Archive for April, 2008

Can the homeless have savings bonds or financial accounts?

April 29, 2008 at 10:02 am · Filed under addresses, possessions ·Tagged

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

 

The short answer to this question is that you do not have to be poor to be homeless. A person may have any number of reasons for not living in a private or permanent home. So, being homeless does not automatically mean that a person cannot have financial accounts or bonds.

 
Homeless or not, however, everyone has to pay taxes on the interest or dividends earned on financial accounts. Banks and investment houses are required to report their customer earnings to the Internal Revenue Service. Even when people without their own homes do not receive the tax forms or interest and dividend statements mailed by financial institutions, they are still obligated to pay their taxes because those financial assets are their property.

 
Having assets such as savings bonds or trusts can make a homeless person ineligible for federal benefits including housing programs.[i] It might be necessary to spend those assets before applying for federal assistance.[ii]

 

Eligibility guidelines for Medicaid are available at http://www.cms.hhs.gov/home/medicaid.asp; housing eligibility is at http://www.hud.gov/; disability is at http://www.ssa.gov/d&s1.htm. See also the interactive benefits eligibility form at http://www.govbenefits.gov/govbenefits_en.portal.

 

Trusts

Trusts only make payments at certain times under circumstances that are written in that particular trust document. So it may not be necessary or even possible to spend them before applying for federal housing or food stamps, etc… The terms of the trust document might say that the beneficiary can only collect if someone dies or other things happen beyond the beneficiary’s control. If the trust pays out one big lump sum every year, that annual payout can disrupt federal benefits by temporarily making the recipient too wealthy for the program. And if a trust beneficiary just applying for federal benefits still has funds that were previously paid out from the trust, then that paid out trust money might be a high enough amount to prevent him from getting the federal benefits (housing, medical assistance, temporary aid to needy families, etc…)

 

People deemed by the Social Security Administration to be disabled, can benefit from a “special needs” trust.[iii] This kind of trust can be established by an agency or a parent or guardian and the funds can come from various sources (including money awarded in a court case). The funds in the trust can only be used for disability related expenses such as equipment, therapy, and medication and will not affect federal program applications. An existing trust can be changed to a special needs trust.

       

Savings Bonds

Savings bonds are long-term investments identified by serial numbers. Because they can be redeemed for cash almost immediately, savings bonds count as assets in federal program applications. If they are worth more than the current asset threshold for benefits they have to be redeemed and spent before federal benefits will be granted.

 

Even though the owner’s address is included in an application to get a savings bond, the Treasury Department certainly would not expect that people are still at the same address years later when their bonds mature. Redeeming bonds is done in person by presenting the bonds at a major bank.

 

If the bonds are lost or destroyed, the owner can still cash them in by completing a form for the U.S. Treasury Department that will then be used to make sure that the bonds have not already been cashed. The information that has to go on that form is mainly for identifying the bond. You have to know the serial number, the date the bond was issued, the name and address you had when you got the bond, and your social security number.

 

The form, which is Treasury form PD-F-1048, also asks for explanations of when and where the bond was last seen and who else might have had access to it.[iv] Because a replacement bond will be issued so that the owner can cash it in at the desired time, it is necessary to provide an address on that Treasury form so that you can receive it somewhere. That address does not have to be for a place where you live, only a place where you can pick up mail.

 

[i] Income determines whether a family is eligible for federal housing programs. According to 24 CFR §5.609(a)(4) “annual income also means amounts derived…from assets to which any member of the family has access.”

[ii] Spending down too quickly or transferring it to someone might make an agency suspect that you still have access to the money and are trying to pretend that you no longer have it. When you read the law about a federal benefit program, see if there is a section about “spending down”.  Here is an example: 42 USC §1396p(c) is the section of the Social Security Act that tells how that agency will determine when asset transfers affect eligibility for medical assistance benefits.

[iii] 42 USC §1396P(d)(4)(a)&(c). See also, Daryl L. Gordon, Special Needs Trust, 15 Quinnipiac Probate L. J. 121-131 (July-Dec. 2000) and the following books: Stephen Elias, SPECIAL NEEDS TRUSTS (Nolo, 2005); Barbara D. Jackins, et al, SPECIAL NEEDS TRUST ADMINISTRATION MANUAL: A GUIDE FOR TRUSTEES (IUniverse, 2005).

[iv] The form for redeeming savings bonds and other related information is at http://www.savingsbonds.gov/.

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Can you please help me understand why children in state custody do not qualify as homeless per the McKinney-Vento Act?

April 29, 2008 at 9:37 am · Filed under children ·Tagged , ,

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

 

This question was posted by a homeless advocate.

REPLY:

Several recent Congressional bills have proposed new ways of defining homeless children.  You can find these bills and lists of the actions Congress has taken in connection with them at http://thomas.loc.gov/.   

In January 2009, the following definition was put forth in HR 29.  Homeless children include “…a youth verified as homeless by the director of a program funded under the Runaway and Homeless Youth Act (42 U.S.C. 5701 et seq.), or a designee of the director…a child verified as homeless under section 602 of the Individuals with Disabilities Education Act (20 U.S.C. 1401) by the director or the designee of such program, and the family of such child …and a child verified as homeless under section 637 of the Head Start Act (42 U.S.C. 9832) by the director or designee of such program, and the family of such child.

In August 2008 the House of Representatives has passed a revised general definition for homeless person has passed in its proposed amendments to the McKinney-Vento act.  The proposed amended act is available at Part 8 about “Homeless Prevention Activities” subpart C encourages “providing family support services that promote reunification  of (i) youth experiencing homelessness with their families and (ii) children and youth involved with child welfare or juvenile justice systems with their parents or guardiens.”  Clearly, this defnition identifies as “homeless” those children and youth who have guardians or are wards of the state through either the child welfare (foster care) system or the juvenile justice system.  The proposed amendments further call on communities to develop “policies and practices relating to the school selection and enrollment of homeless children and youth to ensure that homeless children and youths and their parents are able to exercise their educational rights…” Section 402 Community Homeless Assistance Planning Boards  (f)(B)(i)(II)(dd) .  (Click on the hyperlink above and scroll down to this section.) 

Families experiencing homelessness can follow the National Law Center on Homelessness and Poverty’s McKinney Vento Flowchart to go through the steps of keeping kids in school while making transitions between shelters and other temporary housing arrangments. This flowchart not only tells the current legal requirements, it also leads to helpful resources at every stage of asserting homeless children’s educational rights.  Another very informative resource about homeless children’s access to education is The National Association for the Education of Homeless Children and Youth.

 

Until a new definition is added, you may want to read the history of the existing law.

I looked at legislative history for the McKinney-Vento Act to ascertain how Congress came to define “homeless children and youth” as they did.  I have not found any hearing testimony or research reports that demonstrate the origin of their decision to define homeless children in connection with the places where they are located rather than in connection with the adults (private individuals or agencies) who are responsible for them.  Note that homeless adults are also defined based on their lack of “a fixed, regular, and adequate nighttime residence”. Since the definition (which is quoted further down in this message) goes to the trouble of identifying children “awaiting foster placement”, there’s reason to think that Congress must have thought about kids in state custody.  See 42 USC section 11302   See also the NLCHP’s system for determining whether a child satisfies the current definition of homeless.

