Evidence; Objection to evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. - 198108

See - 198108; http://www.scribd.com/doc/200029656/198108





"Section 21, paragraph 1, Article II of Republic Act No. 9165 and Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165 provide the procedural guidelines that police officers must observe in the proper handling of seized illegal drugs in order to ensure the preservation of the identity and integrity thereof.



Section 21, paragraph 1, Article II of Republic Act No. 9165 reads:



SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals,  Instruments/Paraphernalia and/or Laboratory Equipment.



 - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the  person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof[.]



x x x.



It must be pointed out, however, that the appellant raised the issue of the police officers’ non-compliance with the above provisions only in his appeal before the Court of Appeals. The appellant’s objections were not raised before the trial court in such a way that the prosecution may have had the opportunity to explain and/or justify the deviations from procedure that were ostensibly committed by the police officers in this case. As the Court underlined in People v. Sta. Maria32:



The law excuses non-compliance under justifiable grounds. However, whatever justifiable grounds may excuse the police officers involved in the buy-bust operation in this case from complying with Section 2 will remain unknown, because appellant did not question during trial the safekeeping

of the items seized from him. Indeed, the police officers alleged violations

of Sections 2 and 86 of Republic Act No. 9165 were not raised before the trial court but were instead raised for the first time on appeal. In no instance did appellant least intimate at the trial court that there were lapses in the safekeeping of seized items that affected their integrity and evidentiary value. Objection to evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection he cannot raise the question for the first time on appeal. (Citation omitted.)



Given the foregoing circumstances, the Court finds that the positive and credible testimonies of witnesses for the prosecution prevail over the unsubstantiated defense of denial of the appellant."



- http://www.scribd.com/doc/200029656/198108

G.R. No. 198108. December 11, 2013

People of the Philippines Vs. Roselito Taculod y Elle

Kap’s amazing stories | Inquirer Opinion

See - Kap’s amazing stories | Inquirer Opinion





"x x x.

These scraps of political gossip—not unlike the astonishing fragments of human experience Revilla curates for a mass audience every week—are supposed to speak for themselves.  Maybe the bizarre requires no elaboration to elicit awe or shock.  But what meanings are we supposed to draw from the “Boy Pickup” episode in which he ridicules Secretary Mar Roxas for personally driving him to his appointment with the President in Malacañang?  Are we supposed to take this as indicative of a clandestine and orchestrated effort led by P-Noy to get enough votes to ensure the conviction of then Chief Justice Renato Corona?

But, isn’t it common knowledge that P-Noy had long wanted Corona out of the Supreme Court, given the sneaky circumstances behind his appointment as chief justice and his manifest bias against President Aquino?  There was nothing extraordinary or improper about the President seeking to influence the outcome of Corona’s impeachment trial. It would be a different matter if a bribe was being offered in exchange.  While it takes on the trappings of a court proceeding, the impeachment process itself is regarded as primarily a political function, which is why it is the legislature rather than the judiciary that performs it.

Indeed, the legislature and its organs—e.g., the impeachment court—are supposed to be autonomous, meaning they are expected to use their own code and criteria in arriving at decisions.  But that is a burden that falls squarely on the shoulders of the senator-judges themselves.  If Revilla had felt at any point during his meeting with President Aquino that he was being bribed or pressured to vote for or against Corona’s conviction, it was his duty to denounce this in public. That he did not do so while the impeachment court was in session makes him an accessory to the conspiracy he now complains about. That he is doing so now, after plunder charges have been filed against him, makes him sound like a gossipmonger who tries to project an air of innocence by smearing everyone else around him.  No reasonable person can seriously assign any value to his speech.

x x x."

Read more: http://opinion.inquirer.net/70119/kaps-amazing-stories#ixzz2rEnnKCxS
Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook

raissa robles | A License To Snoop: Why the Cybercrime Law is not the answer to child cyber porn

See - raissa robles | A License To Snoop: Why the Cybercrime Law is not the answer to child cyber porn


"x x x.

By Raïssa Robles

To combat cyber porn using children, the government is vigorously pushing for the Supreme Court to unfreeze the Cybercrime Law (Republic Act 10175) and allow it to take effect.
But they haven’t specified just what it is in the law that will help them.

Is it the fact that the law shoehorns the entire Revised Penal Code into cyberspace and imposes extra-heavy criminal penalties on ANY crime committed with the help of digital technology?
Would it be the fact that the law will allow anyone — say, a senator? — to sue for libel anyone on Facebook?

Could it be the bit that lets government block any website it chooses — the way China does?

Or perhaps it’s that bit in the Cybercrime Law that allows the government to spy without any accountability? That might be it.

I cannot stress enough the dangers of the Cybercrime Law. Its atrocious lack of safeguards can easily enable rogue cops and government officials to commit crimes of extortion and blackmail using the digital highway.

In the course of my investigation, I also learned that the Cybercrime Law was enacted in order to enable the Intellectual Property Rights Office (IPO) to go after those who download music on the Internet from torrent sites. This is one of the REAL USES of the Cybercrime Law.

It is also not enough to simply remove the section on criminal libel from the Cybercrime Law. Because the Cybercrime Law is not just about libel. Or just about child pornography. It includes all the crimes in the country’s statute books including rebellion.

