Epic SCOTUS Decisions

To learn more about the awesome new ruling that allows for going after a tyrant government office or government officer read below 2022 ruling!!!!

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

NOW, AS OF APRIL 4, 2022 YOU HAVE A RIGHT UNDER FEDERAL LAW TO SUE FOR YOUR MALICIOUS CRIMINAL PROSECUTION.
FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

Pro$ecutor‘$ Duty to the citizen

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

In its landmark decision, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job conduct that violates the Constitution. Cases in which federal employees face personal liability cut across everything the government does in all three branches of government. Whether they are engaging in every-day law enforcement, protecting our borders, addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the specter of personal liability.

This ruling has a complexity to it, that does not favor a malicious prosecutor or police force. it holds them accountable! New Supreme Court Ruling makes it easier to sue police when criminal charges are dropped or dismissed. This hold the prosecutor accountable because an attorney has a fiduciary duty to his client, meaning that a relation “exist[s] between parties to a transaction wherein one of the parties is duty bound to act with the utmost good faith in the benefit of the other party. Such a relation ordinarily arises when a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from his [or her] acts relating to the interest of the other party without the latter’s knowledge or consent. . . . ”

An attorney may not seek, accept or continue employment where it is not substantiated by probable cause, thus an attorney may not prosecute any case that is not well – 1 Cal. Rules Prof. Conduct, Rule 1-400. 2 Id. 3 McKinnery State Bar, 62 Cal.2d 194, 196 (1964); Culter v. State Bar of California, 71 Cal.2d 241, 249 (1969); see also Coulello v. State of California, 45 Cal.2d 57 (1955); Hallinan v. State Bar of California, 33 Cal.2d 246 (1948). Clearly, this duty applies not only with reference to the client but also with regard to the court, opposing counsel. 4 Cal. Rules Prof. Conduct, Rule 3 -200; Cal. Bus. & Prof. Code

6068(c). The ABA Model Rules of Professional Conduct, Rule 3.1 & 4.4, also impose a duty to the legal system which requires both that the
attorney bring only meritorious claims and that they not use inappropriate means in the representation of their client that embarrass, bur den, delay or violate legal rights.

Barbara A. v. John G., 145 Cal.App.3d 369 (1983) (citing Herbert v. Lankershim, 9 Cal.2d 409, 483 (1937); Bacon v. Soule, 19 Cal.App. 428, 434 (1912)

Zamos v. Stroud

California Supreme Court, 2004
32 Cal.4th 958, 12 Cal.Rptr.3d 54, 87 P.3d 802

The tort of malicious prosecution includes continuing to prosecute a lawsuit discovered to lack probable cause. (This decision expands the tort, which previously was limited to commencing an action without probable cause.) Evidence to this effect is sufficient to defeat a special motion to strike a complaint for malicious prosecution.

learn about how NOT TO violate your employers rights, after all civil servants work for the people, the tax payer. Got it DA  Federal Civil Right$ $tatute$

Thompson vs Clark new-supreme-court-ruling-makes-it-easier-to-sue-police/

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines $ubject to Open Records Requests

Other Pro$ecutor Caselaw:

NOW, AS OF APRIL 4, 2022 YOU HAVE A RIGHT UNDER FEDERAL LAW TO SUE FOR YOUR MALICIOUS CRIMINAL PROSECUTION.

FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

THE NINTH CIRCUIT COMES TO THE RESCUE AND REFUSES TO FOLLOW THE CALIFORNIA COURTS OF APPEAL IN THEIR AD NAUSEUM EXPANSION OF MALICIOUS PROSECUTION IMMUNITY UNDER SECTION 821.6.

On July 5, 2016, the Ninth Circuit handed down the seminal case of Garmon v. Cty. of Los Angeles, 828 F.3d 837, 847 (9th Cir. 2016), which rejected the California Court of Appeal’s ad nauseam expansion of Section 821.6 immunity and refused to immunize police officers pursuant to that section. In that Opinion, the Ninth Circuit held that they are only bound to follow state law on state law issues when either the highest court in a state (i.e. the California Supreme Court on California law) has decided that issue, or, when the state Courts of Appeals have decided an issue and the federal court finds that the state Supreme Court would have held otherwise. In reaching that holding that Ninth Circuit Court of Appeals held that the California Supreme Court already interpreted [California Government Code] section 821.6 as ‘confining its reach to malicious prosecution actions.’ “Sullivan v. County of Los Angeles, 12 Cal.3d 710, 117 Cal.Rptr. 241, 527 P.2d 865, 871 (1974), and that in their opinion, the California Supreme Court would adhere to Sullivan, notwithstanding many Opinions of the California Courts of Appeal holding otherwise. Accordingly, the state of the law is that if you have the same case with the same parties and your case is in a California state court, that Section 821.6 immunizes many actions of peace officers other than malicious prosecution, but if you are in federal court, Section 821.6 immunity only immunizes claims for malicious prosecution under California state law.

NOW, AS OF APRIL 4, 2022 YOU HAVE A RIGHT UNDER FEDERAL LAW TO SUE FOR YOUR MALICIOUS CRIMINAL PROSECUTION.

FEDERAL MALICIOUS PROSECUTION LAW FROM 1994 TO 2017

On the basis of dicta expressed by the plurality opinion in Albright v. Oliver, 510 U.S. 266 (1994), there has been a political and practical acceptance of a federal constitutional right to be free of a malicious criminal prosecution; a frame-up by state actors.

In Albright v. Oliver, 510 U.S. 266 (1994), the U.S. Supreme Court held that although a malicious criminal prosecution is not a 14th Amendment substantive due process violation, that is might be considered an unreasonable seizure of one’s person under the 4th Amendment to the U.S. Constitution, if the subsequent malicious prosecution was accompanied by the actual physical arrest of the person.

In reality, these words were crafted by the Supreme Court to permit persons who are falsely and maliciously accused of a crime by the police that resulted in a bogus criminal prosecution, to sue the police who attempted to frame them. It’s judicial “newspeak“.

If there is anything that would constitute what the courts call substantive due process (i.e. outrageous police conduct that shocks the conscience), attempting to frame an innocent is it. However, the Supreme Court could not agree on whether a malicious criminal prosecution was a substantive due process violation in Albright v. Oliver, but the Justices did not want to leave one who the police attempted to frame without a remedy.

Accordingly, in Manuel v. City,  of Joliett, 580 U.S. _____ (2017), the Supreme Court held that one who was physically arrested and confined in custody by way of the false arrest of a police officer, can obtain damages under 42 U.S.C. § 1983 for that person’s continued confinement in jail, after the point in time when the District Attorney (prosecutor) formally filed criminal charges against the person. In other words, the accused person can collect damages for being kept in jail before trial, pursuant to criminal charges, filed by the prosecutor, that were procured by the arresting police officer having authored a false police report, that the prosecutor relied upon in  deciding to file the very criminal charges that kept the false accused person in jail before trial.

However, this still didn’t establish a Naked Constitutional Tort of a Malicious Criminal Prosecution; only a damages remedy for a false arrest, and for confinement in jail after the point in time when the prosecutor formally filed criminal charges against the confined person.

Following both Albright v. Oliver and Manuel v. City of Joliet, most United States District Courts and the United States Courts of Appeals (the federal intermediate level appellate courts) permitted a Section 1983 remedy for a malicious criminal prosecution by a peace officer.  The First, Second, and Eleventh Circuits composed the “Tort Circuits,” wherein plaintiffs pleading malicious prosecution claims under Section 1983, were required to satisfy the common law elements of a malicious prosecution claim in addition to proving a constitutional violation. The “Constitutional Circuits”—the Fourth, Fifth, Seventh, and Tenth— concentrated on whether a constitutional violation exists.

Most of the Circuits of the United States Courts of Appeals, allowed for an aggrieved person the right to sue for being subjected to a malicious criminal prosecution, federal remedy for the same, via 42 U.S.C. §  1983. They did so, on various theories, since the right to be free from a malicious criminal prosecution is not described in the federal Constitution, but the pure evil and outrageousness of such government action compels appellate judges to find some Constitutional foundation for that right, in order to allow a person who the government attempted to frame, some sort of remedy.

Although sister circuits categorized the Third Circuit as a “Tort Circuit”, the Third Circuit more recently acknowledged that “[o]ur law on this issue is unclear”; however, it continued to encourage plaintiffs to address each common law element. Similarly, the Sixth Circuit has avoided defining the required elements of a claim, although it appears to recognize a Fourth Amendment right against malicious prosecution and continued detention without probable cause.  The Ninth Circuit lies on both sides of the divide; seemingly turning on whether they want the malicious prosecution plaintiff to prevail.

In Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002.)  held that a malicious criminal prosecution was a naked constitutional tort, and was actionable under 42 U.S.C. § 1983 under the 4th Amendment. They just said it, basically out of thin air.

The Ninth Circuit also continued its pre-Galbraith malicious prosecution jurisprudence and held that in in addition to constituting a 4th Amendment violation, that one could sue for a malicious criminal prosecution if the prosecution was brought to deprive the innocent of some other constitutional right, such as attempting to frame an innocent in retaliation for protected exercise of First Amendment free speech, or, as a naked constitutional tort. See, Awabdy v. City of Adelanto, 368 F.3d 1062, 1069–72 (9th Cir. 2004.) i

FEDERAL LAW NOW PROVIDES A REMEDY FOR A MALICIOUS CRIMINAL PROSECUTION.

In Thompson v. Clark, 596 U.S. _______ (April 4, 2022) for the first time in the history of the Americann Republic, the U.S. Supreme Court finally held that there is a Constitutional Tort of Malicious Criminal Prosecution. The Supreme Court also went on to hold that in order to sue for a Malicious Criminal Prosecution, that the underlying criminal action only need not result in a conviction of the accused for the accused (and  now plaintiff), for the underlying criminal case to be considered to be “favorably terminated”; a “favorable termination” of the underlying criminal case being a required element of that claim.

Although under California law you may not recover damages for your malicious criminal prosecution because of immunity provided in Cal. Gov’t Code § 821.6  (See, Asgari v. City of Los Angeles, 15 Cal. 4th 744 (1997), at least now there is a federal remedy for the police attempting to frame you; finally.

https://steeringlaw.com/police-misconduct-articles/can-you-sue-the-police-for-malicious-criminal-prosecutions/

Constitutional Tort Law and Legal Definition

Constitutional torts are violation of one’s constitutional rights by a government servant. Constitutional tort actions are brought under 42 USCS § 1983 against government employees seeking damages for the violation of federal constitutional right, particularly those arising under the Fourteenth Amendment and the Bill of Rights.

42 USCS § 1983 reads as follows:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the U.S. or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”

Introducing the DA’s & Cops TEXTs & EMAIL as Digital Evidence

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Employer$ Beware: La $upreme Court Open$ Line for Direct Negligence Claim$ from Employee Action$​

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling Makes it easier to Sue PROSECUTORS & POLICE

42 U.S.C.A. Sec. 1983.” Trezevant v. City of Tampa (1984) 741 F.2d 336, hn. 5 Mattox v. U.S., 156 US 237,243. (1895) “We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted.”

S. Carolina v. U.S., 199 U.S. 437, 448 (1905).“The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.”

SHAPIRO vs. THOMSON, 394 U. S. 618 April 21, 1969 .Further, the Right to TRAVEL by private conveyance for private purposes upon the Common way can NOT BE INFRINGED. No license or permission is required for TRAVEL when such TRAVEL IS NOT for the purpose of [COMMERCIAL] PROFIT OR GAIN on the open highways operating under license IN COMMERCE.

Murdock v. Penn., 319 US 105, (1943) “No state shall convert a liberty into a privilege, license it, and attach a fee to it.”

Shuttlesworth v. Birmingham, 373 US 262, (1969) “If the state converts a liberty into a privilege, the citizen can engage in the right with impunity.”

Miranda v. Arizona, 384 U.S. 436, (1966) “Where rights secured by the Constitution are involved, there can be no rule making or legislation, which would abrogate them.”

Norton v. Shelby County, 118 U.S. 425, (1886) “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Miller v. U.S., 230 F.2d. 486 ,489 “The claim and exercise of a Constitutional right cannot be converted into a crime.”

Brady v. U.S., 397 U.S. 742, 748,(1970) “Waivers of Constitutional Rights, not only must they be voluntary, they must be knowingly intelligent acts done with sufficient awareness.”

 Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972). The law requires the disclosure of exculpatory and impeachment evidence when such evidence is material to guilt or punishment. Brady, 373 U.S. at 87; Giglio, 405 U.S. at 154. Because they are Constitutional obligations, Brady and Giglio evidence must be disclosed regardless of whether the defendant makes a request for exculpatory or impeachment evidence. 

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents.”

Alexander v.Bothsworth, 1915. “Party cannot be bound by contract that he has not made or authorized. Free consent is an indispensable element in making valid contracts.”

Hale v. Henkel 201 U.S. 43 at 89 (1906) HALE v. HENKEL 201 U.S. 43 at 89 (1906) Hale v. Henkel was decided by the united States Supreme Court in 1906. The opinion of the court states: “The “individual” may stand upon “his Constitutional Rights“ as a CITIZEN. He is entitled to carry on his “private” business in his own way. “His power to contract is unlimited.” He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to incriminate him. He owes no duty to the State, since he receives nothing there from, beyond the protection of his life and property. “His rights” are such as “existed” by the Law of the Land (Common Law) “long antecedent” to the organization of the State”, and can only be taken from him by “due process of law”, and “in accordance with the Constitution.” “He owes nothing” to the public so long as he does not trespass upon their rights.”

Hale v. Henkel 201 U.S. 43 at 89 (1906) Hale v. Henkel is binding on all the courts of the United States of America until another Supreme Court case says it isn’t. No other Supreme Court case has ever overturned Hale v. Henkel None of the various issues of Hale v. Henkel has ever been overruled Since 1906, Hale v. Henkel has been cited by the Federal and State Appellate Court systems over 1,600 times! In nearly every instance when a case is cited, it has an impact on precedent authority of the cited case. Compared with other previously decided Supreme Court cases, no other case has surpassed Hale v. Henkel in the number of times it has been cited by the courts. Basso v. UPL, 495 F. 2d 906 Brook v. Yawkey, 200 F. 2d 633

None of the various issues of Hale v. Henkel has ever been overruled Since 1906, Hale v. Henkel has been cited by the Federal and State Appellate Court systems over 1,600 times! In nearly every instance when a case is cited, it has an impact on precedent authority of the cited case.  Compared with other previously decided Supreme Court cases, no other case has surpassed Hale v. Henkel in the number of times it has been cited by the courts. Basso v. UPL, 495 F. 2d 906 Brook v. Yawkey, 200 F. 2d 633

Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828) Under federal Law, which is applicable to all states, the U.S. Supreme Court stated that “if a court is without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification and all persons concerned in executing such judgments or sentences are considered, in law, as trespassers.” Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) ”

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

thompson-v-clark-364-f-supp-3d-178/

thompson-v-clark-holds-fourth-amendment-claim-under-%c2%a7-1983-for-malicious-prosecution

Sullivan v. County of Los Angeles – 12 Cal.3d 710 – Mon, 11_04_1974 – MALICIOUS PROSECUTOR & OFFICER

Section 815.2 provides: "(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity
within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee
or his personal representative.

[8] Malicious prosecution "consists of initiating or procuring the arrest and prosecution of another under lawful process,
    but from malicious motives and without probable cause. ... [Italics in original.] The test is whether the defendant was
    actively instrumental in causing the prosecution." (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 242, pp. 2522-2523.)
    Cases dealing with actions for malicious prosecution against private persons require that the defendant has at least sought
    out the police or prosecutorial authorities and falsely reported facts to them indicating that plaintiff has committed a crime.
    (Rupp v. Summerfield (1958) 161 Cal.App.2d 657, 663 [326 P.2d 912]; Centers v. Dollar Markets (1950) 99 Cal.App.2d 534, 544-545 [222 P.2d 136].)
    Similarly the suits against government employees or entities cited by the Senate Committee in commenting upon section 821.6
    all involve the government employees' acts in filing charges or swearing out affidavits of criminal activity against the plaintiff.
    fn. 9 No case has predicated a finding of malicious prosecution on the holding of a person in jail beyond his term or beyond the completion
    of all criminal proceedings against him.United States v. Wiltberger

cited https://goodshepherdmedia.net/sullivan-v-county-of-los-angeles/

Bias – Removal of Prosecutor People v. Superior Court (Greer)

Abuse – Removal of Prosecutor People v. Superior Court (Greer)

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job 
conduct that violates the Constitution. Cases in which federal employees face personal liability cut across everything the government
does in all three branches of government. Whether they are engaging in every-day law enforcement, protecting our borders,
addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the
specter of personal liability.

Spencer v. Peters

After several unsuccessful appeals, the relevant facts of which will be discussed throughout this order, Mr. Spencer's prison 
sentence was commuted to community supervision in 2004 by then Governor Locke. Dkt. 63-18. Following his release from prison.

This is a great hearing you click below you can hear the proceedings audio and discussion. This an excellent source for young hungry new attorneys! good luck in your career, work hard, good ethics, good nature, respect God in your work and doings just as you steer clear of harming attorney client privilege respect the attorney God privilege and do right by him! use your fantastic mind to work around the obstacles while still respecting God and his expectations he has for all of us. Live right, you only live once! YOLO is not a reason to go nuts, its a reason to straighten ones morals inline with the creator before your time is up. Now that is a lottery ticket you don’t want to forget buy, heaven beats anything you get here…. and you pay for it by doing good here now for God!
spencer-v-peters/

Gerardo Rodarte v. Joseph Gutierrez – arises from the arrest and pretrial detention

you can read more on this gerardo-rodarte-v-joseph-gutierrez/

Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) “The practice of law is an occupation of common right.”

Employers Beware: La Supreme Court Opens Line for Direct Negligence Claims from Negligent Employee Actions

read case Martin v. Thomas et al. 2022 – Opens Line for Direct Negligence Claims from Employee Actions

Excerpts taken from SCOTUS around Robin v. Hardaway

Supreme court cases from digging around Robin v. Hardaway 1790.
Biblical Law at “Common Law” supersedes all laws, and “Christianity is custom, custom is Law.”

Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) “The practice of law is an occupation of common right.”

424 F.2d 1021 US v.  Horton R. PRUDDEN,No. 28140. . United States Court of Appeals, Fifth Circuit.April 1970 Silence can only be equated with fraud where there is a legal or moral duty to speak or where an inquiry left unanswered would be intentionally misleading.

DA Caitlyn Harrington did this to me above she is the dumb cunt i called her

U.S. v. Tweel, 550 F. 2d. 297, 299, 300 (1977) Silence can only be equated with fraud when there is a legal and moral duty to speak or when an inquiry left unanswered would be intentionally misleading. We cannot condone this shocking conduct… If that is the case we hope our message is clear. This sort of deception will not be tolerated and if this is routine it should be corrected immediately.

Morrison v. Coddington, 662 P. 2d. 155, 135 Ariz. 480(1983). Fraud and deceit may arise from silence where there is a duty to speak the truth, as well as from speaking an untruth. In regard to courts of inferior jurisdiction, “if the record does not show upon its face the facts necessary to give jurisdiction, they will be presumed not to have existed.”

NAFFE v. FREY It is uncontested that Naffe is domiciled in Massachusetts, Frey is domiciled in California, and the County of Los Angeles is a citizen of California for purposes of diversity jurisdiction, see Moor v. Alameda Cnty., 411 U.S. 693, 717–18, 721–22 (1973). The parties are thus “completely diverse.” See Strawbridge v. Curtiss, 7 U.S. 267, 267–68 (1806).

Norman v. Zieber, 3 Or at 202-03 US v Will, 449 US 200,216, 101 S Ct, 471, 66 LEd2nd 392, 406 (1980) Cohens V Virginia, 19 US (6 Wheat) 264, 404, 5LEd 257 (1821) “When a judge acts where he or she does not have jurisdiction to act, the judge is engaged in an act or acts of treason.”

“The state citizen is immune from any and all government attacks and procedure, absent contract.” see, Dred Scott vs. Sanford, 60 U.S. (19 How.) 393 or as the Supreme Court has stated clearly, “…every man is independent of all laws, except those prescribed by nature. He is not bound by any institutions formed by his fellowmen without his consent.” CRUDEN vs. NEALE, 2 N.C. 338 2 S.E. 70

FRAUD$ BY GOVERNMENT

McNally v. U.S., 483 U.S. 350, 371-372 (1987),  McNally v. U.S., 483 U.S. 350, 371-372 (1987), Quoting U.S. v. Holzer, 816 F.2d. 304, 307: “Fraud in its elementary common law sense of deceit – and this is one of the meanings that fraud bears in the statute, see United States v. Dial, 757 F.2d 163, 168 (7th Cir. 1985) – includes the deliberate concealment of material information in a setting of fiduciary obligation. A public official is a fiduciary toward the public, including, in the case of a judge, the litigants who appear before him, and if he deliberately conceals material information from them he is guilty of fraud. BURDEN OF PROOF ” 

The law creates a presumption, where the burden is on a party to prove a material fact peculiarly within his knowledge and he fails without excuse to testify, that his testimony, if introduced, would be adverse to his interests.” citing Meier v. CIR, 199 F 2d 392, 396 (8th Cir. 1952) quoting 20 Am Jur, Evidence, Sec 190, page 193  Notification of legal responsibility is “the first essential of due process of law”.  See also:U.S. v. Tweel, 550 F.2d.297. “Silence can only be equated with fraud where there is a legal or moral duty to speak or when an inquiry left unanswered would be intentionally misleading.”  Clearfield Doctrine “Governments descend to the Level of a mere private corporation, and take on the characteristics of a mere private citizen…where private corporate commercial paper [Federal Reserve Notes] and securities [checks] is concerned. … For purposes of suit, such corporations and individuals are regarded as entities entirely separate from government.”

Please feel Free to read the excellent pamphlet to help you secure your RIGHT to contracts! 

FREEDOM OF CONTRACT by David E. Bernstein, George Mason University School of Law

and here is the Amendment to OUR US LAW that GRANTS YOU THESE RIGHTS 

Overview of Contract Clause

Lochner v. New York The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.Lochner v. New York The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.

Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) “The practice of law is an occupation of common right.”

In Leiberg v. Vitangeli, 70 Ohio App. 479, 47 N.E. 2d 235, 238-39 (1942)  “These constitutional provisions employ the word ‘person,’ that is. anyone whom we have permitted to peaceably reside within our borders may resort to our courts for redress of an injury done him in his land, goods, person or reputation. The real party plaintiff for whom the nominal plaintiff sues is not shown to have entered our land in an unlawful manner. We said to her, you may enter and reside with us and be equally protected by our laws so long as you conform thereto. You may own property and our laws will protect your title. “We, as a people, have said to those of foreign birth that these constitutional guaranties shall assure you of our good faith. They are the written surety to you of our proud boast that the United States is the haven of refuge of the oppressed of all mankind.” Court will assign to common-law terms their common-law meaning unless legislature directs otherwise.

