Phyllis Mintz, Assistant District Attorney, for Charles J. Hynes, District Attorney Kings County, Brooklyn, N.Y. (Leonard Joblove, on the brief), for Respondent-Appellant.
Richard E. Kwasnik, Law Office of Richard E. Kwasnik, New York, NY, for Petitioner-Appellee.
Respondent Joseph Costello, Superintendent of the Mid State Correctional Facility, appeals from the grant of Sidney Hawkins's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 by the United States District Court for the Eastern District of New York (Johnson, J.). See Hawkins v. Costello, No. 00 CV 1343(SJ), 2005 WL 946412 (E.D.N.Y. Apr.15, 2005). Because the state court adjudication was not contrary to, or an unreasonable application of, clearly established federal law, we reverse.
In June 1994, two New York City police officers were on patrol in Brooklyn. They saw two men running on the sidewalk, looking over their shoulders as they ran. The officers recognized one of the men as a man they knew by the sobriquet "Eddie-Ed." The police officers also saw Sidney Hawkins standing behind the two men in front of a grocery store. Hawkins was holding a gun.
Hawkins ran into the grocery store. One of the officers pursued him and arrested him inside the store. The officers recovered the gun from behind a counter, and Hawkins was charged with criminal possession of a weapon.
In March 1995, the New York Supreme Court, Kings County, conducted a bench trial. Hawkins's defense was that Eddie-Ed had brandished a gun at him during a dispute over a debt Hawkins owed Eddie-Ed. According to Hawkins, he grabbed the gun from Eddie-Ed in order to protect himself.
Mark McCormack, one of the officers who arrested Hawkins, testified about the events surrounding Hawkins's arrest. He also testified that a few months after the arrest, he saw Eddie-Ed on a street corner. After the two exchanged pleasantries, Officer McCormack "mentioned" Hawkins's arrest.
On cross-examination, Hawkins's attorney attempted to explore the substance of Officer McCormack's conversation with Eddie-Ed in order to support Hawkins's innocent possession defense. The prosecution objected to the following question: "And during this conversation, isn't it a fact that [Eddie-Ed] had told you . . . that the weapon was his?" The court sustained the objection and struck the question from the record. Hawkins's attorney then asked Officer McCormack, "And in this conversation that you had with [Eddie-Ed], didn't he tell you that you were arresting the wrong person for ownership of the weapon?" The prosecution again objected. The court initially overruled the objection because it did not ask for "a direct quote." The prosecution, however, explained why it believed the question called for hearsay. The court then reversed itself and sustained the prosecution's objection to the question. Hawkins's attorney also asked Officer McCormack if he knew "who the owner of that weapon is?" The prosecution once again objected, and the court sustained the objection, ruling that "owner" "is a legal term. The trier of facts has to determine who the owner means." Notably, Hawkins's attorney never sought to make an offer of proof regarding why he thought Eddie-Ed's putative out-of-court statements were admissible through Officer McCormack's testimony.
At the close of trial, the court found Hawkins guilty of criminal possession of a weapon in the third degree. After finding that Hawkins was a persistent violent felony offender under New York law, the court sentenced him to eight years' to life imprisonment.
Hawkins appealed his conviction to the Appellate Division, Second Department. He argued, inter alia, that the trial court improperly restricted his cross-examination of Officer McCormack. In 1999, the Appellate Division affirmed the conviction. People v. Hawkins, 258 A.D.2d 472, 685 N.Y.S.2d 253 (2d Dep't 1999). The court did not directly address Hawkins's argument regarding Officer McCormack's cross-examination. Instead, after addressing other arguments, the court said that all of Hawkins's "remaining contentions . . . are either unpreserved for appellate review or without merit." Id. at 253-54.
The New York Court of Appeals denied Hawkins leave to appeal. People v. Hawkins, 93 N.Y.2d 925, 693 N.Y.S.2d 508, 715 N.E.2d 511 (1999) (Wesley, J.).
In 2000, Hawkins filed a pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York. Among other things, the petition alleged that the trial court unconstitutionally restricted his cross-examination of Officer McCormack.
In January 2003, a magistrate judge (Chrein, M.J.), to whom the district court had referred Hawkins's petition, construed Hawkins's pro se claim as a contention that he was unconstitutionally prohibited from presenting exculpatory evidence. The magistrate found that if Eddie-Ed had told Officer McCormack that the gun belonged to him, Officer McCormack's testimony to that fact would have been admissible hearsay as a statement against penal interest and the trial court's refusal to allow such testimony would have been a denial of Hawkins's due process right to introduce exculpatory evidence. The magistrate ordered a hearing to determine what Eddie-Ed told Officer McCormack. At the same time, he recommended rejection of Hawkins's other claims, and he appointed counsel to represent Hawkins.