 

 
I think that the only ways to figure out Congress’s reasons for limiting the definition as they did are:

 

1. To do more thorough legislative history research than I did.  I merely skimmed hearing testimonies and House Conf. Report 101-951 (2001) for sightings of the phrase “homeless children”.  You can find Congressional hearings from 1995-present for free on the Web at http://www.gpoaccess.gov/chearings/index.html.   You can find numerous congressional reports and statements about proposed and existing legislation by searching the terms “homeless children” in the Congressional Record http://thomas.loc.gov/home/r101query.html.  Note that this link takes you to the 101st Congress which debated amendments to the McKinney Vento Act.  You can change the number 101 in that Web address or click on the session links on the Congressional Record screen to search in a different session of Congress.  The 106th and 107th Congresses also have a lot of relevant material. 

 

2. To contact your legislators and enlist the help of their legislative aides in tracking down the reason for excluding foster children and kids in other forms of state custody.  Find your representatives and senators.

 

You might find some useful information in one of these articles:

 

Strong, James H. and Virginia M. Helm, Legal Barriers to the Education of Homeless Children and Youth: Residency and Guardianship Issues, Journal of Law and Education v. 20 no. 2 pp. 201-218 (Spring 1991)

 

Ernst, Greg and Maria Foscarinis, Education of Homeless Children: Barriers, Remedies, and Litigation Strategies, Clearinghouse Review vol. 29 no. 7-8 pp. 754-759 (Nov. – Dec. 1995).

 —Ask your public library to get you photocopies of these articles  through Interlibrary Loan.—

 

Clearly, advocates are still trying to convince Congress to broaden the definition of homeless children and youth.  Here is a quotation from Jim Purcell, Executive Director Council of Family and Child Caring Agencies, speaking at the House Committee on Ways and Means, Subcommittee on Income Security and Family Support on February 27, 2008.

 

“We also encourage members to weigh in during the reauthorization of No Child Left Behind (NCLB) law. CWLA has joined together with a number of other groups including some of the advocates for homeless children and families to amend and to increase funding for the McKinney-Vento Homeless Children’s program to clarify current law to assure that foster children are covered by the same protections for homeless children.” 

 

Link to the Child Welfare League of America.

 
Should you need it for any purpose, though I expect you already have it, here is the definition of “homeless children and youths” from 42 USC Section 11434a:

 

(2) The term “homeless children and youths’–

 

(A) means individuals who lack a fixed, regular, and adequate nighttime residence (within the meaning of section 11302(a)(1) of this title); and

 

(B) includes–

 

(i) children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; are abandoned in hospitals; or are awaiting foster care placement;

 

(ii) children and youths who have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings (within the meaning of section 11302(a)(2)(C) of this title);(iii) children and youths who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings; and (iv) migratory children (as such term is defined in section 6399 of Title 20) who qualify as homeless for the purposes of this part because the children are living in circumstances described in clauses (i) through (iii).

 

 

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What legal rights do users of public bathing facilities have?

April 9, 2008 at 1:58 pm · Filed under bathing ·Tagged

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. **** 

 

Aside from the already mentioned health regulations stating that where there are toilets there must be sinks and where there are sinks there must be soap, the legal rights connected to using public bathing facilities depend, as always, on whether the place is run by the government or a private entity. The particular activities that people may undertake in the facility depend on the staffing, physical plant, and monetary resources of the place and are not a matter of law. They do not have to allow shaving or nail cutting or tooth-brushing, for example. They might only have showers, not bathtubs. They might only allow people to bathe individually to prevent people from having sexual encounters there. Law is about the way people and government behave toward each other and how society operates, it rarely ever declares that people are entitled to do any particular activity in a certain place.

 

Sometimes there are bathing facilities at churches, shelters, nonprofit community centers and other privately operated places that are funded by donations from individuals and businesses. These privately operated facilities are obligated to function according to the direction of their own boards and their funding sources. This means that private facilities can have their own rules and limitations about the circumstances under which they allow people to wash there or obtain hygiene supplies. It also means that they can be unfair in providing their services: allowing some people to have more time than others, excluding some people, not providing notice of rule changes, etc…

 

If a private agency or organization gets government funding toward a particular service, like establishing bathing facilities, there may be regulatory legal obligations connected with using that funding. The whole facility is probably not subject to those obligations,[i] only the component providing the government-funded service. To find out abut those obligations, which will probably be about the way the service is provided and the conditions of the facility, it is necessary to find out which government agency (i.e., state department of health or county department of welfare or city special grant bureau, etc…) gives that funding and then contact that government agency to obtain a copy of the regulations and instructions for interacting with them if you believe their regulations have not been followed.[ii]

 

Sometimes, municipalities or counties install public showers and other washing facilities as part of food banks, health clinics, community centers and other social service agencies that those government entities operate. Those kinds of facilities are considered government property because their buildings and their operations are paid for out of the ordinary tax base either through the regular budget stream or specially-dedicated government funds like limited term grants. Public users are entitled to civil rights protections when accessing these government operated facilities. The civil rights protections include things like equal access, freedom from religious impositions (i.e., they can’t force you to say a prayer or participate in religious counseling in order to obtain the service), free speech, freedom from being searched unless the search is a routine security process used for everyone, privacy…   (Read more about civil rights on Findlaw.)

All of the rights enumerated in the last paragraph are simply listed as general civil rights principles. Civil rights principles arise from the ways court cases interperet amendments to the U.S. Constitution.  So, civil rights is an area of law in which there is often not a clear rule for everyone to follow.  Rather, it is a constant analysis of comparisons:

1. weighing the government’s purpose along with its rule and

2. determining whether the rule, as applied in the situation being questioned, is structured just to serve that government interest. If it limits people unfairly by going beyond the scope of the government interest, it violates civil rights. 

A helpful resource for learning about civil rights is Justia’s Annotated U.S. Constitution.  Read the sections about the Amendments to the Constitution to find easy explanations of how courts have interpreted those amendments.  Note that the list of amendments tells what subjects are covered in each amendment (due process, free speech, etc…)  Click on the hyperlinked name of any case on that site and you’ll get to the Supreme Court’s full decision. 

Here are two examples demonstrating how civil rights can be outweighed by significant government interests:

  •  If a member of the public, who routinely carries a weapon, comes to the public washing facility, the facility can probably justify locking the weapon away while the visitor is on the premises because the facility has an obligation to prevent harm to its staff and users.
  • People are supposed to have the right to free speech in a public place. However, if someone comes into a washing facility and makes threatening comments to other people bathing there, the facility (i.e., the government) may be at risk of losing the victims of those comments. If the whole purpose of the washing facility is to give people a place to get clean and try to avoid disease, but people were too scared to go there, then it wouldn’t be an effective washing facility anymore unless the place refused to allow threats.

 

 

[i] The whole facility can be required to make changes in order to comply with legal requirements and accommodate the government funded part. For example, the building might have to install new doors, or fire safety devices, or a stair railing, or make other kinds of modifications to the building entrance or the building’s systems in order to make the government funded bathing service properly safe and available to public users.

[2] State agencies, such as health departments, publish their regulations in administrative codes.  All of the states’ administrative codes are available on the Internet from the National Association of Secretaries of State at http://www.nass.org/acr/html/internet.html.