People v. Young (1983) 340 N.W.2d 805,418 Mich. 1. Common law, by constitution, is law of state.

Beech Grove Inv. Co. v. Civil Rights Com’n (1968) 157 N.W.2d 213, 380 Mich. 405. “Common law” is but the accumulated expressions of various judicial tribunals in their efforts to ascertain what is right and just between individuals in respect to private disputes. Semmens v. Floyd Rice Ford, Inc. (1965) 136 N.W.2d 704,1 Mich.App. 395.

The common law is in force in Michigan, except so far as it is repugnant to, or inconsistent with, the Constitution or statutes of the state. Stout v. Keyes (1845) 2 Doug. 184, 43 Am. Dec. 465.

“The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes. If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states.” Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another. seems to be intolerable on any country where freedom prevails, as being the essence of slavery itself. See: Yick Wo v. Hopkins ,118 U.S. 356 (1886).

“He is not to substitute even his juster will for theirs; otherwise it would not be the ‘common will’ which prevails, and to that extent the people would not govern.” See: Speech by Judge Learned Hand at the Mayflower Hotel in Washington, D.C. May 11,1919, entitled, “Is there a Common Will?”

“… The Congress cannot revoke the Sovereign power of the people to override itself as thus declared.” See: Perry v. United States , 294 U.S. 330, 353 (1935).

“In the United States, Sovereignty resides in the people, who act through the organs established by the Constitution.” See: Chisholm v. Georgia, 2 Dall 419, 471; Penhallow v. Doane’s Administrators, 3 Dall 54, 93; McCullock v. Maryland, 4 Wheat 316, 404, 405; Yick Wo v. Hopkins ,118 U.S. 356, 370 (1886).

“As men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intent to convey; the enlightened patriots who framed our constitution and the people who adopted it must be understood to have employed the words in their natural sense, and to have intended what they have said.” See: Gibbons v. Ogden,  27 U.S. 1

No legislature can bargain away the public health or the public morals. The people themselves cannot do it. much less their servants. See: New Orleans Gas Co v. Louisiana Light Co ,115 U.S. 650 (1885).

People are supreme, not the state. See: Waring v. the Mayor of Savannah, 60 Georgia at 93.

Strictly speaking, in our republican form of government, the absolute sovereignty of the nation is in the people of the nation: and the residuary sovereignty of each state, not granted to any of its public functionaries, is in the people of the state. See: 2 Dall. 471; Bouv. Law Diet. (1870). The theory of the American political system is that the ultimate sovereignty is in the people, from whom all legitimate authority springs, and the people collectively, acting through the medium of constitutions, create such governmental agencies, endow them with such powers, and subject them to such limitations as in their wisdom will best promote the common good. See: First Trust Co. v. Smith, 134 Neb.; 277 SW 762.

What is a constitution? It is the form of goverState v. Suttonnment, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established.” See: Vanhorne’s Lessee v. Dorrance , 2 U.S. 304(1795).

A constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state. A constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior authority. See: Ellingham v. Dye, 178 Ind. 336; 99 NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92; Sage v. New York, 154 NY 61; 47 NE 1096.

The question is not what power the federal government ought to have, but what powers, in fact, have been given by the people…. The federal union is a government of delegated powers. It has only such as are expressly conferred upon it, and such as are reasonably to be implied from those granted. In this respect, we differ radically from nations where all legislative power, without restriction of limitation, is vested in a parliament or other legislative body subject to no restrictions except the discretion of its members. See: U.S. v. William M. Butler, 297 U.S. 1.

But it cannot be assumed that the framers of the Constitution and the people who adopted it did not intent that which is the plain import of the language used. When the language of the Constitution is positive and free from all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid hardships of particular cases, we must accept the Constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign powers. See: State v. Sutton, 63 Minn. 147, 65 WX N.W., 262,101, N.W. 74; Cook v. Iverson, 122, N.M. 251.

The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal in arms. An act of usurpation is not obligatory: It is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government: yet only his fellow citizens can convict him. They are his jury, and if they pronounce him innocent, not all powers of congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation. See: 2 Elliot’s Debates, 94; 2 Bancroft, History of the Constitution, 267.

In this state, as well as in all republics, it is not the legislation, however transcendent its powers, who are supreme— but the people— and to suppose that they may violate the fundamental law is, as has been most eloquently expressed, to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves: that the men acting by virtue of delegated powers may do. not only what then- powers do not authorize, but what they forbid. See: Warning v. the Mayor of Savannah, 60 Georgia, P. 93.

There have been powerful hydraulic pressures throughout our history that bear heavily on the court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today. Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him hi their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country. See: Terry v. Ohio. 392 U.S. 39 (1967).

“Personal liberty, or the Right to enjoyment of life and liberty, is one of the fundamental or natural Rights, which has been protected by its inclusion as a guarantee in the various constitutions, which is not derived from, or dependent on, the U.S. Constitution, which may not be submitted to a vote and may not depend on the outcome of an election. It is one of the most sacred and valuable Rights, as sacred as the Right to private property … and is regarded as inalienable.” 16 C.J.S., Constitutional Law, Sect.202, p.987

Sovereignty itself is. of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails., as being the essence of slavery itself.

(Yick Wo vs. Hopkins, U.S. 356 (1886). “…The Congress cannot revoke the Sovereign power of the people to override their will as thus declared.” Perry v. United States, 294 U.S. 330, 353 (1935). “In the United States, Sovereignty resides in the people, who act through the organs established by the Constitution.” Chisholm v. Georgia, 2 Dall 419, 471; Penhallow v. Doane’s Administrators, 3 Dall 54, 93; McCullock v. Maryland, 4 Wheat 316,404,405; Yick Yo v. Hopkins, 118 U.S. 356, 370.”  The rights of the individuals are restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government.” City of Dallas v Mitchell, 245 S.W. 944

Supreme Court Justice  Bandeis  eloquently  affirmed  his  condemnation  of  abuses practiced by Government officials, who were defendants, acting as Government officials. In the case of  Olmstead vs. U.S. 277 US 438, 48 S.Ct. 564, 575; 72 L ED 944 (1928) he declared:  “Decency,  security,  and  liberty  alike  demand  that Government officials shall be subjected to the same rules of  conduct  that  are  commands  to  the  Citizen. In a government of laws, existence of the government will be imperiled if it fails to obsereve the laws scruplously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.   Crime is contagious. If the Government becomes a law-breaker, it breads contempt for law; it invites every man to become a law unto himself. It invites anarchy. To declare that, in the administration of the law, the end justifies the means would bring a terrible retribution. Against that pernicious doctrine, this Court should resolutely set its face.” To declare that in the administration of criminal laws the end justifies the means to declare that the government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face. …And so should every law enforcement student, practitioner, supervisor, and administrator ”

State v. Manuel, North Carolina, Vol. 20, Page 121 (1838) The sovereignty has been transferred from one man to the collective body of the people – and he who before was a “subject of the king” is now “a citizen of the State”.  “The People of a State are entitled to all rights which formerly belonged to the King by his prerogative.”

 “In the United States the People are sovereign and the government cannot sever its relationship to the People by taking away their citizenship.” Afroyim v. Rusk, 387 U.S. 253 (1967).

“The People of a State are entitled to all rights which formerly belonged to thePiper v. PearsonKing by his prerogative.” Lansing v. Smith, 4 Wendell 9, 20 (1829)

In Europe, the executive is synonymous with the sovereign power of a state…where it is too commonly acquired by force or fraud or both…In America, however the case is widely different. Our government is founded upon Compact. Sovereignty was, and is, in the People. Glass v. The Sloop Betsy, 3 Dall 6.(1794)

It is a Maxim {an established principle} of the Common Law that when an act of Parliament is made for the public good, the advancement of religion and justice, and to prevent injury and wrong, the King shall be bound by such an act, though not named; but when a Statute is general, and any prerogative Right, title or interest would be divested or taken from the King (or the People) in such case he shall not be bound. The People vs. Herkimer, 15 Am. Dec. 379, 4 Cowen 345 (N.Y. 1825).

Chisholm v. Georgia, Dallas Supreme Court Reports, Vol. 2, Pages 471, 472 (1793) “It will be sufficient to observe briefly, that the sovereignties in Europe, and particularly in England, exist on feudal principles. That system considers the prince as the sovereign, and the people as his subjects; it regards his person as the object of allegiance… No such ideas obtain here; at the revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects… and have none to govern but themselves…”

Ex parte – Frank Knowles, California Reports, Vol. 5, Page 302 (1855) “A citizen of any one of the States of the Union, is held to be, and called a citizen of the United States, although technically and abstractly there is no such thing. To conceive a citizen of the United States who is not a citizen of some one of the States, is totally foreign to the idea, and inconsistent with the proper construction and common understanding of the expression as used in the Constitution, which must be deduced from its various other provisions.”

Manchester v. Boston, Massachusetts Reports, Vol. 16, Page 235 (1819) “The term, citizens of the United States, must be understood to intend those who were citizens of a state, as such, after the Union had commenced, and the several states had assumed their sovereignties. Before this period there was no citizens of the United States…”

Butler v. Farnsworth, Federal Cases, Vol. 4, Page 902 (1821) “A citizen of one state is to be considered as a citizen of every other state in the union.”

Douglass, Adm’r., v. Stephens, Delaware Chancery, Vol. 1, Page 470 (1821) “When men entered into a State they yielded a part of their absolute rights, or natural liberty, for political or civil liberty, which is no other than natural liberty restrained by human laws, so far as is necessary and expedient for the general advantage of the public. The rights of enjoying and defending life and liberty, of acquiring and protecting reputation and property, – and, in general, of attaining objects suitable to their condition, without injury to another, are the rights of a citizen; and all men by nature have them.”

Allodial Land Barker v Dayton 28 Wisconsin 367 (1871): “All lands within the state are declared to be allodial, and feudal tenures are prohibited. On this point counsel contended, first, that one of the principal elements of feudal tenures was, that the feudatory could not independently alien or dispose of his fee; and secondly, that the term allodial describes free and absolute ownership, … independent ownership, in like manner as personal property is held; the entire right and dominion; that it applies to lands held of no superior to whom the owner owes homage or fealty or military service, and describes an estate subservient to the purposes of commerce, and alienable at the will of the owner; the most ample and perfect interest which can be owned in land.”

[Bowers v. DeVito, U.S. Court of Appeals, Seventh Circuit, 686F.2d 616 (1882)“… there is no constitutional right to be protected by the state against being murdered by criminals or madmen. It is monstrous if the state fails to protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment or, we suppose, any other provision of the Constitution. The Constitution is a charter of negative liberties: it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.”

Income taxes Gregory v. Helverging, 293 U.S. 465, 1935 “The legal Right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted” 1895: In Pollock vs Farmers’ Loan & Trust Co, the Supreme Court rules that general income taxes are unconstitutional because they are unapportioned direct taxes. To this day, the ruling has not been overturned. January 24, 1916: In Brushaber vs. Union Pacific Railroad, the Supreme Court ruled: that the 16th Amendment doesn’t over-rule the Court’s ruling in the Pollock case which declared general income taxes unconstitutional; The 16th Amendment applies only to gains and profits from commercial and investment activities: The 16th Amendment only applies to excises taxes; The 16th Amendment did not Amend the U.S. Constitution; The 16th Amendment only clarified the federal governments existing authority to create excise taxes without apportionment. …the [16th] Amendment contains nothing repudiating or challenging the ruling in the Pollock Case that the word direct had a broader significance since it embraced also taxes levied directly on personal property because of its ownership, and therefore the Amendment at least impliedly makes such wider significance a part of the Constitution — a condition which clearly demonstrates that the purpose was not to change the existing interpretation except to the extent necessary to accomplish the result intended, that is, the prevention of the resort to the sources from which a taxed income was derived in order to cause a direct tax on the income to be a direct tax on the source itself and thereby to take an income tax out of the class of excises, duties and imposts and place it in the class of direct taxes… Indeed in the light of the history which we have given and of the decision in the Pollock Case and the ground upon which the ruling in that case was based, there is no escape from the Conclusion that the Amendment was drawn for the purpose of doing away for the future with the principle upon which the Pollock Case was decided, that is, of determining whether a tax on income was direct not by a consideration of the burden placed on the taxed income upon which it directly operated, but by taking into view the burden which resulted on the property from which the income was derived, since in express terms the Amendment provides that income taxes, from whatever source the income may be derived, shall not be subject to the regulation of apportionment… 1939: Congress passes the Public Salary tax, taxing the wages of federal employees.

1940: Congress passes the Buck Act authorizing the federal government to tax federal workers living in the States. 1942, Congress passes the Victory Tax under Constitutional authority to support the WWII effort. President Roosevelt proposes a voluntary tax withholding program allowing workers across the nation to pay the tax in installments. The program is a success and the number of tax payers increases from 3 percent to 62 percent of the U.S. population. 1944: The Victory Tax and Voluntary Withholding laws are repealed as required by the U.S. Constitution, however, the federal government continues to collect the tax claiming it’s authority under the 1913 income tax and the 16th Amendment. Erie Railroad v. Tompkins, 1938 Supreme Court of the United States had decided on the basis of Commercial (Negotiable Instruments) Law: that Tompkins was not under any contract with the Erie Railroad, and therefore he had no standing to sue the company. Under the Common Law, he was damaged and he would have had the right to sue. Hence, all courts since 1938 are operating in an Admiralty Jurisdiction and not Common Law courts because lawful money (silver or gold coin) does not exist. Courts of Admiralty only has jurisdiction over maritime contracts on the high seas ad navigable water ways. In Blockburger v. U.S., 284 U.S. 299 (1932), the Supreme Court held that punishment for two statutory offenses arising out of the same criminal act or transaction does not violate the Double Jeopardy Clause if ‘each provision requires proof of an additional fact which the other does not.’ Id. at 304.

Boyd v. United, 116 U.S. 616 at 635 (1885) Justice Bradley, “It may be that it is the obnoxious thing in its mildest form; but illegitimate and unconstitutional practices get their first footing in that way; namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of persons and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of the Courts to be watchful for the Constitutional Rights of the Citizens, and against any stealthy encroachments thereon. Their motto should be Obsta Principiis.”

Downs v. Bidwell, 182 U.S. 244 (1901) “It will be an evil day for American Liberty if the theory of a government outside supreme law finds lodgement in our constitutional jurisprudence. No higher duty rests upon this Court than to exert its full authority to prevent all violations of the principles of the Constitution.”

Duncan v. Missouri, 152 U.S. 377, 382 (1894)  Due process of law and the equal protection of the laws are secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.”

Giozza v. Tiernan, 148 U.S. 657, 662 (1893), Citations Omitted “Undoubtedly it (the Fourteenth Amendment) forbids any arbitrary deprivation of life, liberty or property, and secures equal protection to all under like circumstances in the enjoyment of their rights… It is enough that there is no discrimination in favor of one as against another of the same class. …And due process of law within the meaning of the [Fifth and Fourteenth] amendment is secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.”

Kentucky Railroad Tax Cases, 115 U.S. 321, 337 (1885) “The rule of equality… requires the same means and methods to be applied impartially to all the constitutents of each class, so that the law shall operate equally and uniformly upon all persons in similar circumstances”.

Butz v. Economou, 98 S. Ct. 2894 (1978); United States v. Lee, 106 U.S. at 220, 1 S. Ct. at 261 (1882) “No man [or woman] in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government from the highest to the lowest, are creatures of the law, and are bound to obey it.”

Olmstad v. United States, (1928) 277 U.S. 438 “Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

Mallowy v. Hogan, 378 U.S. 1 “All rights and safeguards contained in the first eight amendments to the federal Constitution are equally applicable.”

U.S. v. Lee, 106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882) “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance, with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law are bound to obey it.” “It is the only supreme power in our system of government, and every man who, by accepting office participates in its functions, is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes on the exercise of the authority which it gives.”

Ableman v. Booth, 21 Howard 506 (1859) “No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.”

U.S. v. Dixon, 113 S.Ct. 2849, 2856 (1993), the Court clarified the use of the ‘same elements test’ set forth in Blockburger when it over-ruled the ‘same conduct’ test announced in Grady v. Corbin, 495 U.S. 508 (1990), and held that the Double Jeopardy Clause bars successive prosecutions only when the previously concluded and subsequently charged offenses fail the ‘same elements’ test articulated in Blockburger. See also Gavieres v. U.S., 220 U.S. 338, 345 (1911)

(early precedent establishing that in a subsequent prosecution ‘[w]hile it is true that the conduct of the accused was one and the same, two offenses resulted, each of which had an element not embraced in the other’).

ENGLISH TORT LAW 61. Ashby v. White, (1703) 92 Eng. Rep. 126 (K.B.); BLACKSTONE, supra note 59, at 23. 62. 5 U.S. (1 Cranch) 137, 163-66 (1803) (“It is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded . . . . [F]or it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.”).

ENGLISH TORT LAW Ashby v. White, (1703) 92 Eng. Rep. Facts Mr Ashby was prevented from voting at an election by the misfeasance of a constable, Mr White, on the apparent pretext that he was not a settled inhabitant. At the time, the case attracted considerable national interest, and debates in Parliament. It was later known as the Aylesbury election case. In the Lords, it attracted the interest of Peter King, 1st Baron King who spoke and maintained the right of electors to have a remedy at common law for denial of their votes, against Tory insistence on the privileges of the Commons. Sir Thomas Powys (c. 1649-1719) defended William White in the House of Lords. The argument submitted was that the Commons alone had the power to determine election cases, not the courts. Judgment Holt CJ was dissenting in his judgment in the High Court, but this was upheld by the House of Lords. He said at pp 273-4: “ “If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and, indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal… And I am of the opinion that this action on the case is a proper action. My brother Powell indeed thinks that an action on the case is not maintainable, because
there is no hurt or damage to the plaintiff, but surely every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary but an injury imports a damage, when a man is thereby hindered of his rights. To allow this action will make publick officers more careful to observe the constitution of cities and boroughs, and not to be so partial as they commonly are in all elections, which is indeed a great and growing mischief, and tends to the prejudice of the peace of the nation.

[U.S. v. Rogers, 23 F. 658 (D.C.Ark. 1885)] In a criminal proceeding lack of subject matter jurisdiction cannot be waived and may be asserted at any time by collateral attack.

[U.S. v. Gernie, 228 F.Supp. 329 (D.C.N.Y. 1964)] Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus.

[U.S. v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)] The United States District Court has only such jurisdiction as Congress confers. [Eastern Metals Corp. v. Martin] [191 F.Supp 245 (D.C.N.Y. 1960)]

City of Canton v. Harris, 498 U.S. 378 (1989) “failure to train” train its officers adequately with respect to implementing the following Department policies:

Lochner v. New York The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power.

FLYER & NEWS WEBSITE LAW

Flyers  US constitutional rights, Freedom of Speech & Press

There shall be no Law passed to abridge or restrain freedom of speech or the press. Freedom of speech encompasses all manner of expression, both verbal and non-verbal

U.S. Supreme Court

• Miller v. US, 230 F 486 at 489 The claim and exercise of a Constitutional right cannot be converted into a crime.
• Marbury v. Madison Chief Justice John Marshall Marbury v. Madison, 5 US (1Cranch) 137, 174, 176 (1803) All laws which are repugnant to the Constitution are null and void.
  Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes that they find to violate the Constitution of the United States. Marbury v. Madison, 5 US 137,(1803) “The Constitution of these United States is the supreme law of the land. Any law that is repugnant to the Constitution is null and void of law.” Marbury v. Madison, 5 U.S. (2 Cranch) 137, 180 (1803) “… the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.”
  Since the 14th Amendment to the Constitution states “NO State (Jurisdiction) shall make or enforce any law which shall abridge the rights, privileges, or immunities of citizens of the United States nor deprive any citizens of life, liberty, or property, without due process of law, … or equal protection under the law”, this renders judicial immunity unconstitutional. “In declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank”. “All law (rules and practices) which are repugnant to the Constitution are VOID”. Since the 14th Amendment to the Constitution states “NO State (Jurisdiction) shall make or enforce any law which shall abridge the rights, privileges, or immunities of citizens of the United States nor deprive any citizens of life, liberty, or property, without due process of law, … or equal protection under the law”, this renders judicial immunity unconstitutional.
  
• State v. Sutton, 63 Min 147, 65 NW 262, 30 LRA630, AM ST 459 When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetuated, and no one is bound to obey it.
• Norton vs. Shelby County, 118 US 425 p. 442. “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.”
• Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA. History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government.”
• SIMMONS v US, supra. “We find it intolerable that one constitutional right should have to be surrendered in order to assert another”
• Sable Communications of California v. Federal Communications Commission (1989)
  When Congress acted to restrict this growing industry, Sable Communications filed suit in federal district court seeking an injunction against enforcement of the obscene and indecent portions of Section 223(b). The district court denied the injunction, upheld the obscenity portion, and struck down the indecency section of Section 223(b).
• United States Supreme Court Rosenfeld v. New Jersey (1972) it is well understood that the right of free speech is not absolute at all times and under all circumstances. overly broad and violative of the First Amendment” State v. Rosenfeld 62 N.J. 594 (1973) 303 A.2d 889
• Miranda vs Arizona, 384 U.S. 436 p. 491 “Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”
• Cohen v. California (1971) 403 U.S. 15 (1971),  The Supreme Court established that the government generally cannot criminalize the display of profane words in public places. The Court rejected a fighting words application to a young man who wore a leather jacket with the words “fuck the draft” on it in a public courthouse.
   Held: Absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense.  Pp. 403 U. S. 22-26. Cohen v. California, 403 U.S. 15 (1971)1 Cal. App. 3d 94, 81 Cal. Rptr. 503, reversed.

HARLAN, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J., and BLACK, J., joined, and in which WHITE, J., joined in part, post, p. 403 U. S. 27.