In April 2003, the State submitted an affidavit from Officer McCormack in which he stated that he did not remember his near-decade-old conversation with Eddie-Ed. Thus, Officer McCormack had no "recollection whatsoever of anything [Eddie-Ed] said to [him]." The State filed an additional affidavit in which it included Eddie-Ed's last known address.
In May 2003, the magistrate rescinded the hearing order and gave Hawkins time to develop evidence regarding the substance of Eddie-Ed's statements to Officer McCormack. When Hawkins failed to do so, the magistrate issued a report and recommendation in which he recommended that Hawkins's habeas petition be denied in full.
Hawkins objected to the report and recommendation, arguing that the "Magistrate Judge unconstitutionally placed the burden on petitioner to offer proof as to what [Officer McCormack] would have testified." In April 2005, the district court rejected the magistrate's recommendation and granted in part Hawkins's petition for a writ of habeas corpus. The district court essentially assumed that if the trial court permitted Officer McCormack to answer Hawkins's counsel's questions, he would have testified that Eddie-Ed stated that the gun was his, and therefore Hawkins was prevented from presenting exculpatory evidence. The court based this assumption on its finding that the lack of evidence regarding what Eddie-Ed actually said to Officer McCormack is "entirely attributable" to the State because the trial court sustained the prosecution's objections to Hawkins's counsel's questions. The district court ordered the State to immediately release Hawkins.
The State moved for a stay of Hawkins's release pending appeal. The district court granted an interim stay pending its decision on the State's motion. Seven months later, the district court denied the State's motion for a stay pending appeal, lifted its interim stay, and ordered the State to release Hawkins within fifteen days. Hawkins v. Costello, No. 00 CV 1343, 2005 WL 3072019 (E.D.N.Y. Nov.1, 2005).
The State immediately moved this Court for a stay pending appeal, which we granted. Thus, Hawkins remains incarcerated during our consideration of this appeal.
The State argues that the district court erred in granting Hawkins's habeas petition. We agree.
We review de novo a district court's decision to grant or deny a habeas petition. Jenkins v. Artuz, 294 F.3d 284, 290 (2d Cir. 2002). In so doing, we review a district court's factual findings for clear error. Id.
When a state court adjudicates a habeas petitioner's claim on the merits, we must afford that decision the deferential standard of review established by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") in 28 U.S.C. § 2254(d). Sellan v. Kuhlman, 261 F.3d 303, 310-11 (2d Cir. 2001). In Jimenez v. Walker, we recently made clear that when a state court rejects a petitioner's claim as either unpreserved or without merit, the conclusive presumption is that the adjudication rested on the merits. 458 F.3d 130, 146 (2d Cir. 2006). Here, the Appellate Division rejected Hawkins's claim regarding the exclusion of Officer McCormack's answers to his counsel's questions as "either unpreserved for appellate review or without merit." Hawkins, 685 N.Y.S.2d at 253-54. Thus, we owe that adjudication AEDPA deference.
Applying AEDPA deference, a federal court may grant a writ of habeas corpus if the state court's adjudication on the merits "was contrary to, or involved an unreasonable application of, clearly established, Federal law as determined by the Supreme Court of the United States."1 28 U.S.C. § 2254(d) (1). "Clearly established Federal law" "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).
A state court adjudication is "contrary to" federal law if it "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or if it "decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Id. at 412-13, 120 S. Ct. 1495.
"Unreasonableness is determined by an `objective' standard." Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir. 2005) (quoting Williams, 529 U.S. at 409, 120 S. Ct. 1495), cert. denied, ___ U.S. ___, 126 S. Ct. 2882, 165 L. Ed. 2d 894 (2006). An incorrect decision is not necessarily unreasonable. Instead, we look for " [s]ome increment of incorrectness beyond error." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000). That increment, however, "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as suggest judicial incompetence." Id. (internal quotation marks omitted). "Moreover, the range of judgments that can be deemed `reasonable' may vary with the nature of the rule in question." Serrano v. Fischer, 412 F.3d 292, 297 (2d Cir. 2005), cert. denied, ___ U.S. ___, 126 S. Ct. 1357, 164 L. Ed. 2d 68 (2006). "The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations." Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004).