 

 

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Is the government required to provide you with bathing facilities?

April 9, 2008 at 1:53 pm · Filed under bathing ·Tagged

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****     

 

 It has been held that a criminal defendant who was not provided with soap, a comb, and other basic hygiene amenities in jail was entitled to a new trial because his dirty and disheveled appearance may have turned the jury against him.[i] That is an example of one of the two situations in which the government is required to provide any kind of washing facilities: those in which government buildings make toilets available to the public and those in which the government has custody of someone, as in the case of the jail inmate or when the person is in someplace like a county or state-run nursing home, etc… Other than in those instances, the public cannot expect that the law entitles them to a place in which to get clean or even to get supplies for washing or other personal hygiene functions.

 

      In government custody situations, as the previous section demonstrates, regulations about the condition of hygiene facilities in institutions might come from the government agency of which the institution is a component or from the public health code. The standards that have to be followed when public restrooms or bathing facilities are available in restaurants, other businesses, or in government buildings are in state public health codes.[ii]

     

      A clear and detailed example of standard public restroom requirements is in the Illinois public health code which includes specifics like, “Lavatories shall be provided and located within or immediately adjacent to all toilet rooms or vestibules. All lavatories shall be provided with hot and cold running water that can be tempered by means of a valve or combination faucet” and “A supply of bar, liquid, or powdered hand-cleaning soap or detergent in a dispenser shall be available at each lavatory.”[iii] The Kentucky public restroom regulations are also very detailed with statements like, “an adequate supply of toilet tissue shall be provided at each toilet facility at all times” and “hand washing facilities, including running water, soap, and individual cloth or paper towels, or other method for drying hands approved by the cabinet, shall be provided…The use of the common towel is prohibited.”[iv]

 

      Oddly, even though there are no general legal requirements mandating public bathing facilities for people who don’t have homes, there are some circumstances in which the government provides hygiene supplies to members of the public who don’t need something as basic as a place to bathe and who aren’t necessarily financially needy. Notable examples of this are equipping drug users with clean syringes and dispensing condoms to teenagers.

 

      The legal sources for these actions are public health regulations, made by state and county health departments, often in furtherance of the government’s interest in preventing the spread of HIV or other viruses, diseases, etc… It seems reasonable to ask why a government would make a law entitling members of the pubic only to such limited hygiene supplies and not just ordinary sinks and showers that are fundamental to fighting so many kinds of sickness. Lobbyists for the poor, and poor people themselves, can ask that question of lawmakers if bathing facilities are not available in a community.

 

[i] State v. Maisonet, 763 A.2d 1254 (N.J. 2001).

[ii] State health agencies’ Web sites are listed at http://www.fda.gov/oca/sthealth.htm. Within each agency’s site, look for a link to “laws” or “regulations” or use their search tool for more specific terms such as “cleanliness” or “homeless” or “shelter,” etc..

[iii] Ill. Admin. Code tit. 77, § 895.50(g), (g)(1) (2007).

[iv] 902 Ky Admin. Regs. 10:010:2:7, 12, 13 (2006).

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Is it legal to kick someone out of a store or restaurant just because he or she smells bad?

April 9, 2008 at 1:51 pm · Filed under bathing, health ·Tagged

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

 

Yes, businesses serving the public have the freedom to eject prospective customers just because they smell bad. In fact, they can kick people out just because they are not wearing shoes or a shirt. Stores and restaurants do not have to do business with anybody if they don’t want to. Granted, they cannot discriminate on the basis of disability or race or other categories recognized under the Equal Protection Clause of the Constitution.[i] But, being dirty and smelling bad (no matter how anyone measures the badness of smell) are simply not protected by law the way race and disability are.

 

      There are some contract claims that could arise if a customer is told to leave after he has started to make a purchase. Under contract law, people have legal obligations to each other if one has offered something and the other has accepted the offer and done something to rely on that offer. Making payment is usually the action that shows that the buyer is relying on the seller to fulfill the order. So, at the point when a customer has already ordered food or merchandise and has paid for it, the business has a contractual obligation to return the money or provide the order.

 

      If it is a sit-down restaurant and the customer ordered the food expecting to stay there and eat it, but was then told that he could only have the food to go, the customer could claim that he was entitled to get his money back on the grounds that the contract was breached by the business which, in giving him takeout food instead of an in-restaurant experience, was changing the terms of the deal without getting the customer’s agreement.

 

      There isn’t necessarily anything tangible to be gained by having this understanding of the legal analysis; the dispute isn’t worth enough to take to court and there wouldn’t be any change in the business’s practices just because of one lawsuit. Nevertheless, knowing how the law would apply to this kind of transaction can help a person decide in advance how to control the communications and the result.

 

      Since a deal is normally not solidified until the money is handed over, the customer should not pay that money until he has clearly been assured of what he will get for it. If the situation is one in which the goods or services are provided first and money is paid after that, the merchant takes the first risk not the customer. In that case, the merchant is the one looking for the assurance that the customer will uphold his end of the deal.

 

      Think about the scene in the sit-down restaurant again. A dirty smelly customer comes in, is seated, looks at a menu, and maybe even orders. It is conceivable that at this point the manager of the restaurant could think that this customer might not be able to pay. If the restaurant hasn’t served the food yet, and the manager asks the customer to leave, the customer can indicate that he does have the money to pay for the meal. At that point, the manager might just admit that the customer has to leave because he smells bad. Still, the legally-informed customer can continue to handle the whole thing like a contract negotiation thereby saving his dignity while giving the restaurant one more chance to get its money. The customer can recommend to the manager that a change of seating might satisfy the restaurant’s concern about his smell and still enable the restaurant to make this sale.

 

[i] See http://www.law.cornell.edu/wex/index.php/Equal_protection for an introduction to equal protection with links to state and federal constitutional sources.

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Is it illegal to smell bad?

April 9, 2008 at 1:48 pm · Filed under bathing, health ·Tagged

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

 

There is nothing in the criminal or civil law saying that people have to be clean or smell pleasant to those around them. There are, however, also no laws saying that people have to put up with bad odors. Therefore, since the law does not protect the interests of the person who stinks or the people who have to smell him, it is possible for individual entities, including government entities, to make their own rules about how bad-smelling people can be handled in their facilities. The legal system is then used to argue about whether those rules comply with existing law and whether the rules are being applied in a just way.

 

Public buildings, meaning those operated by government, such as libraries and post offices differ from private businesses, such as malls or individual stores. Under the Constitution, these “government actors” are required to treat people in certain ways that are enumerated in the Bill of Rights and subsequent constitutional amendments as interpreted by cases analyzing those parts of the Constitution. That body of law is known as civil rights law and is supplemented by federal civil rights statutes which further regulate the treatment of citizens by government actors.

 

It is fundamental to a democratic government that citizens have access to government. When that access involves being physically present and the government wants to limit anything about the way access is provided, those limits have to be made within the scope of civil rights law. This kind of limit, specifically regarding the way people smell, has been examined by cases in which public libraries tried to keep bad smelling people out of their buildings.