• People v. Boomer (Mich. Ct. App.) (2002) “Allowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to a misdemeanor conviction,”
  
• A.V v St Paul 1992 Justices ruled as unconstitutional a St. Paul ordinance classifying as hate speech words “that insult, or provoke violence, ‘on the basis of race, color, creed, religion or gender.’ ”
• Karlan v. City of Cincinnati (1974) Police officers cannot use “fighting words,” as an excuse to abuse because police officers are trained to exercise a higher degree of constraint than the average citizen.
• Reno v. American Civil Liberties Union (1997)
  speech on the Internet is entitled to the same high degree of First Amendment protection extended to the print media as opposed to the reduced level given the broadcast media.
• Bible Believers v. Wayne County (6th Cir.) (2015)
  The case stands for the principle that the First Amendment protects unpopular speech and that government officials should not sanction a heckler’s veto.
• Albert Krantz v. City of Fort Smith
  A 1998 decision by the Eighth Circuit Court of Appeals concerning the distribution and posting of flyers and leaflets. In this ruling informed by the First Amendment’s protection of freedom of expression.
• Lucas v. Arkansas (1974)416 U.S. 919 (1974)
  The single-sentence Supreme Court decision in Lucas v. Arkansas, 416 U.S. 919 (1974), vacated and remanded this case, along with Kelly v. Ohio, Rosen v. California, and Karlan v. City of Cincinnati, to a state court for further consideration in light of the Court’s opinion in Lewis v. City of New Orleans (1974). Court remanded convictions after saying ordinance prohibiting fighting words violated First Amendment
• Uzuegbunam v. Preczewski (2021) authorities asked him to stop on the basis that others had complained and that the college prohibited any such speech that “disturbs the peace and/or comfort of person(s).”
• Lewis v. City of New Orleans (1974)  The U.S. Supreme Court in 1974 overturned a woman’s conviction for cursing at police. Lewis had overturned a New Orleans ordinance on the basis that it violated the First and Fourteenth Amendments by being overbroad in its attempt to prohibit vulgar and offensive speech and “fighting words,” as recognized in Chaplinsky v. New Hampshire (1942) and Gooding v. Wilson (1972).
• City of Houston v. Hill (1987)  In City of Houston v. Hill, 482 U.S. 451 (1987), the Supreme Court found a city ordinance prohibiting verbal abuse of police officers to be unconstitutionally overbroad and a criminalization of protected speech.
  
  
• STATE of Nebraska, appellee, v. Darren J. DRAHOTA – Darren Drahota sent a couple of anonymous insulting emails to William Avery, Drahota’s former political science professor, who was running for the Nebraska Legislature at the time. (Avery was eventually elected and served two terms.) Drahota was convicted of disturbing the peace for sending those emails, but the conviction was reversed in 2010 by the Nebraska Supreme Court. (I have a soft spot in my heart for this case, because it was the first First Amendment case I ever argued in court.)
• STATE of Iowa, Appellee, v. William James FRATZKE, Appellant –  William Fratzke was convicted of harassment “because he wrote a nasty letter to a state highway patrolman to protest a speeding ticket.” The Iowa Supreme Court (1989) reversed, on First Amendment grounds.
• State of Wisconsin v. Thomas G. Smith – Thomas Smith was convicted of disorderly conduct and “unlawful use of a computerized communication system” for leaving two vulgar, insulting comments on a police department’s Facebook page. A one-judge Wisconsin Court of Appeals decision (2014) reversed. (Note that such insults aren’t unprotected “fighting words” because they aren’t face-to-face and thus aren’t likely to lead to an immediate fight.)
• Commonwealth v. Bigelow – Harvey Bigelow sent two letters to Michael Costello, an elected town council member; both were insulting, and one was vulgar. Bigelow was convicted of criminal harassment, but the Massachusetts high court (2016) reversed: “Because these letters were directed at an elected political official and primarily discuss issues of public concern — Michael’s qualifications for and performance as a selectman — the letters fall within the category of constitutionally protected political speech at the core of the First Amendment.” And this was true even though the letters were sent to him at home.  the case law link was above, but you can actually read the newspaper article of his exact doings here

• People v. Powers, (2011) 193 Cal.App.4th 158,166. (“We conclude that the recordings appellant left on the customer service line cannot constitute substantial evidence that appellant violated section 653m, subdivision (a) [California’s annoying phone calls law]. The messages are annoying rants concerning customer service. It is reasonable for someone to be annoyed by appellant’s language. But the vulgarities uttered cannot be described as obscene, especially in the context of a customer service line maintained to take complaints. Except in extreme cases, we doubt that a person whose job it is to receive consumer complaints has a right to privacy against unwanted intrusion.”) THE PEOPLE,  v. DAVID THOMAS POWERS  determined although they may be a little annoying they were NOT ILLEGAL!

• Ion Popa left seven messages containing racist insults on the answering machine of the head federal prosecutor in D.C. — Eric Holder, who eventually became attorney general. He was convicted of telephone harassment, which banned all anonymous calls made “with intent to annoy, abuse, threaten, or harass.”

  But the D.C. Circuit (1989) expressly held that the First Amendment prevented the statute from applying to “public or political discourse,”
   such as condemnation of political officials (even left expressly for that official).

• Vermont’s Top Court Weighs: Are KKK Fliers 1st Amendment Protected Speech? see also Vermont v. Schenk 2015 

Watch this different display of US RIGHTS in a JERSEY OFFICIAL MEETING by ANGRY CONSTITUTIONALIST https://www.youtube.com/watch?v=0wUH7GJjlYQ

It doesn’t look like our constitutional right of freedom of the press is going away any time soon.

FREEDOM OF THE PRESS DEFINITION

The freedom of communication and expression through media and/or published material.  Flyers are communication and expression through published media material.

HANDBILL DEFINITION

A single page leaflet advertising events, services or other activities. Flyers are typically used by individuals or business’ to promote their product or services.

They are a form of mass marketing or small scale community communication. Information News Flyers are a legal form of community communication handbills by definition.  A Website is a Digital Handbill of leaflet, it is the digital form of handing them out, how else could one get a peacefully assembly organized in todays society 2022

LITTER DEFINITION

• Litter consists of waste products
• Information News Flyers (same as LA Times or LA Weekly or other Leaflet Information/News)  are not waste products or litter by legal definition and to claim or mislead holds no water to the law.
• Flyers are not trash by legal definition and to mislead and claim they are would hold no water to the law.

TRASH DEFINITION

• Unwanted or undesired waste material.

Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly.  “The press was to serve the governed, not the governors.” —U.S. Supreme Court Justice Hugo Black in New York Times Co. v. United States (1971)

excerpts taken from NO Law requires you to record / pledge your private automobile

“Men are endowed by their Creator with certain unalienable rights, -‘life, liberty, and the pursuit of happiness;’ and to ‘secure,’ not grant or create, these rights, governments are instituted. That property which a man has honestly acquired he retains full control of, subject to these limitations: first, that he shall not use it to his neighbor’s injury, and that does not mean that he must use it for his neighbor’s benefit: second, that if he devotes it to a public use, he gives to the public a right to control that use; and third, that whenever the public needs require, the public may take it upon payment of due compensation.”  Budd v. People of State of New York, 143 U.S. 517 (1892).

There should be no arbitrary deprivation of life or liberty, or arbitrary spoilation of property. (Police power, Due Process) Barber v. Connolly, 113 U.S. 27, 31; Yick Yo v. Hopkins, 118 U.S. 356.

To Wit:

“As general rule men have natural right to do anything which their inclinations may suggest, if it be not evil in itself, and in no way impairs the rights of others.”  In Re Newman (1858), 9 C. 502.

Constitutional Law § 101 – right to travel – 5. The nature of the Federal Union and constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of the United States uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement. 6. Although not explicitly mentioned in the Federal Constitution, the right freely to travel from one state to another is a basic right

Under the US Constitution.

Constitutional Law § 101 – law chilling assertion of rights – 7.  If a law has no other purpose than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it is patently unconstitutional.  Shapiro v Thompson, 394 US 618, 22 L Ed 2d 600, 89 S Ct 1322.

So with all of that in mind, cite/deliver the cases above and

you have given the agency, etc. knowledge!

Under USC Title 42 §1986. Action for neglect to prevent …,  it states: Every person who, having knowledge that any wrongs conspired or to be done… and having power to prevent or aid in preventing … Neglects or refuses so to do … shall be liable to the party injured…  and; The means of “knowledge”, especially where it consists of public record is deemed in law to be “knowledge of the facts“.  As the means of “knowledge” if it appears that the individual had notice or information of circumstances which would put him on inquiry, which, if followed, would lead to “knowledge”, or that the facts were presumptively within his knowledge, he will have deemed to have had actual knowledge of the facts and may be subsequently liable for any damage or injury.  You, therefore, have been given “knowledge of the facts” as it pertains to this conspiracy to commit a fraud against me.

I state now that I will NOT waive any fundamental Rights as:
“waivers of fundamental Rights must be knowing, intentional, and voluntary acts, done with sufficient awareness of the relevant circumstances and likely consequences. U.S. v. Brady, 397 U.S. 742 at 748 (1970);  U.S.v. O’Dell, 160 F.2d 304 (6th Cir. 1947)”.

And that the agency committed fraud, deceit, coercion, willful intent to injure another, malicious acts, RICO activity and conspired by; Unconscionable “contract” – “One which no sensible man not under delusion, or duress, or in distress would make, and such as no honest and fair man would accept.”; Franklin Fire Ins. Co.  v.  Noll, 115 Ind. App. 289, 58 N.E.2d 947, 949, 950.  and;  “Party cannot be bound by contract that he has not made or authorized.”  Alexander v. Bosworth (1915), 26 C.A. 589, 599, 147 P.607.

The State cannot diminish rights of the people.  Hurtado v. California, 110 U.S. 516.

“A state MAY NOT impose a charge for the enjoyment of a right granted (sic) by the Federal Constitution.” MURDOCK v PENNSYLVANIA, 319 US 105.

U.S. adopted Common laws of England with the Constitution. Caldwell vs. Hill, 178 SE 383 (1934).

“The phrase ‘common law‘ found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence.”  Parsons v. Bedford, et al, 3 Pet 433, 478-9.

“If the  common law can try the cause, and give full redress, that alone takes away the admiralty jurisdiction.” Ramsey v. Allegrie, supra, p. 411.

Inferior Courts – The term may denote any court subordinate to the chief tribunal in the particular judicial system;  but it is commonly used as the designation of a court of  special,  limited, or  statutory jurisdiction, whose  record must show the  existence and  attaching of jurisdiction in any given case, in order to give  presumptive validity to its  judgment.  In re Heard’s Guardianship, 174 Miss. 37, 163, So. 685.

The high Courts have further decreed, that Want of Jurisdiction makes “…all acts of judges, magistrates, U.S. Marshals, sheriffs, local police, all void and not just voidable.”   Nestor  v.  Hershey,  425 F2d 504.

The binding shackles of Government is the Constitution, to wit:

If the state were to be given the power to destroy rights through taxation, then the framers of our constitutions wrote said documents in vain. A republic is not an easy form of government to live under, and when the responsibility of citizenship is evaded, democracy decays and authoritarianism takes over.  Earl Warren, “A Republic, If You Can Keep It”, p 13.

It is a fundamental principle in our institutions, indispensable to the preservation of public liberty, that one of the separate departments of government shall not usurp powers committed by the Constitution to another department.  Mugler v. Kansas, 123 U.S. 623, 662.

An unconstitutional law is not a law, it confers no rights, imposes no duties, and affords no protection. Norton vs. Shelby County, 118 US 425.

“Primacy of position in our state constitution is accorded the Declaration of Rights; thus emphasizing the importance of those basic and inalienable rights of personal liberty and private property which are thereby reserved and guaranteed to the people and protected from arbitrary invasion or impairment from any governmental quarter. The Declaration of Rights constitutes a limitation upon the powers of every department of the state government. State ex rel. Davis v. Stuart. 64 A.L.R. 1307, 97 Fla. 69, 120 So. 335.

“The rights of the individual are not derived from governmental agencies, either municipal, state, or federal, or even from the Constitution. They exist inherently in every man, by endowment of the Creator, and are merely reaffirmed in the Constitution, and restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government. The people’s rights are not derived from the government, but the government’s authority comes from the people. The Constitution but states again these rights already existing, and when legislative encroachment by the nation, state, or municipality invade these original and permanent rights, it is the duty of the courts to so declare, and to afford the necessary relief. City of Dallas, et al. v. Mitchell, 245 S. W. 944, 945-46 (1922).

The US Constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state.   The constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior authority. Ellingham v. Dye, 178 Ind.  336; NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92;  Sage v. New York, 154 NY 61; 47 NE 1096.

“Owner has constitutional right to use and enjoyment of his property.” Simpson v. Los Angeles(1935), 4 C.2d 60, 47 P.2d 474.

“We find it intolerable that one constitutional right should have to be surrendered in order to assert another”. SIMMONS v US, supra.

“When rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Miranda vs. Arizona, 384 US 436 p. 491.

“The claim and exercise of a Constitutional right cannot be converted into a crime.” Miller v. U.S. 230 F 2d 486, 489.

History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government.”                                Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA.

Economic necessity cannot justify a disregard of cardinal constitutional guarantee.  Riley v. Certer, 165 Okal. 262; 25 P.2d 666; 79 ALR 1018.

When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetrated and no one is bound to obey it. (See 16 Ma. Jur. 2d 177, 178) State v. Sutton, 63 Minn. 147, 65 NW 262, 30 L.R.A. 630 Am. 459.

“The ‘liberty’ guaranteed by the constitution must be interpreted in the light of the common law, the principles and history of which were familiar and known to the framers of the constitution. This liberty denotes the right of the individual to engage in any of the common occupations of life, to locomote, and generally enjoy those rights long recognized at common law as essential to the orderly pursuit of happiness by free men.” Myer v. Nebraska, 262 U .S. 390, 399; United States v. Kim Ark, 169 U.S. 649, 654.

“An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Norton vs. Shelby County, 118 US 425 p. 442.  “The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.

“No one is bound to obey an unconstitutional law and no courts are bound to enforce it.”  16 Am Jur 2nd, Sec 177 late 2d, Sec 256.

All laws which are repugnant to the Constitution are null and void. Chief Justice Marshall, Marbury vs Madison, 5, U.S. (Cranch) 137, 174, 176 (1803).

It cannot be assumed that the framers of the constitution and the people who adopted it, did not intend that which is the plain import of the language used.   When the language of the constitution is positive and free of all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid the hardships of particular cases.  We must accept the constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign power.  Cook vs Iverson, 122, N.M. 251.

“Right of protecting property, declared inalienable by constitution, is not mere right to protect it by individual force, but right to protect it by law of land, and force of body politic.” Billings v. Hall (1857), 7 C. 1.

“Constitution of this state declares, among inalienable rights of each citizen, that of acquiring, possessing and protecting property.  This is one of primary objects of government, is guaranteed by constitution, and cannot be impaired by legislation.”  Billings v. Hall (1857), 7 C. 1.

State Constitution – “The state constitution is the mandate of a sovereign people to its servants and representatives.  Not one of them has a right to ignore or disregard these mandates...”  John F. Jelko Co. vs. Emery, 193 Wisc. 311;  214 N.W. 369, 53 A.L.R., 463;   Lemon vs. Langlin, 45 Wash. 2d 82, 273 P.2d 464.

The People are the Sovereign!

People are supreme, not the state.  Waring vs. the Mayor of Savannah, 60 Georgia at 93.

The people of the State do not yield their sovereignty to the agencies which serve them.  The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.  The people insist on remaining informed so that they may retain control over the instruments they have created. (Added Stats. 1953, c. 1588, p.3270, sec. 1.)

The people are the recognized source of all authority, state or municipal, and to this authority it must come at last, whether immediately or by circuitous route. Barnes v. District of Columbia, 91 U.S. 540, 545 [23: 440, 441]. p 234.

“the government is but an agency to the state,” — the state being the sovereign people.      State v. Chase, 175 Minn, 259, 220 N.W. 951, 953.

Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts.  And the law is the definition and limitation of power.

“…The Congress cannot revoke the Sovereign power of the people to override their will as thus declared.”  Perry v. United States, 294 U.S. 330, 353 (1935). “The Doctrine of Sovereign Immunity is one of the Common-Law immunities and defenses that are available to the Sovereign…” Citizen of Minnesota. Will v. Michigan Dept. of State Police, (1988) 491 U.S. 58, 105 L.Ed. 2d. 45, 109 S.Ct. 2304. “The people of the state, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the king by his own prerogative.” Lansing v. Smith, (1829) 4 Wendell 9, (NY).

Private Corporate State / Municipality Policy Enforcement Officer
  a.k.a Police Officer Duties and limitations of power

“Nothing is gained in the argument by calling it ‘police power.’” Henderson v. City of New York, 92 U.S. 259, 2771 (1875); Nebbia v. New York, 291 U.S. 501 (1934).

“An officer who acts in violation of the Constitution ceases to represent the government.” Brookfield Const. Co. v. Stewart, 284 F.Supp. 94.

Failure to obey the command of a police officer constitutes a traditional form of breach of the peace.  Obviously, however, one cannot be punished for failing to obey the command of an officer if that command is itself violative of the constitution.  Wright v. Georgia, 373 U.S. 284, 291-2.

That an officer or employee of a state or one of its subdivisions is deemed to be acting under “color of law” as to those deprivations of right committed in the fulfillment of the tasks and obligations assigned to him. Monroe v. Page, 1961, 365 U.S. 167.         (Civil law)

Actions by state officers and employees, even if unauthorized or in excess of authority, can be actions under “color of law.”    Stringer v. Dilger, 1963, Ca. 10 Colo., 313 F.2d 536.  (Civil law)

“The police power of the state must be exercised in subordination to the provisions of the U.S. Constitution.” Bacahanan vs. Wanley, 245 US 60;  Panhandle Eastern Pipeline Co. vs. State Highway Commission, 294 US 613.

•   Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under “color of law” include acts not only done by federal, state, or local officials within their lawful authority, but also acts done beyond the bounds of that official’s lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.

“With regard particularly to the U.S. Constitution, it is elementary that a Right secured or protected by that document cannot be overthrown or impaired by any state police authority.” Donnolly vs. Union Sewer Pipe Co., 184 US 540; Lafarier vs. Grand Trunk R.R. Co., 24 A. 848; O’Neil vs. Providence Amusement Co., 108 A. 887.

Call Recording In California

Improperly filed no facts and filed as felony it can only be a misdemeanor

objectively reasonable expectation that the conversation is not being overheard or recorded. Flanagan v. Flanagan (2002) 27 Cal.4th 766, 768, 774–776; Vera v. O’Keefe (S.D.Cal.2011) 791 F.Supp.2d 959; 1396;.  Whether there exists a reasonable expectation that no one is secretly recording or listening to a phone conversation is generally a question of fact.  See Kight v. CashCall, Inc. (4th Dist. 2011) 200 Cal.App.4th 1377, 1396-97; Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 169.

Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1488 (citation omitted).  A person’s subjective belief that the call should not be recorded or monitored is not the test.

Courts that have analyzed the issue of whether a communication is confidential under § 632 have considered the totality of the surrounding circumstances to determine whether the parties had an objectively reasonable expectation that the conversation would not be recorded or overheard.  Kight, supra, 200 Cal.App.4th at 1397.

Factors relevant to determining whether an objectively reasonable expectation of privacy exists (that is, that no one is secretly recording or listening to a phone conversation) include, but are not limited to:

• who initiated the call,
• the purpose and duration of the call,
• the customer’s prior relationships, experiences and communications,
• whether confidential information was conveyed,  and, or course
• whether an admonition/disclosure/warning was given during the call at the outset, or otherwise.  See Kight, supra, 200 Cal.App.4th at 1397 (citing Kearney); see also Flanagan, supra, 27 Cal.4th at 776–77 (remanding for consideration whether son had objectively reasonable expectation that his private telephone conversations with his father were not being recorded by the father’s wife); Nissan Motor Co., Ltd. v. Nissan Computer Corp. (C.D.Cal.2002) 180 F.Supp.2d 1089, 1093–94 (conversations between counsel concerning litigation related matters were deemed confidential communications within the meaning of Section 632); People v. Pedersen (1978) 86 Cal.App.3d 987, 994 (“The nature of the meeting and the manner in which it was carried out are such that the court could reasonably conclude that it was no different than other business meetings of the parties that were not”).

The supposed victim did not have a reasonable expectation that his or her call would not be overheard or recorded.  Kearney, supra, 39 Cal.4th at 117-118.

As a corollary to this element, obtaining consent to record or monitor is its own defense, but, of course, notification and consent also undermine the expectation of privacy element.  See Kearney, supra, 39 Cal.4th at 100, 118.

plaintiff probably needs not to have suffered appreciable, compensable, or even nominal “damage” to assert a viable claim.  But compare FAA v. Cooper (2012) ___ U.S.____, 132 S.Ct. 144

“The statute of limitations in which to commence an action for invasion of privacy is one year.”  Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 880.  The statute of limitations on a cause of action under Penal Code § 632 commences when the plaintiff knew, or should have known, of the defendant’s unlawful acts.  Montalti v. Catanzariti (1987) 191 Cal.App.3d 96, 97-98.

Where a caller is made aware that the call or conversation was, or is, being monitored or recorded, there is no violation of § 632 because there is no objectively reasonable expectation of privacy.  Id. at 100, 118; Weiner, supra, 2012 WL 3632025 at *3, fn. 2.Moreover, by continuing with the conversation after being so warned, consent is given by implication.   See Kearney, supra, 39 Cal.4th at 100, 118.

In any event, where the plaintiff knows the call is being recorded and goes forward without objection and participates anyway, consent should be implied.  See Kearney, supra, 39 Cal.4th at 100, 118.

Under restricted circumstances, even an illegal recording can be used in a court of law. While it could not be used to present affirmative evidence in the case or to prove a point, it can be used to prevent perjury of a witness. In Frio v Superior Court (1988) 203 Cal.App.3e 1480, the Court of Appeal held that any testifying witness cannot use the exclusionary provisions of Penal Code Section 632 as a shield for perjury.

the limits on use of that evidence. In People v Crow (1994), the court stated, “Evidence of confidential conversations obtained by eavesdropping or recording in violation of Penal Code Section 632 is generally inadmissible in any proceeding…but can be used to impeach inconsistent testimony by those seeking to exclude the evidence..”

Prior decisions in Sanders v. American Broadcasting Cos. (1999) 20 Cal.4th 907 explain that “while privacy expectations may diminish significantly in the workplace, in the workplace, they are not lacking altogether.” Sanders v. American Broadcasting Cos.

My workplace cameras record 24/7 in safe workplace areas

https://goodshepherdmedia.net/a-brief-overview-of-call-recording-in-california/

learn more

• Right to Truth – Victims’ Bill of Rights – Prop 8 1982

Government / Public Servants / Officers / Judges Not Immune from suit!

“The officers of the law, in the execution of process, are required to know the requirements of the law, and if they mistake them, whether through ignorance or design, and anyone is harmed by their error, they must respond in damages.” Roger v. Marshall (United States use of Rogers v. Conklin), 1 Wall. (US) 644, 17 Led 714.

“It is a general rule that an officer, executive, administrative, quasi-judicial, ministerial, or otherwise, who acts outside the scope of his jurisdiction, and without authorization of law may thereby render himself amenable to personal liability in a civil suit.”  Cooper v. O`Conner, 69 App DC 100, 99 F (2d)

“Public officials are not immune from suit when they transcend their lawful authority by invading constitutional rights.      “AFLCIO v. Woodard, 406 F 2d 137 t.

“Immunity fosters neglect and breeds irresponsibility while liability promotes care and caution, which caution and care is owed by the government to its people.”   (Civil Rights) Rabon vs Rowen Memorial Hospital, Inc. 269 N.S. 1, 13, 152 SE 1 d 485, 493.