It hands policemen and personnel of the Department of Justice and the National Bureau of Investigation as well as employees of the private telecom companies the power to spy on everyone – private citizens and even government officials. That’s because the wording of Section 13 on the “Real-”Real Time Collection of Traffic Data” is so vague.

Given what’s been happening in the US about the rogue activities of its National Security Agency, can we expect OUR law agencies (which are not exactly famous for being clean and effective) to do better? By the way, the NSA has also been claiming it was just studying metadata, which might be true, but that didn’t stop it from rampant and wholesale snooping on any target they chose, without oversight or accountability.

Anyway, I doubt the Cybercrime Act can do much to stop cyber porn because, as the police recently disclosed, those who make their children and other relatives engage in sex before video cameras use video chats. Most probably, my hubby Alan told me, they use Skype. And Skype is encrypted and even foreign governments have had a tough time cracking the encryption so they can spy on terrorists who use the service.

Alan, who has been lecturing on Internet privacy at the International Institute für Journalismus in Berlin, also noted that in order for authorities to effectively use the Cybercrime Law to catch cyber porn producers, they would have to spy on the Internet activities of a large section of the population and see which IP addresses might be suspect.

That would be the equivalent of saying “there might be snatchers in Manila and we don’t know who they are, therefore we should be allowed to freely raid and search every home in the hope that maybe we’ll find them.”

The police said cyber porn is a thriving cottage industry in Cebu, Pampanga, Cagayan de Oro and Metro Manila. So there you go.

The real-time traffic collection of data would have to be undertaken in those areas.

How Cybercrime Law can give rise to extortion and blackmail using the digital highway

It was actually an anti-crime crusader who warned me of this possibility.

To those who say I think so poorly of the NBI and policemen, here’s proof why we should all be worried about this happening.

Two years ago in January 2012, NBI Chief Magtanggol Gatdula was sacked after being implicated in the kidnap-for-ransom of an illegally staying Japanese national Noriyo Ohara. Six other NBI agents were fired. the ransom demand was allegedly P6 million.

How can the Cybercrime Law be used for extortion?

One Filipino worker in the Middle East sent me a letter expressing concern that the Cybercrime Law made “Cybersex” a crime. The law defines Cybersex as:

“The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.”

According to the Filipino worker, the problem is that many Filipino overseas workers use Skype or Facetime to have “remote sex” with their spouses or partners or they exchange pictures.

Both would easily fall under “any lascivious exhibition of sexual organs or sexual activity.”

What if these activities were attached to an e-mail and a rogue investigator threatened to post it on YouTube – unless he was paid not to?

Combating child porn

In 2009, Congress already passed RA 9775, which specifically defined and punished child porn on the Internet.

The Cybercrime Law did two things to RA 9975. It raised the penalties in RA 9775 “one degree higher”.

It also allowed “real time collection of traffic data”.

As for blocking child porn sites from being viewed in the country, this is not as important when it comes to the Philippines since we are a producer, not a viewer of porn (which costs a lot of money and needs a credit card.)

However, please note that data collection and blocking porn sites were already included in a previous law, RA 9775.

Despite this, authorities would want us to believe that only the Cybercrime Law would enable them to combat cyber porn.

Senior Supt. Gilbert Sosa, director of the PNP Anti-Transnational and Cyber Crime Division of the Criminal Investigation and Detection Group (ATCCD-CIDG) recently told Philippine Daily Inquirer that:

“The debate on the Cybercrime Law focuses on the substantial part of it. But the police needs the procedural aspect of the law so that we can run after these pedophiles.”

First off, what is wrong with that statement?

Supt. Sosa forgets that the pedophiles are residing in another country watching Philippine porn. How can the Philippine police catch them?

Sosa and the Department of Justice also conveniently forget to tell the public that RA 9775 already gave law enforcement authorities broad powers to combat child porn.

For instance, Section 9 of RA 9775 puts the onus on Internet Service Providers (ISPs) to report that the crime of child porn is being committed using their servers:

“Section 9. Duties of an Internet Service Provider (ISP). – All
internet service providers (ISPs) shall notify the Philippine National Police (PNP) or the National Bureau of Investigation (NBI) within seven (7) days from obtaining facts and circumstances that any form of child pornography is being committed using its server or facility. Nothing in this section may be construed to require an ISP to engage in the monitoring of
any user, subscriber or customer, or the content of any communication of any such person: Provided, That no ISP shall be held civilly liable for damages on account of any notice given in good faith in compliance with this section.

“Furthermore, an ISP shall preserve such evidence for purpose of investigation and prosecution by relevant authorities.

“An ISP shall, upon the request of proper authorities, furnish the particulars of users who gained or attempted to gain access to an internet address which contains any form of child
pornography.

“All ISPs shall install available technology, program or software to ensure that access to or transmittal of any form of child pornography will be blocked or filtered.

“An ISP who shall knowingly, willfully and intentionally violate this provision shall be subject to the penalty provided under Section 15(k) of this Act.

“The National Telecommunications Commission (NTC) shall promulgate within ninety (90) days from the effectivity of this Act the necessary rules and regulations for the implementation of this provision which shall include, among others, the installation of filtering software that will block access to or transmission of any form of the child pornography.

You can view RA 9775 here.

You will notice that RA 9775 already has a section allowing ISPs to block child porn sites and provide “authorities” with “particulars of users who gained or attempted to gain access to an internet address which contains any form of child pornography.”

This section is quite broad. “Particulars of users” could include their names, their IP addresses as well as their actual residential addresses.

