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.

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.

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.

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
http://www.legislature.state.oh.us/bills.cfm?ID=128_HB_595

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.

Search Warrants and Cell Phone Locations

A Federal Court has recently held that Big Brother (the Federal Government) may need to get a search warrant in order to get cell phone data which will tell the Federal Government just where a certain individual was on a certain date and time. In the case of In re the Application of the USA, Electronic Communication Service, the Third Federal Circuit Court of Appeals has ruled that Federal prosecutors may need to obtain a search warrant when they are attempting to gain cell phone location data. This is another recent Federal Court ruling in the area of criminal investigation and prosecution where Federal "privacy" Constitutional issues collide with ever emerging technology. The Court had to address and discuss how a person's physical cell phone location (which is technically digitally recorded most times a person is on the phone) is considered Constitutionally private. Even more specifically, the Court had to address how a federal statute (which the Federal prosecutor's claimed gave them the ability to get the cell phone location data without a warrant) may conflict with the Federal Constitutional right to privacy. In short summary, the Court held that if the records are deemed to be Constitutionally protected, then, regardless of the federal statute, the federal government must get a search warrant (and, accordingly, prove that there is "probable cause" to believe there was evidence of crime to be gathered). However, the Court also then held that the cell phone location data may not be protected by the Constitution in most cases, and that in order to get that data, the Federal Government will probably not have to meet the "probable cause" standard. This case will not end the debate in this area, but it does a good job at discussing issues that arise when new technology meets a very old Constitution. More cases and rulings are expected to follow, and we will try to keep you all informed.