Government Immunity – “In  Land  v.  Dollar, 338 US 731 (1947), the court noted, “that when the government entered into a commercial field of activity, it left immunity behind.”  Brady  v.  Roosevelt, 317 US 575 (1943);  FHA  v.  Burr, 309 US 242 (1940);  Kiefer  v.  RFC, 306 US 381 (1939).

The high Courts, through their citations of authority, have frequently declared,  that  “…where  any  state  proceeds  against  a  private individual in a judicial forum it is well settled that the state, county, municipality, etc. waives any immunity to counters, cross claims and complaints, by direct or collateral means regarding the matters involved.”  Luckenback v. The Thekla, 295 F 1020, 226 Us 328; Lyders v. Lund, 32 F2d 308;

“When  enforcing mere statutes, judges of all courts do not act judicially (and thus are not protected by “qualified” or “limited immunity,” – SEE: Owen v. City, 445 U.S. 662;  Bothke  v.  Terry, 713 F2d 1404)

– – “but merely act as an extension as an agent for the involved  agency  —  but  only  in  a  “ministerial”  and  not  a “discretionary capacity…”  Thompson  v.  Smith, 154 S.E. 579, 583; Keller v. P.E., 261 US 428; F.R.C. v. G.E., 281, U.S. 464.

Thompson v. Clark 2022 Holding: Larry Thompson’s showing that his criminal prosecution ended without a conviction satisfies the requirement to demonstrate a favorable termination of a criminal prosecution in a Fourth Amendment claim under Section 1983 for malicious prosecution; an affirmative indication of innocence is not needed.

Immunity for judges does not extend to acts which are clearly outside of their jurisdiction.  Bauers v. Heisel, C.A. N.J. 1966, 361 F.2d 581, Cert. Den. 87 S.Ct. 1367, 386 U.S. 1021, 18 L.Ed. 2d 457 (see also Muller v. Wachtel, D.C.N.Y. 1972, 345 F.Supp. 160;  Rhodes v. Houston, D.C. Nebr. 1962, 202 F.Supp. 624 affirmed 309 F.2d 959, Cert. den 83 St. 724, 372 U.S. 909, 9 L.Ed. 719, Cert. Den 83 S.Ct. 1282, 383 U.S. 971, 16 L.Ed. 2nd 311, Motion denied 285 F.Supp. 546).

“Judges not only can be sued over their official acts, but could be held liable for injunctive and declaratory relief and attorney’s fees.” Lezama v. Justice Court, A025829.

“The immunity of judges for acts within their judicial role is beyond cavil.” Pierson v. Ray, 386 U.S. 547 (1957). Keyword within their role, outside of that role they are not.

At least seven circuits have indicated affirmatively that there is no immunity bar to such relief, and in situations where in their judgment an injunction against a judicial officer is necessary to prevent irreparable injury to a petitioner’s constitutional rights, courts will grant that relief.  “There is no common law judicial immunity.” Pulliam v. Allen, 104S.Ct. 1970; cited in Lezama v. Justice Court, A025829.

“Judges, members of city council, and police officers as well as other public officials, may utilize good faith defense of action for damages under 42-1983, but no public official has absolute immunity from suit under the 1871 civil rights statute.” (Samuel vs University of Pittsburg, 375 F.Supp. 1119, ‘see also, White vs Fleming 374 Supp. 267.)

NO IMMUNITY
“Sovereign immunity does not apply where (as here) government is a lawbreaker or jurisdiction is the issue.” Arthur v. Fry, 300 F.Supp. 622

“Knowing failure to disclose material information necessary to prevent statement from being misleading, or making representation despite knowledge that it has no reasonable basis in fact, are actionable as fraud under law.” Rubinstein v. Collins, 20 F.3d 160, 1990

[a] “Party in interest may become liable for fraud by mere silent acquiescence and partaking of benefits of fraud.” Bransom v. Standard Hardware, Inc., 874 S.W.2d 919, 1994

Ex dolo malo non oritur actio. Out of fraud no action arises; fraud never gives a right of action. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. As found in Black’s Law Dictionary, Fifth Edition, page 509.

“Fraud destroys the validity of everything into which it enters,” Nudd v. Burrows, 91 U.S 426.

“Fraud vitiates everything” Boyce v. Grundy, 3 Pet. 210

“Fraud vitiates the most solemn contracts, documents and even judgments.” U.S. v. Throckmorton, 98 US 61

U.S. v. Lee, 106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882) “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. “

When a Citizen challenges the acts of a federal or state official as being illegal, that official cannot just simply avoid liability based upon the fact that he is a public official. In United States v. Lee, 106 U.S.196, 220, 221, 1 S.Ct. 240, 261, the United States claimed title to Arlington, Lee’s estate, via a tax sale some years earlier, held to be void by the Court. In so voiding the title of the United States, the Court declared:
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives. “Shall it be said… that the courts cannot give remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the president has ordered it and his officers are in possession? If such be the law of this country,
it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.”

See Pierce v. United States (“The Floyd Acceptances”), 7 Wall. (74 U.S.) 666, 677 (“We have no officers in this government from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority”);
Cunningham v. Macon, 109 U.S. 446, 452, 456, 3 S.Ct. 292, 297 (“In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him… It is no answer for the defendant to say I am an officer of the government and acted under its authority unless he shows the sufficiency of that authority”); and Poindexter v. Greenhow, 114 U.S. 270, 287, 5 S.Ct. 903, 912

WHEREAS, officials and even judges have questioned immunity (See, Owen vs. City of Independence, 100 S Ct. 1398; Maine vs. Thiboutot, 100 S. Ct. 2502; and Hafer vs. Melo, 502 U.S. 21; officials and judges are deemed to know the law and sworn to uphold the law; officials and judges cannot claim to act in good faith in willful deprivation of law, they certainly cannot plead ignorance of the law, even the Citizen cannot plead ignorance of the law, the courts have ruled there is no such thing as ignorance of the law, it is ludicrous for learned officials and judges to plead ignorance of the law therefore there is no immunity, judicial or otherwise, in matters of rights secured by the Constitution for the United States of America. See: Title 42 U.S.C. Sec. 1983.

“When lawsuits are brought against federal officials, they must be brought against them in their “individual” capacity not their official capacity. When federal officials perpetrate constitutional torts, they do so ultra vires (beyond the powers) and lose the shield of immunity.” Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991).

“Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation.” (Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988).

“The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings.” Hagans v. Lavine, 415 U. S. 533

“If you’ve relied on prior decisions of the Supreme Court you have a perfect defense for willfulness.” U.S. v. Bishop, 412 U.S. 346

Before we place the stigma of a criminal conviction upon any such citizen the legislative mandate must be clear and unambiguous. Accordingly that which Chief Justice Marshall has called ‘the tenderness of the law Page 11 of 48 for the rights of individuals’ [FN1] entitles each person, regardless of economic or social status, to an unequivocal warning from the legislature as to whether he is within the class of persons subject to vicarious liability. Congress cannot be deemed to have intended to punish anyone who is not ‘plainly and unmistakably’ within the confines of the statute. United States v. Lacher, 134 U.S.  624, 628, 10 S. Ct. 625, 626, 33 L. Ed. 1080; United States v. Gradwell, 243 U.S. 476,485, 37 S. Ct. 407, 61 L. Ed. 857. FN1 United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37.

We do not overlook those constitutional limitations which, for the protection of personal rights, must necessarily attend all investigations conducted under the authority of Congress. Neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen. Kilbourn v. Thompson, 103 U. S. 168,196 [26: 377, 386].
We said in Boyd v. United States, 116 U. S. 616, 630 [29: 746, 751]—and it cannot be too often repeated—that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employes of the sancity of a man’s home, and the privacies of his life.
As said by Mr. Justice Field in Re Pacific R. Commission, 32 Fed. Rep. 241,250, “of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.”

Zeller v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326 When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes expressly depriving him of jurisdiction, judicial immunity is lost.

JURISDICTION NOTE: It is a fact of law that the person asserting jurisdiction must, when challenged, prove that jurisdiction exists; mere good faith assertions of power and authority (jurisdiction) have been abolished.

Albrecht v. U.S. Balzac v. People of Puerto Rico, 258 U.S. 298 (1922) “The United States District Court is not a true United States Court, established under Article 3 of the Constitution to administer the judicial power of the United States therein conveyed. It is created by virtue of the sovereign congressional faculty, granted under Article 4, 3, of that instrument, of making all needful rules and regulations respecting the territory belonging to the United States. The resemblance of its jurisdiction to that of true United States courts, in offering an opportunity to nonresidents of resorting to a tribunal not subject to local influence, does not change its character as a mere territorial court.”

“Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus.” [U.S. v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)]

Stump v. Sparkman, id., 435 U.S. 349. Some Defendants urge that any act “of a judicial nature” entitles the Judge to absolute judicial immunity. But in a jurisdictional vacuum (that is, absence of all jurisdiction) the second prong necessary to absolute judicial immunity is missing. A judge is not immune for tortious acts committed in a purely Administrative, non-judicial capacity.

Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872) “Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction.”

Chandler v. Judicial Council of the 10th Circuit, 398 U.S. 74, 90 S. Ct. 1648, 26 L. Ed. 2d 100 Justice Douglas, in his dissenting opinion at page 140 said, “If (federal judges) break the law, they can be prosecuted.” Justice Black, in his dissenting opinion at page 141) said, “Judges, like other people, can be tried, convicted and punished for crimes… The judicial power shall extend to all cases, in law and equity, arising under this Constitution“.

Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938) A judge must be acting within his jurisdiction as to subject matter and person, to be entitled to immunity from civil action for his acts.

“Jurisdiction, once challenged, cannot be assumed and must be decided.” Maine v. Thiboutot, 100 S. Ct. 250

Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828) Under federal Law, which is applicable to all states, the U.S. Supreme Court stated that “if a court is without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification and all persons concerned in executing such judgments or sentences are considered, in law, as trespassers.”

JUDICIAL IMMUNITY: See also, 42 USC 1983 – Availability of Equitable Relief Against Judges.

Note: [Copied verbiage; we are not lawyers.] Judges have given themselves judicial immunity for their judicial functions. Judges have no judicial immunity for criminal acts, aiding, assisting, or conniving with others who perform a criminal act or for their administrative/ministerial duties, or for violating a citizen’s constitutional rights. When a judge has a duty to act, he does not have discretion – he is then not performing a judicial act; he is performing a ministerial act. Nowhere was the judiciary given immunity, particularly nowhere in Article III; under our Constitution, if judges were to have immunity, it could only possibly be granted by amendment (and even less possibly by legislative act), as Art. I, Sections 9 & 10, respectively, in fact expressly prohibit such, stating, “No Title of Nobility shall be granted by the United States” and “No state shall… grant any Title of Nobility.” Most of us are certain that Congress itself doesn’t understand the inherent lack of immunity for judges. Article III, Sec. 1, “The Judicial Power of the United States shall be vested in one supreme court, and in such inferior courts, shall hold their offices during good behavior.”

Tort & Insurance Law Journal, Spring 1986 21 n3, p 509-516, “Federal tort law: judges cannot invoke judicial immunity for acts that violate litigants’ civil rights.” – Robert Craig Waters.

TAKE DUE NOTICE ALL GOVERNMENT OFFICIALS, SERVANTS, JUDGES, LAYERS, CLERKS, EMPLOYEES:

“Ignorance of the law does not excuse misconduct in anyone, least of all in a sworn officer of the law.”   In re McCowan (1917), 177 C. 93, 170 P. 1100.

“All are presumed to know the law.”  San Francisco Gas Co. v. Brickwedel (1882), 62 C. 641; Dore v. Southern Pacific Co. (1912), 163 C. 182, 124 P. 817; People v. Flanagan (1924), 65 C.A. 268, 223 P. 1014; Lincoln v. Superior Court (1928), 95 C.A. 35, 271 P. 1107;  San Francisco Realty Co. v. Linnard (1929), 98 C.A. 33, 276 P. 368.

“It is one of the fundamental maxims of the common law that ignorance of the law excuses no one.”  Daniels v. Dean (1905), 2 C.A. 421, 84 P. 332.

Jurisdiction challenged to all, at any and all times

“Judge acted in the face of clearly valid statutes or case law expressly depriving him of (personal) jurisdiction would be liable.” Dykes v. Hosemann, 743 F.2d 1488 (1984).  “In such case the judge has lost his judicial function, has become a mere private person, and is liable as a trespasser for damages resulting from his unauthorized acts.”

“Where there is no jurisdiction there is no judge; the proceeding is as nothing. Such has been the law from the days of the Marshalsea, 10 Coke 68;
also Bradley v. Fisher, 13 Wall 335,351.” Manning v. Ketcham, 58 F.2d 948.

“A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter any authority exercised is a usurped authority and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible.” Bradley v.Fisher,13 Wall 335, 351, 352.

The laws of nature are the laws of God, whose authority can be superseded by no power on earth.  A legislature must not obstruct our obedience to him from whose punishments they cannot protect us.  All human constitutions which contradict his cannot protect us.  All human constitutions which contradict his (God’s) laws, we are in conscience bound to disobey.  1772, Robin v. Hardaway, 1 Jefferson 109. Supreme court cases from digging around Robin v. Hardaway 1790. Biblical Law at “Common Law” supersedes all laws, and “Christianity is custom, custom is Law.”

(I, Me, Myself am a “state”, with standing, standing in “original jurisdiction” know as the common law, Gods Law, a neutral traveling in itinerary, demanding all of my rights under God’s Natural Law, recorded in part in the Bible, which law is recognized in US Public Law 97-280 as “the word of God and all men are admonished to learn and apply it” so I demand anyone and everyone to notice God’s Laws, which are My Makers Laws and therefore My Laws!)

• – Article 1 of the Bill of Rights – guarantees freedom of religion-
  Constitution for the United States of America ARTICLE IV, sect. 1, Full faith and credit among states. (Self-executing constitutional provisions) Section 1.  Full faith and Credit shall be given in each state to the public Acts, Records, and judicial Proceedings of every other state.

And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

for true knowledge of how sophisticated the legal minds of our forefathers were read how intricate their minds worked absent of all modern inventions including modern internet free schooling.

42 U.S. Code § 1983 – Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

to read the full statute click link below
cited

42-us-code-1983-civil-action-for-deprivation-of-rights/

Recoverable Damages Under 42 U.S.C. Section 1983

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

18 U.S. Code § 242 – Deprivation of rights under color of law

18 U.S. Code § 241 – Conspiracy against rights

9.3 Section 1983 Claim Against Defendant in Individual Capacity —Elements and Burden of Proof

How to file a complaint of Police or other Government Official Misconduct Click Here

Penal Code §§ 146 [unlawful detention or arrest by peace officer] 149 [beating / torturing prisoners], 236 [false imprisonment], 192 [manslaughter], 187 [murder] and 245 [assault with deadly weapon / by means resulting in great bodily injury]), civil liability (i.e. federal civil remedy for violation of federal and statutory rights under color of state law [42 U.S.C. § 1983]), and California state law claims for battery, assault, false arrest / false imprisonment, wrongful death, violation of Cal. Civil Code § 52.1 (retaliation for exercise of, or in attempt to, dissuade prevent another from exercising Constitutional rights), or administrative discipline (i.e. reprimand, suspension, rank reduction, and termination.)

Notwithstanding the absurd and cruel creation of immunity for peace officers that went well beyond the literal wording  and clear meaning of Section 821.6 by the California Courts of Appeal, in 2061 in  Tort claims are typically matters of state law, raising no federal question. However, the conduct complained of may also violate the federal Constitution. In such a case, relief may be available in a federal court under 42 U.S.C. § 1983, which authorizes “constitutional torts”, by creating a private right of action in federal court (Congress even allowing federal claims in a state court), against any person who, “under color of [state law],” causes injuries by violating an individual’s federal Constitutional or statutory rights.  Section 1983, however, “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979.) Therefore, in order to bring a malicious prosecution claim under Section 1983, a malicious criminal prosecution must be deemed a deprivation of a right “secured by the Constitution.” 42 U.S.C. § 1983.

THE NINTH CIRCUIT COMES TO THE RESCUE AND REFUSES TO FOLLOW THE CALIFORNIA COURTS OF APPEAL IN THEIR AD NAUSEUM EXPANSION OF MALICIOUS PROSECUTION IMMUNITY UNDER SECTION 821.6.

On July 5, 2016, the Ninth Circuit handed down the seminal case of Garmon v. Cty. of Los Angeles, 828 F.3d 837, 847 (9th Cir. 2016), which rejected the California Court of Appeal’s ad nauseam expansion of Section 821.6 immunity and refused to immunize police officers pursuant to that section. In that Opinion, the Ninth Circuit held that they are only bound to follow state law on state law issues when either the highest court in a state (i.e. the California Supreme Court on California law) has decided that issue, or, when the state Courts of Appeals have decided an issue and the federal court finds that the state Supreme Court would have held otherwise. In reaching that holding that Ninth Circuit Court of Appeals held that the California Supreme Court already interpreted [California Government Code] section 821.6 as ‘confining its reach to malicious prosecution actions.’ “Sullivan v. County of Los Angeles, 12 Cal.3d 710, 117 Cal.Rptr. 241, 527 P.2d 865, 871 (1974), and that in their opinion, the California Supreme Court would adhere to Sullivan, notwithstanding many Opinions of the California Courts of Appeal holding otherwise. Accordingly, the state of the law is that if you have the same case with the same parties and your case is in a California state court, that Section 821.6 immunizes many actions of peace officers other than malicious prosecution, but if you are in federal court, Section 821.6 immunity only immunizes claims for malicious prosecution under California state law.

On the basis of dicta expressed by the plurality opinion in Albright v. Oliver, 510 U.S. 266 (1994), there has been a political and practical acceptance of a federal constitutional right to be free of a malicious criminal prosecution; a frame-up by state actors.

In Albright v. Oliver, 510 U.S. 266 (1994), the U.S. Supreme Court held that although a malicious criminal prosecution is not a 14th Amendment substantive due process violation, that is might be considered an unreasonable seizure of one’s person under the 4th Amendment to the U.S. Constitution, if the subsequent malicious prosecution was accompanied by the actual physical arrest of the person.

In reality, these words were crafted by the Supreme Court to permit persons who are falsely and maliciously accused of a crime by the police that resulted in a bogus criminal prosecution, to sue the police who attempted to frame them. It’s judicial “newspeak“.

If there is anything that would constitute what the courts call substantive due process (i.e. outrageous police conduct that shocks the conscience), attempting to frame an innocent is it. However, the Supreme Court could not agree on whether a malicious criminal prosecution was a substantive due process violation in Albright v. Oliver, but the Justices did not want to leave one who the police attempted to frame without a remedy.

Accordingly, in Manuel v. City,  of Joliett, 580 U.S. _____ (2017), the Supreme Court held that one who was physically arrested and confined in custody by way of the false arrest of a police officer, can obtain damages under 42 U.S.C. § 1983 for that person’s continued confinement in jail, after the point in time when the District Attorney (prosecutor) formally filed criminal charges against the person. In other words, the accused person can collect damages for being kept in jail before trial, pursuant to criminal charges, filed by the prosecutor, that were procured by the arresting police officer having authored a false police report, that the prosecutor relied upon in  deciding to file the very criminal charges that kept the false accused person in jail before trial.

However, this still didn’t establish a Naked Constitutional Tort of a Malicious Criminal Prosecution; only a damages remedy for a false arrest, and for confinement in jail after the point in time when the prosecutor formally filed criminal charges against the confined person.

Following both Albright v. Oliver and Manuel v. City of Joliet, most United States District Courts and the United States Courts of Appeals (the federal intermediate level appellate courts) permitted a Section 1983 remedy for a malicious criminal prosecution by a peace officer.  The First, Second, and Eleventh Circuits composed the “Tort Circuits,” wherein plaintiffs pleading malicious prosecution claims under Section 1983, were required to satisfy the common law elements of a malicious prosecution claim in addition to proving a constitutional violation. The “Constitutional Circuits”—the Fourth, Fifth, Seventh, and Tenth— concentrated on whether a constitutional violation exists.

Most of the Circuits of the United States Courts of Appeals, allowed for an aggrieved person the right to sue for being subjected to a malicious criminal prosecution, federal remedy for the same, via 42 U.S.C. §  1983. They did so, on various theories, since the right to be free from a malicious criminal prosecution is not described in the federal Constitution, but the pure evil and outrageousness of such government action compels appellate judges to find some Constitutional foundation for that right, in order to allow a person who the government attempted to frame, some sort of remedy.

Although sister circuits categorized the Third Circuit as a “Tort Circuit”, the Third Circuit more recently acknowledged that “[o]ur law on this issue is unclear”; however, it continued to encourage plaintiffs to address each common law element. Similarly, the Sixth Circuit has avoided defining the required elements of a claim, although it appears to recognize a Fourth Amendment right against malicious prosecution and continued detention without probable cause.  The Ninth Circuit lies on both sides of the divide; seemingly turning on whether they want the malicious prosecution plaintiff to prevail.

In Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002.)  held that a malicious criminal prosecution was a naked constitutional tort, and was actionable under 42 U.S.C. § 1983 under the 4th Amendment. They just said it, basically out of thin air.

The Ninth Circuit also continued its pre-Galbraith malicious prosecution jurisprudence and held that in in addition to constituting a 4th Amendment violation, that one could sue for a malicious criminal prosecution if the prosecution was brought to deprive the innocent of some other constitutional right, such as attempting to frame an innocent in retaliation for protected exercise of First Amendment free speech, or, as a naked constitutional tort. See, Awabdy v. City of Adelanto, 368 F.3d 1062, 1069–72 (9th Cir. 2004.) i

FEDERAL LAW NOW PROVIDES A REMEDY FOR A MALICIOUS CRIMINAL PROSECUTION.

In Thompson v. Clark, 596 U.S  (April 4, 2022) for the first time in the history of the Americann Republic, the U.S. Supreme Court finally held that there is a Constitutional Tort of Malicious Criminal Prosecution. The Supreme Court also went on to hold that in order to sue for a Malicious Criminal Prosecution, that the underlying criminal action only need not result in a conviction of the accused for the accused (and  now plaintiff), for the underlying criminal case to be considered to be “favorably terminated”; a “favorable termination” of the underlying criminal case being a required element of that claim.

Although under California law you may not recover damages for your malicious criminal prosecution because of immunity provided in Cal. Gov’t Code § 821.6  (See, Asgari v. City of Los Angeles, 15 Cal. 4th 744 (1997), at least now there is a federal remedy for the police attempting to frame you; finally.

