Evidentiary (and penological) dilemmas concerning twins

The term, “burden of proof,” represents a party’s obligation to prove a fact to the court with the requisite degree of certainty.  California Evidence Code section 115 lists those degrees of certainty as “rais[ing] a reasonable doubt, . . . establish[ing] the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.”

In Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1205, the Third District Court of Appeal discussed the burden in civil cases:

In a civil case the party with the burden of proof must convince the trier of fact that its version of a fact is more likely than not the true version.  Stated another way, it requires the burdened party to convince the trier of fact that the existence of a particular fact is more probable than its nonexistence—a degree of proof usually described as proof by a preponderance of the evidence.

Accordingly, the burdened party will prevail if he or she establishes a fact as more likely than not—even by the slimmest of margins.  But what happens when that party can only establish a fact to an exact 50% likelihood?  A favorite law school hypothetical presents this situation in this manner: One of a pair of identical twins commits a tortious act against a victim.  In the ensuing civil case, the victim has the burden of proving by a preponderance of the evidence that a certain individual harmed him or her.  While it can be proven that one of the twins committed the act, the victim cannot determine which of the two the actual perpetrator was.  As far as the victim can tell, each twin is exactly as likely to be the tortfeasor as not—in other words, each would be exactly 50% likely to be the cause of the injury.  What would a court do in such a situation?  A British court was faced with this precise question when the victim of an assault could not determine which of two twins had battered him.  The court came to the same conclusion that the law student would in the hypothetical—the victim was unable to meet the burden of proof so neither twin was liable for the injuries.

Aside from indistinguishable twin scenario, there is another context in which twins are frequently the subject of law school hypotheticals: Situations where only one of two conjoined twins commits a crime.  Would the inseparable innocent twin also be punished?  Apparently law professors and students aren’t the only ones to puzzle over this question.  In 2009, Slate readers selected it as the question of the year.  The article explores historical examples of conjoined twins tried for crimes and possible methods of punishing the perpetrating twin without harming the innocent one.  In the end, however, how a court would handle such a situation remains to be seen.

For those interested in learning how to meet one’s burden of proof, the Alameda County Law Library has numerous popular titles on evidence, including Witkin’s and Wigmore’s treatises and Jefferson’s benchbook.  In addition, the Library has AmJur Proof of Facts, the standard resource for information on how to establish elements necessary to prove a case.  To the great disappointment of law professors and students, none of these resources discuss issues dealing with indistinguishable identical twins or conjoined twins.

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Despite criticism, Americans not ready to kill death penalty

Yesterday on September 28, a week to the day after Georgia executed Troy Davis, the United States Supreme Court denied an application to stay Manuel Valle’s death sentence.  Later the same day, Florida executed Valle after he had spent 33 years on death row.  In his dissent from the denial of the stay, Justice Breyer argued that Valle’s execution would be excessively cruel (“I have little doubt about the cruelty of so long a period of incarceration under sentence of death”) and lacks utilitarian purpose (“It is difficult to imagine how an execution following so long a period of incarceration could add significantly to that punishment’s deterrent value”).  He also critiqued a society that would demand his execution on retributivist grounds:

I would focus upon the ‘moral sensibility’ of a community that finds in the death sentence an appropriate public reaction to a terrible crime.  And, I would ask how often that community’s sense of retribution would forcefully insist upon a death that comes only several decades after the crime was committed.

Justice Breyer is not the only jurist on the High Court to voice his opposition to capital punishment recently.  On September 15, Justice Ginsburg spoke in San Francisco at University of California Hastings College of the Law.  In her talk, Justice Ginsburg stated “I would probably go back to the day when the Supreme Court said the death penalty could not be administered with an even hand, but that’s not likely to be an opportunity for me.”  She was alluding to Furman v. Georgia (1972) 408 U.S. 238, the case that temporarily halted capital punishment in America. 