AEDPA does not require that the state court adjudication under review cite Supreme Court cases. Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (per curiam). " [I]ndeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Id. Where, as here, the state court "summarily rejected" the basis for a petitioner's application for the writ, "we must focus on the ultimate decisions of [that] court [ ], rather than on the [court's] reasoning." Aeid v. Bennett, 296 F.3d 58, 62 (2d Cir. 2002). Thus, we consider whether the "ultimate decision was an `unreasonable application' of clearly established Supreme Court precedent." Sellan, 261 F.3d at 311-12.
Long before the Appellate Division's adjudication of Hawkins's claim, the Supreme Court made clear that a criminal defendant has a constitutional right— grounded in the Sixth Amendment's Compulsory Process and Confrontation Clauses and the Fourteenth Amendment's Due Process Clause—to "a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986) (internal quotation marks omitted). Indeed, " [f]ew rights are more fundamental than that of an accused to present witnesses in his own defense." Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973).
While a defendant has the right to present a complete defense, that right is not without limits and "may in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Id. at 295, 93 S. Ct. 1038; Jimenez, 458 F.3d 147 ("As with many rights, the right to present a defense is not unlimited."). A defendant "must comply with established rules of procedure and evidence designed to assure both fairness and reliability," Chambers, 410 U.S. at 302, 93 S. Ct. 1038, and the "accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence," Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988); see also Clark v. Arizona, ___ U.S. ___, ___, 126 S. Ct. 2709, 2731, 165 L. Ed. 2d 842, (2006) (" [T]he right to introduce relevant evidence can be curtailed if there is a good reason for doing that."). The Supreme Court, however, "has found unconstitutional the rigid application of state evidentiary rules prohibiting presentation" of exculpatory evidence. See Wade v. Mantello, 333 F.3d 51, 57 (2d Cir. 2003). In this vein, "where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." Chambers, 410 U.S. at 302, 93 S. Ct. 1038.
III. "Contrary to" or "Unreasonable Application of"
We can quickly dispense with AEDPA's "contrary to" prong. In deciding Hawkins's claim, the state court did not decide a question of law differently from the Supreme Court; and this case does not present a set of facts materially indistinguishable from a Supreme Court case. Thus, the state court adjudication is not "contrary to" clearly established federal law. See Williams, 529 U.S. at 412-13, 120 S. Ct. 1495. Our focus here, then, is on AEDPA's "unreasonable application" prong.
In considering whether the exclusion of evidence violated a criminal defendant's right to present a complete defense, we start with "the propriety of the trial court's evidentiary ruling." Wade, 333 F.3d at 59; Washington v. Schriver, 255 F.3d 45, 57 (2d Cir. 2001). Of course, "habeas corpus relief does not lie for errors of state law," Lewis v. Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 111 L. Ed. 2d 606 (1990), and that necessarily includes erroneous evidentiary rulings. The inquiry, however, "into possible state evidentiary law errors at the trial level" assists us in "ascertain [ing] whether the appellate division acted within the limits of what is objectively reasonable." Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000).
If potentially exculpatory evidence was erroneously excluded, we must look to "whether `the omitted evidence [evaluated in the context of the entire record] creates a reasonable doubt that did not otherwise exist.'" Justice v. Hoke, 90 F.3d 43, 47 (2d Cir. 1996) (quoting United States v. Agurs, 427 U.S. 97, 112, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976)) (alteration in original); see also Wade, 333 F.3d at 59 (stating that " [t]his test applies post-AEDPA").
On the other hand, if the evidentiary ruling was correct pursuant to a state evidentiary rule, our inquiry is more limited. We consider whether the evidentiary rule is "`arbitrary' or `disproportionate to the purposes [it is] designed to serve.'" United States v. Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998) (quoting Rock v. Arkansas, 483 U.S. 44, 56, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987)); see also Holmes v. South Carolina, ___ U.S. ___, ___, 126 S. Ct. 1727, 1731, 164 L. Ed. 2d 503 (2006). A state evidentiary rule is "unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused." Scheffer, 523 U.S. at 308, 118 S. Ct. 1261. Moreover, even before AEDPA required a more deferential review, the Supreme Court had a "traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts." Crane, 476 U.S. at 689, 106 S. Ct. 2142. The Court has "never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability—even if the defendant would prefer to see that evidence admitted." Id. at 690, 106 S. Ct. 2142.
