Do any published cases exist grant a mistrial or new trial because of internet issues, computer issues, or other technical troubles? FRCP Rule 52: Harmless and Plain Error: (a) Harmless Error. Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. Are there any published case from any US jurisdiction where the court wrestles with this idea and applies FRCP 52 to a fact pattern where someone on a video call either lost connection or couldn't be heard?
One such case is People in interests of EB, 2022COA8 (Colo. App. 2022). The official syllabus of the case states: In this dependency and neglect proceeding, father appeals the juvenile court judgment terminating his parent-child legal relationship with his child. Father contends that the juvenile court abused its discretion when it denied his request for a continuance after it learned that he was having technical difficulties participating in the termination hearing, which was being conducted via Webex videoconference due to the ongoing COVID-19 pandemic. A division of the court of appeals concludes that, under the facts and circumstances of this case, it was an abuse of discretion to deny the requested continuance. Accordingly, the division reverses the termination judgment and remands the case to the juvenile court for further proceedings. The Colorado Rules of Civil Procedure applicable to the case are substantially identical to the parallel Federal Rules of Civil Procedure of the same number. Harmless error analysis is fairly similar in criminal cases and civil cases, although not quite identical. In theory, the standard in a criminal case to ignore harmless error is stronger than in a civil case. In practice, lots of seemingly significant matters in criminal cases are discounted as harmless error anyway. The court doesn't explicitly make a harmless error or lack thereof determination, but its analysis makes clear that the error was not harmless. Issues related to a remote hearing are also discussed in People in Interest of R.J.B., 2021 COA 4 (Colo. App. 2021), which is cited in this case. The official syllabus to that case tangentially discusses the issue: In this dependency and neglect proceeding, mother appeals the judgment terminating her parent-child legal relationship following a remote termination hearing via Webex. She claims that the court should have granted her a continuance so an in-person hearing could have been held, and the remote hearing didn’t afford her due process or equal protection of the law. The division concludes that the court didn’t abuse its discretion in denying the continuance. The court’s need to conduct the termination hearing via Webex didn’t establish good cause to continue the hearing when a judge presiding over a hearing held via Webex can address any technical difficulties with sound, video feed, or broadband issues as they arise; any delay in making an objection can be redressed by the court disregarding improperly admitted evidence; the court had extensively tested the virtual lobby and didn’t allow a sequestered witness to hear any of the proceeding; Webex, as a real-time videoconference platform in which all participants may view one another, allows the court and all counsel to observe a witness’s demeanor, determine if the witness is relying on documents or other information, and view admitted exhibits as well as other documents that may be used for impeachment; and the court ensured that an official record of the hearing was made in the same manner as during an in-person hearing. The division also rejects mother’s assertions that the remote hearing procedure failed to afford her due process and equal protection of the law. The division concludes that the juvenile court ensured that mother was provided substantially similar and fundamentally fair procedures as would have been available at an in-person termination hearing. So conducting the termination hearing via Webex afforded mother due process. The division didn’t consider mother’s equal protection claim because it is merely a bald assertion without argument or development. It is worth mentioning that many cases applying the harmless error standard don't expressly reference Federal Rule of Criminal Procedure 52. Not infrequently, cases don't even mention the buzzwords &quot;harmless error&quot;, even though the case makes an analysis that implicitly addresses the issue. Probably the best place to look for relevant case law would be under annotations to Federal Rule of Criminal Procedure 33 which governs motions for new trials.
The underlying assumption in this question seems to be that because A received defective professional advice from V, F may be free of blame. I believe that assumption is wrong. The gist of the question is this: Suppose a fraudster's deception causes a person to take a course of action they wouldn't have otherwise taken. As part of that, they suffer losses due to a second person's tort. Is that loss recoverable from the fraudster as well? In the scenario given, there are clearly two parties that are to blame for the loss: The fraudster, who perpetrated the fraud. The professional attorney, who gave defective advice. The fact that there also exists a second party that may have contributed to the loss does not in any way absolve the first party from blame or from being liable for his actions. In a tort case, it is always the person that caused the loss in the first place (the tortfeasor) the victim (A) should seek relief from first. So F is in no way “safe from litigaton”. In the event that the tortfeasor is not being able make full restitution (e.g. he is already bankrupt), A may sue V for professional negligence to recover his loss. However, to prevail, A vould must be able to prove that V has made critical errors that no “reasonable attorney” would have made. That is sometimes pretty hard to prove (it obviously depends on how clever F's deception was, and whether the number of hours A allowed V to use for due diligence should have been sufficient to uncover the deception). As for legal precedent, I am not aware of a single case where a fraudster has not been held liable because the victim of the fraud has sought professional advice (but it is of course not easy to locate precedent for something has not occured).