Despite criticism by these justices, Field Poll results released today demonstrate that a solid majority of Californian voters favor capital punishment.  The poll shows that 68% of Californians are in favor of keeping the death penalty.  These are, in fact, higher than the national average.  According to Gallup polls, 64% of Americans are in favor of the death penalty.  While support for the death penalty is gradually waning, it appears that neither Californians nor Americans in general are ready to end the practice. 

California Penal Code section 15 permits death as a punishment for a crime.  Several resources at the Alameda County Law Library discuss California’s death penalty law such as chapter 54 of CEB’s California Criminal Law: Procedure and Practice and volume 3, section XVI of Witkin’s California Criminal Law, 3d.  In addition, the Library has numerous titles that discuss the capital punishment policy.  These resources are shelved on the second floor in the KF 9227 call number area.

Fourth Amendment: Dead or Alive?

Last month, Alex Kozinski, Chief Judge of the United States Court of Appeals for the Ninth Circuit, and his somewhat notorious law clerk, Stephanie Grace, published an opinion piece for the iPad news app, The Daily.  In their article, “Pulling the Plug on Privacy,” the authors eulogize the demise of the Fourth Amendment to the United States Constitution, the part of the Bill of Rights that guards against unreasonable searches and seizures.  They argue that each of us had a hand in killing the Amendment by unwittingly revealing information about ourselves to third parties, eliminating the need for officials to obtain search warrants to learn about our activities.  As they write:

[C]onstitutionally speaking, . . . the Fourth Amendment protects only what we reasonably expect to keep private.  One facet of this rule, known as the third party doctrine, is that we don’t have reasonable expectations of privacy in things we’ve already revealed to other people or the public.

They cite, as an example, grocery store club cards that track individuals’ purchases.  Police were able to access this information in order to show that a suspected arsonist had purchased a fire starter. 

But despite this pessimistic forecast from the Ninth Circuit’s preeminent jurist (and clerk), there might still be some life left in the Amendment.  Consider, for example, a Thomson Reuters news article published just yesterday, “A New Law-Enforcement Tool: Facebook Searches.”  This article discusses how law enforcement agencies are increasingly seeking search warrants in order access users’ information.  While this may appear at first as yet another intrusion into our private affairs, it demonstrates that the Fourth Amendment has not yet been made completely obsolete by the third party doctrine: Government officials still need to obtain search warrants before accessing online information that has been made available to others.  So as Mark Twain might have said, “the reports of [the Fourth Amendment’s] death have been greatly exaggerated.”

If you are interested in learning more about search and seizure law, the Alameda County Law Library has numerous well-regarded resources available.  Among the most comprehensive titles on the subject is Professor LaFave’s six-volume treatise.  And for the most current developments, the library also has attorney-turned-novelist James Scott Bell’s Compendium on Searches and Seizures

Creative Marketing for Attorneys

While lawyer referral services such as that of the Alameda County Bar Association remain useful ways for attorneys to market their services to potential clients, some attorneys are finding ever more creative avenues to expand their businesses in this challenging legal market.  Last year a Missouri attorney advertised a discount on the popular Groupon (group coupon) deal-of-the-day website.  He had offered to draft a will and durable power of attorney for $99, an 87% discount from his usual $750 fee. 

Several legal bloggers such as David Drumm, Mark Sweet and Mike Cooper have debated the ethicality of using Groupons to attract clients.  For instance, such an arrangement to advertise with Groupon is arguably a fee splitting agreement with a nonlawyer, violating Rule 5.4(a) of the ABA’s Model Rules of Professional Conduct.  At present, the state bar associations that have offered opinions on the subject are split as to whether such practice is acceptable:  North Carolina finds it unethical while Missouri makes its determinations on a case-by-case basis. 