We cannot say that the trial court's exclusionary rulings were erroneous as a matter of New York evidentiary law. It appears that the trial court excluded Officer McCormack's answers to Hawkins's counsel's questions as hearsay.2 Hearsay is inadmissible in New York courts unless it falls within an exception to the rule. See People v. Huertas, 75 N.Y.2d 487, 492, 554 N.Y.S.2d 444, 553 N.E.2d 992 (1990). Hawkins's attorney's questions plainly called for out-of-court statements to be introduced for the truth of the matters asserted, and hence they called for hearsay. See People v. Romero, 78 N.Y.2d 355, 361, 575 N.Y.S.2d 802, 581 N.E.2d 1048 (1991) (defining hearsay as an out-of-court statement "offered for the truth of the fact asserted in the statement" (internal quotation marks omitted)).
New York law does provide a potentially applicable exception to its hearsay rule for statements against a declarant's penal interest so long as certain requirements are met. See People v. Thomas, 68 N.Y.2d 194, 197-98, 507 N.Y.S.2d 973, 500 N.E.2d 293 (1986), overruled on other grounds by People v. Hardy, 4 N.Y.3d 192, 791 N.Y.S.2d 513, 824 N.E.2d 953 (2005). The district court found that this exception applied here and therefore that the exclusion of Officer McCormack's answers was a state evidentiary law error. But, as we discuss in greater detail below, Hawkins's never gave the trial court any reason to find that the exception applied in this case. Cf. People v. Houghton, 155 A.D.2d 883, 547 N.Y.S.2d 718, 718 (4th Dep't 1989) ("In the absence of proof about the contents of the statements sought to be admitted, it is impossible to determine whether they came within any exception to the hearsay rule."). Thus, the trial court's evidentiary ruling was not erroneous. Cf. Zarvela v. Artuz, 364 F.3d 415, 418 (2d Cir.) (per curiam), cert. denied, 543 U.S. 879, 125 S. Ct. 140, 160 L. Ed. 2d 132 (2004) (finding habeas relief unavailable where the state court excluded potentially exculpatory evidence as hearsay, in part, because "petitioner has not shown that the court's ruling was contrary to" New York's hearsay rule).
B. Infringement on a "Weighty Interest"
As explained above, when a trial court has not made a state evidentiary error, we must consider whether the evidentiary rule the court applied is arbitrary or disproportionate to the purposes it is designed to serve, and we can only find the rule arbitrary or disproportionate if it infringes on a "weighty interest of the accused." Scheffer, 523 U.S. at 308, 118 S. Ct. 1261. Here, there is no basis upon which to find that the application of New York's hearsay rule infringed on any of Hawkins's weighty interests.
If we knew—or perhaps more precisely if the trial court had reason to have known—that Eddie-Ed had confessed ownership of the gun to Officer McCormack, then we might well have found that the trial court's exclusion of that evidence infringed on Hawkins's weighty interest in presenting exculpatory evidence. See People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463 (1984) (stating that a person who possesses an otherwise proscribed weapon is not guilty of unlawful possession if he took the weapon from an assailant in the course of a fight). The problem, however, is that we do not know whether such exculpatory evidence ever existed. Hawkins "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated." Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). Without some basis to find that the evidence did in fact exist or some reason to excuse the absence of such a basis, a writ of habeas corpus is inappropriate in this case. See Wood v. Bartholomew, 516 U.S. 1, 8, 116 S. Ct. 7, 133 L. Ed. 2d 1 (1995) (per curiam) (stating that a federal court cannot grant "habeas relief on the basis of little more than speculation with slight support").
Significantly, neither Hawkins nor the district court has directed us to any cases in which a court found a violation of a criminal defendant's right to a meaningful opportunity to present a defense where the court so ruling did not know the substance of the excluded evidence. And we have not found any cases in which the Supreme Court or this Court found a violation of that right where it was not "able to appreciate the significance of the excluded evidence."3 See Gov't of the Virgin Islands v. Smith, 615 F.2d 964, 972 (3d Cir. 1980).
Finally, we consider the district court's conclusion that the absence of information in the record about Eddie-Ed's conversation with Officer McCormack is "entirely attributable" to the State because the trial court sustained the prosecution's objection to Hawkins's counsel's questions. The district court went on to find that " [t]o deny [Hawkins's] claim on the basis of the fact that he has not presented such evidence when the trial court erroneously barred him from presenting exactly that evidence would be unreasonable and unjust." (Emphasis added.) We disagree with this analysis.
First, as we discussed above, the trial court did not "erroneously" exclude the evidence. Instead, it excluded hearsay evidence in accord with well-established New York evidentiary law designed to exclude unreliable evidence. See Scheffer, 523 U.S. at 309, 118 S. Ct. 1261 ("State and Federal Governments unquestionably have a legitimate interest in ensuring that reliable evidence is presented to the trier of fact in a criminal trial," and "the exclusion of unreliable evidence is a principal objective of many evidentiary rules.").