This is better than “real time collection of traffic data” that is in the frozen Cybercrime Law.

The main difference – and this is where the stinker lies – is that the Cybercrime Law covers our entire Penal Code and not just child porn. Including the political crimes which from experience, you and I know, are frequently used by those in power against those who oppose them.

The Cybercrime Law is one of those laws that were promulgated by our lawmakers with their eyes wide shut to its very serious implications on our hard-fought freedoms and civil liberties.

It would be supreme irony if the Supreme Court were to unfreeze this monster of a law as the nation celebrates the 28th anniversary of 1986 Edsa People Power.

NOTE – To refresh your memory, please read my stories on the Cybercrime Law by clicking on the links below:

What the Cybercrime Law really means
UPDATE: Implications of the Cybercrime Prevention Law
Fr. Bernas calls Cybercrime Law “frightening”
Is DOJ’s Geronimo Sy blaming lawmakers for botched Cybercrime Law?
NEWSFLASH: Supreme Court extends TRO on Cybercrime Law INDEFINITELY
Why I stand by my story that Sotto “inserted” online libel section in the Cybercrime Law
Who inserted that libel clause in the Cybercrime Law at the last minute?
The Cybercrime Law was brought to you by 7 senators & 12 congressmen
Why did four senators file nearly identical cybercrime bills?
The quadruplet bills on Cybercrime
Gov’t TV station invites me to anti-cybercrime law forum
Dear Justice Assistant Secretary Sy: If cyber adultery doesn’t exist, why did you put it in the Cybercrime Law?
How the new technology is reshaping the way we bring news to the public

x x x."

Lacson's ex-aide ordered to pay Dacer daughters

See - Lacson's ex-aide ordered to pay Dacer daughters





"x x x.

MANILA, Philippines – What they couldn't get in the Philippines, they sought to find in the United States (US): A semblance of justice.

Daughters of slain publicist Salvador "Bubby" Dacer were granted relief in a ruling issued Wednesday morning (Philippine time), January 22, by a US district court, which ordered their father's alleged killer, former police official Michael Ray Aquino, to pay them damages amounting to over $4.2 million.

Dacer was a known publicist in the Philippines who was brutally killed, along with his driver, in November 2000, shortly after he was summoned to the presidential palace for allegedly pushing for the impeachment of then President and now Manila Mayor Joseph Ejercito Estrada.

In 2001, the justice department filed with a Manila court double murder charges against Philippine National Police officials including Aquino and Cezar Mancao for Dacer's and his driver's death.

Aquino and Mancao fled to the US that same year, however, where they found work. Both are former close aides of ex-senator Panfilo Lacson, who was chief of the Philippine National Police and is now in charge of the Aquino government's rehabilitation program post-Yolanda (Haiyan).

Eventually, Mancao was extradited to Manila, but Aquino tried to resist all efforts to extradite him to the Philippines. In 2005, he was arrested in New Jersey over an expired visa. US authorities later charged him for a separate case: espionage. He was discovered to have transmitted classified US documents to the Philippines. (Mancao, on the other hand, escaped from the National Bureau of Investigation in May 2013)

Help from law

Aquino's detention at the New Jersey Federal Prison emboldened the daughters of Dacer, who were already based in the US, to seek justice. In 2010, they filed a $60-million damage suit against 7 former Philippine officials, including Estrada, Lacson, and Aquino.

The case was based on the Torture Victim Protection Act (TVPA), which allows American courts to hear cases of human rights abuses filed by non-citizens against officials of a foreign government for abuses committed anywhere. Those who filed the case were Carina Dacer, Sabrina Dacer-Reyes, Amparo Dacer-Henson and Emily Dacer-Hungerford.

"It is important to deter extrajudicial killings of publicists, especially when the victims include 4 United States citizens. Despite 'silencing' Salvador Dacer in such a gruesome manner, Michael Aquino has apparently escaped relatively unscathed," read the ruling signed by Judge William Alsup.

The events Dacer's daughters cited to justify the claim included the strangling of their father with a wire and the burning of his body in a dry creek.

"The cruel manner in which defendant (Michael Aquino) orchestrated the abduction, torture, and killing of Salvador Dacer is chilling," Judge Alsup said.

The $4.2-million TVPA relief was ordered in a default judgment, after Aquino failed to appear in more than 8 hearings including the pretrial conference.

Where is he?

Aquino was extradited to the Philippines in 2011. He was jailed at the National Bureau of Investigation but was eventually released in 2012 after a Manila regional trial court dismissed the murder case against him.

Aquino is now in Manila and as of last year was known to be working as a security consultant for a big corporation.

Following Judge Alsup's ruling, Aquino won't be able to enter the US unless he has paid the $4.2 million to the Dacers.

Judge Alsup said the $60-million damage suit was "excessive," and granted only less than a tenth of the figure cited by the Dacers.

The Dacer sisters wanted considered in the determination of the claim the opportunities lost and the emotional damage incurred after the death of their father. Dacer, they said, was the primary family supporter – paying the house mortgage, financing business ventures, etc.

Alsup noted how the estimates of the daughters don't quite fit given the income of Dacer at the time. He also considered adjustments for present value.

"There is insufficient evidence to find that Salvador Dacer made enough income to provide such a sum to his daughters or that such a large sum was indeed provided," the order read.

