwealth that a pit bull (or a mutt) may, under the appropriate circumstances, pose a serious enough threat to an officer's safety to justify a no-knock warrant, no such circumstances were present here. There was no information in the affidavit that the defendant might actually use the pit bull as a weapon."

Monday, October 15, 2007

Elections tomorrow, 5th US Congressional seat

Tuesday, October 16th is election day for the 5th Congressional seat, formerly held by Marty Meehan. The 5th district is rather large, comprised of 25 cities and towns. There are 5 candidates in this election: Niki Tsongas, Jim Ogonowski, Kurt Hayes, Patrick Murphy and Kevin Thompson. To find where to vote, go to the Elections Division of the Secretary of State : http://www.wheredoivotema.com/bal/myelectioninfo.php.
The Presidential primary will be held on March 4th in Massachusetts. Interested in running? See if you are qualified.
We also have a page on Elections, to help with your legal research.

Tuesday, October 09, 2007

Grandparent visitation examined

In a new decision from the Appeals Court, a maternal grandmother's petition for visitation rights over the objection of the father, was remanded to Probate and Family court, rejecting a motion to dismiss by the father. The grandmothers pleadings were deemed sufficient to show visitation may be necessary to protect the child from significant harm. The case, Sher v. Desmond, 70 Mass. App. Ct. 270 is unusual in that the grandmother had never had contact with the child. The circumstances of the mother's disappearance, and her likely abuse by the father were deemed sufficient in the pleadings to reject a dismissal. The mother is missing to this day, her case unsolved.
See our page on Grandparents' Visitation, and Domestic Violence.

Thursday, October 04, 2007

Privacy in the news today

A quick reading of today's news reveals several stories relating to privacy and/or electronic information. Release of deceased Boston firefighters autopsy results are being contested in court, showing alcohol and cocaine use. (Globe, Herald) A superior court judge ruled that Channel 7 was barred from reporting the findings.
Then we read that private data, including social security numbers, was released for 450,000 licensed professionals by the state licensing board. (Globe)
Visa is concerned that retailers are not meeting data security standards. (Globe)
And finally, the federal Homeland Security Department's email bulletin apparently sent a flood of over 2.2 million unrelated email messages nationwide. (Globe)
We get many questions about privacy, and have created several topical pages to help.
Medical Privacy, Identity Theft, Internet and Online Privacy, and Employee Privacy are pages that might help you make sense of all the issues.