Second, as we have explained, when the trial court made its initial exclusion ruling, the proverbial ball was in Hawkins's court. As a matter of New York law, it was incumbent upon his counsel to alert the trial court to a basis, if there was any, upon which the out-of-court statements were admissible. See Tyrrell v. Wal-Mart Stores, Inc., 97 N.Y.2d 650, 652, 737 N.Y.S.2d 43, 762 N.E.2d 921 (2001) ("Our law is well settled. The proponent of hearsay evidence must establish the applicability of a hearsay-rule exception." (internal citation omitted)). He did not do so.4 Whatever the reason, we cannot know how Officer McCormack would have answered Hawkins's counsel's questions. We cannot—and do not—fault the State for that lack of knowledge.
Hawkins contends that his opening statement "clearly alerted the Court to the defense that the weapon was in temporary possession of [Hawkins], after having been removed from the true owner," and thus the trial court had a sufficient offer of proof to allow Officer McCormack to answer Hawkins's counsel's questions. That is not correct. The opening statement certainly alerted the trial court to Hawkins's defense of innocent possession. That is a far cry, however, from an indication that Eddie-Ed told Officer McCormack that the gun was his. Simply because a hoped-for answer would support an asserted defense does not indicate a basis for admission of that answer into evidence.
We cannot say that the state court adjudication was contrary to, or an unreasonable application of, clearly established federal law. Thus Hawkins's habeas petition must be denied.
For the foregoing reasons, we reverse the district court's grant of Hawkins's habeas petition and remand with directions to dismiss the petition.
Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987), is the only potential exception. Ritchie, however, is as much a case about the government's obligation to turn over evidence potentially favorable to the accused as it is about the right to present a complete defense. See id. at 57-58, 107 S. Ct. 989.


text:
JOHN G. LOCKWOOD v. BOSTON ELEVATED RAILWAY COMPANY.
Negligence, Street railway. Carrier, Of passengers. Proximate Cause. Practice, Civil, Conduct of trial. Evidence, Expert: opinion. Witness.
At the trial of an action against a street railway company to recover for injuries alleged to have been received by the plaintiff while he was a passenger upon an open electric car of the defendant and to have resulted from the car's negligently having been caused to come in collision with a wagon in the street, there was evidence tending to show that the plaintiff and a companion signalled from the sidewalk of a crowded street for the car to stop and, the motorman having inclined his head, started from the sidewalk, passed behind a wagon and, the car having stopped, got upon the running board; that the wagon, which the plaintiff and his companion had passed behind to reach the car, continued on ahead of and in close proximity to the car and that both the conductor and the motorman saw it, that on a signal from the conductor, who had seen the plaintiff getting upon the car, the car proceeded before the plaintiff could take a seat, and the wagon struck the plaintiff's companion and knocked him against the plaintiff, who in the act of taking a seat had one foot on the car floor and one on the running board, and caused him to fall into the street. Subject to exceptions by the defendant, the presiding judge submitted the case to the jury, who found for the plaintiff. Held, that the exceptions must be overruled, since there was evidence from which the jury were warranted in finding that the plaintiff had been accepted by the defendant as a passenger and was in the exercise of due care, that the motorman and the conductor were negligent and that their negligence, in causing the plaintiffs companion to be knocked against him and thus to throw him from the car, was the proximate cause of the plaintiffs injury.
One, who has been accepted as a passenger upon an open electric car in a crowded street in a city and who is passing from the running board to a seat, has a right to assume that, while he is doing so, the car will not be started until all danger of its running so near to teams in the street as to injure him has passed.
The principle, applicable to railroad companies whose trains stop only at fixed stations, that they hold themselves out as carriers offering transportation only to such persons as present themselves in the usual way at stations, has not been applied to street railways whose operating companies have not promulgated a rule that passengers will not be taken on except at designated places.
The mere facts, that one boarded an open electric car while it was moving slowly and at a point between two of the regular stopping places of the car on a street crowded with traffic, will not preclude such person from recovering from the street railway company for injuries received by him by reason of the car's negligently being caused to run into too close proximity to a wagon in the street, if it also appears that he had been accepted as a passenger.
In determining whether or not an exception to a designated portion of a charge to a jury should be sustained, the charge should be considered as a whole, and, if as a whole it is legally correct and not likely to mislead the jury, the exception will be overruled although the portion objected to is open to deserved criticism.