 

The flagship case of precedent for bad grooming in public libraries is Kreimer v. Morristown in which the federal Third Circuit Court of Appeals upheld a library rule that said “Patrons whose bodily hygiene is offensive so as to constitute a nuisance to other persons shall be required to leave the building.”[ii] Kreimer, a homeless library patron barred by that rule from entering the library, asserted in court that the rule violated his First Amendment rights to use the public library for reading, writing and thinking. But the court held that “this rule prohibits one patron from unreasonably interfering with other patrons’ use and enjoyment of the Library; it further promotes the Library’s interest in maintaining its facilities in a sanitary and attractive condition.”[iii]

 

Subsequent courts have also upheld policies excluding unclean people from accessing public libraries. But in 2001, a District of Columbia court[iv] found a library policy to be unconstitutionally vague because it listed as a minor offense, “Conduct or personal condition objectionable to other persons using the Library’s facilities or which interfere with the orderly provision of library services….[including] objectionable appearance (barefooted, bare-chested, body odor, filthy clothing, etc…).”

 

      The court explained that having a few examples of what a person might consider to be objectionable followed by “etc.” simply did not set forth a clear limit on what would be tolerated. That court also said the library rule violated Fourteenth Amendment due process rights because it didn’t provide enough information for patrons to know in advance whether their appearance would be acceptable, especially because any employee who happened to be watching the door could make the decision about acceptable appearance according to his or her discretion at that moment. Clearly, just because there is a policy about body odor doesn’t mean it is a legal policy.

 

      Libraries are not the only public buildings where a person’s odor or general hygiene might interfere with the comfort of others. Courts, post offices, and transportation facilities are other examples to consider. Courts usually have various decorum rules requiring that behavior in court not distract from the trial or hearing and declaring that the court is owed respect. Judges can use their own discretion to interpret those rules and have been known to remove trial participants and even lawyers for what the judge has deemed inappropriate dress or grooming.[v]

 

      One can reason by comparison that the amount of time spent in a post office or on a bus is much shorter than in a library or courtroom and so the odor problem would be less significant in those places. It could also be said that because access to the court for the sake of asserting or defending one’s rights is required by law, a person simply has to be allowed there in whatever condition he appears. But those kinds of analysis are simply conjectures; a jury might not agree with them. Since case law has declared it acceptable for public libraries to limit access based on hygiene, there is a foundation for the same kind of limitation in other public buildings.

[i] Kreimer v. Morristown, 958 F.2d 1242 (3d Cir., 1992).

[ii] Id. at 1264.

[iii] Id.

[iv] Armstrong v. D.C. Public Library, 154 F. Supp. 2d 67 (D.C. Cir. 2001).

[v] 17 AM. JUR. 2d Contempt §56 (updated to 2007).

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If you aren’t satisfied with a free lawyer, what can you do?

April 2, 2008 at 11:58 am · Filed under court ·Tagged

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

Regarding free lawyers in criminal cases:

Numerous agencies and organizations speak out against inadequate legal representation for the poor.[i] And there have certainly been lawsuits against individual public defenders as well as public defense systems for providing ineffective legal representation.[ii] All of these sources and the legal rights they champion are either about reforming systems or else about the right to sue a court-provided lawyer after he has botched a case. They do not tell what someone can do if he is currently getting bad help from a free lawyer.

     Although someone paying a lawyer could simply fire that lawyer and hire a different one, an indigent defendant might not be able to change lawyers. It is always possible to ask the court appointment system or the public defender’s office for a replacement lawyer. But they may not have spare lawyers available and they will have to be convinced that the inefficient disruption of reassigning a case is worthwhile.

     To convince any legal service provider that something is worthwhile, it is wise to describe that thing in its legal context. So, when trying to convey that a different lawyer should be assigned to a case, an indigent client has to be able to convey to the head of the court appointed program or the head of the public defenders office that his legal rights are being compromised by the current lawyer and that the lawyer is not fulfilling his professional obligations.

     It is not sufficient to simply make those claims; heads of legal offices are not easily convinced by anyone, certainly not by every complaining client. You have to be able to show how the lawyer is violating your legal rights.

If you think that your Sixth Amendment right to effective assistance of counsel[iii] has been compromised,

  • 1. explain what the lawyer is supposed to be doing: showing up for meetings, listening to your full story, collecting evidence on your behalf, figuring out how your actions differ from the crimes charged, comparing your situation to past cases, and generally contradicting the prosecutor’s claims in any legitimate way
  • 2. provide proof of the lawyer’s failure to fulfill these obligations: copies of helpful evidence that he has not used, descriptions (or recordings) of meetings and phone calls in which he has ignored you, a copy of the court’s docket sheet showing that deadlines were missed, affidavits from witnesses who are willing to testify but have not been contacted by the lawyer etc…

If you think that your right to due process has been compromised,

  • 1. demonstrate the characteristics of proper process: use copies of the defenders’ office’s brochures or Web pages to prove what they claim they’ll do for defendants; bring examples from the ACLU and the Southern Center for Human Rights cases and fact sheets to show what indigent defendants can reasonably expect from their lawyers;[iv] present the ABA’s Ten Principles of a Public Defense Delivery System as recognized standards.
  • 2. Provide proof that either the office’s standards or those principles identified by legal professional organizations like the ACLU and the ABA have not been applied in your case.

Only with clear direct standards and examples will you be able to convince your lawyer’s boss that in the middle of your case it is already evident that your legal counsel is not effective or adequate.

The Ten Principles of a Public Defense Delivery System
American Bar Association[v]

  • 1. The Public defense function, including the selection, funding, and payment of defense counsel, is independent.
  • 2. Where the caseload is sufficiently high, the public defense delivery system consists of both a defender office and the active participation of the private bar.
  • 3. Clients are screened for eligibility, and defense counsel is assigned and notified of appointment as soon as feasible, after client’s arrest, detention, or request for counsel.
  • 4. Defense counsel is provided sufficient time and a confidential space with which to meet with the client.
  • 5. Defense counsel’s workload is controlled to permit the rendering of quality representation.
  • 6. Defense counsel’s ability, training, and experience match the complexity of the case.
  • 7. The same attorney continuously represents the client until completion of the case.
  • 8. There is parity between defense counsel and prosecution with respect to resources and defense counsel is included as an equal partner in the defense system.
  • 9. Defense counsel is provided with and required to attend continuing legal education.
  • 10. Defense counsel is supervised and systematically reviewed for quality and efficiency according to nationally and locally adopted standards.

    

If you are not satisfied with an attorney assigned by the legal aid office to help you in a civil case, what can you do?

    

     The legal relationship between clients and legal aid offices is contractual, just like the relationship between paying clients and their private attorneys. And the attorneys who work in legal aid offices are supposed to have the same skills and desire to give their clients the best possible legal representation as the private-pay attorneys. If the lawyer is not providing adequate representation, a client’s best strategy would be to handle it like any other consumer complaint.

     The legal aid office might have a formal process for filing complaints. If they don’t have a process, writing a letter is the best way to let them know that you want better service. The letter can be addressed to the lawyer on the case as well as the office supervisor. Like the complaint about inadequate criminal representation described above, this letter should identify exactly what actions have been unsatisfactory and what risks you predict if the lawyer is allowed to continue representing you in that way.