• To learn more about SB 2 Police Decertification Process – Changes to Government Code – senate-bill-2-police-decertification-process/
• SB 2, Expanding Civil Liability Exposure – sb-2-expanding-civil-liability-exposure/

Pro Se Case Law

Bruce Baldinger v. Antonio Ferri, No. 12-4529 (3d Cir. 2013)

Haines v. Kerner, 404 U.S. 520 (1971)
Plaintiff-inmate filed pro se complaint against prison seeking compensation for damages sustained while placed in solitary confinement. In finding plaintiff’s complaint legally sufficient, Supreme Court found that pro se pleadings should be held to “less stringent standards” than those drafted by attorneys.

Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971)
Pro se petitioner who asserted complete ignorance of the law subsequently presented a brief that was manifestly written by a person with legal knowledge. Court held that a brief prepared in any substantial part by a member of the bar must be signed by that member.

Nichols v. Keller, 19 Cal.Rptr.2d 601 (1993)
Plaintiff who consulted defendants’ law firms regarding workers’ compensation claim was not advised of potential for additional third party claim before statue of limitations expired. Defendants argued that plaintiff’s representation was limited only to filing workers’ compensation claim and no duty existed to advise plaintiff in any other matter. Court found that representation was not limited solely to workers compensation claim, and defendants should have advised plaintiff regarding third party claim.

Johnson v. Board of County Comm’rs, 868 F.Supp. 1226 (D. Colo. 1994)
Former sheriff department workers bring sexual harassment suit against county sheriff in his individual and official capacities. Attorney representing sheriff enters limited appearance on behalf of his official capacity. Court finds that attorney cannot enter limited appearance on behalf of sheriff’s official capacity. Attorney representing sheriff must act for the entire person, including individual and official capacities. Entering such limited appearance is not competent and zealous representation as required by ethical rules as it leaves officer undefended on individual capacity claims. Court further finds that ghostwriting of documents for pro se litigants may subject lawyers to contempt of court. Ghostwriting gives litigants unfair advantage in that pro se pleadings are construed liberally and pro se litigants are granted greater latitude in hearings and trials. Ghostwriting also results in evasion of obligations imposed on attorneys by statute, code, and rule, and involves lawyers in litigants’ misrepresentation of pro se status in violation of ethical rules.

Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F.Supp. 1075 (E.D. Va. 1997)
Over a period of time, pro se plaintiffs submitted pleadings that had been written by attorneys pursuant to discrete-task representation contracts. The attorneys did not sign the pleadings, and in most cases did not appear as counsel of record. When ordered to show cause by the court as to why they should not be held in contempt of court, attorneys argued that the professional relationships created with the litigants ended once they had drafted the pleadings. Court held that there was insufficient evidence to show that the attorneys knowingly misled the court or intentionally violated ethical or procedural rules and declined to impose sanctions. However, court stated that the practice of ghostwriting pleadings without acknowledging authorship and without asking court approval to withdraw from representation was inconsistent with Fed. R. Civ. P. 11 and Rule 83.1(G) of the Local Rules for the United States District Court for the Eastern District of Virginia. Court stated that allowing attorneys to ghostwrite pleadings for pro se plaintiffs abused additional leeway given to pro se filings.

U.S. v. Eleven Vehicles, 966 F.Supp. 361 (E.D.Pa. 1997)
Court finds that ghostwriting by attorney for a pro se litigant implicates an attorney’s duty of candor to the court, interferes with the court’s ability to supervise the litigation, and misrepresents the litigant’s right to more liberal construction as a pro se litigant.

Wesley v. Don Stein Buick, Inc., 987 F.Supp. 884 (D.Kan. 1997)
In suit brought by pro se plaintiff, defendants sought order requiring plaintiff to disclose whether she was an attorney or received the assistance of a lawyer. In expressing legal and ethical concerns regarding the ghostwriting of pleadings by attorneys, the court held the defendants were entitled to the order.

Ricotta v. California, 4 F.Supp.2d 961 (S.D. Cal. 1998)
Attorney licensed in the State of California did not violate procedural, substantive, and professional rules of a federal court by lending some assistance to friends, family members, and others with whom she shared specialized knowledge. Attorney performed research and prepared rough drafts of portions of pro se litigant’s pleadings in an action against various official defendants, but did not sign the documents. Because attorney did not gather and anonymously present legal arguments with the actual or constructive knowledge that plaintiff would use them in court, and because attorney did not engage in extensive, undisclosed participation that permitted plaintiff to falsely appear as being without professional assistance, attorney had not violated any rules.

Ostrovsky v. Monroe (In re Ellingson), 230 B.R. 426 (Bankr.D.Mont. 1999)
Paralegal who helped a business draft and file bankruptcy papers was found to be engaged in the unauthorized practice of law. Court notes that if an attorney acted in the same manner as paralegal, that person would be guilty of “ghost writing,” which is described as the act of undisclosed attorney who assists a self-represented litigant by drafting his or her pleadings as part of “unbundled” or limited legal services. Court also notes that ghostwriting violates court rules, particularly Fed.R.Civ.P. 11, as well as ABA Standing Committee Opinion 1414 in Ethics and Professional Responsibility.

Jones v. Bresset, 2000 W: 3311607 (47 Pa. D. & C 4th 60)
Defendant was an attorney hired by plaintiff in the midst of plaintiff’s bankruptcy proceedings. The plaintiff had already obtained counsel of record, and hired defendant solely for the purpose of securing an accounting in the bankruptcy proceeding. The defendant alerted plaintiff of limited scope of his representation, advising plaintiff that problems may arise outside the scope of his representation. Plaintiff commenced a legal malpractice suit against his attorney of record stating negligence, and included the defendant in the claim. The court found that since the defendant distinctly limited the scope of his representation and urged the plaintiff to hire separate counsel for other matters, the defendant had no legal duty to investigate or advise plaintiff on existence of malpractice by attorney of record.

Ostevoll v. Ostevoll, 2000 WL 1611123 (S.D. Ohio)
Respondent argues that the Petition should be stricken pursuant to Fed.R.Civ.P. 11 because, although allegedly filed pro se, petitioner clearly received substantial assistance from counsel in the preparation and filing of the Petition. Court finds that if a pleading is prepared in any substantial part by a member of the bar, it must be signed by that attorney to avoid misrepresentation.

Streit v. Covington & Crowe, 82 Cal.App. 4th 441 (2000)
In a lawsuit, plaintiff’s counsel of record requested that another firm make a “special appearance” at a summary judgment motion, appearing on behalf of counsel of record. Plaintiff filed a legal malpractice suit after a summary judgment was entered against her, arguing that the special appearance created an attorney-client relationship. The appellate court found that an attorney making a special appearance represents the client’s interests and has a professional attorney-client relationship with the client. Further, the voluntary appearance created a limited representation status and not a true “special appearance”.

Armor v. Lantz, 207 W. VA 672, 535 S.E.2d 737 (2000)
Appellants brought legal malpractice suit against local attorney retained by Ohio lawyer in products liability case. Appellants claimed that West Virginia lawyer who acted as local counsel was liable for malpractice of Ohio lawyer. Court found that, while it was difficult to clearly define the role of local counsel according to West Virginia rules, the local attorney had effectively entered a limited representation agreement and was therefore not responsible for all aspects of the case or for the Ohio lawyer’s conduct.

Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001)
Lawyer participated in ghostwriting appellate brief for a pro se litigant. Court holds that participation by an attorney in drafting otherwise pro se appellate brief is per se substantial legal assistance, and must be acknowledged by signature. An attorney must refuse to provide ghostwriting assistance unless purported pro se client specifically commits to disclose attorney’s assistance to the court upon filing.

Lynne v. Laufer, No. A-2079-01T2, (N.J. Super. App. Div. Apr. 8, 2003)
Attorney, with matrimonial client’s consent after consultation, limited the scope of his representation to a review of the terms of a mediated agreement without going outside its four corners. Court holds that it is not a breach of the standard of care for an attorney under a signed precisely drafted consent agreement to limit the scope of representation to not perform such services in the course of representing a matrimonial client that he or she might otherwise perform absent such a consent.

Melvin Finance, Inc. v. Artis, 157 N.C. App. 716, 2003 WL 21153426 (N.C.App.)
Defendant retained an attorney on a limited basis, following an action filed by the plaintiff to recover costs on a defaulted loan. Limited representation attorney agreed to file responsive pleadings and negotiate a settlement agreement, and filed a notice of limited appearance. While the defendant received notice of a scheduled hearing and forwarded it to his limited representation attorney, neither defendant nor attorney appeared at the hearing and, consequently, an arbitration award was entered for the plaintiff. Defendant filed a motion to set aside judgment, which was denied. On appeal, the defendant claimed the limited representation attorney’s failure to appear at the hearing amounted to excusable neglect and that the judgment should be set aside. The court found that since the defendant received notice of the hearing and had retained the attorney on a limited basis, that the limited representation attorney’s conduct did not constitute excusable neglect. The lower court decision was affirmed.

Sharp v. Sharp, 2006 WL 3088067 (Va.Cir.Court)
Complainant and respondent were co-tenants of real estate property. The respondent appeared pro se during a hearing before the commissioner in chancery, but then hired an attorney who appeared in a limited capacity at several other hearings. On appeal, the court sought to determine whether or not the attorney could appear in a limited capacity and whether the attorney’s appearance qualified him as official “attorney of record”. The court found that it was not bound by agreements made between client and attorney and that a court may “require more of an attorney than mere compliance with the ethical constraints of the Rules of Professional Conduct”. The court found that the attorney could make a motion to withdraw once he completed the tasks agreed upon, but that the court had ultimate discretion in granting the withdrawal.

Discover Bank v. McCullough, 2008 W: 248975 (Tenn. Ct. App.)
In a dispute over a bank card balance, cardholders chose to represent themselves after card issuer filed suit. The self-represented litigants mailed a response to court but then failed to appear at the hearing, which prompted the court to grant a default judgment to the card issuer. During the appeals process, the self represented filed papers not known within the jurisdiction. When the case reached the appellate court, the Court found that it did not have subject matter jurisdiction because the self represented litigants failed to file a court recognized notice. The court found that while it appreciated the difficulties encountered by self-represented litigants, it could not “abdicate its role as an impartial, neutral arbiter and become an advocate for the self-represented litigant”.

Burgess v. Vitola, 2008 WL 821539 (N.C.Super.)
In a legal dispute that surfaced over an alleged invasion of personal property, the plaintiff resided in North Carolina and the defendant resided in California. The defendant filed papers with the assistance of a California attorney but, on record, represented herself. The plaintiff sought recourse, arguing that assistance from counsel amounted to the unauthorized practice of law since the attorney was not licensed in North Carolina. As the Rules of Professional Conduct do not require an attorney who has provided drafting assistance to make an appearance as counsel of record, the court found that it had no authority to sanction the California attorney. It did, however, require that the defendant file an affidavit that she intended to proceed pro se and not seek legal assistance unless the attorney is licensed to practice in North Carolina.

Future Lawn, Inc v. Steinberg, 2008 Ohio 4127
Attorney was hired by appellant to handle a legal malpractice claim. The attorney was referred by appellant’s general counsel, to act in a in a matter concerning the handling of an environmental report in a real estate transaction several years prior. A settlement was reached in the matter and around the same time, general counsel was replaced. Following a dispute regarding unpaid legal fees, appellants were sued by former general counsel. Appellants responded with a separate suit, alleging counsel had committed malpractice. They implicated the limited representation attorney, suggesting the attorney had an obligation to advise them of issues surrounding claims of general counsel’s malpractice. The court found that representation by attorney was expressly limited to the original malpractice claim, and that no requirement existed for client consultation before limited the scope of representation. The attorney had no duty to investigate actions of general counsel.

Elmore v. McCammon (1986) 640 F. Supp. 905
“… the right to file a lawsuit pro se is one of the most important rights under the constitution and laws.”

Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233
Pro se pleadings are to be considered without regard to technicality; pro se litigants’ pleadings are not to be held to the same high standards of perfection as lawyers.

Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)
“Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment.”

Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA)
It was held that a pro se complaint requires a less stringent reading than one drafted by a lawyer per Justice Black in Conley v. Gibson (see case listed above, Pro Se Rights Section).

Picking v. Pennsylvania Railway, 151 F.2d. 240, Third Circuit Court of Appeals
The plaintiff’s civil rights pleading was 150 pages and described by a federal judge as “inept”. Nevertheless, it was held “Where a plaintiff pleads pro se in a suit for protection of civil rights, the Court should endeavor to construe Plaintiff’s Pleadings without regard to technicalities.”

Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA)
It was held that a pro se complaint requires a less stringent reading than one drafted by a lawyer per Justice Black in Conley v. Gibson (see case listed above, Pro Se Rights Section).

Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982)
“Due to sloth, inattention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices… the glacial pace of much litigation breeds frustration with the Federal Courts and ultimately, disrespect for the law.”

Sherar v. Cullen, 481 F. 2d 946 (1973)
“There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights.”

Schware v. Board of Examiners, United State Reports 353 U.S. pages 238, 239.
“The practice of law cannot be licensed by any state/State.”

Sims v. Aherns, 271 SW 720 (1925)
“The practice of law is an occupation of common right.”

CITED http://caught.net/prose/proserulings.htm

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California Supreme Court Rules:
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Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

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Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Section 832.7 – Peace officer or custodial officer personnel records

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Assembly Bill 748 Makes Video Evidence Captured by Police Agencies Subject to Disclosure as Public Records

SB 2, Creating Police Decertification Process and Expanding Civil Liability Exposure

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Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

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Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Download Here this Recommended Citation

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Introducing Digital Evidence in California State Courts

A text message is a writing within the meaning of Evidence Code section 250, which may not be admitted in evidence without being authenticated. (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1027–1028.)

In order to introduce documentary and electronic evidence obtained in compliance with California Electronic Communication Privacy Act (Penal Code §§ 1546.1 and 1546. 2) in court, it must have four components:

1. it must be relevant.
2. it must be authenticated.
3. its contents must not be inadmissible hearsay; and
4. it must withstand a “best evidence” objection.

If the digital evidence contains “metadata” (data about the data such as when the document was created or last accessed, or when and where a photo was taken) proponents will to need to address the metadata separately, and prepare an additional foundation for it.

Relevance of Evidence

Only relevant evidence is admissible. (Evid. Code, § 350.) To be “relevant,” evidence must have a tendency to prove or disprove any disputed fact, including credibility. (Evid. Code, § 210.) All relevant evidence is admissible, except as provided by statute. (Evid. Code, § 351.)

For digital evidence to be relevant, the defendant typically must be tied to the evidence, usually as the sender or receiver. With a text message, for example, the proponent must tie the defendant to either the phone number that sent, or the phone number that received, the text. If the defendant did not send or receive/read the text, the text-as-evidence might lack relevance, one must prove that the device used was in the hands of the person being accused. In addition; evidence that the defendant is tied to the number can be circumstantial. And evidence that the defendant received and read a text also can be circumstantial.

Theories of admissibility include:

• Direct evidence of a crime
• Circumstantial evidence of a crime
• Identity of perpetrator
• Intent of perpetrator
• Motive
• Credibility of witnesses
• Impeachment
• Negates or forecloses a defense
• Basis of expert opinion
• Lack of mistake

Under Evidence Code 352 EC, even if the evidence is relevant and admissible, a judge may exclude it if they believe it would be confusing or misleading or if its admission could unfairly prejudice the jury against the defendant.

Introducing Documentary and Electronic Evidence

Authentication of Evidence

To “authenticate” evidence, you must introduce sufficient evidence to sustain a finding that the writing is what you say it is. (Evid. Code, § 1400 (a).) You need not prove the genuineness of the evidence, but to authenticate it, you must have a witness lay basic foundations for it. In most cases you do this by showing the writing to the witness and asking, “what is this?” and “how do you know that?” It is important to note that the originator of the document is not required to testify.
(Evid. Code, § 1411.) The proponent should present evidence of as many of the grounds below as possible. However, no one basis is required. Additionally, authentication does not involve the truth of the document’s content, rather only whether the document is what it is claimed to be.

(City of Vista v. Sutro & Co. (1997) 52 Cal.App.4th 401, 411-412.) Digital evidence does not require a greater showing of admissibility merely because, in theory, it can be manipulated. Conflicting inferences go to the weight not the admissibility of the evidence.

(People v. Goldsmith (2014) 59 Cal. App.258, 267) In Re KB (2015) 238 Cal.App.4th 989, 291-292 [upholding red light camera evidence].)

Goldsmith superseded People v. Beckley (2010) 185 Cal. App.4th 509, which required the proponent to produce evidence from the person who took a digital photo or expert testimony to prove authentication. Documents and data printed from a computer are considered to be an “original.” (Evid. Code 255.) Printouts of digital data are presumed to be accurate representation of the data.

(Evid Code §§ 1552, 1553.) However, that  resumption can be overcome by evidence presented by the opposing party. If that happens, the proponent must present evidence showing that by a preponderance, the printouts are accurate and reliable.

(People v. Retke (2015), 232 Cal. App. 4th 1237 [successfully challenging red light camera data].)

A.  You can authenticate documents by:

• Calling a witness who saw the document prepared. (Evid. Code, § 1413.)
• Introducing an expert handwriting comparison. (Evid. Code, § 1415.)
• Asking a lay witness who is familiar with the writer’s handwriting to identify the handwriting. (Evid. Code, § 1516.)
• Asking the finder of fact (i.e. the jury) to compare the handwriting on the document to a known exemplar. (Evid. Code, § 1470.)
• Showing that the writing refers to matters that only the writer would have been aware. (Evid. Code, § 1421.)
• Using various presumptions to authenticate official records with an official seal or signature. (Evid. Code, § 1450-1454.) Official records would include state prison records, Department of Motor Vehicle documents or documents filed with the Secretary of State. There is a presumption that official signatures are genuine.  (Evid. Code, § 1530, 1453.)
• Any other way that will sustain a finding that the writing is what you say it is. The Evidence Code specifically does not limit the means by which a writing may be authenticated and proved. (Evid. Code, § 1410; See also People v. Olguin (1994) 31 Cal.App.4th 1355, 1372-1373 [rap lyrics authenticated in gang case even though method of authentication not listed in Evidence Code].)SECTION 1401.
  (a) Authentication of a writing is required before it may be received in evidence.(b) Authentication of a writing is required before secondary evidence of its content may be received in evidence.

B.     Common ways to authenticate email include:

• Chain of custody following the route of the message, coupled with testimony that the alleged sender had primary access to the computer where the message originated.
• Security measures such as password-protections for showing control of the account. (See generally, People v. Valdez (2011) 201 Cal.App.4th 1429.)
• The content of the email writing refers to matters that only the writer would have been aware.
• Recipient used the reply function to respond to the email; the new message may include the sender’s original message.
• After receipt of the email, the sender takes action consistent with the content of the email.
• Comparison of the e-mail with other known samples, such as other admitted e-mails.
• E-mails obtained from a phone, tablet or computer taken directly from the sender/receiver, or in the sender/receiver’s possession.

In the majority of cases a variety of circumstantial evidence establishes the authorship and authenticity of a computer record. For further information, please consult Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009) . See also, Lorraine v. Markel American Ins. Co. (D. Md. 2007) 241F.R.D. 534, 546 [seminal case law on authenticating digital evidence under F.R.E.].)

C. Common ways to authenticate chat room or Internet relay chat (IRC) communication include:

• Evidence that the sender used the screen name when participating in a chat room discussion.
• For example, evidence obtained from the Internet Service Provider that the screen name, and/or associated internet protocol (IP address) is assigned to the defendant or evidence circumstantially tying the defendant to a screen name or IP address.
•  Security measures such as password-protections for showing control of the account of the sender and excluding others from being able to use the account. (See generally, People v. Valdez (2011) 201 Cal.App.4th 1429.)
• The sender takes action consistent with the content of the communication.
• The content of the communication identifies the sender or refers to matters that only the writer would have been aware
• The alleged sender possesses information given to the user of the screen name (contact information or other communications given to the user of the screen name).
•  Evidence discovered on the alleged sender’s computer reflects that the user of the computer used the screen name. (See U.S. v. Tank (9th Cir. 2000) 200 F.3d 627.)
•  Defendant testified that he owned account on which search warrant had been executed, that he had conversed with several victims online, and that he owned cellphone containing photographs of victims, personal information that defendant confirmed on stand was consistent with personal details interspersed throughout online conversations, and third-party service provider (Facebook) provided certificate attesting to chat logs’ maintenance by its automated system. (U.S. v. Browne (3d Cir. Aug.25, 2016) 2016 WL 4473226, at 6.)

In the majority of cases it is a variety of circumstantial evidence that provides the key to establishing the authorship and authenticity of a computer record. For further information, please consult Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009)

D. Common ways to authenticate social media postings include:

• Testimony from a witness, including a police officer, with training and experience regarding the specific social media outlet used testified about what s/he observed. (In re K.B. (2015) 238 Cal.App.4th 989.) What is on the website or app, at the time the witness views it, should be preserved in a form that can be presented in court.
• Evidence of social media postings obtained from a phone, tablet or computer taken directly from the sender/receiver, or in the sender/receiver’s possession.
• Testimony from the person who posted the message.
• Chain of custody following the route of the message or post, coupled with testimony that the alleged sender had primary access to the computer where the message originated.
• The content of the post refers to matters that only the writer would have been aware, publicly broadcasted writings (web post that anyone can copy and paste would not fall under this).
• After the post on social media, the writer takes action consistent with the content of the post.
• The content of the post displays an image of the writer. (People v. Valdez (2011) 201 Cal.App.4th 1429.)
•  Other circumstantial evidence including that the observed posted images were later recovered from suspect’s cell phone and the suspect was wearing the same clothes and was in thesame location that was depicted in the images. (In re K.B. (2015) 238 Cal.App.4th 989.)
•  Security measures for the social media site such as passwords-protections for posting and deleting content suggest the owner of the page controls the posted material. (People v. Valdez (2011) 201 Cal.App.4th 1429.)

In the majority of cases it is a variety of circumstantial evidence that provides the key to establishing the authorship and authenticity of a computer record. “Mutually reinforcing content” as well as “pervasive consistency of the content of the page” can assist in authenticating photographs and writings. (People v. Valdez (2011) 201 Cal.App.4th 1429, 1436.) For further information, please consult Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009) For examples of sufficient circumstantial evidence authenticated social media posts see, Tienda v. State (Tex. Crim. App. 2012) 358 S.W.3d 633, 642; Parker v. State (Del. 2014) 85 A.3d 682, 687. Contrast, Griffin v. State (2011) 419 Md. 343, 356–359.

E. Common ways to authenticate web sites include:

• Testimony from a witness, including a police officer about what s/he observed. (See In re K.B. (2015) 238 Cal.App.4th 989.) What is on the website or app, at the time the witness views it, should be preserved in a form that can be presented in court.
• Testimony from the person who created the site.
• Website ownership/registration. This is a legal contract between the registering authority (e.g.

