Criminal Case of Interest

My intent is to start adding criminal cases of interest to this blog.  Family law and personal injury often overlap into criminal cases.  Additionally, it is not uncommon to be defending a criminal case for a client when a divorce is filed as a result.

On Tuesday, the Mississippi Court of Appeals decided Land v. State located here.  Land was charged with convicted of armed robbery, aggravated assault,  and possession of a firearm by a felon for robbing a man he and his friend saw leaving  Walmart.  They saw the man counting his money as he walked so Land got out and shot him in the leg.   A security camera was able to tell law enforcement that shooter’s tag number.  On appeal Land argued that the trial court erred in allowing a police officer  to provide a narration of the surveillance videos shown to the jury and that the  trial court erred in allowing into evidence the shoes of Land’s friend, Sedrick Miles, when the shoes had not been  produced during discovery.

As far as the narration, the COA holds that “Lieutenant Jackson did not possess firsthand knowledge of the events recorded on the Walmart surveillance video. As a result, Lieutenant Jackson should not have been allowed under Rule 701 to offer opinion testimony regarding the actions in the video. However, in considering the totality of the evidence before the trial court, the error was, at best, harmless.” As for the discovery issue, Land waived it “because he failed to request a continuance or a mistrial, which is a requirement under Rule 9.04.”

To me, looks like the best evidence rule would have been a better objection on the video.  It is good to note though what is required when the prosecution pulls out surprise evidence. 

Affidavit Requirement

MCA § 91-7-145(2) provides that:

“The executor or administrator shall file with the clerk of the court an affidavit stating that such executor or administrator has made reasonably diligent efforts to identify persons having claims against the estate and has given notice by mail … to all persons so identified. Upon filing such affidavit, it shall be the duty of the executor or administrator to publish in some newspaper in the county a notice requiring all persons having claims against the estate to have same probated and registered by the cleerk of the court granting the letters, which notice shall state the time when the letters were granted and that a failure to probate and register within ninety (90) days after the first publication of such notice will bar the claim … ” [Emphasis added]

 

** Been seeing this issue a lot lately with attorneys not filing the affidavit at all or filing it after the publication.  Not a problem unless a creditor appears.  If one does, no real argument to defend estate. 

Briefing of Interest

On Thursday of last week,  the Mississippi Supreme Court asked for additional briefing on In the Interest of: J.T., a Minor, D. T. and M. T. v. Hinds County Youth Court, a Hinds Youth Court case.  The Court  stated:  “The Court has determined that supplemental briefing is necessary to resolve this case. The Court hereby orders Judge Skinner on his own behalf or through counsel, and invites all parties and the Mississippi Attorney General’s Office, to brief whether the Mississippi Rules of Evidence apply in youth court sexual abuse adjudication hearings.”

Statute of Interest

Mississippi Code Annotated 93-5-23 provides as follows:  "The court may, in its discretion, exclude all persons from the court room during the trial except the officers of the court, attorneys engaged in the case, parties to the suit and the witness being examined."  The statute would be not be applicable to the extent it conflicts with the Rules of Evidence concerning when a party may be excluded in an abuse situation.   

Save the Date

I am going to be one of the speakers at a CLE in Tupelo, Mississippi on June 23, 2016 concerning social media evidence.  The plan is discuss authentication and other issues concerning Facebook, Twitter, email, etc. 

Changes in Federal Rules from December 1, 2015

Numerous amendments to the Federal Rules of Civil Procedure came into effect on December 1, 2015. The amendments are to Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55 and 84. These amendments have a variety of effects on the preparation of cases and the handling of potential claims. The following is a summary of the more significant changes.

Rule 4: The new rule reduces the time for service of process after the filing of a complaint from 120 days to 90 days. It also appends a new waiver of service form to the rule.

Rule 16: The changes to Rule 16 relate to scheduling and discovery orders, and include:

• A judge may only issue a scheduling order after receiving the Rule 26(f) report of the parties or after consulting with the parties at a scheduling conference, but not after conferring with the parties by mail or telephone only.
• Scheduling orders must be issued within 90 (formerly 120) days after service on any defendant, or after 60 (was 90) days after the appearance of any defendant.
• In addition to the disclosure and discovery of electronic evidence, a scheduling order may now provide
  for the preservation of electronic evidence.
• Before moving for an order relating to discovery, the moving party must first request a conference with the court.

Rule 26: The amendments include major changes to this rule, including:

• Significantly, the Rule 26(b) scope of discovery has been redefined:
  • Discovery must now be relevant to any parties’ claim or defense, as opposed to being reasonably calculated to lead to the discovery of admissible evidence.
  • A proportionality requirement has been added, saying that discovery may now only be obtained if it is nonprivileged, relevant, “and proportional to the needs of the case.”
• Rule 34 requests may now be delivered to another party after 21 days from service of that party, and are considered served at the time of first Rule 26(f) conference (the responding party has 30 days from the conference in which to serve responses).
• A discovery plan must now include the parties’ views about preservation of electronically stored information.

Rule 34: The amendment requires that a party may produce copies of documents or electronically stored information in lieu of permitting an inspection. It also requires that any objection to a request must state whether, on the basis of its objection, the party is withholding any materials that are responsive to the request.

Rule 37: The amendments include a significant addition to this rule regarding the failure to preserve electronically
stored information. Now, where electronically stored information that should have been preserved is lost and cannot be recovered, the court may do one of two things:

• Upon a finding of prejudice to another party, order measures to cure that prejudice, or
• Upon a finding that the spoliating party acted with the intent to deprive another party of the information, presume the information was unfavorable to the spoliating party; instruct the jury that it may or must make the same presumption; or dismiss the action or enter a default judgment.

Divorce Form of Interset

Here is the general information needed in a divorce case.  Hopefully the form will be useful.