          If the case is already over and you believe that you lost because of the lawyer’s incompetence or negligence, you can sue him for legal malpractice claiming ineffective assistance of counsel. In that case, it would be necessary to prove that the lawyer failed “to exercise the ordinary care of a reasonably competent attorney acting in the same or similar circumstances”[vi] and that you lost the case because of that failure. You can also file a professional ethics claim against a bad lawyer. Ethics claims are brought before the state attorney licensing office, not in court.[vii]

[i] The Southern Center for Human Rights has published many reports and articles about inadequate representation of criminal defendants http://www.schr.org/reports/index.htm; The American Bar Association published a comprehensive report after conducting hearings about court-provided criminal defense programs. http://www.abanet.org/legalservices/sclaid/defender/brokenpromise/. The American Civil Liberties Union (ACLU) has fought many important cases on behalf of poor people who did not get adequate criminal defense help from public defenders or court appointed lawyers. http://www.aclu.org/crimjustice/indigent/index.html The ACLU’s Web site has sample court documents, fact sheets, and news stories.[ii] Cases about ineffective public defenders include Gideon v. Wainwright, 372 U.S. 335 (1963); Miranda v. Clark, 319 F.3d. 465 (9th Cir. 2003); Powers v. Hamilton County Public Defenders Commission docket # 02 CV 00605 (S.D. Ohio 2005) (Brought by clients who were jailed after not being able to afford court costs.)

[iii] Cuyler v. Sullivan, 446 U.S. 335 (1980) and U.S. v. Cronic, 466 U.S. 648 (1984) are two cases that explain adequate and effective legal representation.

[iv] The ACLU’s indigent defense information is at http://www.aclu.org/crimjustice/indigent/index.html. The Southern Center for Human Rights’ indigent defense information is at http://www.schr.org/reports/index.htm.

[v] The ABA’s Ten Principles of a Public Defense Delivery System are available at http://www.abanet.org/legalservices/downloads/sclaid/10principles.pdf. The electronic document includes explanatory comments and references to related ABA professional standards.

[vi] 7A CJS Attorney and Client §327 (updated through 2007).

[vii] The American Bar Association’s Center for Professional Responsibility links to states’ legal ethics codes and attorney licensure offices. http://www.abanet.org/cpr/links.html

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How Can You Get a Free Attorney?

April 2, 2008 at 11:50 am · Filed under court ·Tagged

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

 

Courts provide free attorneys only in criminal cases, when defendants cannot afford to hire attorneys.[i] They do not provide lawyers for poor people involved in civil cases.

Legal Aid offices provide free legal representation in civil cases,[ii] but litigants have to find those legal aid offices on their own.[iii] Legal Aid offices come in many forms; they might serve a particular demographic group (for example, women) or work on a limited range of issues (for example disability law). They might be available through bar associations, law schools, social service agencies, or simply as independent non-profit organizations. Usually, both criminal courts and legal aid offices use the federal poverty guidelines[iv] to determine whether someone is eligible for free legal assistance.

In some jurisdictions, there is a pool of lawyers who work full time in the criminal court system and are paid by the court system to defend accused criminals who cannot afford to hire a private attorney. Those pools of lawyers are known as public defenders. In other jurisdictions, the court system contracts, either with the entire criminal defense bar, or else just the criminal defense attorneys willing to participate, to pay lawyers to represent criminal defendants who cannot afford to hire their own attorneys.[v] In these systems, the lawyers’ names are on a roster and the court clerk simply assigns the next person on the roster as soon as a low-income criminal defendant is in need of representation. That kind of system is a court-appointed attorney system.

In many jurisdictions, the public defender’s office is backed-up by a court-appointed system when there are too many cases for the public defense team to handle.

[i] U.S. CONST. Amend. VI. This constitutional provision plus summaries of major cases interpreting it are at http://supreme.justia.com/constitution/amendment-06/index.html and at http://caselaw.lp.findlaw.com/data/constitution/amendment06/.[ii] The federal government established the Legal Services Corporation (LSC) to fund legal aid offices that provide non-criminal legal services for indigent people throughout the country. The LSC Web site http://www.lsc.gov/ has a thorough online library of resources for self-help litigants and those seeking or suing legal aid offices. The site also has numerous reports and studies about free legal services for the poor.

[iii] Three electronic sources for locating your local legal aid offices are LawHelp http://www.lawhelp.org/, Justia http://law.justia.com/, and Findlaw http://www.findlaw.com/14firms/legalaid.html.

[iv] The Department of Health and Human Services publishes the federal poverty guidelines at http://aspe.hhs.gov/poverty/index.shtml.

[v] The American Bar Association provides a chart showing how each state’s indigent criminal defense is structured. The chart also cites the state’s indigent defense statutes. http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/statewideinddefsystems2005.pdf The ABA also provides reports about state spending on indigent defense systems and sets for the fundamental principles for indigent defense systems at http://www.abanet.org/legalservices/sclaid/defender/home.html.

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Does it cost money to make a court case?

April 2, 2008 at 11:46 am · Filed under court ·Tagged

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

 

It does cost money to file a case in court though it does not cost money to file a response to a case whether it is a criminal case or a civil case. When someone comes in to file a case, the court clerk’s office charges a fee just for filing the initial document. Then there is a fee from either the court or the sheriff’s office for delivering a copy of the initial document to the opponent. After the first document in a case, each party in a case has to pay the costs of photocopying and mailing his documents to both the court and the opponent.    

Then there are various kinds of costs associated with collecting and presenting evidence: Witnesses have to be paid. Scientists who analyze evidence get paid. Photographs and videotapes cost money to produce. Depositions, which are interviews with witnesses or opponents, have to be transcribed by a court reporter who has to be paid. Copies of pages from medical records can get pricey. The expenses go on and on, at least for people representing themselves or hiring private attorneys.

     Litigants represented by legal aid offices, public defenders, or court-appointed attorneys do not have to pay these costs; the law offices will pay for everything. Litigants who do represent themselves in court can at least get the court’s fees waived if the court deems them to be in forma pauperis, in the form of a pauper, without the financial ability to pay the court’s costs. The courts require people seeking in forma pauperis status to file a motion declaring and demonstrating their poverty. Nearly every court clerk’s office and Web site has a fill-in the blank form to use for that procedure in their court. There is also a standard form for claiming in forma pauperis status included in virtually every publication containing the court’s rules.[i]

[i] Federal court forms for in forma pauperis motions are at http://www.uscourts.gov/rules/newrules4.html#FormsEffect. State courts’ Web sites can be reached from http://www.ncsconline.org/D_KIS/index.html.

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Are there any rules about what you can say and do in court?

April 2, 2008 at 11:36 am · Filed under court ·Tagged

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

 

Just as there are numerous court rules for documents, there are also many rules for behaving and presenting in court. The basic understanding about courtroom decorum is that anyone who comes to court to argue a case will show respect for the court by demonstrating self-control, communicating precisely, and following the court rules.
Not showing respect for the court, by talking out of turn or disregarding the judge’s standards, etc… can be seen as showing contempt for the court. If the judge does consider behavior as contemptuous, he can have an offending gallery member removed from the courtroom and an offending litigant fined or jailed.

In addition to basic decorum, rules of evidence are very important in the courtroom. These are the rules that govern what kind of proof each party can present. The limitation preventing irrelevant information from coming into a case is an example of a rule of evidence.