Network Solutions, PDR Ltd, D/B/A PublicDomainRegistry.com, etc.) and the website owner, allowing the registered owner to have total dominion and control of the use of a website name (domain) and its content. (See People v. Valdez (2011) 201 Cal.App.4th 1429 [password protection suggest the owner of the page controls the posted material].) It may be possible to admit archived versions of web site content, stored and available at a third party web site (See https://archive.org/web/ [Wayback Machine].) First, it may be authenticated by a percipient witness who previously saw or used the site. It may also be possible to obtain a declaration or witness to testify to the archive. (See e.g. Telewizja Polska USA, Inc. v. Echostar Satellite Corp., 2004 WL 2367740, at 16 (N.D.Ill. Oct.15, 2004) [analyzing admissibility of the content  of an achieved website].) The underlying challenge for web sites in not the authentication of the site; rather the content or hearsay material contained therein.

In St. Clair v. Johnny’s Oyster & Shrimp, Inc. (S.D.Tex.1999) 76 F.Supp.2d 773, 774-75 the court noted that “voodoo information taken from the Internet” was insufficient to withstand motion to dismiss because “[n]o web-site is monitored for accuracy” and “this so-called Web provides no way of verifying the authenticity” of information plaintiff wished to rely on. (See also Badasa v. Mukasey (8th Cir. 2008) 540 F.3d 909 [Nature of Wikipedia makes information from the website unreliable].) However, at noted in Section III Hearsay, the contents of the web site could be admitted as an operative fact or under a number of exceptions including an admission of a party opponent.

F. Authenticating Texts:

A text message is a writing within the meaning of Evidence Code section 250, which may not be admitted in evidence without being authenticated. (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1027–1028.)

A text message may be authenticated “by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing” (Evid.Code, § 1421), or by any other circumstantial proof of authenticity (Id., § 1410).

As of August 2016, there are no published California cases that specifically discuss what is required for authenticating a text message. Unpublished California opinions are consistent with the rule set forth above for authenticating e-mails and chats through a combination of direct and circumstantial evidence based on the facts of the case. Because of the mobile nature of smart phones, the proponent must take care to tie the declarant to the phone from which texts were seized or to the phone number listed in records obtained from the phone company. Often this done through cell phone records or the phone being seized from the defendant, his home or car or other witnesses testifying that this was how they communicated with the defendant.

Published opinions from other jurisdictions and unpublished opinions from California provide some guidance:

Published opinions from other jurisdictions and unpublished opinions from California provide some guidance:

• (People v. Lugashi (1988) 205 Cal.App.3d 632, 642.) As Lugashi explains, although mistakes can occur, “ ‘such matters may be developed on cross-examination and should not affect the admissibility of the [record] itself.’ (People v. Martinez (2000) 22 Cal.4th 106, 132.)
• Victim testified he knew the number from which text was sent because Defendant told him the number. The contents of the texts referred to victim as a snitch. The defendant called the victim during the course of the text message conversation. [(Butler v. State, 459 S.W. 3d 595 (Crim. Ct App. Tx. April 22, 2015].)
• Testimony of records custodian from telecommunications company, explaining how company kept records of actual content of text messages, the date and time text messages were sent or received, and the phone number of the individuals who sent or
• received the messages, provided proper foundation for, and sufficiently authenticated, text messages admitted into evidence in trial on armed robbery charges. (Fed.Rules Evid.Rule 901(a), U.S. v. Carr (11th Cir. 2015) 607 Fed.Appx. 869.)
• Ten of 12 text messages sent to victim’s boyfriend from victim’s cellular telephone following sexual assault were not properly authenticated to extent that State’s evidence did not demonstrate that defendant was author of text messages. (Rodriguez v. State (2012) 128 Nev. Adv. Op. 14, [273 P.3d 845].)
• Murder victim’s cell phone recovered from scene of crime. Forensic tools used on phone recovered texts back and forth between victim and defendant. (People v. Lehmann (Cal. Ct. App., Sept. 17, 2014, No. G047629) 2014 WL 4634272 [Unpublished].)
• Defendant laid an inadequate foundation of authenticity to admit, in prosecution for assault with a deadly weapon, hard copy of e‑mail messages (Instant Messages) between one of his friends and the victim’s companion, as there was no direct proof connecting victim’s companion to the screen name on the e‑mail messages. (People v. Von Gunten (2002 Cal.App.3d Dist.) 2002 WL 501612. [Unpublished].)
• “knowingly allowing a witness to testify falsely.” (People v. Pike (1962) 58 Cal.2d 70, 97, [22 Cal. Rptr. 664, 372 P.2d 656].) The inquirer asks us to assume that disclosure of the perjured testimony to the court would so adversely reflect on the client’s credibility that the court could “reasonably be expected to render an adverse decision.“

ATTORNEY’S DUTY TO THE COURT

For the attorney to proceed with trial without taking further action raises the question whether the attorney has implicitly but intentionally consented to a deception upon the court. (Bus. & Prof. Code, 6128.) It also raises the question whether the attorney s silence and inaction is “consistent with truth” or an attempt to “mislead the judge… by an artifice of false statement of [material] fact.” (Bus. & Prof. Code, 6068, subd. (d).)

Active misrepresentations by an attorney to opposing counsel by deliberately failing to state a material fact “falls short of the honesty and integrity required of an attorney at law in the performance of his professional duties.” (Coviello v. State Bar (1955) 45 Cal.2d 57, 65-66 [286 P.2d 357].) An attorney’s active representations to a judge, accompanied by deliberate failure to disclose a material fact, is similarly reprehensible. But, in this case, the attorney is faced with decisions about how to proceed immediately after his/her discovery of the perjured testimony. The attorney has not yet taken the step of making any further representations while deliberately concealing the perjury.

It is our opinion, under the circumstances of this case, that the attorney may not remain silent and is required to take action to ensure that he/she does not give his/her implicit consent to the deception. Silence and inaction would not be consistent with truth and would constitute, albeit indirectly, an attempt to mislead the judge by an artifice, to wit, the client’s false testimony of a material fact. “An attorney who attempts to benefit his/her client through the use of perjured testimony may be subject to criminal prosecution (Pen. Code, 127) as well as severe disciplinary action.” (In re Jones (1930) 208 Cal. 240, 242 [280 P.2d 964].) (In re Branch (1969) 70 Cal.2d 200, 210-211, [74 Cal. Rptr. 238, 449 P.2d 174].) But the attorney must speak and act consistently with his/her duties to his/her client.

Opinions of the American Bar Association are not precedential guides for professional conduct of members of the California bar. (CAL 1983-71.) But they are helpful in suggesting alternative courses of conduct. ABA Formal Opinion 287 (June 27, 1953) considered the case of an attorney who secured a divorce for a client who later informed the attorney that he/she had committed perjury in a deposition in securing the divorce. The opinion held that the attorney was precluded from revealing the perjury to the court, but that the attorney should “urge his client to make the disclosure [to the court]” and if he/she refuses to do so “should have nothing further to do with him” but the attorney “should not disclose the facts to the court.” As we note below, this conclusion neglects to consider the implications of persuading the client to make disclosure to the court. It is also inapposite because it does not involve perjury committed and known to the attorney in the midst of trial. But it does suggest that withdrawal of representation by the attorney may be an appropriate course of conduct.

The Bar Association of San Francisco Legal Ethics Committee has considered the duties of an attorney whose client refused to disclose the existence of community assets during the course of a domestic relations matter. (SF Opinion 1977-2.) The Committee opined:

“In most cases the client’s refusal to disclose the existence of community assets constitutes fraud. However, since the client usually discloses this information in confidence, the attorney is under conflicting duties to maintain the confidentiality of his client’s communication and, on the other hand not to suppress the fraud or maintain his deliberate silence. Therefore, the attorney should withdraw from his representation of the client, and his failure to withdraw is a proper subject for disciplinary proceedings.”

But this opinion did not address the question of an attorney’s obligation to withdraw in the midst of trial. The domestic relations matter had not yet reached the trial stage so that, as a practical matter, withdrawal of representation would not severely prejudice the client. In the instant case, the inquirer has stated, and we accept as true, that withdrawal would result in the client’s losing his/her case.

 

But the attorney may have a duty to withdraw from the case. Rule 2-111(B)(2), Rules of Professional Conduct mandates that he/she withdraw when:

“He knows or should know that his continued employment will result in a violation of these Rules of Professional Conduct [which includes Rule 7-105] or of the other State Bar Act [which includes Bus. & Prof. Code, 6068, 6128].” source

Rule 3.3: Candor toward the tribunal

Rule 3.3(a)(1)] provides that a lawyer shall not knowingly “make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”

Rule 3.3(a)(3) (if lawyer has knowledge of client or client-witness perjury, the duty to take remedial measures includes, “if necessary, disclosure to the tribunal.”)

The key to prevent criminal and civil negligence is to withdraw without disclosing the perjured testimony an attorney may remove themselves from a case or request dismissal of his cause of actions once he realizes the perjury. People v. Brown (1988) 203 Cal.App.3d 1335, 1339- 1340, fn. 1 [250 Cal.Rptr. 762]. See also, Cal. State Bar Formal Opn. No. 2015-192 (attorneys may disclose to the court only as much as reasonably necessary to demonstrate the need to withdraw and without violating the duty of confidentiality)

Attorney’s statutory duties of candor are found in Business and Professions Code sections 6068(b) and (d), 6106 and 6128(a) discussed in scenario #2. Attorney’s ethical duty of candor is found in rule 3.3(a)(3). Given Attorney’s knowledge that Witness has given materially false testimony, this rule requires Attorney to “take reasonable remedial measures, including, if necessary, disclosure to the tribunal unless disclosure is prohibited by Business and Professions Code section 6068, subdivision (e) and rule 1.6.”

An attorney violates the duty of candor, even where the fabrications are the work of another, if the attorney, after learning of their falsity, continues to assert their authenticity. In the Matter of Temkin (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 321; Olguin v. State Bar (1980) 28 Cal.3d 195, 198-200 [167 Cal.Rptr. 876].

Rule 3.4 Fairness to Opposing Party and Counsel (g) in trial, assert personal knowledge of facts in issue except when testifying as a witness, or state a subjective opinion as to the guilt or innocence of an accused

Rule 4.1 Truthfulness in Statements to Others In the course of representing a client a lawyer shall not knowingly:* (a) make a false statement of material fact or law to a third person;* 

Rule 8.4 outlines what constitutes professional misconduct

Rule 9.4 states “In addition to the language required by Business and Professions Code section 6067, the oath to be taken by every person on admission to practice law is to conclude with the following:  ‘As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.’ ”

yes, you can sue your lawyer for lying. Direct lying to the courts that would lead to harm or have harmed equate to malpractice.

Penal Code 118 PC – Perjury is defined as testimony under oath which is “willfully” false on a “material” matter. California Penal Code section 118. “Materiality” means a false statement that “could probably influence the outcome of the proceeding.”
People v. Rubio (2004) 121 Cal.App.4th 927, 933 [17 Cal.Rptr.3d 524].

California Penal Code 126 states that perjury is punishable by imprisonment for two, three, or four years under subdivision (h) of Section 1170. This section is part of Chapter 5, which is about perjury and subornation of perjury

Perjury is defined in California Penal Code section 118: “Every person who, having taken an oath that he will testify… truly before any competent [court]… wilfully and contrary to such oath, states as true any material matter which he knows to be false… is guilty of perjury.”

Perjury is a felony. (Pen. Code, 126.) The perjurer’s lack of knowledge of materiality is no defense to the crime. (Pen. Code, 123.)

The first duty arises under Business and Professions Code section 6068, subdivision (e) which provides that it is the duty of a lawyer:

“To maintain inviolate the confidence and at every peril to himself to preserve the secrets, of his client.”

The second duty arises under Business and Professions Code section 6128 which provides that an attorney is guilty of a crime who:

“(a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.“

This second duty is also reflected in other provisions of the Business and Professions Code and Rules of Professional Conduct.

“It is the duty of an attorney to… maintain the respect due to the courts of justice and judicial officers.” (Bus. & Prof. Code, 6068, subd. (b).)

“It is the duty of an attorney to… employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of law or fact.” (Bus. & Prof. Code, 6068, subd. (d).) (See also Rule of Professional Conduct 7-105 [which restates in pertinent part Bus. & Prof. Code, 6068, subd. (d)].)

This scenario concerns an attorney’s duty of candor to the court, found in rule 3.3 (“Candor Toward the Tribunal.”) and Business and Professions Code section 6068. The former provides, in part, “A lawyer shall not: . . . offer evidence the lawyer knows to be false.”

Business and Professions Code section 6068(b) and (d) likewise provides, “It is the duty of an attorney . . . (b) To maintain the respect due to the courts of justice and judicial officers. . . . [and] (d) To employ . . . means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”

Correspondingly, Business and Professions Code section 6106 proscribes “the commission of any act involving, moral turpitude, dishonesty or corruption.” In addition, Business and Professions Code section 6128(a) provides: “Every attorney is guilty of a misdemeanor who
either: (a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.” It is well-established in case law, as well, that “[a]n attorney who attempts to benefit his client through the use of perjured testimony may be subject to criminal prosecution … as well as severe disciplinary action.” In re Branch (1969) 70 Cal.2d 200, 211 [74 Cal.Rptr. 238].

BPP Code § 6068(d) provides it is the duty of an attorney: (d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.

A fair and impartial trial is a fundamental aspect of the right of accused persons not to be deprived of liberty without due process of law. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 7, subd. (a); see, e.g., Tumey v. Ohio (1927) 273 U.S. 510 [71 L. Ed. 749, 47 S. Ct. 437, 50 A.L.R. 1243]; In re Murchison (1955) 349 U.S. 133, 136 [99 L. Ed. 942, 946, 75 S. Ct. 623]; People v. Lyons (1956) 47 Cal. 2d 311, 319 [303 P.2d 329]; In re Winchester (1960) 53 Cal. 2d 528, 531 [2 Cal. Rptr. 296, 348 P.2d 904].)

People v. Lyons, supra, 47 Cal.2d at p. 318; People v. Talle (1952) 111 Cal. App. 2d 650, 676-678 [245 P.2d 633].) Nor is the role of the prosecutor in this regard simply a specialized version of the duty of any attorney not to overstep the bounds of permissible advocacy.

“[I]n both civil and criminal matters, a party’s attorney has general authority to control the procedural aspects of the litigation and, indeed, to bind the client in these matters.” In re Horton (1991) 54 Cal.3d 82, 95, 102 [284 Cal.Rptr. 305]. Encompassed in this is the authority to control matters of ordinary trial strategy, such as which witnesses to call, the manner of cross-examination, what evidence to introduce, and whether to object to an opponent’s evidence. Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 138 [95 Cal.Rptr.3d 799]. However, a decision on any matter that will affect the client’s substantive rights is within the client’s sole authority. Maddox v. City of Costa Mesa (2011) 193 Cal.App.4th 1098, 1105 [122 Cal.Rptr.3d 629]. In addition, if Witness’s only purpose at trial would be to testify as an alleged eyewitness on matters now known to be false, Witness should not be mentioned in pretrial disclosure documents (for example, pretrial witness lists or trial briefs).
Penal Code section 127: “Every person who willfully procures another person to commit perjury is guilty of subornation of perjury, and is punishable in the same manner as he would be if personally guilty of the perjury so procured.”
Rule 1.16(b) presents several circumstances allowing for permissive withdrawal that may be implicated under these facts: Client is seeking to pursue a course of conduct the lawyer reasonably believes was a crime or fraud, the client insists that the lawyer pursue a course of conduct that is criminal or fraudulent, the client’s conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively or the representation likely will result in a violation of the Rules of Professional Conduct or the State Bar Act. Rule 1.16(b)(2)-(4) and (b)(9).

The United States Supreme Court has repeatedly held that the right to testify does not include a right to commit perjury. Nix v. Whiteside, 475 U.S. 157, 173 (1986); United States v. Havens, 446 U.S 620, 626 (1980).

Id. at Rule 3.3. Similarly, the ABA’s Model Code of Professional Responsibility states, “In his representation of a client, a lawyer shall not . .. [k]nowingly use perjured testimony or false evidence.” Id. at DR 7-102(A)(4).

The Proposed Evidentiary Standard: Actual Knowledge

Although an attorney clearly must not participate in the presentation of perjured testimony, on what basis can an attorney conclude that a defendant is going to testify falsely? No controlling precedent provides guidance on this critical issue.

Commentators and courts in other jurisdictions have set forth a variety of standards for determining when an attorney “knows” the client intends to testify falsely, including “good cause to believe” a client intends to testify falsely, State v. Hischke, 639 N.W.2d 6, 10 (lowa 2002); “compelling support” for concluding that the client will perjure himself, Sanborn v. State, 474 So.2d 309, 313 n.2 (Fla. Dist. Ct. App. 1985); “knowledge beyond a reasonable doubt,” Shockley v. State, 565 A.2d 1373, 1379 (Del. 1989); “a firm factual basis,” United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 (3d Cir.1977); “a good faith determination,” People v. Bartee, 566 N.E.2d 855, 857 (ILI. Ct. App. 1991), and “actual knowledge,” United States v. Del Carpio-Cotrina, 733 F.Supp. 95, 99 (S.D.Fla. 1990). See generally, Commonwealth v. Mitchell, 781 N.E.2d 1237, 1246-47 (Mass.) (surveying the range of standards), cert. denied, 123 S.Ct. 2253 (2003).

This Opinion adopts the most stringent standard: “before defense attorneys can refuse to assist a client in testifying, they must know that the client will testify falsely based on the client’s

‘The Code of Professional Responsibility and Rules of Professional Conduct. The older Model Code of Professional Responsibility

Rules of Professional Conduct was adopted in 1983 (and recently amended in other areas. See Silver, Iruth. Mistice, and the American Way:

The Case Against the Client Perjury Rules, 47 Vand. L. Rev. 339, 343-50 (1994) (tracing the development of the Model Code of Professional Responsibility and the Model Rules of Professional Conduct). Other than California, all states have substantially adopted either the Code of Professional Responsibility or the Rules of Professional Conduct.

Filing Frivolous Lawsuits

Filing lawsuits without a reasonable basis. Connecticut judges do not like people filing frivolous lawsuits to harass people. Instead, lawyers must perform a reasonable investigation to determine whether valid grounds exist for filing a lawsuit. Obviously, a lawyer cannot uncover all evidence before filing, but they cannot file an obviously meritless case. If they do, their client could be sued for vexatious litigation.

sometimes lawyers lie to make you the Vexatious Litigant, there are rules for that too Malicious Use of Vexatious Litigant – Vexatious Litigant Order Reversed

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation

G. Authenticating Metadata:

Another way in which electronic evidence may be authenticated is by examining the metadata for the evidence. Metadata, “commonly described as ‘data about data,’ is defined as ‘information describing the history, tracking, or management of an electronic document.’ Metadata is ‘information about a particular data set which describes how, when and by whom it was collected, created, accessed, or modified and how it is formatted (including data demographics such as size, location, storage requirements and media information).’ Some examples of metadata for electronic documents include:

a file’s name, a file’s location (e.g., directory structure or pathname), file format or file type, file size, file dates (e.g., creation date, date of last data modification, date of last data access, and date of last metadata modification), and file permissions (e.g., who can read the data, who can write to it, who can run it). Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept.” Because metadata shows the date, time and identity of the creator of an electronic record, as well as all changes made to it, metadata is a distinctive characteristic of all electronic evidence that can be used to authenticate it under Federal Rule 901(b)(4).

Although specific source code markers that constitute metadata can provide a useful method of authenticating electronically stored evidence, this method is not foolproof because, “[a]n unauthorized person may be able to obtain access to an unattended computer. Moreover, a document or database located on a networked-computer system can be viewed by persons on the network who may modify it. In addition, many network computer systems usually provide authorization for selected network administrators to override an individual password identification number to gain access when necessary. Metadata markers can reflect that a document was modified when in fact it simply was saved to a different location. Despite its lack of conclusiveness, however, metadata certainly is a useful tool for authenticating electronic records by use of distinctive characteristics.”  (Lorraine v. Markel American Ins. Co. (D. Md. 2007) 241 F.R.D. 534, 547–48 [citations omitted].)

H. Challenges to Authenticity

Challenges to the authenticity of computer records often take on one of three forms. First, parties may challenge the authenticity of both computer-generated and computer-stored records by questioning whether the records were altered, manipulated, or damaged after they were created.

Second, parties may question the authenticity of computer-generated records by challenging the reliability of the computer program that generated the records. California state courts have refused to require, as a prerequisite to admission of computer records, testimony on the “acceptability, accuracy, maintenance, and reliability of … computer hardware and software.” (People v. Lugashi (1988) 205 Cal.App.3d 632, 642.) As Lugashi explains, although mistakes can occur, “ ‘such matters may be developed on cross-examination and should not affect the admissibility of the [record] itself.’ (People v. Martinez (2000) 22 Cal.4th 106, 132.)

Third, parties may challenge the authenticity of computer-stored records by questioning the identity of their author. For further information, please consult “Defeating Spurious Objections to Electronic Evidence,” by Frank Dudley Berry, Jr., [click here] or Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009)

I.  Hearsay Rule

The first question to ask is whether or not the information within the document is hearsay. If it is hearsay, then you need an applicable exception, such as business and government records or statement by party opponent. Examples of things that are not hearsay include;

1. operative facts and
2. data that is generated by a mechanized process and not a human declarant and,
3. A statement being used to show its falsity not its truth.

J. Operative Facts

Where “ ‘the very fact in controversy is whether certain things were said or done and not … whether these things were true or false, … in these cases the words or acts are admissible not as hearsay[,] but as original evidence.’ ” (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 31, p. 714.) For example, in an identity theft prosecution, there will be no hearsay issue for the majority of your documents. The documents are not being offered for the truth of the matter asserted; they are operative facts. In Remington Investments, Inc v. Hamedani (1997) 55 Cal.App.4th 1033, the court distinguished between the concept of authentication and hearsay. The issue was whether a promissory note was admissible. The court observed that: ‘The Promissory Note document itself is not a business record as that term is used in the law of hearsay, but rather an operative contractual document admissible merely upon adequate evidence of authenticity. (Id. At 1043.)

Under Remington, promissory notes, checks and other contracts are not hearsay, but operative facts. Moreover, forged checks, false applications for credit, and forged documents are not hearsay. They are not being introduced because they are true. They are being introduced because they are false. Since they are not being introduced for the truth of the matter asserted there is no hearsay issue.