Another recent trend is for attorneys to bid for clients on “reverse auction” sites.  Unlike standard auctions where competing bidders force prices upward, in reverse auctions prices are driven down by those seeking to win at the lowest prices.  For example, if someone needed a document drafted, numerous lawyers could bid against one another to offer their services at the lowest fee to win the client.  Two reverse auction sites, Shpoonkle and ExpertBids, spcialize matching potential clients with attorneys. 

These are but two of the many creative ways that attorneys are attempting to reach out to new clients.  Other potential methods include using social media such as Facebook and Twitter.  Several new books have been published on how attorneys can exploit these channels to expand their practices.  Recent titles include Social Media for Lawyers: The Next Frontier by Carolyn Elefant and Nicole Black and social.lawyers: Transforming Business Development by Jayne Navarre.  If you are looking for creative ways to increase your practice, these titles and many others are available for checkout to registered borrowers at the Alameda County Law Library.

Bartender, Hit Me Again

Last week an Australian court found that a restaurant manager qualified for workers’ compensation after he injured his wrist while on the job.  The manager hurt himself while delivering repeated blows to the face of a customer.  Because the customer had been the initial aggressor, the court found that the manager had been injured “out of or in the course of the employment,” entitling him to thirteen weeks lost pay. 

While this was the decision of an Australian court, it’s possible that a California court could also conclude that an employee is entitled to worker’s compensation for injuries sustained while striking a customer.  Like the Australian statute, California employers must also compensate employees for injuries arising “out of and in the course of employment.”  (Lab Code, § 3600, subd. (a).)  Under subdivision (a)(7), where brawling is involved, harms are compensable “[w]here the injury does not arise out of an altercation in which the injured employee is the initial physical aggressor.”  This would include not only injuries suffered from being hit, but also injuries received in the process of striking another.  Salvation Army v. Workers’ Compensation Appeals Board (2004) 70 Cal.Comp.Cases 65, is illustrative.  In this case, the Court of Appeal for the Second District upheld a Workers’ Compensation Appeals Board award to an employee who broke his leg tripping a purse snatcher while at work.  Here, like the Australian case, the employee’s injury resulted from an attempt to inflict harmful physical contact on another. 

In fact, it’s plausible that a California employee could collect workers’ compensation for injuries suffered while striking a customer even where there was no altercation.  No fewer than two San Francisco bars serve a drink called an Ike Turner.  Not to be confused with the gentler Ike Turner cocktail, the Ike Turner served at the Madrone Art Bar and the Buckshot Bar and Gameroom consists of a “shot of Hennessy and a slap in the face.”  A YouTube video suggests that the shot is indeed served with a slap across the cheek.  Ironically, because lack of consent is an essential element of a claim for battery (See BAJI No. 7.50 (Spring 2011 ed.).) and because customers ordering Ike Turners impliedly consent to being struck, bars serving Ike Turners are less likely to be liable for injuries suffered by slapped customers than for injuries sustained by employees while slapping customers. 

If you were injured on the job (whether or not it involved hurting your hand on your customer’s face), the Alameda County Law Library has a number of resources available on workers’ compensation.  Nolo’s California Workers’ Comp is a good place to start for those needing a basic resource written for laypersons.  For those interested in practice oriented titles, the CEB’s California Workers’ Compensation Practice is excellent, as are Matthew Bender’s California Law of Employee Injuries and Workers’ Compensation and California Workers’ Compensation Law.  For those interested in case law and decisions by the Workers’ Compensation Appeals Board, the Library has California Compensation Cases and California Workers’ Compensation Reporter.  And for those on the receiving end of an Ike Turner, we have nothing for you but our sympathy.  