Another important evidence rule is the hearsay rule. In federal courts and in state courts there is always some version of a hearsay rule saying that witnesses in court can only testify about what they have experienced; they cannot testify about things they heard other people say.

There are some exceptions to hearsay rules. Words spoken by someone about to die can be presented in court by a surviving witness. Documents kept in the regular course of business can be presented as evidence on their own, without their author being present. Usually, there are between twenty and twenty-five exceptions to a court system’s hearsay rule.

Another important rule to know about is the character evidence rule which says that descriptions of a person’s character are not allowed to be entered as proof that he did what he is accused of doing. For example, when a defendant is accused of committing fraud (misrepresenting facts to someone who lost money relying on those facts) a witness cannot be brought to say, “Jimmy’s a liar. He lied to me about the condition of his lawnmower when I bought it from him.” That sort of testimony might get the jury to assume that the defendant committed the fraud just because this person from years ago knew of his lying in a completely different situation.

Because of the prejudices and misperceptions that exist about homeless people, it is necessary to listen for innuendoes about laziness or dishonesty or irrationality that a court opponent might be trying to state as evidence of a homeless person’s character.

Dealing with the rules of evidence gets especially tricky because there is an understanding that an opponent might not mind if the other party wants to present hearsay or an unauthenticated object or a surprise. So, litigants are required to notify the judge, during a trial, when they object to the presentation of evidence that violates the rules.

They do this by immediately declaring something like, “your honor, I object to the prosecutor’s question because it invites the witness to talk about something irrelevant to this case.” Then, the judge makes an instant decision about whether the attempted evidence presentation would violate the rules. If the judge sustains the objection, it means that the evidence will not be allowed. If the judge overrules the objection, it means that the evidence will be allowed because it does not violate the rules.

COURT RULES
In order to properly communicate with the court and opponents in a lawsuit, you have to follow court rules.The four basic categories of court rules are:

  • Rules of Civil Procedure
  • Rules of Criminal Procedure
  • Rules of Evidence
  • Rules of Appellate Procedure

The rules are available from numerous sources:

  • The court’s Web site:

  Federal http://www.uscourts.gov/courtlinks/  

  State http://www.ncsconline.org/D_KIS/info_court_web_sites.html

http://www.llrx.com/courtrules/

If you are looking for print sources instead of electronic sources, look in libraries for paperback books of court rules or for the print versions of the statutory codes.

      In addition to the official rules of court, every judge has standards for behavior in the courtroom. Some judges like the participants to introduce themselves in a particular way. Some judges don’t allow lawyers and pro se litigants to tell stories to set a scene. Some judges demand a conference in chambers to try to settle the case instead of having a trial.

      To be sure that litigants satisfy these preferences, judges generally publish them in their biographies on the court’s Web site or mail them in a letter to each party. A litigant who does not live at an address might be able to receive court-related mail in care of a social service agency where he regularly receives services. As an alternative to that, or in addition to it, he can ask the judge’s clerk if the judge has any courtroom behavior preferences.  A homeless litigant can also make arrangements to check-in with the judge’s clerk on a weekly basis to find out whether any scheduled events have changed or to see if the opponent has filed new documents, or if there is any other kind of news or activity connected with his case.

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Where do you find out how to write documents for court?

April 2, 2008 at 10:26 am · Filed under court ·Tagged

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

 

Documents filed in court should be typed and submitted on clean paper. This is not always a rule or a legal requirement, but it is an expectation. Courts will often accept handwritten documents as long as they contain the necessary information and are submitted to the proper office at the appropriate time. Lawyers, who are professionally obligated to show respect to the court, always file typewritten documents.

Filing neat and properly executed documents not only shows respect for the court, it also provides the opponent with the clearest possible presentation of your message.Generally, all court documents must have a caption on the first page and must be in specific order, depending on the purpose of the particular document. The caption usually tells who is suing whom and lists the name of the court, the date of the filing, and the docket number for the case. The docket number is assigned when the first document of the case is filed with the court clerk. On all documents filed after the first one, litigants must include that docket number so that their documents get filed with the same case.

There are lots of books full of sample legal forms. Law libraries will have those books. Typically, they can only be used as examples. It is rare to find a book’s fill-in-the-blank form that will be accepted by a court. Sometimes, court’s Web pages have sample forms and those can be filled-in online or else printed and filled-in.[i] Since almost all documents filed in court become part of the public record, another way to see how to write documents is to copy and modify someone else’s pleadings.

To do so, go to the court clerk’s office and ask if there is a way to search for cases according to topic (negligence, assault, breach of contract, etc…) If there is a way for you to do that, allocate a few days in which you can dedicate yourself to looking for and reading through the documents filed in cases similar to yours. The clerk’s office will have coin operated copy machines or computer printers available.

No matter which resources tell you how to write a court document, you absolutely have to be sure the document complies with current court rules. Every court has rules about organizing and presenting documents.[ii] In fact, every court has its own rules in addition to rules from either the state or federal court system.

The rules tell how to notify an opponent that you are suing him, how to format court documents, what kind of information is required in court documents, how much time someone has in which to file a document, what options the opponent has for responding to that document and what kind of action the court will take regarding the document (i.e. whether the clerk will file it, whether a hearing will ensue, etc…).

[i] Legal forms can be accessed from http://forms.justia.com/. Another strategy for locating court forms online is to look for a link to “documents” or something similar on the court’s Web site. http://www.ncsconline.org/D_KIS/info_court_web_sites.html[ii] The Law Librarians Resource Exchange maintains an easy interface for locating state and federal court rules at http://www.llrx.com/courtrules.

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How do you start to connect legal research with actually proving a case?

April 2, 2008 at 10:13 am · Filed under court ·Tagged

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

 

Whether you are defending yourself in a criminal case or suing someone in a civil case, there are some basic steps to follow when making a case in court.

In criminal court, a defendant seeks to prove that the criminal charges do not match his actions, that faulty police procedures made some of the evidence inadmissible in court, and that the evidence which is presented in court does not prove him guilty.

Here is how legal research relates to those goals:

1. Read exactly how the crimes code defines that charge and think of ways to explain that your behavior does not match with that definition.[i]

2. Examine each item of the opponent’s proposed evidence against the rules of evidence.[ii] Investigate how the police obtained that evidence and how they handled it once they had it.

3. Look at the decisions in previous cases about that same charge to see how people successfully defended themselves and to see how the courts comment on the crimes code.[iii]

4. Having read the decisions in previous cases, show how your situation differs from the cases in which people were found guilty.

In a civil court case, such as a breach of contract or a negligent injury claim, a plaintiff generally seeks to prove that whomever he’s suing owed him a promise or a duty, that the promise or duty was not upheld, and that he has suffered harm or losses because of the opponents actions or inaction.