Factors such as but not limited to brutality of the act, physical and mental injuries, and how long the torture lasted are considered in determining the amount of the damages to be paid. – Rappler.com.

x x x."

Cognitive biases: The elephant in the room « ABA News Archives

See - Cognitive biases: The elephant in the room « ABA News Archives


"x x x.

No matter how rational and fair lawyers believe they are, just like all people, they have biases and blind spots that they are unaware of. 

“We live in a new age of risk, uncertainty, change and a lot of stress resulting from all of that. And those stresses take a cognitive toll on people in general and on lawyers in particular,” said Larry Richard, founder and principal consultant at LawyerBrain LLC. “This cognitive toll, among other things, produces some unwitting biases, some cognitive mistakes that we are not even aware of. It’s very pervasive. It happens to all of us.”

During an American Bar Association webinar last month, legal experts discussed common cognitive biases, risks posed by the changing legal market and how to deal with these ethical issues.

Richard explained a theory that says every person has two mental operating systems working in parallel: the rational/analytical system and the intuitive/emotional system. He referred to the two systems as the rider (system 1) and the elephant (system 2).

“They both are operating, but the elephant, the emotional side of decision-making is much stronger, although much less much obvious,” he said. “Most of the time when we make a decision, we believe that it’s the rider — the rational part — that has made a decision. We refuse to even believe that we have been biased.”

“Really, emotions drive us much more than rationality even though we continue to believe that we make decisions on the basis of pure, detached, objective logic,” Richard added, concluding that this leads to unwitting bias.

He described four common cognitive biases:

• Self-serving bias — When people claim more responsibility for successes than failures and unwittingly tilt toward themselves. The ethics risk associated with this bias is that a lawyer might begin to take on work that he is not qualified to do, but the self-serving bias leads him to believe he can handle it.
  
• Commitment and consistency bias — When people simultaneously hold two conflicting cognitions and they bring their perceptions into alignment with their actions. Richard also used the phrase “in for a penny, in for a pound” to explain this bias. He said a person’s desire to be consistent can be exploited to get a bigger commitment after an initial small one. “These small little commitments that seem like nothing at the time make it psychologically much easier for you to be compelled later down the line to agree to much bigger commitments that you wouldn’t have agreed to if they were the first thing offered,” he said.
  
• Reciprocity bias — When people feel a sense of obligation after they receive something. In every society, there is a cultural imperative that favors reciprocity, Richard said. “You could easily be blinded by this bias and unwittingly agree to do something that you will later regret,” he said.
  
• Confirmation bias — When people have the tendency to only seek out information that conforms to their pre-existing viewpoints and ignore anything that goes against them. Just about any bad or inappropriate behavior can be psychologically justified when a lawyer wears the blinders of the confirmation bias, Richard said.

Besides these cognitive biases, lawyers are also facing ethical risks related to the changing legal market.

“Change is occurring not only in the world around us, but specifically in the legal market in ways that make it a much riskier place than it used to be,” said James W. Jones, a senior fellow for the Center for the Study of the Legal Profession at Georgetown University Law Center.

x x x."

Fluxing Straight Out of Law School – Slaw

See - Fluxing Straight Out of Law School – Slaw


"x x x.

I am seeing it increasingly commonly – newly called lawyers who set up their own shingle without working for a law firm as an associate. In part, it’s due to the changes in the market which have left a scarcity of opportunities for young lawyers, or opportunities that are otherwise undesirable. But it’s also becoming a preferred option for a generation which values creativity, personal relationships, empowerment, self-determination and entrepreneurship.

Luz E. Herrera, who launched her own solo practice in 2002, described this phenomenon in the Denver University Law Review,

The Great Recession has caused many new attorneys to question their decisions to go to law school. The highly publicized decline in employment opportunities for lawyers has called into question the value of obtaining a law degree. The tightening of the economy has diminished the availability of entry-level jobs for law graduates across employment sectors. Large law firms are laying-off lawyers, bringing in smaller first year associate classes, hiring more contract and experienced lateral attorneys. Government entities and public interest organizations have suffered furloughs, and hiring freezes, and are relying more on volunteers than on new employees to get the work done. To complicate matters, the baby boomer generation of lawyers is retiring later and contributing to a lack of new job opportunities. As a result, a large number of recent law graduates are unemployed, under-employed, or are working in settings that do not require a bar license.

…However, today’s solo practitioners are more sophisticated and diverse than the lawyers [of the past]. The solo bar includes a large percentage of women and experienced lawyers who choose solo practice because it offers greater flexibility and a better lifestyle than working in larger firms.

Business Insider has an article this week on Branigan Robertson, an example of a more sophisticated sole practitioner who founded his own practice in 2012 in Irvine, California soon after graduation. Robertson had firm experience working as a law clerk and summer associate in law firms, but he was otherwise newly minted from Chapman University School of Law.

Robertson identified a practice area early on and ensured clients in this area were more flexible around their choice of lawyers, typically what we are starting to refer to as public-facing law. He also adopted exclusively an alternative fee arrangement model, taking on contingency fee files only. Of course Robertson also recommends planning in advance, building a website immediately, joining legal organizations and list-serves, and developing a robust referral network.

The rest of Robertson’s advice is largely attitudinal. Even though many think that it’s insane, Robertson advises persistence,

Many attorneys are pessimists by nature and love to tell people what they can’t do. They never tried it so they don’t know. If you believe them, there is zero chance you’ll succeed.