Soliciting a Solicitor

Many people come to the Alameda County Law Library looking for lawyer referrals.  Because we can’t make such recommendations ourselves, we generally suggest that these patrons contact the Alameda County Bar Association or one of the other referral services.  In other instances patrons want to know our opinions about particular attorneys.  Again, we are unable to express our impressions.  But just because we can’t give our opinions about particular attorneys doesn’t mean that no one else can.  For instance, on the State Bar of California website, you can perform an attorney search to determine if he or she is in good standing and is eligible to practice law.  And on the Avvo website, you are able to see ratings and reviews by former clients.  In fact, there are even resources available for those interested in reading about particular judges.  The Daily Journal publishes judicial profiles and Zagat-style reviews are available in California Courts & Judges.  For instance, the latter publication had this to say about Vaughn Walker, former district judge for the United States District Court for the Northern District of California:

“[Judge Walker] has a delightful courtroom demeanor.  I just love going to his court.  He’s so entertaining,” said a criminal defense lawyer.  A former federal prosecutor also “always enjoyed being in front of him.”  The ex-prosecutor added, “He has the voice of a judge.  If you want to sound like a judge, you’d want a deep voice, and that’s how he sounds.  It’s very impressive.”  Another interviewee said Judge Walker is “very respectful.”

If you need a lawyer referral, for a nonrefundable fee of $30, the ACBA can arrange a consultation between you and an attorney for up to half an hour.  The fee is waived for personal injury, medical malpractice, sexual harassment, and worker’s compensation cases.  You can contact the Alameda County Bar Association at (501) 302-ACBA (2222).  If you want to read about a particular judge, both publications discussed are available at the Alameda County Law Library.  And if you just happen to be in the mood to write a review, feel free to tell the world about your wonderful experiences at the Alameda County Law Library on Yelp.

When the Law Speaks Plainly

Oh, that Scalia.  The originalist has once again coined an original term.  You may recall that this past January, while at a speaking engagement at the University of California, Hastings College of the Law, Justice Scalia quipped that Chicago deep dish pizza is not truly pizza, but “tomato pie or something.”  This time, however, the erudite justice offered his neologism in a more formal setting, in his dissent to yesterday’s ruling in Montana v. Wyoming (2011) __ U.S. __, __.  Scalia refers to the people of Wyoming as “Wyomans.”  In a footnote, he explains: “The dictionary-approved term is ‘Wyomingite,’ which is also the name of a type of lava, see Webster’s New International Dictionary 2961 (2d ed. 1957). I believe the people of Wyoming deserve better.”

Unlike Scalia, the rest of us are best advised not to offer novel words in court.  In fact, determining the meaning of existing words presents a challenge in itself.  It’s not uncommon for patrons at the Alameda County Law Library to scour the codes for a statutory definition or read case after case to find a judicial interpretation.  In addition to the primary authorities, two useful tools for finding the legal meaning of a word are Black’s Law Dictionary and Words and Phrases.  If the secondary sources fail also, it may simply be that no legal definition is available.  In such cases, it’s often acceptable to look to non-legal resources for guidance. 

The California Courts sometimes refer to standard dictionaries for help with statutory construction: “When construing the meaning of words in a statute, courts should first look to the plain dictionary meaning of the word unless it has a specific legal definition.”  Ceja v. J.R. Wood, Inc. (1987) 196 Cal.App.3d 1372, 1375.  Similarly, the Supreme Court of the United States has also found plain meanings of words acceptable where legal definitions are unavailable: “In the absence of a statutory definition, we construe a statutory term in accordance with its ordinary or natural meaning.”  FDIC v. Meyer, 510 U.S. 471, 476 (1994).  In fact, in some instances, a plain language meaning may even be preferable to a legal definition.  The California Legislature enacted such a law that governs the interpretation of contractual terms:

The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed (Code Civ. Proc. § 1644).

So if your search for the legal definition for a statutory or contractual term fails, it could be because the drafters intended no legal meaning.  

If you are searching for a legal definition, the Alameda County Law Library has Black’s Law Dictionary (9th ed. 2009).  Words and Phrases will be found at the end of Federal Practice Digest or the California Digest.  And if all else fails, the library has Webster’s Third New International Dictionary, the more current edition of the dictionary cited by Justice Scalia in Montana v. Wyoming.