Criminal Justice Update: Hearsay evidence in child sex abuse cases.

The Ohio Supreme Court handed down a decision which held that someone other than a child-victim may testify about the statements that the child made concerning an alleged molestation of the child. See http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-1576.pdf. The Court held that if the child-victim was not able to testify at trial for some reason, the “hearsay” statements of the child-victim can be admitted by having another person tell the jury what the child-victim had said on an earlier occasion. In this unique case, the child-victim died in a fire prior to the trial, and the defense had argued that the statements made by the child to others were “hearsay” and could not be admitted at trial. Thought: Some prosecutors may try to stretch this ruling to permit hearsay statements to be admitted at trail when they (the prosecution) deem the child to be “unavailable” even though the child is alive and healthy.

Criminal Justice Update: Computer hard drives

The Ohio Supreme Court handed down a decision that is a true reflection of the modern digital age. In cases where a defendant’s hard drive has been seized and examined by the police/prosecutorial authorities, the defense lawyer may not independently examine that hard drive (with a defense expert) unless the defense lawyer makes a minimal showing that the written results of the hard drive examination are somehow “false, incomplete, adulterated or spoliated.” See: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-1354.pdf. Thought: In this new digital age, computer forensic experts are rapidly becoming one of the most important expert witnesses. Make sure you hire the right one.

Cuyahoga County Court of Appeals ruling on disability pension benefits.

The Cuyahoga County Court of Appeals has recently ruled that disability pension benefits are not “marital property” (which would make them subject to division between the spouses in a divorce) unless they are taken by the retiring spouse instead of that spouse continuing to work or taking his or her regular pension. See: www.sconet.state.oh.us/rod/docs/pdf/8/2009/2009-ohio-2263.pdf. If the retiring spouse has any of his or her normal pension benefits reduced because of taking disability pension benefits, then a corresponding amount of the disability pension benefits become martial property. Thought: A spouse who is going through a divorce who has the ability to receive both a regular pension and a disability pension must engage in some sophisticated math and planning before making an election to receive either or both a regular pension or a disability pension.

Recent personal injury law update: Nursing home agreements and arbitration requirements

Recently the Ohio Supreme Court has ruled that persons who sign admission agreements when they enter nursing homes can be bound by written “arbitration” clauses that require arbitration of any issues related to their residency - including issues related to negligent or intentional injury to the resident. See: www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-2054.pdf.
These arbitration provisions almost always require that injured residents waive their right to judge/jury trial and submit to a potentially more expensive and industry-biased arbitrators. Any person who is being admitted to a nursing home or any person who has a friend or family member being admitted needs to be aware of the potentially very serious impact of these arbitration provisions. Thought: Shop your nursing homes on this and other issues.