Other examples of non-hearsay documents would include:

•  The words forming an agreement are not hearsay (Jazayeri v. Mao (2009) 174 Cal.App.4th
• 301, 316 as cited by People v. Mota (Cal. Ct. App., Oct. 8, 2015, No. B252938) 2015 WL 5883710 (Unpublished)
• A deposit slip and victim’s identification in a burglary case introduced to circumstantially
• connect the defendant to the crime. (In re Richard (1979) 91 Cal.App.3d 960, 971-979.)
• Pay and owes in a drug case. (People v. Harvey (1991) 233 Cal.App.3d 1206, 1222-1226.)
• Items in a search to circumstantially connect the defendant to the location. (People v. Williams (1992) 3 Cal.App.4th 1535, 1540-1543.)
•  Invoices, bills, and receipts are generally hearsay unless they are introduced for the purpose of corroborating the victim’s damages. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.)
•  Defendant’s social media page as circumstantial evidence of gang involvement. (People v. Valdez (2011) 201 Cal.App.4th 1429.
•   Logs of chat that was attributable to Defendant were properly admitted as admissions by party opponent, and the portions of the transcripts attributable to another person were properly classified as “non hearsay”, as they were not “offered for the truth of the matter asserted.” Replacing screen names with actual names appropriate demonstrative evidence. (U.S. v. Burt (7th Cir., 2007) 495 F.3d 733.)
• “To the extent these images and text are being introduced to show the images and text found on the websites, they are not statements at all—and thus fall outside the ambit of the hearsay rule.” (Perfect 10, Inc. v. Cybernet Ventures, Inc. (C.D.Cal.2002) 213 F.Supp.2d 1146, 1155.)
• Generally, photographs, video, and instrument read outs are not statements of a person as defined by the Evidence Code. (Evid.Code §§ 175, 225; People v. Goldsmith (2014) 59 Cal.4th 258, 274; People v. Lopez (2012) 55 Cal.4th 569, 583.)

Although the check itself is not hearsay, the bank’s notations placed on the back of the check showing that it was cashed is hearsay. The bank’s notations would be introduced for the truth of the matter asserted – that the check was cashed. Evidence Code sections 1270 and 1271 solve this problem by allowing the admission of these notations as a business record.

Two helpful rules that apply to business records. First, it may be permissible to infer the elements of the business record exception. In People v. Dorsey (1974) 43 Cal.App.3d 953, the court was willing to find that it was common knowledge that bank statements on checking accounts are prepared daily on the basis of deposits received, checks written and service charges made even though the witness failed to testify as to the mode and time of preparation of bank statements. The second rule is that “lack of foundation” is not a sufficient objection to a business record. The defense must specify which element of the business record exception is lacking. (People v. Fowzer (1954) 127 Cal.App.2d 742.)

K. Computer Records Generated by a Mechanized Process

The first rule is that a printout of the results of the computer’s internal operations is not hearsay evidence because hearsay requires a human declarant. (Evid.Code §§ 175, 225.)
The Evidence Code does not contemplate that a machine can make a statement. (People v. Goldsmith (2014) 59 Cal.4th at 258, 274 [rejecting hearsay claims related to red light cameras];
People v. Hawkins (2002) 98 Cal.App.4th 1428; People v. Lopez (2012) 55 Cal. 4th.569). These log files are computer-generated records that do not involve the same risk of observation or recall as human declarants. Thus, email header information and log files associated with an email’s movement through the Internet are not hearsay. The usual analogy is that the clock on the wall and a dog barking are not hearsay.  An excellent discussion on this issue can be found in Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009)

Metadata such as date/time stamps are not hearsay nor do they violate the confrontation clause because they are not testimonial. (See, People v. Goldsmith 59 Cal.4th at 258, 274-275; People v. Lopez (2012) 55 Cal. 4th.569, 583.)

L. Business Records

Log files and other computer-generated records from Internet Service Providers may also easily qualify under the business records exception to the hearsay rule. (Evid.Code §§1270, 1271, 1560, 1561.) Remember, you do not need to show the reliability of the hardware or software. (People v. Lugashi (1988) 205 Cal.App.3d 632.) Nor does the custodian of records need to completely understand the computer. (Id.) Additionally, the printout (as opposed to the entry) need not be made “at or near the time of the event.” (Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769.) Finally, a cautionary note from the Appellate Court in People v. Hawkins (2002) 98 Cal.App.4th 1428: “the true test for admissibility of a printout reflecting a computer’s internal operations is not whether the printout was made in the regular course of business, but whether the computer was operating properly at the time of the printout.”  If the computer is used merely to store, analyze, or summarize material that is hearsay in nature, it will not change its hearsay nature and you will need an applicable exception for introduction. Common exceptions for the contents of email include: statement of the party, adoptive admission, statement in furtherance of a conspiracy, declaration against interest, prior inconsistent statement, past recollection recorded, business record, writing as a record of the act, or state of mind.  Note also that records obtained by search warrant, and accompanied by a complying custodian affidavit, are admissible as if they were subpoenaed into court (Evid. Code §§ 1560-1561, effective January 1, 2017) and records obtained from an Electronic Communication Service provider that is a foreign corporation, and are accompanied by a complying custodian affidavit, are currently admissible pursuant to Penal Code § 1524.2(b)(4). (See also Pen. Code § 1546.1(d)(3).)

M. Government Records

An official record is very similar to a business record, even if it is obtained from a government website. The chief difference is that it may be possible to introduce an official record without calling the custodian or another witness to authenticate it. (Evid. Code, § 1280; See Lorraine v. Markel American Ins. Co. (D. Md. 2007) 241 F.R.D. 534, 548–49; EEOC v. E.I dupont de Nemours & Co. (2004) 65 Fed. R. Evid. Serv. 706 [Printout from Census Bureau web site containing domain address from which image was printed and date on which it was printed was admissible in evidence].)  The foundation can be established through other means such as judicial notice or presumptions. (People v. George (1994) 30 Cal.App.4th 262,274.)

N. Published Tabulations

Prosecutors are often plagued with how to introduce evidence that was found using Internet-based investigative tools. For example, if your investigator used the American Registry For Internet Numbers (ARIN) programs (WHOIS, RWhois or Routing Registry Information), how is this admissible without calling the creator of these Internet databases? Evidence Code Section 1340 allows an exception to the hearsay rule, which allows the introduction of published tabulations, lists, directories, or registers. The only requirement is that the evidence contained in the compilation is generally used and relied upon as accurate in the course of business. Note that not all data aggregation sites may have the proper characteristics for this exception. In People v. Franzen (2012) 210 Cal.App.4th 1193, 1209–13, the court found that a subscription based service did not possess the characteristics that would justify treating its contents as a published compilation for purposes of section 1340

O. Former Best Evidence Rule

Reminder: The Best Evidence Rule has been replaced in California with the Secondary Evidence

Rule. The Secondary Evidence Rule allows the admissibility of copies of an original document. (Evid. Code, § 1521.) They are not admissible, however, if “a genuine dispute exists concerning material terms of the writing and justice requires the exclusion,” or if admitting the evidence would be “unfair.” (Evid. Code, § 1521.)  In a criminal action it is also necessary for the proponent of the evidence to make the original available for inspection at or before trial. (Evid. Code, § 1522.)  For email or any electronic document, this is especially important, given the wealth of information contained in its electronic format, as opposed to its paper image.  Of interest, Evidence Code Section 1522 requires that the “original” be made available for inspection. Evidence Code Section 255 defines an email “original” as any printout shown to reflect the data accurately. Thus, the protections offered by Evidence Code Section 1522 are stripped away by Evidence Code Section 255. This is where the protections of Evidence Code Section 1521 are invoked: “It’s unfair, your Honor, not be able to inspect the email in its original format.”  Also, remember that Evidence Code Section 1552 states that the printed representation of computer information or a computer program is presumed to be an accurate representation of that information. Thus, a printout of information will not present any “best evidence rule” issues absent a showing that the information is inaccurate or unreliable.  Oral testimony regarding the content of an email [writing] is still inadmissible absent an exception. (Evid. Code, § 1523.) Exceptions include where the original and all the copies of the document were accidentally destroyed.  Of course, none of the above rules applies at a preliminary hearing. (See Pen. Code § 872.5 [permits otherwise admissible secondary evidence at the preliminary hearing]; B. Witkin, 2 California Evidence (3rd ed., 1986) § 932, p. 897 [“secondary evidence” includes both copies and oral testimony].)  i This material was prepared by Robert M. Morgester, Senior Assistant Attorney General, California Department of Justice in 2003 for the High-Technology Crime: Email and Internet Chat Resource CD-ROM, and draws heavily upon Documentary Evidence Primer, by Hank M. Goldberg, Deputy District Attorney, Los Angeles County District Attorney’s Office, January 1999. Material from that document was used with Mr. Goldberg’s permission. This material was updated in 2016 by Robert Morgester and Howard Wise, Senior Deputy District Attorney, Ventura County District Attorney’s Office.

P. How does Hearsay Play into the Era of Text Messaging?

With the ubiquitousness of smart phones, text messages have now become a preferred tool of communication for many. Due to the informal nature of text messages, many, if not most people fail to consider the potential evidentiary effect of a text message. As a general proposition, despite the informal usage of text messages, a text message can potentially still be evidence in the case, subject to the rules of hearsay, with further caveats. In this post, we specifically discuss how the lack of response to a text messages cannot qualify as an adoptive admission as an exception to the hearsay rule.

Q. Hearsay evidence in Trial

The concept of “hearsay” as it pertains to trial is well known. As many people know, out of court statements offered for its truth are barred by the hearsay rule due to inherent trustworthiness and reliability concerns. However, there are many exceptions to this rule that would allow an otherwise inadmissible statement to be offered as evidence or for some other purpose in court. One major exception to the hearsay rule are admissions made by a party.

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R. Admissions Made by a Party

Specifically, an admission for the purposes of the hearsay exceptions in any out of court statement or assertive conduct by a party to the action that is inconsistent with a position the party is taking at current proceeding. The statement itself does not necessarily need to have been against the party’s interest when it was made. Indeed, even a statement self-serving whenmade may be admissible as a party admission if contrary to the party’s present position at trial. (People v. Richards (1976) 17 Cal.3d 614, 617-618 (disapproved on other grounds by People v. Carbajal (1995) 10 Cal.4th 1114, 1126.)

Notably, an admission does not necessarily require an affirmative statement by the party taking the inconsistent position. Indeed, silence may be treated as an adoptive admission if, under the circumstances, a reasonable person would speak out to clarify or correct the statement of another were it untrue. (People v. Riel (2000) 22 Cal.4th 1153, 1189.) However, silence is not admissible as an adoptive admission if another reasonable explanation can be demonstrated. Indeed, in the recent case of People v. McDaniel (2019) 38 Cal.App.5th 986, 999 (“McDaniel”), the Court of Appeal held that failure to respond to a text message accusing defendant of committing a crime was not admissible as an adoptive admission.

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In McDaniel, the prosecution attempted to use the defendant’s mother’s statement to show an adoptive admission by the defendant because the defendant did not text his mother back to deny her indirect accusation that he had committed several local robberies. The Court of Appeal rejected that theory. As the Court of Appeal explained, given the nature of text messaging, the fact that the defendant did not text his mother back was not sufficient to show he had adopted his mother’s statement:

Text messaging is different from in person and phone conversations in that text exchanges are not always instantaneous and do not necessarily occur in “real time.” Rather, text messages may not be read immediately upon receipt and the recipient may not timely respond to a text message for any number of reasons, such as distraction, interruption, or the press of business. Furthermore, people exchanging text messages can typically switch, relatively quickly and seamlessly, to other forms of communication, such as a phone call, social-media messaging, or an in-person discussion, depending on the circumstances. In short, in light of the distinctive nature of text messaging, the receipt of a text message does not automatically signify prompt knowledge of its contents by the recipient, and furthermore, the lack of a text response by the recipient does not preclude the possibility that the recipient responded by other means, such as a phone call. source

• 1417.The genuineness of handwriting, or the lack thereof, may be proved by a comparison made by the trier of fact with handwriting(a) which the court finds was admitted or treated as genuine by the party against whom the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court.
• 1418.The genuineness of writing, or the lack thereof, may be proved by a comparison made by an expert witness with writing (a) which the court finds was admitted or treated as genuine by the party against whom the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court.
• 1419.Where a writing whose genuineness is sought to be proved is more than 30 years old, the comparison under Section 1417 or 1418 may be made with writing purporting to be genuine, and generally respected and acted upon as such, by persons having an interest in knowing whether it is genuine.
• Evidence Code § 1420 – the context of the message shows the message was a reply from the person in questionCollateral Documents: Sometimes, a document is not directly at issue but is related to the case. In these instances, section 1420 states that the collateral document can be introduced to help prove the authenticity of the primary document. For example, a defense attorney may use a surveillance video from a nearby store to corroborate the authenticity of a defendant’s alibi in a robbery case.
  1420A writing may be authenticated by evidence that the writing was received in response to a communication sent to the person who is claimed by the proponent of the evidence to be the author of the writing.
• Evidence Code § 1421 – in the message itself, the person says something that only they would knowPhone Records: In cases involving cell phone records, Section 1421 allows attorneys to use records provided by phone service providers to authenticate call logs and text messages. This may be crucial in cases related to cybercrimes or communication between individuals involved in criminal activities. A writing may be authenticated by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing.1421.A writing may be authenticated by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing. source source source
  

Proof of declarant’s perception by his statement presents similar considerations when declarant is identified. People v. Poland, 22 Ill.2d 175, 174 N.E.2d 804 (1961). However, when declarant is an unidentified bystander, the cases indicate hesitancy in upholding the statement alone as sufficient, Garrett v. Howden, 73 N.M. 307, 387 P.2d 874 (1963); Beck v. Dye, 200 Wash. 1, 92 P.2d 1113 (1939), a result which would under appropriate circumstances be consistent with the rule.

Texts / Emails AS EVIDENCE:

ELECTRONICALLY STORED INFORMATION IN COURT 

Text / Email Specific 

ARE TEXT MESSAGES ADMISSIBLE IN COURT?  AFTER AN ACCIDENT THE OTHER DRIVER ADMITTED SHE WASN’T PAYING ATTENTION.  IN A TEXT LATER THE DRIVER SAID SHE WAS SORRY, THAT SHE’D BEEN ON THE CELL PHONE, AND OFFERED TO PAY OUTSIDE OF INSURANCE.  NOW THAT HER INSURANCE COMPANY IS INVOLVED SHE DENIES EVERYTHING.  IS THE TEXT ADMISSIBLE IN COURT?

If you watch those TV court shows you may have seen them admit texts without a thought.  Remember they have to get everything in between the commercials.

In an actual court of law electronically stored information, or “ESI”, faces several tests under the rules of evidence.

ESI includes texts, emails, chat room conversations, websites and other digital postings.  In court, admitting ESI requires passing these steps:

1. Is the electronic evidence relevant?
2. Can it pass the test of authenticity?
3. Is it hearsay?
4. Is the version of ESI offered the best evidence?
5. Is any probative value of the ESI outweighed by unfair prejudice?

The text must pass each step.  Failing any one means it’s excluded.  Proving relevance poses a relatively simple challenge.  But meeting the authenticity requirement raises larger questions.

Establishing the identity of the sender of a text is critical to satisfying the authentication requirement for admissibility.  Showing the text came from a person’s cell phone isn’t enough.  Cell phones are not always used only by the owner.

Courts generally require additional evidence confirming the texter’s identity.  Circumstantial evidence corroborating the sender’s identity might include the context or content of the messages themselves.

HEARSAY RULE AND ELECTRONICALLY STORED INFORMATION

Text messages and other ESI are hearsay by nature.  The hearsay rule blocks admission of out of court statements offered to prove the truth of the matter at issue.  But court rules, which vary from jurisdiction to jurisdiction, are full of exceptions and definitions of “non hearsay”.

Here, the text by the other driver that she wasn’t paying attention at the time of the car accident should qualify as an admission, a prior statement by the witness or a statement by a party opponent.

TEXTS AND ‘BEST EVIDENCE’ RULE

Two more layers remain in the evidentiary hurdle.  ESI presents its own challenges in passing the ‘best evidence rule’ or the ‘original writing rule’.  Essentially the rules require introduction of an original, a duplicate original or secondary evidence proving the version offered to the court is reliable.

The final test requires that the probative value of the evidence not be outweighed by considerations including unfair prejudice, confusion of the issues or needless presentation of cumulative evidence.

ESI AND TEXTS AS EVIDENCE: WHY SO HARD?

Sometimes the challenge isn’t as overwhelming as it seems.  In a federal case in which I was involved the court addressed all five steps of the process in ten minutes and admitted a series of texts.  But a federal magistrate in Maryland wrote a 101 page decision thoroughly detailing the above process, rejecting some emails.

These are the evidence issues confronting texts and any electronically stored information.  But, people who fail to object to evidence waive their right to object later, including upon appeal.  Evidence of all kinds sometimes sneaks in despite the rules.  So, go through the analysis long before running up the courthouse steps. source

Introducing Digital Evidence in California State Courts

• Victim testified he knew the number from which text was sent because Defendant told him the number. The contents of the texts referred to victim as a snitch. The defendant called the victim during the course of the text message conversation. [(Butler v. State, 459 S.W. 3d 595 (Crim. Ct App. Tx. April 22, 2015].)
• Testimony of records custodian from telecommunications company, explaining how company kept records of actual content of text messages, the date and time text messages were sent or received, and the phone number of the individuals who sent or received the messages, provided proper foundation for, and sufficiently authenticated, text messages admitted into evidence in trial on armed robbery charges. (Fed.Rules Evid.Rule 901(a), U.S. v. Carr (11th Cir. 2015) 607 Fed.Appx. 869.)
• Ten of 12 text messages sent to victim’s boyfriend from victim’s cellular telephone following sexual assault were not properly authenticated to extent that State’s evidence did not demonstrate that defendant was author of text messages. (Rodriguez v. State (2012) 128 Nev. Adv. Op. 14, [273 P.3d 845].)
• Murder victim’s cell phone recovered from scene of crime. Forensic tools used on phone recovered texts back and forth between victim and defendant. (People v. Lehmann (Cal. Ct. App., Sept. 17, 2014, No. G047629) 2014 WL 4634272 [Unpublished].)
• Defendant laid an inadequate foundation of authenticity to admit, in prosecution for assault with a deadly weapon, hard copy of e‑mail messages (Instant Messages) between one of his friends and the victim’s companion, as there was no direct proof connecting victim’s companion to the screen name on the e‑mail messages. (People v. Von Gunten (2002 Cal.App.3d Dist.) 2002 WL 501612. [Unpublished].) G. Authenticating Metadata: Another way in which electronic evidence may be authenticated is by examining the metadata for the evidence. Metadata, “commonly described as ‘data about data,’ is defined as ‘information describing the history, tracking, or management of an electronic document.’

Metadata is ‘information about a particular data set which describes how, when and by whom it was collected, created, accessed, or modified and how it is formatted (including data demographics such as size, location, storage requirements and media information).’ Some examples of metadata for electronic documents include: a file’s name, a file’s location (e.g., directory structure or pathname), file format or file type, file size, file dates (e.g., creation date, date of last data modification, date of last data access, and date of last metadata modification), and file permissions (e.g., who can read the data, who can write to it, who can run it).

Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept.” Because metadata shows the date, time and identity of the creator of an electronic record, as well as all changes made to it, metadata is a distinctive characteristic of all electronic evidence that can be used to authenticate it under Federal Rule 901(b)(4). Although specific source code markers that constitute metadata can provide a useful method of authenticating electronically stored evidence, this method is not foolproof because, “[a]n unauthorized person may be able to obtain access to an unattended computer.

Moreover, a document or database located on a networked-computer system can be viewed by persons on the network who may modify it. In addition, many network computer systems usually provide authorization for selected network administrators to override an individual password identification number to gain access when necessary.

Metadata markers can reflect that a document was modified when in fact it simply was saved to a different location. Despite its lack of conclusiveness, however, metadata certainly is a 7 | Introducing Digital Evidence in California State Courts useful tool for authenticating electronic records by use of distinctive characteristics.”

(Lorraine v. Markel American Ins. Co. (D. Md. 2007) 241 F.R.D. 534, 547–48 [citations omitted].) F. Challenges to Authenticity Challenges to the authenticity of computer records often take on one of three forms. First, parties may challenge the authenticity of both computer-generated and computer-stored records by questioning whether the records were altered, manipulated, or damaged after they were created. Second, parties may question the authenticity of computer-generated records by challenging the reliability of the computer program that generated the records. California state courts have refused to require, as a prerequisite to admission of computer records, testimony on the “acceptability, accuracy, maintenance, and reliability of … computer hardware and software.”

(People v. Lugashi (1988) 205 Cal.App.3d 632, 642.) As Lugashi explains, although mistakes can occur, “ ‘such matters may be developed on cross-examination and should not affect the admissibility of the [record] itself.’ (People v. Martinez (2000) 22 Cal.4th 106, 132.) Third, parties may challenge the authenticity of computer-stored records by questioning the identity of their author. For further information, please consult “Defeating Spurious Objections to Electronic Evidence,” by Frank Dudley Berry, Jr., or Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009) (accessed Aug. 18, 2016). III. Hearsay Rule The first question to ask is whether or not the information within the document is hearsay. If it is hearsay, then you need an applicable exception, such as business and government records or statement by party opponent. Examples of things that are not hearsay include; 1) operative facts and 2) data that is generated by a mechanized process and not a human declarant and, 3) A statement being used to show its falsity not its truth. source

Why Would Someone Need to Authenticate Text Messages for Court?

In the contemporary age of technology, digital evidence is becoming increasingly important in court. Here is how to authenticate text messages for court in California.

Text messages are unfortunately a form of digital media that can easily be photoshopped and manipulated. This puts the evidence at risk of interference or invalidity. Additionally, text messages fall under the jurisdiction of California Evidence Code Section 250, which prevents any evidence from being used without first being authenticated.

Related: Can Text Messages Be Used in California Divorce Court?

How to Introduce Digital Evidence in California State Courts

Smartphones allow endless mobile communication that can be crucial evidence for a court case. In order to present documents and electronic evidence in a California state court, the accumulation of evidence must follow the California Electronic Communication Privacy Act (CPOA). The California Electronic Communication Privacy Act protects the privacy of individuals and their electronic devices, and it requires law enforcement to receive a warrant before they can access any electronic information.

To be in compliance with the CPOA, digital evidence must prove to be necessary for furthering the case. Additionally, in order to be sustainable in court, digital evidence must meet the following four components:

1. It must be relevant.
2. It must be authenticated.
3. Its contents must not be inadmissible hearsay (able to be disproven as fake).
4. It must withstand a “best evidence” objection.

Proposed digital evidence must meet the standards of both the CPOA and the four aforementioned components. The only exceptions to the protection of privacy that the CPOA ensures are if the individual gives consent or if the exception qualifies as an emergency situation. In order to meet the requirements of an emergency circumstance, the government entity must “in good faith, believe that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information” (CPOA).

Additionally, if the evidence contains metadata, the proponents must address the metadata separately. Metadata is data about the date, for example, a time stamp on a screenshot in a text message. The proponents would need to consider the time and prepare an additional foundation for it.

The Four Components of Evidence Required Getting Authentication of Text Messages

Relevance is determined by the evidence’s ability to prove or disprove any disputed fact, including credibility. In order for digital evidence to qualify as relevant, the defendant must usually be tied to the evidence being presented. Specifically, the proponent must be able to make a connection between the defendant and either the phone number that sent or received the text.