In US law, there was, as far as the question indicates, no probable cause to search her phone at all, Therefore (unless there is some cause not mentioned in the question), any such search is illegal, and any evidence found in such a search, or that is found as an indirect result of such a search (pointers toward it are found in the search, and followed) would not be admissible in any criminal case against Alice. In the case of Bob, if his friends and family approach the police or other authority with a vague suspicion that Bob might be involved in the creation of illegal content That will probably not constitute probable cause for an arrest of Bob or a search warrant for his phone. Unless the accusation does prove to constitute probable cause, any evidence found during such a search would not be admissible against Bob in a criminal case. In practice, most US police would not undertake either search without better evidence than is described in the question. But some police will overstep the lines, which is what the US exclusionary rule is for. Legal procedure does not as far as I know make a distinction between "exploratory" and "confirmatory" evidence. Instead, evidence is either admissible or not. The rules for when evidence is admissible are quite complex, and vary by jurisdiction. Some of them are more traditional than logical, and some of them are addressed to particular problems that have arisen in particular circumstances. But the US Fourth Amendment protections against unreasonable searches, and the requirement of probable cause before search or arrest warrants are issued, serves some of the same purpose. Other countries have different rules, but many of them restrict the authorities to some extent from making arbitrary searches with no initial evidence. Response to the Revised Question As the question has been edited, there seems to be fairly clear probable cause to search Alice's phone, and if clear evidence of "illegal pornographic content" presumably actually child pornography, as no other kind is illegal simply to posses) is found, she can be brought to trial and perhaps convicted. The mere "suspicion" of Alice's "friends and relatives" would add little and mi8ght well not even be admissible. The facts, if any, on which those suspicions are based might be admissible, one cannot tell from the summary in the question. The case against Bob, however, remains weak. Indeed there still seems to be no probable cause either to arrest Bob nor to se3arch his phone, and the results of any search that was done would not be admissible. Probably none would be done without more evidence. The OP wrote: Thus, although the situation looks grim for both, since the evidence against Bob is confirmatory, it might be considered stronger. Not so, the case against Bob is weaker, indeed so weak that an arrest would be unlikely, and if one were made, the case would likely be dismissed before going to trial, assuming no more evidence than was included inn the question. The evidence prior to the search seems to consist only of vague suspicion not supported by any actual evidence, and so there is nothing to confirm, and no valid search would occur. That suspicion of Bob came before the search, and the search is thus "confirmatory" is not relevant. The question is, what evidence against each defendant is admissible, and does the totality of the admissible evidence amount to "proof beyond a reasonable doubt" no matter what order it was discovered in, or what idea was in the minds of the investigators, provided that they were acting lawfully so that their findings are admissible.
The concept of prima facie is common also in civil proceedings (and, impliedly, administrative ones). See the results from this query, most of which are civil cases. For instance, this memorandum opinion begins by acknowledging that the plaintiff-appellees "have met their burden of establishing a prima facie case for defamation". In theory, the purpose of prima facie elements is to establish "high-level" uniformity as to what items a plaintiff or prosecutor, as the case may be, will need to prove in order to prevail in a case. That uniformity is necessary for --and consistent with-- the so-called "equal protection of the laws". From a standpoint of equal protection, there is no reason why a case being criminal vs. civil should make a difference regarding the applicability of the concept of prima facie elements.
Bob has to sue in a court of competent jurisdiction To enliven jurisdiction, there has to be some connection between the parties or the event and the jurisdiction. Since Bob, the manufacturer and (presumably) the harmful incident all took place in County X, of State Y or Country A then they are the only jurisdictions that might be competent. The courts of County Z, State M or Country B are all going to say &quot;not my problem&quot;. For the USA, there are only State courts and Federal courts. States may have courts that are called county courts but they are enlivened by the state sovereign - counties and cites are self-governing administrative districts, not sovereign states. Federal courts have jurisdiction where the subject matter is about a Federal Statute, the Constitution or a treaty. This dispute would appear to be based on tort or contract law which is a state matter. Federal courts can have jurisdiction if the parties are in different states and the amount in dispute is more than $75,000. This would not appear to be the case. So, as a state matter, the plaintiff can bring the case to any competent court. The defendant can apply to have it moved to a more convenient court. Arguments will be heard and, at some cost, you'll probably end up where you should have started.