Here is how legal research relates to those goals:

  • 1. Read books, legal encyclopedias, sample jury instructions, American Law Reports, and other explanatory sources to see how to depict the duty or obligation. Those sources should lead you to statutes, regulations, and cases. In case they are incomplete, look in the indexes to statutes and regulations and in case digests using every relevant word to be sure you locate all applicable law.
  • 2. Using case references from those explanatory sources, read case decisions to get examples of what was necessary to prove that duties were breached.
  • 3. Consult the big practitioner sets mentioned in the last text box (Causes of Action, Am Jur Trials, Proof of Facts) for help thinking about how to prove the extent of your harm or loss and how to prove your opponent’s connection to your harm or loss.
  • 4. Look for books about the legal topics that apply to your case. There are helpful books about landlord-tenant law, contract law, criminal law, etc… All of these will be in the KF call number sections of libraries. If the bar association offers continuing education for lawyers, they might publish the practical training materials from those sessions and sell them to libraries. Three good Web sites that tell about proving legal issues are Justia http://www.justia.com/, Findlaw http://www.findlaw.com/, and Nolo Press http://www.nolo.com/.
[i] State criminal codes are available at http://www.law.cornell.edu/topics/state_statutes2.html%23criminal_code. Federal crimes are available from the House of Representatives at http://uscode.house.gov/search/criteria.shtml.[ii] Federal rules of evidence are at http://www.law.cornell.edu/rules/fre/. State evidence rules are at http://www.law.cornell.edu/topics/state_statutes2.html#evidence.[iii] To find case summaries, use a state or regional case digest, such as West’s California Digest or West’s Atlantic Digest. Digests are organized in topic order. After locating summaries of cases in the digest, find the full-text of those case opinions by using the case reporter citation provided in the digest.  If you don’t have access to digests and case reporters, at least investigate the criminal charges using a legal encyclopedia. Legal encyclopedias generally summarize the main case interpretations associated with legal topics.

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Representing Yourself in Court

April 2, 2008 at 10:10 am · Filed under court ·Tagged

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

Pro se means “for self” in Latin. In the legal system it is the term applied to cases in which someone represents himself, rather than having a lawyer. In almost every kind of court case, individuals have the opportunity to represent themselves. But there are all kinds of documents and actions that have to be done exactly right in a court case, not only to win, but even to keep the case alive through the numerous processes in formal dispute structure.

     There is an impression that judges will be flexible and patient with people representing themselves in court. Judicial conduct codes require judges to be thoughtful and unbiased,[i] but they do not require judges to waive court formalities or provide unlimited time for people representing themselves to make their way through a case. In fact, judges trying to be unbiased might have to restrain themselves from being too helpful to litigants representing themselves.
Judges professional organizations have produced position papers and suggestions about keeping court fair, efficient, and accurate for self-represented claimants and also their opponents who are paying attorney fees.[ii] In sum, judges have no legal obligation to protect or assist people simply because they have come to court without a lawyer.

     Many courts have a “pro se packet” or a similarly named segment of their Web sites where case filing instructions are provided for non-lawyers.[iii] The difference between those instructions and the ones the lawyers follow is basically in the way they are written, although they also tell how to notify the court that you don’t have legal counsel. Even though a pro se printing of the court’s requirements may be easier to read than the full-text of the court rules, the fact is that pro se litigants do not get to avoid court formalities simply because they have not hired a lawyer.

The court formalities and the strange ways that laws and cases are written make it very hard to independently navigate the legal system. New litigants often want to have someone explain a legal phrase in plain English or just summarize a whole long process in a few sentences. Those kinds of communications are forms of legal advice because they involve interpreting the law.

Sometimes, people who represent themselves in court cases find themselves asking for legal advice from the lawyer on the other side of the case. This not only puts that lawyer in an awkward ethical position,[iv] it also informs him about the case strategy. It is also unwise to ask court clerks, law librarians, and various legal system employees for advice about a case. While those people may have been tangentially involved in a lot of cases, they do not necessarily have the knowledge or information to analyze or plan a case. Only lawyers can give legal advice. Non-lawyers are at risk of being charged with the crime of practicing law without a license if they give legal advice.
The more pressing problems for the pro se litigant who seeks legal advice from a non-lawyer are:
1. that he will either get incomplete or incorrect guidance or else
2. that he will irritate that legal system employee who cannot give the desired advice. It is very annoying to be asked for help that you cannot give.

For assistance in planning litigation strategies, collecting evidence, and pleading a case in court, pro se litigants (and lawyers) can get a great deal of help from law library books in the call number ranges beginning with KF 8800 and KF 8900. That section of the library has books with sample deposition questions, instructions for writing and delivering an opening statement in court, ideas for asking questions of witnesses, recommendations for how to use evidence, tactics for effectively communicating with the judge and jury, and much more. Some books are just about bringing a case in a particular jurisdiction, others are about succeeding with specific legal claims, and others teach techniques.    There are several large series’ of practice books that give especially detailed examples: Am Jur Trials, Shepard’s Causes of Action, and Am Jur Proof of Facts are the three primary sets of these. They include features such as checklists to follow for organizing a case to be sure that all of the necessary information is collected and provided to the court, examples of actual documents that have been filed in cases, lists of questions to ask in depositions before trial and cross or direct examination during trial, and suggestions for how to present evidence.

There is a Web-based resource called Self Help Support.org http://www.selfhelpsupport.org/ with a library about self-representation, several listservs, a newsletter about self-representation, and other background about handling a case without a lawyer. Note that this service is not designed for individuals representing themselves in court, but is ”a virtual resource for people involved with providing pro se assistance or directing pro se and self help programs.” (from http://www.selfhelpsupport.org/about/) They do not have information about specific law topics.

LawHelp.org http://www.lawhelp.org/ does have topical law information. The first screen on LawHelp lets users select the state within which they are representing themselves. Within each state’s page are the topical categories (employment, children and families, health law, veterans, migrant issues, etc…) with links to legal explanations and free legal services for each of those categories.

Findlaw has an ever-growing collection of articles about representing yourself in criminal court at http://criminal.findlaw.com/articles.html and in civil court at http://library.findlaw.com/civil-procedure/index.html.
[i] Code of Conduct for United States Judges, available at http://www.uscourts.gov/guide/vol2/ch1.html.[ii] Paula Hannaford-Agor, Helping the Pro Se Litigant: A Changing Landscape, Court Review (published by the American Judges Association) (Winter 2003) available at http://aja.ncsc.dni.us/courtrv/cr39_4/CR39-4Hannaford.pdf; Meeting the Challenge of Pro Se Representation: An Update of Legal and Ethical Issues by the American Judicature Society, available at http://www.ajs.org/prose/pro_legal_ethical.asp; The American Judicature Society has an entire Pro Se Forum where judges can seek guidance about handling cases with self-represented litigants http://www.ajs.org/prose/home.asp.  [iii] Federal court Web sites are available through http://www.uscourts.gov/courtlinks/. Look for a link to “documents” or “communications” that might link to instructions for filing a pro se case. Forms for self-representation in state courts are available via the National Center for State Courts at http://www.ncsconline.org/wc/CourTopics/statelinks.asp?id=64&topic=ProSe. The National Center for State Courts also has other helpful information about self-representation. Simply go to http://www.ncsconline.org/ and search within the site using the phrase “self-representation.”[iv] Rule 4.3 of the Model Rules of Professional Conduct prohibits lawyers from giving advice to litigants who are not their clients. Link to states’ lawyer ethics material at http://www.abanet.org/cpr/links.html.

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What are the stages of a criminal prosecution?

April 2, 2008 at 10:03 am · Filed under court ·Tagged

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

1. Arrest- being taken into custody by police in order to be charged with a crime.

Who you interact with: arresting police officers and booking police officers

Basic legal rights at this stage: right to remain silent rather than responding to police questions and the right to seek a lawyer’s help for interactions with the police, the prosecutor, and the court. These rights come from the Sixth Amendment to the U.S. Constitution and similar components of state constitutions, as interpreted by court cases.

