Final Discussion of Explicit Employment Contracts

Once again folks, I amblogging over at Joyce Akiko’s site. She runs an HR Consulting business, Go HR for Startups, which can help businesses of all sizes decrease turnover, fill empty positions, and identify where a new job might be needed. The many functions she performs and knowledge she had is demonstrated on her site.

If you have a question about employment law, or need a contract formed, give me a call. Contracting without an attorney means you are walking blindly into a situation where you could be sued, or need to sue someone, without necessarily addressing the issue in your contract or even discussing where the suit should take place. You will want to discuss the contract with a lawyer, and the other persons involved, to find out expectations and duties, and therebyprevent trouble before it happens.

The Miranda Warnings

When a person is taken into police custody, they must be Mirandized. This means that the individual must be given a warning which clearly and concisely states the persons rights. You probably know the Miranda warning best from television shows, but in real life, a good statement of Miranda rights might be:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

The Miranda warnings originated from the case Miranda v. Arizona, where the United States Supreme Court determined that Ernesto Miranda had no way of knowing that he had the right not to confess, nor that he could get an attorney provided for him, and that was why he confessed to the crime. The U.S. Supreme Court determined that his confession was essentially coerced, and that to protect citizens, all persons must be read certain essential rights when they are taken into custody.

The Right to Remain Silent

Every person who is arrested has the right to remain silent. This comes from your Fifth Amendment right, which I discussed here. Although now we all hear that right on every law enforcement television show and movie out there, back in 1966, the warning was not known, and some people did not understand that they could remain silent and that doing so would not cause any problems for them.

The right to remain silent warning comes with a consequential statement: anything you say can and will be used against you in a court of law. This serves to drive home the warning that a person should remain silent. It shows the accused that any confessions will be considered valid. Prior to these warnings some people did not know whether their confessions were actually confessions, rather than just them talking to a friendly police officer. This forces the officers and the person to understand their roles: that of law enforcement vs. the accused- and the relationship is not always a friendly one.

The Right to an Attorney

Every accused person has the right to legal representation; this right is provided by the Fifth Amendment as well. This right is separate and distinct from the Sixth Amendment right to counsel, which refers to a right to an attorney while in court. The Fifth Amendment right is a right given while being interrogated or questioned. Informing a person of this right lets a person know they are being seriously questioned and that they do not have to submit to questioning without legal advice.

The right would mean almost nothing without an assurance that even an impoverished person could get legal help, and so the warning contains this consequential statement: if you cannot afford an attorney, on will be provided for you. This lets people know that there is legal advice out there available for all persons, and not just people who can pay a lot for legal help.

Exception

There is one exception to the Miranda Warnings. The warnings do not have to be read if there is an on-going public emergency and officers believe the suspect has information which would end the emergency.

Waiving your Rights

You must affirmatively assert your Miranda Rights, or you waive them. You can assert your rights by stating that you want an attorney, by stating you won’t answer questions until you see an attorney, or a similar statement. Once you assert your Miranda Rights, the interview should immediately cease until you have had time to confer with an attorney. The officers cannot ask you any more questions without violating your rights.

You can waive your Miranda Rights either by responding to officers questioning, or by actually saying you are ignoring your Miranda Rights. Any attorney would counsel you not to waive your rights until you have spoken with an attorney and gotten some legal advice on the situation.

If you were taken into custody and interrogated by police, you should have been read you Miranda rights. If you were not, you may be able to have statements excluded from trial. If you think you were not properly read your Miranda rights, contact Shannon K. McDonald today.

The Confrontation Clause: What Is It, and How Do I Use It?

The confrontation clause is a provision in the Sixth Amendment of the United State Constitution which provides that “in all criminal proceedings, the accused shall enjoy the right… to be confronted with all witnesses against him.” What this means for  the defendant is that he/she has the right to fully cross examine any and all witnesses who testify against you at trial.

This only applies at criminal proceedings. There are a very small number of cases where the defendant will not be allowed to actually see the witness, or the witness may be permitted to be examined in a room away from the defendant. One example might be where the witness is a child who suffered sexual abuse. Then the child is generally kept in a separate room and the defendant watches the testimony from closed circuit television. Face to face confrontation is preferred but it must sometimes be replaced where public policy or issues of travel prevent it.

If a statement is “testimonial” the witness must be cross examined (testimonial means it tells a story,it  offers facts for the court’s consideration).  Generally to be cross-examined the witness must be available (i.e. in court). When witness is unavailable or becomes unavailable the court should not allow the testimony to come in. The defendant may object to any questions asked where he would not be permitted to cross examine due to a lack of availability of the witness. Unavailability may be: death, loss of memory, taking the Fifth, or simply not answering the questions and refusing to cooperate.

If a witness is unavailable and the defendant had no previous opportunity to cross examine the witness, then the witness’s testimony should not be permitted at trial. If you think you have an issue where a witness is unavailable and/or full cross examination was not possible, contact your attorney, or if you are unrepresented contact this firm.

There are two exceptions to the confrontation clause:

  1. A dying declaration- where the proposed testimony is made by a person when they believe they are dying and they are subsequently unavailable for cross examination (just unavailable, not necessarily dead) then their testimony is considered truthful and it is permitted.
  2. Wrongdoing- where the defendant deliberately make the witness unavailable through some form of wrongdoing, then the defendant gives up any right to confront the witness. The key is that the wrongful act was done specifically to prevent the witness form testifying. That is a new concept I will be discussing at my other blog, within a few weeks.

All other laws must give way to the confrontation clause because it is in the constitution. This means that hearsay rules and rape shield laws will not prevent you from cross-examining a witness.

Where the information the witness would have given is non-testimonial, the confrontation clause does not apply.

Relevant expansion in Wyoming:

–          In accusations of sexual assault, the defendant is permitted to cross examine the victim about other relevant sexual activities, so long as both parties are over the age of majority. Hannon v. State.

–          A pretrial deposition by the defendant can be sufficient cross-examination of a witness such that an unavailable witness’s testimony could be given at trial. Martinez v. State.

–          Where a testimonial statement is entered, the witness must be allowed confrontation, the mere fact that the statement is given under oath or as a confession of some sort is not sufficient protection and admission of such a statement without opportunity to cross is not permissible. Vigil v. State.

Relevant expansion in Pennsylvania:

–          Pennsylvania holds differently from Wyoming and states that sufficient protection by the hearsay exceptions can remove the necessity for confrontation of the witness, even when the statements are testimonial. Commonwealth v. Carter (I believe this will be challenged at some point, but for now, it is the law in Pennsylvania)

–          The confrontation clause does not guarantee access to pretrial discovery, it is only a trial right. Commonwealth v. Herrick.

–          A trial judge retains wide latitude to determine how far cross-examination may go in the face of concerns like harassment, prejudice, confusion of the issues, witness safety, etc. Commonwealth v. Handfield.