Most importantly, clients do not care about any of the things that lawyers seem to care about like grades, class ranking, law review, or even how old you are. Clients care about competence and value.

x x x."

Will You Participate in the Future of the Law?

See - Will You Participate in the Future of the Law?

"x x x.

Where Will Innovations in the Law Come From?

Right now, most innovations in the law are happening on a grass-roots level.  A handful of lawyers are becoming the thought leaders driving some of the most visible changes.  Even these thought leaders, however, acknowledge that the future of lawyering is really in the hands of individual lawyers.

Many of our colleagues are taking this to heart, and actively participating in large-scale discussions and events that center around innovating the law.

The event that appears to gather the most significant thought leaders in legal innovation in one place seems to be ReInvent Law, hosted by the ReInvent Law Laboratory, which is part of the Michigan State University School of Law.   Past events have been held in Silicon Valley, London, and Dubai.  The next one will be held on February 7th in New York City.

Professor Dan Katz, co-founder of the Reinvent Law Laboratory describes the event as “very high-energy - 30 speakers in one day, on one stage.”  He reflects: “A lot of what is discussed is not now mainstream—but some of it will be.  And it’s not that the person speaking on stage will have THE solution, but somebody there will.”

Incidentally, the event is being sponsored in part by the ABA Journal, and tickets are free while they last.

Whether you get directly involved in the conversation about the future path of the law, if you are interested in being innovative, I suggest:

1. Recognize that change is coming, and begin to notice how clients are demanding it.
2. Open your mind for opportunities to see and do things differently.

As a start, in this issue of Law Practice Today, we consider how innovation and innovative thinking can be meaningful in the law - both to us within the profession and the people we serve.  In particular:

We take a look at tools for innovation, such as design thinking, and enhancing creativity in our work environments.

We take a look at how innovation is impacting the education of lawyers, the training and mentoring of new lawyers, and even is affecting how some lawyers balance parenthood and their career.

We take a look at new business models being developed for law firms, new ways of finding out what our clients actually want and need, and even potential pitfalls when we attempt to use technology in new ways.

We also take a look of lawyers literally taking the law into their own hands, as they get together to ‘hack the law’ and create the future they envision.

x x x."

Legal How-To: Challenging Radar Guns in Court - Law and Daily Life

See - Legal How-To: Challenging Radar Guns in Court - Law and Daily Life


"x x x.

Here are three possible ways you may be able to challenge radar gun evidence in court:

1. Request a Calibration Record.

Like Breathalyzers and other automated devices which law enforcement use, radar guns must be calibrated in order to have their readings accurately reflect the actual speed of a vehicle.

If the officer cannot provide the record for calibrating the radar gun within therecommended time frame (usually 30 to 60 days), then you may be able to argue that the evidence based on the gun is unreliable.

Since the radar gun is likely to be the only evidence of your speeding offense, a judge could potentially toss the case if the officer cannot prove the instrument was properly calibrated at the time of your citation.

2. Challenge the Officer's Training.

The officer who cited you for speeding needs to have some amount of training with the radar or LiDAR gun in order to operate it and obtain an accurate estimation of your speed.

Similar to the argument about calibration, a judge may toss evidence from an officer who was not properly trained to use the LiDAR or radar gun which "clocked" your speed.

3. Make a General Hearsay Objection.

Similar to how you might fight a red-light camera ticket, you can try to argue that the evidence based on a radar gun reading is pure hearsay, and there is no admissible evidence to show that you were speeding.

Hearsay evidence from computerized devices is often offered on the grounds that it has been proven reliable. But the "confrontation clause" of the U.S. Constitution requires that you be allowed to cross-examine the witnesses against you. So if other officers or technicians were responsible for calibrating the device, you may argue that you have a constitutional right to examine those witnesses.

An officer may, based on his or her training and experience, estimate using his or her sight how fast you were going. But if the officer was relying solely on a radar gun, this may be a good option.

x x x."

The Roman Catholic annulment process needs a total overhaul. We should look to the Orthodox churches for a better way to handle it.

"x x x.

Here is my view: It is time for us to scrap our current annulment process and look east to see what our Orthodox brothers and sisters are doing.

It is pretty clear from the Gospels that Jesus did not approve of divorce and remarriage. He says it amounts to adultery, which is pretty strong language, especially coming from Jesus. But if we are his followers, we have to at least try to deal with his teaching. Our annulment process is an attempt to take his teaching seriously and still allow people a second (or third) chance.

Stay up to date with all things Pope Francis:Sign up for email alertsfrom ourFrancis Chronicles blog.

The problem with the process in the Roman Catholic church is that it takes what ought to be a pastoral matter and turns it into a legal one. It is complicated, often unfair, and frequently unintelligible to the participants. Some tribunals are easy. Some are hard. It can be very capricious.

Annulments come up every year in our RCIA program. We always have several couples who are divorced and remarried and want to come to the sacraments. Often, they have been divorced and remarried for years, even decades. Sometimes their own children don't even know about the previous marriages. Until they felt the attraction to the church, it never even occurred to them that they might need a Catholic annulment. It does not make any sense to them that they need to get a marriage annulled that may have taken place 30 years ago in a Baptist church or before a justice of the peace. All the annulment process does is put a road block in their way to entering the church.