The Sixth Amendment and links to cases about the right to representation are available at: http://supreme.justia.com/constitution/amendment-06/index.html
2. Arraignment- a pre-trial court appearance where the charges are put on record and the defendant pleads guilty or not guilty. No evidence is presented and no arguments are made. It is simply a first chance for the prosecutor and the defendant to each formally put their positions in writing. “He committed this crime.” “No I didn’t.”

Who you interact with: a hearing officer or magistrate, prosecutor, defense lawyer

Basic legal rights at this stage: the right to hear what crimes the prosecutor plans to prove. The state or federal rules of criminal procedure http://www.llrx.com/courtrules/ tell specifically what information has to be conveyed to a defendant at this state. If the criminal charges are serious enough that the defendant can be punished with imprisonment, the defendant has a right to have an attorney represent him in future court appearances and transactions involved with this case.

3. Preliminary Hearing – a pre-trial court appearance where the prosecution has to demonstrate that it has enough proof to demonstrate that the elements of the crime were met by this defendant’s actions.

Who you interact with: a hearing officer or magistrate, prosecutor, defense lawyer

Basic legal rights at this stage: the right to contest the prosecutor’s claim that he can prove the elements of the crime. The state or federal rules of criminal procedure tell how a defendant can respond to the prosecutor’s claims at this stage. Generally, there is nothing written at this stage. When the prosecutor finishes telling about his case, the defendant (or the defendant’s lawyer) tells what the prosecutor’s claim is missing. For example, if the prosecutor says that the defendant committed burglary-breaking and entering with the intent to commit a crime-but then doesn’t show how he can prove whether the defendant actually entered the place, the defendant can point out to the hearing officer that the prosecutor has not shown that he can make the case. Find the crime components, which the prosecutor has to present, in your state’s crimes code or your local ordinances at http://www.justia.com/us-states/ or http://www.law.cornell.edu/topics/state_statutes2.html#criminal_code.

See the Rules of Criminal Procedure http://www.llrx.com/courtrules/ to find out how the hearing is supposed to be conducted.

4. Indictment or Information- filing with the trial court a written list of the charges approved in the preliminary hearing.

Who you interact with: This is not a proceeding in which the defendant interacts with anyone. The prosecutor communicates with the court by submitting the document.

Basic legal rights at this stage: The right to receive a copy of the indictment or information. This is not always an automatic right; the document might be provided only when the defendant requests it from the court clerk. The state or federal rules of criminal procedure regulate the way this document is written and presented to the court as well as how and when the defendant can get a copy of the indictment or information.

Rules of Criminal Procedure http://www.llrx.com/courtrules/

5. Discovery – parties collect information from each other. The prosecution is typically required to provide the defendant with copies of evidence and names of witnesses that are relevant to the case. The defendant is usually required to provide the prosecution with the results of mental or physical health exams related to the case and a list of experts and other witnesses.

Who you interact with: the prosecutor and witnesses for your defense

Basic legal rights at this stage: the right not to incriminate yourself and the right to know what evidence the prosecutor plans to use. The right against self-incrimination comes from the Fifth Amendment to the U.S. Constitution and similar components of state constitutions as interpreted by cases. The right to full disclosure of the prosecutor’s evidence comes from the state or federal rules of criminal procedure.

Fifth Amendment http://supreme.justia.com/constitution/amendment-05/index.html  

Rules of Criminal Procedure http://www.llrx.com/courtrules/

6. Trial – elaborate court presentations in which the prosecutor tries to prove that the defendant is guilty of the crime and the defendant tries to prove that the prosecutor has not proved his claims.

Who you interact with: judge, jury, witnesses, prosecutor

Basic legal rights at this stage: right to a fair trial which comports with all of the rules of criminal procedure including the right to object to improper evidence, the right to present evidence contradicting the prosecutor’s assertions, and the right to cross examine the prosecution’s witnesses. These rights come from previous cases as well as the rules of criminal procedure.

To find cases about trial techniques, look under the topic “trial” in any source published by Thomson West Publishing. Books about trial techniques are in  the KF 8915 Library of Congress call number range.

Rules of Evidence and Criminal Procedure http://www.llrx.com/courtrules/

After the trial, a defendant who is found innocent is free to get away from the courthouse and the criminal justice system. A defendant who is found guilty will probably have a separate hearing at which his sentence (or punishment) is decided. In that hearing, the prosecutor tries to show why the defendant deserves the harshest possible sentence and the defendant tries to show that he deserves the lightest possible sentence. The ranges of possible sentences are published in each jurisdiction’s sentencing guidelines.[i]

Meanwhile, if the defendant can show that the judge made errors in handling the case, he can appeal the case to a higher court. The appeal is not an opportunity to prove the whole case again; it is merely a forum in which to show that the judge improperly allowed or disallowed certain evidence, that he demonstrated bias, that he failed to properly instruct the jury, or that he made other errors. When filing an appeal, it is usually necessary to request that the trial court postpone sentencing until the appellate process is over.

If the appeals process doesn’t work out in a convicted criminal’s favor, the last resort is to file a federal or state court habeas corpus petition asserting that the conviction violates federal laws or the U.S. Constitution.[ii] In this case, the defendant has to show that the prosecutor or trial judge did something that truly was illegal, for example: not providing defendant with a lawyer, allowing evidence from illegal search to be presented in court, being biased or prejudicial in judging, or misinforming the jury about appropriate sentencing options.

 

Who you interact with: Trial court judge, witnesses, and lawyers for sentencing; appellate court clerk to file appeal; district court clerk/judge for filing habeas corpus petition.

Basic legal rights at this stage: In the sentencing phase, defendants have the rights to: 1. attorney representation-even during the court’s pre-sentence investigation 2. read and contradict or explain parts of the pre-sentence report and 3. speak on their own behalf at the sentencing hearing.[iii] In the appeal, convicted criminals have the following rights: 1. representation by an attorney (court-provided for indigents) 2. have a copy of the trial transcript 3. access to a law library or other appeal preparation resources while incarcerated. The appellate rights also apply when petitioning for habeas corpus.

[i] Federal Sentencing Guidelines are at http://www.ussc.gov/guidelin.htm. States’ sentencing commissions, which typically post the guidelines on their Web sites, can be reached through the National Association of State Sentencing Commissions. http://www.ussc.gov/STATES.HTM.[ii] The federal court system provides habeas corpus forms at http://www.uscourts.gov/forms/uscforms.html. Many federal district courts post forms for Habeas Corpus and other actions on their Web sites. http://www.uscourts.gov/courtlinks Volume 13 of Am Jur Pleading and Practice Forms has a broad assortment of habeas corpus forms. The Federal Judicial Center http://www.fjc.gov/ has an outline of the habeas process with references to all of the relevant laws. Search within the FJC site using the phrase “habeas corpus” the get the publication containing this outline “Habeas Corpus Review of Capital Convictions”

[iii] Lynn S. Branham, THE LAW AND POLICY OF SENTENCING AND CORRECTIONS IN A NUTSHELL, 7th Ed, (West 2005).

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