One, who had been called to testify as a medical expert on behalf of the defendant at the trial of an action of tort for personal injuries, after having stated that he had examined the plaintiff just before the trial and had found that he was suffering from a marked case of nervous prostration, and that such a condition was a very unusual one after an accident, was asked by the defendant's counsel "What do you base your opinion on ?" and replied, "In a long series of investigations made by me ... I found that, outside of cases where there was litigation, accident produced nervous prostration in only about one half of one per cent." On motion of the plaintiff, that portion of the answer relating to litigation was struck out, and the defendant excepted. Held, that the exception must be overruled, since the witness could not, under the guise of reasons for his opinion, indirectly testify that the nervous prostration from which the plaintiff was suffering was due to his being the plaintiff in litigation seeking recovery for his injuries.
At the trial of an action against a street railway company for personal injuries suffered by the plaintiff while he was a passenger on a car of the defendant, a material question in issue was, whether the car was moving when the plaintiff boarded it. A witness for the defendant testified in direct examination that the car had stopped at a crossing before the point where the plaintiff had boarded it and had not stopped again until after the accident, and he identified a statement which he had received in blank from the defendant "afterwards" with a request to fill it out and mail it to the defendant. In cross-examination he stated that he was reading a newspaper at the time of the accident and did not think he noticed whether the car stopped or not after the crossing designated. In redirect examination, "as bearing on the question as to how soon his attention" was called to the matter after the accident, the defendant asked "And when you received that blank . . . were you asked to state whether the car was moving or standing when "... [the sentence was not completed.] The question was excluded and the defendant excepted. Held, that the exception must be overruled.
of a collision between it and a wagon in the street. Writ in the Superior Court for the county of Suffolk dated August 24, 1905.
This case and an action by the plaintiff's companion Gould against the defendant were tried together before Raymond, J.
Joseph W. Courtney, M.D., the defendant's medical expert, testified that he examined the plaintiff just before the trial and found that he was suffering from a marked case of nervous prostration. "Q. Whether or not such a condition as you found is an unusual thing? A. After accident? Yes, very.  Q. What do you base that answer on? A. In a long series of investigations made by me at the City Hospital I found that, outside of cases where there was litigation, accident produced nervous prostration in only about one half of one per cent." Upon objection by the plaintiff and subject to an exception by the defendant, the part of the answer about litigation was stricken out.
One Bretschneider, called by the defendant, testified in direct examination that he was a passenger on the car which the plaintiff boarded, that the car had stopped at Essex Street but did not stop again until after the accident. He also identified a blank that he had received from the defendant "afterwards" with a request to fill it out and mail it to the defendant. In cross-examination he testified in substance that he was reading his newspaper at the time the car passed Essex Street. "Q. So if you were reading the paper when the car passed Essex Street you would not notice whether the car stopped there or not? A. No, sir, I don't think I did."
With regard to his redirect examination, the record stated as follows: "Q. Was your attention called to the question whether the car had stopped immediately before this accident? A. Before the car stopped my attention was taken.  Q. Before the car came to a stop? A. Before the car came to a stop.  Q. And when you received that blank from the elevated were you asked to state whether the car was moving or standing when . . . (Objected to)."
"Mr. Dodge (the defendant's counsel): Only as bearing on the question as to how soon his attention was attracted."
The evidence was excluded and the defendant excepted.
"1. On all the evidence your verdict must be for the defendant.
"2. If you find that the car was moving when the plaintiffs boarded it, your verdict must be for the defendant.
"3. There is no evidence in this case of negligence on the part of the motorman.
"4. If the car was moving when the plaintiffs boarded it and had not reached the regular stopping place, your verdict must be for the defendant.
"5. If the plaintiffs jumped on the car knowing that it was passing or about to pass the wagon, they cannot recover.
"6. If the plaintiffs boarded the car while it was moving, they did not become passengers, and the defendant owed them only the duty of ordinary care.
"7. If the plaintiffs passed around a moving wagon, close to the rear thereof, and jumped upon a moving car and immediately thereafter were injured through the contact of Gould with the wagon, they cannot recover.
"9. If you find that the plaintiffs knew that the car was passing or was about to pass the wagon, then if their own failure to use their eyes and observe the location of the wagon contributed in any degree to the accident, they cannot recover.
"10. If the car was moving and had not reached the white post when the plaintiffs boarded it, and if the motorman did not know they were getting on, they cannot recover.