There is a loophole for Catholics. If either party in the former marriage was a Catholic and the marriage took place in a non-Catholic ceremony, the annulment is just a matter of paperwork. It is a slam dunk that goes through in a few weeks.

I always get these right away. But it seems unjust. It rewards people who were disobedient to the church years ago and got married outside the church. Most people take it for what it is: a loophole. They get a chance at a second marriage because of the kind of ceremony they had years ago.

The thornier annulments involve people who were not Catholics at the time and had absolutely no reason to get married in a Catholic church. Ironically, they have to go through a full legal process before a church tribunal.

It is painful and pointless. They have to find witnesses, get records, take statements, dig up old contacts, and open old wounds. All of our language is legal, not pastoral. We speak of petitions, tribunals, witnesses, advocates, petitioners, defendants and evidence. It is Kafkaesque. It turns pastors into bureaucrats, to no purpose.

Sometimes there are good reasons why people don't want to get in touch with the former spouse. There may have been abuse or violence. They open themselves up to further wounds or retribution. They may not even know where the former spouse or witness is after so many years. I have had cases in which former spouses held up an annulment out of spite for years.

Nobody is deterred from getting divorced and remarried by our annulment process. But many people are deterred from coming into or back to the church by our annulment process. It is spiritually counterproductive.

The Roman Catholic annulment process needs a total overhaul. We should look to the Orthodox churches for a better way to handle it.

In the Eastern churches, the first annulment is handled entirely by the parish priest. After all, he is the person on the scene. He knows the people involved and can judge their sincerity and seriousness. He can talk to them about marriage and see if they are sincere in their desire for reconciliation with the church. No tribunal downtown at the chancery office can do that.

Basically, in the Orthodox churches, couples get a second chance. Their first marriage can be annulled by the parish priest in a simple conversation and confession. But third or fourth marriages would need the permission of the bishop in most Orthodox churches, as I understand it. However, this is a pastoral process, not a legal one.

Our legal process of annulments is a holdover from the days when the Catholic church was the civil law of marriage in many countries. Today, it makes no sense.

Over the years, I have had several couples get infuriated with me or with the church and just walk away in anger. A friend of mine who is an Episcopal priest told me once, "So long as you guys are so strict about divorce and remarriage, there will be a reason for the Episcopal church."

Sometimes, I have just taken the pastoral route. For instance, I've had couples in their late 70s and 80s who were married decades ago. They can hardly remember their first marriage, let alone dredge up the records. Or I've had people who are terminally ill and want to come into the church. There is no time or energy to get an annulment.

If I were pope, I would leave the decision about annulments and reception of the sacraments entirely up to the parish priest. It should be resolved in the internal forum of the confessional. The emphasis should be on mercy, not law. End of story. Move on.

The people who come to RCIA are spiritually mature. They are serious people who are really giving the Catholic church a serious look. I find that these converts make the best Catholics and the strongest witnesses to the faith.

If we put a legal roadblock in the way of converts, all we really accomplish is keeping them from coming back to or into the church. No grace for you!

It does not change any of the facts of their lives. They are already in their second or third marriage. It would not be moral or prudent to expect them to leave their current spouse just because we say so.

To our faithful, the real scandal is not the fact that divorced and remarried people might receive Communion, but that sincere people who really desire the Eucharist are kept from it by a legalistic, complicated, capricious and alienating annulment process.

Let divorced and remarried people make a good confession and offer sincere contrition and a firm purpose of amendment. Then let them start again. God has forgiven us much worse.

Priests and bishops should be pastors, not jurists. That's one pastor's opinion, anyway.

I'm glad the pope is asking and actually wants to know what is happening in the local church.

[Fr. Peter Daly is a priest in the archdiocese of Washington, D.C., and has been pastor of St. John Vianney parish in Prince Frederick, Md., since 1994.]

Editor's note: We can send you an email alert every time Fr. Peter Daly's column, "Parish Diary," is posted to NCRonline.org. Go to this page and follow directions: Email alert sign-up.

x x x."

Read - http://ncronline.org/blogs/parish-diary/pope-francis-should-consider-churchs-outdated-annulment-process

Social Media and the Lawyer – | LexisNexis University Blog

See - Social Media and the Lawyer – | LexisNexis University Blog


"x x x.

If you really want to exploit the power of social media, here is a list of 8 “Don’ts” from Dan Pinnington of Lawyers Professional Indemnity Company when you are using social media of any kind: 

1. Don’t talk about clients or their matters.
2. Don’t talk to clients about their matters.
3. Don’t run afoul of the marketing-related Rules of Professional Conduct.
4. Don’t engage in the unauthorized practice of law.
5. Don’t engage in conflicts of interest.
6. Don’t give legal advice online.
7. Don’t jeopardize your identity.  Protect it.
8. Don’t make the wrong “friends”.

http://www.wisbar.org/newspublications/wisconsinlawyer/pages/article.aspx?Volume=85&Issue=5&ArticleID=2416

Remember, when you put something on the Internet, it is out there for good.  Even if you delete it, someone has a copy of it somewhere on their computer, and it can come back to haunt you.  And if you have friends that you don’t really know linked to your page, others may have access to pictures or comments you have made in the past.  And let’s face it, your clients are probably searching your name on the web, and one of the first hits during a search is usually a link for Facebook or LinkedIn.  So you don’t want to talk about judges or your colleagues in your newsfeed, or brag about your latest case by quoting something the judge said or summarizing his comments.

x x x."