Authentication of evidence requires the proponent to introduce sufficient evidence to hold that the writing is what they are claiming it is. To authenticate a text message it must hold that “by evidence the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the prominent of the evidence to be the author of the writing.” California Evidence Code Section 1421.

There are no published California cases that distinctly lay out the requirements for authenticating a text message, but unpublished California opinions are consistent with the rules set for authenticating emails and chats. This includes a combination of both direct and circumstantial evidence. Here are some examples of unpublished opinions from California:

• The murder victim’s cell phone was recovered from the scene of the crime. The forensic tools used on the phone recovered the texts back and forth between victim and defendant. (People v. Lehmann (Cal. Ct. App., Sept. 17, 2014, No. G047629) 2014 WL 4634272 [Unpublished].)
• 10 of 12 text messages sent to the victim’s boyfriend from the victim’s cellular telephone following sexual assault were not properly authenticated to extent that the State’s evidence did not demonstrate that the defendant was the author of the messages. (Rodriguez v. State (2012) 128 Nev. Adv. Op. 14, [273 P.3d 845].) source

Getting Authentication of Text Messages

For a text message to be used as evidence in California Divorce Court, it must be authenticated, meaning that the other party must admit to sending the message, a witness must testify that they have seen the message being created or reply authentication must be demonstrated. Reply authentication is demonstrated when a reply message is clearly sent in response to the original message.

The California Evidence Code also dictates ways in which electronic communications can be authenticated, such as if the message references something only the other party would know about or understand.

Authentication is important and necessary in the process of utilizing text messages in California Divorce Court because it verifies that the messages are legitimate evidence and not hearsay.

https://herlawyer.com/text-messages-divorce-court/

he court reiterated the 5 step approach set forth by the S. Supreme Court in Neil v. Biggers409 U.S. 188, 189 (1972) for determining the reliability of in-court voice identification: (1) the ability of the witness to hear the assailant speak, (2) the witness’ degree of attention, (3) the accuracy of any prior identifications the witness made, (4) the period of time between the incident and the identification, and (5) how certain the witness was in making the identification.

Authenticating Texts: A text message is a writing within the meaning of Evidence Code section 250

Authenticating Texts: A text message is a writing within the meaning of Evidence Code section 250, which may not be admitted in evidence without being authenticated.

(Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1027–1028.)

A text message may be authenticated “by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing”

(Evid.Code, § 1421), or by any other circumstantial proof of authenticity (Id., § 1410).

As of August 2016, there are no published California cases that specifically discuss what is required for authenticating a text message. Unpublished California opinions are consistent with the rule set forth above for authenticating e-mails and chats through a combination of direct and circumstantial evidence based on the facts of the case. Because of the mobile nature of smart phones, the proponent must take care to tie the declarant to the phone from which texts were seized or to the phone number listed in records obtained from the phone company. Often this done through cell phone records or the phone being seized from the defendant, his home or car or other witnesses testifying that this was how they communicated with the defendant. Published opinions from other jurisdictions and unpublished opinions from California provide some guidance:

Can Emails Be Used in Court?

Whether you are bringing or defending a business lawsuit, your litigation attorney has likely asked you to gather and organize relevant documents in preparation for your case. This involves anyone or any location that might have helpful information to confirm your argument.

Unfortunately, not all emails are admissible as evidence in a business litigation case. Emails can be used as admissible evidence in a court of law if they’re found to be authentic. Once they fit the criteria, the emails can be treated as legal documents. 

Determining Admissibility of Electronic Evidence

A business lawyer should help you determine which electronic communications are admissible and which are not, but we’ve described two main considerations here to get you started:

Message Must Be Authentic

It may be obvious to you that a specific email or text is the real deal and came from the source you claim.  However, it’s not overly difficult for someone with the right skillset to manipulate, fake, or corrupt digital data.  For this reason;

• Your business litigation attorney must establish authenticity first and foremost.
• A litigator may gain authentication by deposing the sender or recipient of the email.
• When it comes to business litigation, company emails are normally considered self-authenticating when they:
  •  contain official corporate identifiers, and
  • are confirmed by redundant records.

Content Must Be Reliable

Even if you can prove that the communication you received is authentic, that doesn’t necessarily mean that its contents are helpful to your business lawsuit.  The email in question could say the company is in breach of contract, but simply stating this, doesn’t make it true.  This is considered hearsay, whether spoken, emailed, or texted.  Varying degrees of admissible evidence vs. hearsay could stem from a multi-email conversation depending on the nature of the content.  Consequently;

• Your business attorney must prove the communication is an exception to the hearsay rule.
• In a business lawsuit, communication could be considered reliable when presented as:
  • Business Record:
    • the communication was created by an employer or officer of that company.
    • the communication was created by an employee of that company as one of their proven and regular official duties.
  • Circumstantial Evidence:
    • the communication confirms an event or timeline
    • the communication confirms relevant actions were taken
  • Party Admission:
    • the party in question is the creator/sender
    • the opposing part offered it into evidence
    • the communication was sent by a proven coconspirator

Of course, there are a variety of circumstances that could cause even emails that fall under these categories to become inadmissible.  For example, if the sender was not in their right mind or if their motive is not expertly established, those emails will not hold up in court.  Additionally, each state has its own laws surrounding the admissibility of electronic evidence, so the strength of your case is not always straight forward.

source

Introducing TEXT & EMAIL Digital Evidence in California Courts pdf
Obtaining Electronic Evidence in Criminal Investigations pdf

Before we place the stigma of a criminal conviction upon any such citizen the legislative mandate must be clear and unambiguous. Accordingly that which Chief Justice Marshall has called ‘the tenderness of the law Page 11 of 48 for the rights of individuals’ [FN1] entitles each person, regardless of economic or social status, to an unequivocal warning from the legislature as to whether he is within the class of persons subject to vicarious liability. Congress cannot be deemed to have intended to punish anyone who is not ‘plainly and unmistakably’ within the confines of the statute. United States v. Lacher, 134 U.S.  624, 628, 10 S. Ct. 625, 626, 33 L. Ed. 1080; United States v. Gradwell, 243 U.S. 476,485, 37 S. Ct. 407, 61 L. Ed. 857. FN1 United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37.

The Georgia Supreme Court ruled on 11/7/2016 that outgoing text messages found in a cell phone are admissible in evidence as admissions of the person who sent them. However, incoming text messages are inadmissible hearsay, though their admission in evidence was “harmless” under the circumstances of the case. Glispie v. State, decided November 7, 2016.

This ruling arose in the context of the criminal prosecution of an alleged drug dealer. That would have been a great interest in my past life as a prosecutor, though of course cell phones had not been invented when I was sending criminals to prison.

Text messages can be obtained by law enforcement with a search warrant based upon probable cause to examine the contents of a cell phone. If I were still a prosecutor, I would probably seek search warrants for contents of cell phones in a lot of cases. In the civil context, however, we do not have that option. We cannot get search warrants in civil cases. Cell phone service providers, e.g., AT&T, Verizon, etc., typically do not keep text messages in the system more than perhaps 72 hours.

The only way to obtain those in a civil case is to obtain a court order for a forensic download of the phone. In addition to records of voice calls placed and received (though not the content of the calls, and text messages, forensic examination of wireless devices such as cell phones can reveal patterns of conduct and communication, including the times that the driver was using an app, typing a text, or watching a video.  It has location history for the phone, showing where the driver was at various points in time.  It includes calls, texts and emails between the driver and the trucking company.  It may include records of communications with employer personnel inconsistent with prudent driver supervision by a motor carrier regarding fatigue management.

Parties opposing forensic download of a cell phone may assert claim of personal privacy. However, where the cell phone user killed someone, that fact may outweigh personal privacy. A trial court judge would be justified in ordering the download subject to a protective order limiting delicate personal information to use in the case after in camera review by the court.

THIS STATE OF GEORGIA RECOGNIZES THE COMLEXITY OF LEGITIMACY AND HOW IT CAN IMPACT FREEDOM IS IT IS SPOOFED BY SOMEONE AND LEAD TO IMPROPER PROSECUTION

(Rodriguez v. State (2012) 128 Nev. Adv. Op. 14, [273 P.3d 845].)

https://law.justia.com/cases/nevada/supreme-court/2012/56413.html

After a seven-day jury trial, Kevin Rodriguez was found guilty of multiple criminal counts. Rodriquez appealed, arguing that the district court erred

• (1) in overruling his objection to the admission of twelve text messages because the State failed to authenticate the messages and the messages constituted inadmissible hearsay, and
• (2) in overruling his objection to the admission of DNA non-exclusion evidence because the evidence was irrelevant without supporting statistical data.

 The Supreme Court affirmed, holding that the district court

•  (1) abused its discretion in admitting ten of the twelve text messages because the State failed to present sufficient evidence corroborating Appellant’s identity as the person who sent the ten messages, but the error was harmless; and
•  (2) did not abuse its discretion by admitting the relevant DNA non-exclusion evidence because, so long as it is relevant, DNA non-exclusion evidence is admissible because any danger of unfair prejudice or of misleading the jury is substantially outweighed by the defendant’s ability to cross-examine or offer expert witness evidence as to probative value.

This is  yet another STATE SUPREME of NEVADA that clearly understands how text can be manipulated

source

source 2

Federal Rules for E-Mail & Text Message Evidence in Litigation

Making annoying phone calls in described under California Penal Code Section 653m. This statute makes it a crime to make repeated or harassing phone calls, or phone calls that use obscene or threatening language. Many PC 653m criminal cases are related to domestic violence.

It should be noted a few incidents of an annoying phone calls is not enough to support a charge under Penal Code 653m. There must be multiple phone calls, or repeated harassment, in order to face criminal charges.

It should also be noted annoying or harassing calls don’t always have to me made using a phone. PC 653m also covers sending obscene text messages, emails, or other types of electronic communication. Modern technology and caller ID provides evidence of making annoying phone calls.

An example of PC 653m making annoying or harassing phone calls includes a situation of where a couple is in the middle of a divorce and living in separate locations. One spouse is unhappy with current child custody arrangement, and they begin to make repeated threatening phone calls.

A most common method to prove an annoying phones case is the voice mails left by the caller. The amount and length of the phone calls, and the relationship between the victim and caller are crucial factors considered by a prosecutor on whether to file criminal charges.

To give readers useful information about the crime of PC 653m making annoying phone calls, our criminal defense lawyers will outline the law below.

DEFINITION OF PENAL CODE 653M – ANNOYING PHONE CALLS

California Penal Code 653m PC defines making annoying or harassing phone calls:

Anyone who, with the intent to annoy, telephones or makes repeated contact with an electronic communication device with another person using obscene language, or with a threat to inflict injury to them, or their property, or members of their family, is guilty of a misdemeanor.

In order to convict you of penal Code 653m, the prosecutor has to prove you intentionally made the phone calls to annoy, or used obscene language, or you made a threat to inflict great bodily injury or death.

In a situation where you made threats to commit great bodily injury or death, the prosecutor could file Penal Code 422 criminal threats charges.

It’s crucial to note that a phone call, text message, email, or other communication has to be more than just annoying to be considered a crime. The calls will normally involve threats, obscene language, or the repeated harassing phone calls.

obscene language doesn’t have to be sexual in nature to be considered obscene , rather it could include any language considered offensive, or that violates general standard of being appropriate, such as profanity.

Again, the relationship between the two parties is an important factor to determine if the language was obscene .  The prosecutor must also be able to prove that you had intent to annoy or harass the victim when you made the phone calls.

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

In general, phone calls that are made for legitimate business reasons will not qualify as annoying telephone calls. The California crimes that are closely related to Penal Code 653m include:

Penal Code 422 – Criminal threats

Penal Code 646.9 – Stalking

Penal Code 273.6 – Violation of a restraining order

PENALTIES FOR PENAL CODE 653M ANNOYING PHONE CALLS

If convicted of PC 653m making annoying phone calls, it’s a misdemeanor crime that carries up to six months in a county jail, a fine up to $1,000, or both jail and a fine.

The judge has the discretion to suspend the sentence or just order misdemeanor probation, the judge could also order that you attend mandatory counseling.

As stated, Penal Code 422 criminal threats is a closely related charged to Penal Code 653m, making annoying phone calls. PC 422 is the more serious charge and will be filed in cases where you threaten great bodily injury or death, intended the communication as a threat, and caused the victim to fear for their own safety, or safety of their family.

PC 422 is a “wobbler,” which means the prosecutor has the discretion to file the case as either a misdemeanor or felony crime.

If convicted of criminal threats as a misdemeanor, you are facing the same penalties as PC 653m charges. However, if convicted of felony criminal threats, you are facing up to three years in a California state prison, a fine up to $10,000, or both.

FIGHTING PC 653M ANNOYING PHONE CALLS CHARGES

It should be noted the prosecutor carries the burden of proof in cases of PC 653m making annoying phone calls. If they are unable to prove the elements of the crime, you should be able to avoid a conviction.

If you are accused of making annoying or harassing phone calls, our Los Angeles criminal defense attorneys can use a range of strategies to fight the case.

Lack of intent to annoy or harass 

Recall the elements of the crime above in an annoying phone call case. It must be proven you had intent to annoy or harass alleged victim. We might be able to make an argument that you never possessed such intent. Perhaps we could prove the calls were made in good faith, or they were business related.

Language not obscene

If the prosecutor is alleging you made annoying phone calls using obscene language, we might be able to make an argument that the language was not in fact obscene. You have a right to free speech and the court will need to determine what type of language was obscene.

False allegation

We might be able to prove with evidence using phone and other records that you were not the person making the annoying phone calls. Perhaps we could prove you were falsely accused by someone with a perceived motive to cause you harm, such as revenge or jealously.

It’s important to note that the key element in a PC 653m making annoying or harassing phone call is intent. This must be proven to be convicted.

If you were charged with California Penal Code 653m making annoying or harassing phone calls, you should not make any statements to police or you risk making incriminating statements. source

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

Mi$Conduct – Pro$ecutorial Mi$Conduct Prosecutor$

Attorney Rule$ of Engagement – Government (A.K.A. THE PRO$UCTOR) and Public/Private Attorney

What is a Fiduciary Duty; Breach of Fiduciary Duty

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

The Attorney’s Sworn Oath

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – Thompson vs Clark makes it easier to sue prosecutor and police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

Functions and Duties of the Prosecutor – Prosecution Conduct

Standards on Prosecutorial Investigations – Prosecutorial Investigations

Information On Prosecutorial Discretion

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

653m. (a) Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.

(b) Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business.

(c) Any offense committed by use of a telephone may be deemed to have been committed when and where the telephone call or calls were made or received. Any offense committed by use of an electronic communication device or medium, including the Internet, may be deemed to have been committed when and where the electronic communication or communications were originally sent or first viewed by the recipient.

(d) Subdivision (a) or (b) is violated when the person acting with intent to annoy makes a telephone call or contact by means of an electronic communication device requesting a return call and performs the acts prohibited under subdivision (a) or (b) upon receiving the return call.

(e) Subdivision (a) or (b) is violated when a person knowingly permits any telephone or electronic communication under the person’s control to be used for the purposes prohibited by those subdivisions.

(f) If probation is granted, or the execution or imposition of sentence is suspended, for any person convicted under this section, the court may order as a condition of probation that the person participate in counseling.

(g) For purposes of this section, the term “electronic communication device” includes, but is not limited to, telephones, cellular phones, computers, video recorders, facsimile machines, pagers, personal digital assistants, smartphones, and any other device that transfers signs, signals, writing, images, sounds, or data. “Electronic communication device” also includes, but is not limited to, videophones, TTY/TDD devices, and all other devices used to aid or assist communication to or from deaf or disabled persons. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

Luckily, a phone call, text message, or other communication needs to be more than simply annoying to qualify as a criminal annoying communication. It needs to

• involve obscene language or threats, or else
• be one of a series of repeated harassing phone calls.³

Often Penal Code 653m charges are filed in connection with cases that also involve

• domestic violence or
• stalking.

The bad news is that it is not always easy to tell what kind of obscene language or threats can lead to criminal liability for annoying telephone calls. California courts are still trying to figure this out too. ⁴

This means that it may be hard for someone to understand in advance whether what they are doing is a crime.

In this article, our California criminal defense attorneys⁵ explain Penal Code 653m PC, the Penal Code section for annoying phone calls, and the consequences of an annoying phone calls conviction, by addressing the following:

• 1. When is it a crime to make annoying telephone calls in California?
  • 1.1. Making or permitting a telephone call or electronic communication
  • 1.2. Obscene language, threats, or repeated calls
  • 1.3. Intent to harass or annoy
• 2. What are the penalties for annoying phone calls?
• 3. How can I fight charges of Penal Code 653m PC?
  • 3.1. You had no intent to annoy or harass
  • 3.2. Your language was not actually “obscene”
  • 3.3. You were legally insane
• 4. PC 653m and related offenses
  • 4.1. Criminal threats (Penal Code 422 PC)
  • 4.2. Violating a restraining order (Penal Code 273.6 PC)
  • 4.3. Stalking and cyberstalking (Penal Code 646.9 PC)

1. When is it a crime to make annoying telephone calls in California?

For you to be convicted of making annoying or harassing telephone calls or communications under Penal Code 653m PC, prosecutors must prove that:

1. You made or permitted a telephone call or electronic communication; and
2. It involved obscene language, threats, or repeated calls; and
3. You had the intent to harass or annoy.

1.1. Making or permitting a telephone call or electronic communication

The first element in the legal definition of PC 653m annoying phone calls is that you made telephone calls to (or made contact using an “electronic communication device” with) the person you were allegedly annoying or harassing.⁶

An “electronic communication device” includes just about anything you can think of:

• a regular phone,
• a cell phone,
• a smartphone,
• a computer,
• a fax machine,
• a pager, and
• a video recorder, for starters.⁷

So the following would all count as violations of the law against annoying or harassing electronic communications:

1. Harassing text messages,
2. Harassing emails,
3. Harassing letters sent by fax, and
4. Disturbing photos taken on, and then sent directly from, a smartphone.

1. When is it a crime to make annoying telephone calls in California?

For you to be convicted of making annoying or harassing telephone calls or communications under Penal Code 653m PC, prosecutors must prove that:

1. You made or permitted a telephone call or electronic communication; and
2. It involved obscene language, threats, or repeated calls; and
3. You had the intent to harass or annoy.

1.1. Making or permitting a telephone call or electronic communication

The first element in the legal definition of PC 653m annoying phone calls is that you made telephone calls to (or made contact using an “electronic communication device” with) the person you were allegedly annoying or harassing.⁶

An “electronic communication device” includes just about anything you can think of:

• a regular phone,
• a cell phone,
• a smartphone,
• a computer,
• a fax machine,
• a pager, and
• a video recorder, for starters.⁷

So the following would all count as violations of the law against annoying or harassing electronic communications:

1. Harassing text messages,
2. Harassing emails,
3. Harassing letters sent by fax, and
4. Disturbing photos taken on, and then sent directly from, a smartphone.

The law also makes clear that you can violate Penal Code 653m even if you call or contact someone, they do not answer, and then they call you back – at which point you then use obscene or threatening language toward them.⁸

In other words, you can violate the law against annoying phone calls by behavior on a phone call that you did not actually dial – as long as you requested that the other person call you.

Example: Callie resents her ex-husband’s new girlfriend, Rachel. She calls Rachel’s cell phone. When Rachel doesn’t pick up, Callie leaves a message pretending to be a bill collector and asking Callie to call her back.

Rachel calls Callie back. Callie then insults her using profanities and threatens to burn down her house. Callie may be guilty of making annoying phone calls.

You can also be accused of making annoying phone calls under PC 653m even if you did not make a telephone call or send an electronic communication yourself. It is enough to let someone else use a phone or communication device that you control to make an annoying phone call or electronic communication.⁹

To be convicted of annoying calls for someone else’s call or communication from your phone or device, you have to have known that they were using your property for these purposes.¹⁰

1.2. Obscene language, threats, or repeated calls

There are three (3) types of criminally annoying or harassing telephone calls that violate California Penal Code 653m:

1. Calls or communications that use “obscene language,”¹¹
2. Calls or communications that involve a threat to injure the recipient, any of his family members, or his property,¹² and
3. Repeated calls or communications (regardless of the content).¹³

California courts have decided that a phone call or electronic message does not have to have sexual content in order to be obscene. Instead, the language just has to have content that is “offensive” or does not follow typical standards of what is decent and appropriate.¹⁴ So, for example,

• profanity or
• language describing graphic violence

can be obscene too.

The relationship between the person making the telephone call and the person receiving it is important in determining whether or not language is “obscene.”¹⁵ If the two people know each other well, and have a history of using strong language with one another, then language that might seem obscene in some situations might not be enough to make a phone call or communication annoying.¹⁶

Also, if the person receiving the call is in a public position – like the person who mans a customer complaint line – then it is less likely that a caller can be convicted of making annoying phone calls simply for using obscene language.¹⁷

Example: David is a very frequent customer at a national chain of ice cream shops. He also frequently calls their customer service telephone line to complain about the service he has received at the stores. In these calls, he often uses the “F” word.

David’s calls to the customer service line may be annoying, but they’re not a crime. His using the “F” word to express his strong emotions doesn’t make the calls obscene, in part because he’s calling a customer service line . . . the customer service representatives receiving the calls as part of their job don’t have the right to privacy that ordinary private citizens do.¹⁸

1.3. Intent to harass or annoy

Lastly, you can not be convicted of making annoying phone calls or electronic communications unless the prosecutor can prove that you actually intended to annoy or harass someone.¹⁹ You do not violate Penal Code 653m if you make a phone call or send an electronic message in good faith, or for some kind of legitimate business purpose.²⁰

Example: Paul and Cathy are good friends who frequently play practical jokes on one another. One day, Cathy decides to scare Paul by obtaining an email address he doesn’t recognize and sending him several emails in which she pretends to be a psychotic person who is him. These emails contain some vulgar language and threats to harm Paul. She intends to let him in on the joke the next day.

Cathy did not intend to annoy or harass Paul. She just wanted to play a practical joke. She is not guilty of the crime of sending annoying or harassing emails.

2. What are the penalties for annoying phone calls?

The California crime of making annoying phone calls (or sending annoying electronic communications) is a misdemeanor in California law.²¹ This means that the potential consequences of a PC 653m conviction are

• up to six (6) months in county jail and/or
• a fine of up to one thousand dollars ($1,000).²²

In some cases, the defendant found guilty of annoying phone calls may be sentenced to misdemeanor probation or given a suspended sentence. If this occurs, the judge may order the defendant to participate in counseling as a condition of probation.²³

3. How can I fight charges of Penal Code 653m PC?

Here at Shouse Law Group, we have represented literally thousands of people charged with harassment-related offenses such as making annoying phone calls. In our experience, the following three defenses have proven very effective with prosecutors and judges.

3.1. You had no intent to annoy or harass