"12. If the plaintiffs boarded the car while it was moving and before it reached a regular stopping place, they did not become entitled to the rights of passengers."
hold of some part of the car to assist them to climb up on the running board. If you should find that those were the facts in the case, then I instruct you that the plaintiffs were passengers as soon as they came to the place where they took hold upon the car and attempted to step up upon the running board. If you should find that the plaintiffs signalled the car and the car checked its progress so that as reasonable men, seeing that they were recognized by the motorman or conductor, they should step over and take hold of the car to mount the car, even though the car had not come to a full stop, as soon as they took hold of the car and sought to climb upon the car, I instruct you that they would be passengers. On the question whether or not the car did check its headway at all, or whether it followed along the ordinary rate of progress that it had been following during the time previous to their signalling, there comes a closer question as to whether or not these parties were passengers at the time that they went upon the car. But I instruct you, gentlemen, in that regard, that if the car was following the slow rate of speed which has been testified by the parties here, both the parties here, that if the plaintiffs signalled the car and were recognized by the motorman or conductor or both in assent to their purpose to come upon the car, and following their recognition and the assent of the motorman or conductor to their coming upon the car and stepped up upon the running board, I instruct you that in that event they were passengers and were entitled to the rights of passengers. . . .
"If you should find that . . . the servants of the defendant company did not see them when they signalled the car or did not know that they were intending to come upon the car as passengers, and in no way either directly or indirectly, either expressly or by implication, assented to their becoming passengers upon the car, then you could find that they were not passengers, in which case the company, the defendant company, would not owe them the same degree of care that it would owe to passengers.
recognition he expressed an assent to their evident purpose to become passengers on that car. If you find that he did not in any way, you would have the right to find that they were not passengers. . . ."
Other facts are stated in the opinion. There was a verdict for the plaintiff, and the defendant alleged exceptions.
R. G. Dodge, (S. H. E. Freund with him,) for the defendant.
J. E. McConnell, (J. W. McConnell with him,) for the plaintiff.
Braley, J. The defendant's exceptions to the refusal to give the first, seventh, ninth, tenth, eleventh and twelfth requests must be overruled. It was within the province of the jury to find, upon conflicting evidence, that the plaintiff and his companion Gould, desiring to become passengers, signalled an open car; that, the motorman having inclined his head in response, they started from the sidewalk, and when the car stopped boarded it with the knowledge of the conductor, and that the plaintiff had reached and stood upon the running board on his way to a seat at the time of the injury. If the jury so found, the relation of passenger and carrier had been established, and the defendant owed to him the duty of taking every reasonable precaution, which might be required for his safe transportation. Millmore v. Boston Elevated Railway, 194 Mass. 323. Rand v. Boston Elevated Railway, 198 Mass. 569. Marshall v. Boston & Worcester Street Railway, 195 Mass. 284.
The conductor, while asserting in his testimony that the car had not been stopped nor the plaintiff been recognized and accepted as a passenger, also stated that he saw him when he boarded the car and that he noticed at the same time the proximity of the wagon passing along in the same direction parallel with the car, with which the car shortly after came into collision. If under these circumstances the conductor gave the signal, or the motorman in the exercise of due diligence should have foreseen that it was dangerous to go ahead, and the car was started before the plaintiff had a reasonable opportunity to reach a seat or a position of safety, this furnished evidence which would warrant a finding that the defendant was negligent. Weeks v. Boston Elevated Railway, 190 Mass. 563. Rand v. Boston Elevated Railway, 198 Mass. 569.
Nor could it have been ruled as matter of law, that the plaintiff was guilty of contributory negligence. If the plaintiff and his companion were believed, the team had passed them before they started from the sidewalk. Ordinarily the man of average prudence neither in taking steps to become, nor after he has been accepted as a passenger by a street railway, pauses deliberately to consider whether, under the usual conditions of public travel, the car will be so operated as to come into contact with a team which has just passed going in the same direction. A failure to take this precaution, while a matter to be considered by the jury, affords no conclusive presumption of carelessness. Apart from any knowledge he could have been found to have had of the closeness of the team to the running board owing to the street being crowded by traffic, the plaintiff also had a right to rely upon the assumption, that, while he was in the act of getting on and passing to a seat, the defendant's servants would not start the car until all danger of its running so near to the team as to injure him had passed. Pomeroy v. Boston & Northern Street Railway, 193 Mass. 507, 512.
attempt to board a moving car as it was passing between the signal posts. Undoubtedly there must be an acceptance by the carrier, before the person who offers himself, becomes a passenger. But the principle as applied to those who offer themselves for transportation by railroads, whose trains stop only at fixed stations, where the carrier only holds itself out to receive and transport as passengers those who present themselves in the usual way, has not been held applicable to passengers upon street railways, unless at least it appears that the operating company makes a rule that passengers will not be taken on except at designated places. Merrill v. Eastern Railroad, 139 Mass. 238. Webster v. Fitchburg Railroad, 161 Mass. 298. Corlin v. West End Street Railway, 154 Mass. 197. There was no evidence offered by the defendant, that it had made, promulgated or enforced such a rule, or established such a custom. Nor did it appear that the plaintiff had any knowledge of such a regulation inferentially derived from his observation of the placing of signal posts, or of the manner in which its cars were generally operated. McDonough v. Boston Elevated Railway, 191 Mass. 509, 511.