Would every negligent act or misconduct in the performance of a Deputy Ombudsman's duties constitute betrayal of public trust warranting immediate removal from office? - sc.judiciary.gov.ph/jurisprudence/2012/september2012/196231.pdf

See - sc.judiciary.gov.ph/jurisprudence/2012/september2012/196231.pdf


"x x x.

Would every negligent act or misconduct in the performance of a 
Deputy Ombudsman's duties constitute betrayal of public trust warranting immediate removal from office? The question calls for a deeper, circumspective look at the nature of the grounds for the removal of a Deputy Ombudsman and a Special Prosecutor vis-a-vis common administrative
offenses.


 Betrayal of public trust is a new ground for impeachment under the 1987 Constitution added to the existing grounds of culpable violation of the
Constitution, treason, bribery, graft and corruption and other high crimes. While it was deemed broad enough to cover any violation of the oath of office,65 the impreciseness of its definition also created apprehension that "such an overarching standard may be too broad and may be subject to abuse and arbitrary exercise by the legislature."66 Indeed, the catch-all phrase betrayal of public trust that referred to "all acts not punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in office"67 could be easily utilized for every conceivable misconduct or negligence in office. However, deliberating on some workable standard by which the ground could be reasonably interpreted, the Constitutional Commission recognized that human error and good faith precluded an adverse conclusion.

x x x.

The Constitutional Commission eventually found it reasonably acceptable for the phrase betrayal of public trust to refer to "[a]cts which are just short of being criminal but constitute gross faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross exercise of discretionary powers."69 In other words, acts that should constitute betrayal of public trust as to warrant removal from office may be less than criminal but must be attended by bad faith and of such gravity and seriousness as the other grounds for impeachment.


 A Deputy Ombudsman and a Special Prosecutor are not impeachable officers. However, by providing for their removal from office on the same grounds as removal by impeachment, the legislature could not have intended to redefine constitutional standards of culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, as well as betrayal of public trust, and apply them less stringently. Hence, where betrayal of public trust, for purposes of impeachment, was not intended to cover all kinds of official wrongdoing and plain errors of judgment, this should remain true even for purposes of removing a Deputy Ombudsman and Special Prosecutor from office. Hence, the fact that the grounds for impeachment have been made statutory grounds for the removal by the President of a Deputy Ombudsman and Special Prosecutor cannot diminish
the seriousness of their nature nor the acuity of their scope. Betrayal of public trust could not suddenly "overreach" to cover acts that are not vicious or malevolent on the same level as the other grounds for impeachment.

x x x."

The essence of a plea bargaining agreement is the allowance of an accused to plead guilty to a lesser offense than that charged against him. - sc.judiciary.gov.ph/jurisprudence/2012/september2012/196231.pdf

See - sc.judiciary.gov.ph/jurisprudence/2012/september2012/196231.pdf


"x x x.

Plea bargaining is a process in criminal cases whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to court approval.73 The essence of a plea bargaining agreement is the allowance of an accused to plead guilty to a lesser offense than that charged against him. Section 2, Rule 116 of the Revised Rules of Criminal Procedure provides the procedure therefor, to wit:

SEC. 2. Plea of guilty to a lesser offense. -- At arraignment,
the accused, with the consent of the offended party and the
prosecutor, may be allowed by the trial court to plead guilty
to a lesser offense which is necessarily included in the
offense charged. After arraignment but before trial, the
accused may still be allowed to plead guilty to said lesser
offense after withdrawing his plea of not guilty. No
amendment of the complaint or information is necessary.
(Sec. 4, Cir. 38-98)


Plea bargaining is allowable when the prosecution does not have
sufficient evidence to establish the guilt of the accused of the crime charged.74 However, if the basis for the allowance of a plea bargain in this case is the evidence on record, then it is significant to state that in its earlier Resolution75 promulgated on January 7, 2010, the Sandiganbayan had evaluated the testimonies of twenty (20) prosecution witnesses and declared
that “the conglomeration of evidence presented by the prosecution is viewed by the Court to be of strong character that militates against the grant of bail.”

x x x."

What To Do When Your Client Calls Too Much

See - What To Do When Your Client Calls Too Much


"x x x.

Think Like Your Client

Every client is different.  While one client may be content to hand a matter over and trust you to report back to them when something significant occurs, another client facing the same legal situation may require constant reassurance –especially if nothing is happening.

Constant client calls can occur if the client feels that the time between communications is too long, because they are emotional and need some hand-holding or a sympathetic ear, because the client is so stressed that they can’t retain information, or because they just don’t understand you, but are afraid to admit it.

Communicate Proactively

Set up a secure extranet or website (such as Basecamp), where clients can log in and see documents and status updates any time, anywhere without needing to contact you. Post updates on a regular schedule (ex: Every Monday, every two weeks, etc.) and more often as significant events occur in the case.

Develop a system to update clients regularly not only by phone, but also in writing, regardless of whether anything significant has occurred since the last communication with the client. The client will appreciate that you’re thinking of them and keeping them up to date, and they’ll be reassured that you haven’t forgotten about them or dropped the ball.

Use simple sentences and layman’s terms instead of legal jargon.  Ensure that the client understands important points, deadlines and legal concepts by asking the client to rephrase what you said an repeat it back to you – don’t just ask them if they understand.

