In this Issue -- July 2010

• CRIMINAL LAW EXAM QUESTION MIRANDA RIGHTS:

Could it happen to you? OK, the police pull you over and arrest you for drunk driving. They then read you your Miranda rights. You just sit there silently without saying a word. Are the police now allowed to question you after they read you your Miranda rights, if you do not specifically tell them you want to remain silent? Yes. The Supreme Court ruled last week that you must now specifically say or invoke your right to remain silent or the police are free to question you. This is a huge change in the law. Unless you take some affirmative action to tell the police you want to remain silent, the police can now question you at will.

• CRIMINAL LAW JUVENILE PAROLE:

You Be The Judge: Is sentencing a minor (juvenile) to life in prison without parole illegal? Answer: Yes. The U.S. Supreme Court last week ruled that sentencing someone who is not 18 years old to life in prison without parole is cruel and unusual punishment which violates the 8th Amendment to the Constitution. The Justices found such a sentence for a 16 year-old armed robber was unconstitutional. The Court concluded life without parole is not justified for youths who may lack full "culpability" for their actions, because of their ages.

• MEDICAL MALPRACTICE CASES:

You Be the Judge: One Sponge Short - Is the doctor responsible for a nurse’s mistake during surgery? Yes. A surgeon is liable, under the "captain of the ship" doctrine, for a nurse’s negligence in leaving a sponge inside a patient, a Court has ruled. The surgeon performed an emergency caesarean section on the victim. Two operating nurses reported that the sponges used in the procedure had been counted, but one was left inside the victim and surgery was required to remove it several days later. The woman sued the doctor, the nurses and the hospital. At trial, the jury was instructed on the "captain of the ship" and res ipsa loquitur doctrines and returned a verdict of $1,003,964, apportioning 90% of fault to the doctor.

"In a medical malpractice case involving acts or omissions during surgery, the jury should be instructed that a surgeon is liable for
the negligence of subordinate hospital employees from the time the surgeon assumes control of the operating room until the surgeon concludes the procedure," the Court said.Why do you think the law holds the surgeon responsible for the nurse’s error? Probably because ultimately one person has to be responsible for making sure the whole surgery is completed correctly. If not, you would have everyone pointing their fingers at everyone else and the jury would be hopelessly confused!!

• CRIMINAL LAW TEXTING CASE PRIVACY:

Court Rules Against Police Employees In Texting Case: Police who send personal messages on their state-issued cell phones do not enjoy a "reasonable expectation" of privacy, the U.S. Supreme Court ruled recently. The Justices unanimously concluded that state officials had the right to review the records of a California police officer who exchanged hundreds of personal messages - some of a "sexually explicit" nature - on his department text pager. "Because the search was motivated by a legitimate work-related purpose, the search was reasonable," Justice Anthony Kennedy noted in the Court’s decision. The Bottom Line is that since the government issued and paid for the cell phones, they could search the text messages that were sent.

Criminal Law: Marijuana Smell Justifies Warrantless Search. The mere odor of burning marijuana justifies the warrantless entry into a hotel room by police, a Court has ruled.

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