Tuesday, November 30, 2010

What is "Spousal Privilege," and why you need to be nice to your spouse

The Ohio Supreme Court just issued an opinion this week that addresses the implications an old but often misunderstood doctrine called the "spousal privilege." Under the codified version of this doctrine, the spouse of a criminal defendant is not competent (i.e. not legally eligible) to testify against his or her spouse at trial unless the defendant is charged with a crime against the spouse or their children, or unless the spouse freely elects to testify. In the old mobster movies, the mobster would always try to marry the star witness against him so that his wife could not testify against him - but this is not how the privilge actually works in Ohio. As set forth above, a spouse is permitted to testify against the other spouse ONLY if either (i) the testifying spouse (or their child) is the victim of the crime or (ii) the spouse simply decides to testify by their own volutary decision. Stated another way, a prosecutor cannot force a spouse to testify against the other spouse unless (i) the testifying spouse or their child is the victim in the crime or (ii) the testifying spouse decides he or she just wants to. So fellas, be nice to your wives.

Saturday, November 27, 2010

Still More on Arbitration Agreements

The highest court in the land, the United States Supreme Court, will soon issue an important decision about "arbitration agreements," those written contract provisions that essentially mandate that persons who are parties to a written contact waive their right to a day in court and, instead, agree to have their dispute heard through a private arbitrator (who is usually an industry insider and who makes a decision that cannot be appealed by either party - no matter how against the law that decision may be). See the article in the New York Times about this case. Stay tuned with us for any future announcements on this very important case.

Thursday, November 25, 2010

Last week we had some scary moments at Rocky River Court. Now we know why we have security bailiffs.

See this amazing courthouse story caught on security video. Last week we had some scary moments at Rocky River Court. Now we know why we have security bailiffs.

Study Finds No Progress in Safety at Hospitals

A recent New York Times article reports that despite awareness of preventable measures, medical mistakes at hospitals seem to keep happening. The article claims "Many of the problems were caused by the hospitals’ failure to use measures that had been proved to avert mistakes and to prevent infections from devices like urinary catheters, ventilators and lines inserted into veins and arteries." The article also states "A recent government report found similar results, saying that in October 2008, 13.5 percent of Medicare beneficiaries — 134,000 patients — experienced “adverse events” during hospital stays. The report said the extra treatment required as a result of the injuries could cost Medicare several billion dollars a year. And in 1.5 percent of the patients — 15,000 in the month studied — medical mistakes contributed to their deaths. That report, issued this month by the inspector general of the Department of Health and Human Services, was based on a sample of Medicare records from patients discharged from hospitals."

Patients have to be their own second eyes and ears, and essentially partner with their doctors, about this.

Monday, November 22, 2010

Wonders Never Cease - Science has found a new execution drug

According to the Wall Street Journal, execution scientists have now deployed a new execution drug for human inmates that was formerly used just to euthanize animals - because it essentially costs too much to get the normal (but rare) execution drug. An Oklahoma federal judge has actually approved the use of this drug on two defendants. Let's see what Ohio decides.

Saturday, November 20, 2010

Lie Detector Machines

The Cuyahoga County Court of Appeals has just recently issued a decision about the use of lie detector machines (i.e. polygraphs) in criminal trials. In State v. Banner, the Court held that Ohio law only allows the use of polygraph results if (i) the defense and the prosecutor agree to the process and use at trial and (ii) the trial judge agrees that the process is reliable. Further, either party can still chose to cross-examine the polygraph expert on the test results at trial. Obviously, both the prosecutor and the defense lawyer must first agree to the porcess in order for any part of this process to begin or the results to be admitted. This almost never happens. In Banner, a police officer was permitted to testify that the defendant nervously refused to take a polygraph test once offered. The Court found that this testimony was admitted in violation of Ohio law and reversed the child rape conviction. The matter will soon be re-tried by the prosecutor.

Monday, November 15, 2010

The Written Contract Controls - No Matter What the Salesperson Promises

Warning: the Cuyahoga County Court of Appeals just held that the "Parol Evidence" rule bars introduction at trial of negotiation or salesperson statements or promises which are contradicted by written express terms of the final contact. Car dealer Tom Ganely wins one in Olah v. Ganley Chevrolet - where the Court essentially held that it did not really matter what the salesperson may have said - the written contact actually signed by the customer controls. You know the advice here: READ THE CONTACT BEFORE YOU SIGN - even when dealing with used car salesmen.

Ohio's Castle Doctrine - Is it Working?

Remember Ohio's "Castle Doctrine?" It essentially provides that one does not need to justify injuring or killing another if it is done in one's home to protect oneself. Under somewhat newly enacted Ohio Revised Code Section 2901.05(B)(1), a person is presumed to have acted in self-defense when attempting to expel or expelling another from their home who is unlawfully present. Further, under the Castle Doctrine, a person attempting to expel or expelling another is allowed to use deadly force or force great enough to cause serious bodily harm. There is also no duty to retreat inside one's home anymore. One Cuyahoga Court of Appeals opinion has addressed this doctrine and found that it did NOT apply in one case - because the victim had previous been invited to the defendant's home (and had on one occassion spent the night). One news oaganization recently addressed some of the criticisms of the new law. We will have to monitor more decisions in the future to see how this law develops.

Wednesday, November 10, 2010

ER Doctors May Get Immunity from Malpractice Lawsuits

Pending Law in Columbus:

The Ohio General Assembly is considering legislation that would provide "immunity" to all ER physicians and ER medical providers (e.g. nurses and physicians assistants). See

Consumer Credit Reports and Employment

Pending Law in Columbus: The Ohio General Assembly is considering legislation that would bar employers from using consumer reports for employment purposes. See http://www.legislature.state.oh.us/bills.cfm?ID=128_HB_586.

Stay tuned to our blog to see how this develops.