Train Your Clients

No matter how you communicate, you’ll need to ‘train’ clients. Establish communication policies from the very beginning of the engagement. Find out whether the client prefers telephone calls, emails or regular mail (or some combination). Determine the best times and communications methods for your client, and tell them the best ways to reach you.

Set clients’ expectations regarding your availability. Clients who call at odd hours and receive an immediate response directly from you will get used to reaching you whenever and wherever they want, even if the matter is not urgent.

Don’t answer your own phone. If a client call does not require your legal expertise, let a staff person respond. If the client needs to speak with you about a non-urgent matter, return the call later. You’ll have less interruptions while still meeting the client’s needs.

x x x ."

Prosecutor in Maj Gen Garcia plunder case officially dismissed

See - Prosecutor in Maj Gen Garcia plunder case officially dismissed


"x x x.

MANILA, Philippines – The head of the Ombudsman’s prosecution arm who handled the plea bargain case of former Major General Carlos Garcia has been officially dismissed from government service effective Tuesday, January 7.

President Benigno Aquino III first ordered the dismissal of Wendell Barreras-Sulit in September 2012 after she approved the plea bargain agreement which downgraded his P300-million plunder case to direct bribery. Sulit was also among the so-called midnight appointees of former President Gloria Macapagal-Arroyo.

Ombudsman Conchita Carpio Morales enforced a December 20 memorandum issued by the Office of the President and which declared Sulit’s post in the Office of the Special Prosecutor vacant.

Released late Monday afternoon, Morales said Malacañang had effectively denied Sulit’s motion for reconsideration and affirmed its previous July 2013 decision.

In her memorandum, Morales said that Overall Deputy Ombudsman Melchor Arthur H. Carandang has been designated in a concurrent capacity as “Acting Special Prosecutor with full powers, considering that the position of Special Prosecutor is deemed vacant.”

Carandang was appointed by the President Overall Deputy Ombudsman on October 14 last year, taking the place of Orlando Casimiro who retired on Aug 23, 2013.

Unhappy Aquino

As head of the Office of the Special Prosecutor, Sulit was supposed to have a fixed 7-year term which was cut to 3 by Aquino. Remaining under the Office of the President, Sulit could be dismissed based on an administrative offense.

Previous reports had tagged the Barreras and Garcias as being family friends in Abra. Aquino was reportedly unhappy about the plea bargain given the strength of the evidence in the plunder case.

Sulit had challenged Aquino’s directive before the Court of Appeals but this was dismissed in a ruling promulgated on Aug 27, 2013.

The case against Garcia, whose sons were arrested in 2003 at a US airport for smuggling dollars, exposed systemic corruption in the military. He was accused of converting millions of military funds into cash that went to his personal coffers.

The plea bargain allowed Garcia, his wife Clarita, and sons Ian Carl, Juan Paulo, and Timothy Mark to walk away from plunder charges in exchange for his pleading guilty to lesser offenses of direct bribery and facilitating money laundering. – Rappler.com.

x x x."

SC affirms dismissal of Nani Perez extortion case | Inquirer News

See - SC affirms dismissal of Nani Perez extortion case | Inquirer News


"x x x.

Former president Gloria Macapagal-Arroyo (AP FILE PHOTO) and former justice secretary Hernando “Nani” Perez (INQUIRER FILE PHOTO)

MANILA, Philippines—The Supreme Court has affirmed the Sandiganbayan decision dismissing the extortion case against former justice secretary Hernando “Nani” Perez.

In its ruling, the high court, through Associate Justice Lucas Bersamin, took note of the Office of the Ombudsman’s “inordinate delay” in resolving the criminal case filed by former Manila Congressman Mark Jimenez in 2001.

“The Sandiganbayan did not commit grave abuse of discretion in finding that there had been inordinate delay in the resolution against respondents [Hernando Perez and several others],” the high court said.

On Nov. 12, 2002, then Congressman Wilfrido Villarama delivered a privilege speech where he revealed acts of bribery by the “US$2 million-dollar man.” A few weeks later, Jimenez delivered a privilege speech identifying Perez as the “US$2 million-dollar man.” Jimenez said Perez allegedly demanded US$2million from Jimenez in exchange for custody under the Witness Protection Program (WPP) and testifying against former President, now Manila Mayor Joseph Estrada.

In December 2002, Jimenez submitted with the Office of the Ombudsman his sworn statement. The Ombudsman’s Special Action Team of the Fact-Finding and Intelligence Research Office (FIRO) was ordered to conduct a probe.

A month later, then Ombudsman Simeon Marcelo approved the recommendation of FIRO to set the complaint for a full blown probe.

The probe at the Office of the Ombudsman took about five years and five months before a case for robbery with intimidation was filed at the Sandiganbayan in 2008.

In 2009, the Sandiganbayan affirmed its 2008 ruling dismissing the case against Perez, his wife Rosario, brother-in-law Ramon Arceo and business associate Ernest Escaler.

“Clearly, the Office of the Ombudsman had taken an unusually long period of time just to investigate the criminal complaint and to determine whether to criminally charge the respondents in the Sandiganbayan. Such long delay was inordinate and oppressive and constituted under the peculiar circumstances of the case an outright violation of the respondents’ right under the Constitution to the speedy disposition of their cases,” the high court said.

x x x."


Read more: http://newsinfo.inquirer.net/559359/sc-affirms-dismissal-of-nani-perez-extortion-case#ixzz2pjO2hfHy
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