There is, of course, no way to tell how the Court would deal with such a case today. This is not a frequently litigated issue, with lots of case law. I note that in the case you link to, the court limited the statute to false claims made "with a fraudulent purpose". This normally means that the claimant is attempting to secure an improper financial or materiel advantage. In the United States v. Tandaric case, the person convicted had falsely claimed to be a US Citizen on an employment application for a company which did not hire non-citizens, and so gained a job through this false statement. He could have been convicted of ordinary Fraud. The court has not been as protective of Fraud under the First Amendment as it has been of speech generally, or even of false but non-fraudulent speech. I am not at all sure if the court would overturn this law in a similar case today. Edit: In the United States v. Achtner case, the court wrote: But we agree with the District Court that the representation of citizenship must still be made to a person having some right to inquire or adequate reason for ascertaining a defendant's citizenship; it is not to be assumed that so severe a penalty is intended for words spoken as a mere boast or jest or to stop the prying of some busybody, ... This seems to dispose of the example in the question of a neighbor who is merly inquiring as to the character of the area, or perhaps from simple curiosity, and a false speaker who seems to get no direct benefit or advantage from the falsehood. Both linked cases involved false statements made to employers or potential employees, during wartime at that, with the false speaker's employment apparently at stake.
If your lawyer repeatedly makes mistakes or other actions that tend to benefit the other side (this was not a one time thing), even if it stemmed from incompetence, could that constitute malpractice, or some related charge such as breach of fiduciary duty? Incompetence is the principal reason for a malpractice lawsuit, which is a subset of the ubiquitous ground for tort lawsuits which is &quot;negligence&quot;, although mere carelessness is also often a ground for a malpractice lawsuit. For example, in one professional malpractice lawsuit I am aware of, a lawyer failed to have a mortgage securing a debt owed to his client recorded in the real property records as required for it to be effective against third-parties, and so the client lost the benefit of the mortgage, even though this was merely the kind of carelessness an otherwise competent lawyer could commit. Of course, often carelessness reflects incompetence in the form of failure to competently put in place good systems to guard against careless mistakes. The legal standard is that the attorney failed to act with the reasonable care of an attorney in a manner that caused harm to the client. This breach of a standard of care is usually established and opposed with expert testimony from an another attorney regarding what a reasonable attorney would have done. A single act of negligence is sufficient (and indeed, usually easier to prove than a series of missteps in most cases). Breaches of fiduciary duty typically involve breaches of a duty of loyalty (including conflicts of interest that don't involve otherwise negligent work product), misappropriation of client funds, or unauthorized disclosures of client secrets that are damaging outside the context of litigation simply by virtue of the emotional harm associated with their disclosure. Generally speaking, incompetence can only be pursued in an action for professional negligence and not in an action for breach of fiduciary duty. Sometimes forfeiture of fees paid, or fees owed, is a remedy for breach of fiduciary duty even in the absence of other evidence of damages caused by the breach of a fiduciary duty. How would this change if your lawyer accepted work from the other party shortly after he concluded your case to your detriment? And suppose &quot;discovery&quot; showed that on at least one occasion, the lawyer represented a small company, A, against a much larger company, B, and then a year later helped B take over A? In the U.S. this is governed by Rule of Professional Conduct 1.9 governing duties to a former client. Rules of professional conduct have the same numbering system and are variants on the same American Bar Association set of Model Rules in every U.S. jurisdiction, although there are minor, but important, differences in wording between them. Generally speaking the rule is that a lawyer can't represent a new client against a former client if it is in a matter in which the former client was previously represented, or in a matter in which the new client gains some advantage from the confidences shared by the former client in the representation of the new client. Often, the former client would move to disqualify the attorney from representing the new client in the case in question once learning of the representation.
There are a few problems with your line of reasoning, but the main one is that if the government can't locate a defendant, California's Rules of Civil Procedure provide a variety of alternative means of service. When all else fails, the government can serve the defendant &quot;by publication,&quot; meaning that they simply publish a notice of the lawsuit in a newspaper. If the defendant fails to appear to defend the suit after service by publication, the court will enter default judgment, the government will seize the property, sell it, and use the resulting revenue to continue operating.