But, even if the car had been boarded while it was moving slowly between the signal posts after the plaintiff had stepped on the running board, the conductor, who testified that he saw the men coming to get on the car and further said that he saw the plaintiff there, gave no order to him not to get on, and made no objection or dissent either verbally or by gesture that he was unlawfully on board. To remain standing on the running board of an open street railway car while being transported is not ordinarily of itself wrongful, and under these conditions the contract of carriage could have been found by the jury to have been complete. Briggs v. Union Street Railway, 148 Mass. 72, 75. Pomeroy v. Boston & Northern Street Railway, 193 Mass. 507, 511, and cases cited.
defendant's respective contentions and instructed the jury as to each, the presiding judge continued, "If you should find that those circumstances did not exist, gentlemen, if you should find, for instance, that the servants of the defendant company did not see them when they signalled the car, or did not know that they were intending to come upon the car as passengers, and in no other way directly or indirectly, either expressly or by implication assented to their becoming passengers upon the car, then you could find that they were not passengers, in which case the company, the defendant company, would not owe them the same degree of care that it would owe to passengers. . . . If you find he did not in any way, you would have the right to find that they were not passengers." It is urged, that the jury should have been told, that, if they found no express or implied acceptance of the plaintiff as a passenger, they were bound to find for the defendant. The instructions, however, as to whether the plaintiff and the defendant had entered into this relation were explicit, and the jury must have understood fully that the plaintiff could not recover if he stepped and remained upon the running board without having been recognized by the servants of the company as a passenger.
The remaining exceptions are to the exclusion of evidence. If the defendant's medical expert could not properly have been directly asked, nor permitted to testify, that the nervous prostration from which he had found the plaintiff to be suffering was due to his having an action on hand to recover damages for personal injuries, he could not, under guise of reasons for the opinion which he gave in reply to a proper question, indirectly introduce such evidence. Having done so, the ruling excluding this part of the answer was right. Hunt v. Boston, 152 Mass. 168, 171. The paper containing the written statement, which at the defendant's request one of its witnesses presumably made on a blank furnished by the company, was rightly excluded, as there was no offer to show what the defendant expected to prove, or even that the witness, whom it apparently intended to contradict, had made a different answer, nor was the paper formally offered in evidence. Magnolia Metal Co. v. Gale, 191 Mass. 487.
[Note p543-1] This request was as follows: "If the proximate cause of Lockwood's injury was negligence on the part of Gould, then Lockwood cannot recover."

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Effective January 1, 2017, Civil Law & Motion and Case Management Conferences will be held every Thursday at 10:00 a.m. Civil Pretrial Conferences will be held every Thursday at 1:30 p.m. All civil matters will be heard in Courtroom 11, 19th Floor, 450 Golden Gate Avenue, San Francisco, California.
Effective January 1, 2019, Criminal Law & Motion will be held every Wednesday at 10:30 a.m. in Courtroom 11, 19th Floor at the San Francisco Courthouse.
The Following dates are unavailable on the Court's Calendar for Scheduling of hearings.

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Illegal aliens suffering from a life-threatening illness have been excluded from the protection of article 3 (right to personal integrity) of the European Convention of Human Rights (ECHR) and of the European Council Directive 2004/83/EC. This post examines the European Court of Human Rights (ECtHR)’s and the European Court of Justice (ECJ)’s positions regarding medical asylum seekers and some of the contradictions emerging from the ECtHR case-law.
The case of S.J. v. Belgium originated in the Belgian Alien Office’s decision to expel Ms S.J., a Nigerian young mother of three, in 2010. Upon her arrival in Belgium in 2007, Ms S.J. was diagnosed with a serious immune system deficiency requiring antiretroviral treatment. She was closely monitored for the following years and as a result her state of health was stabilised. As she had no realistic prospect of obtaining access to the appropriate medical treatment in Nigeria, Ms S.J. requested the ECtHR to declare that her deportation would violate article 3 of the ECHR since it would expose her to a premature death in conditions of acute physical and mental suffering. On 27 February 2014, relying on the principle established in N. v. UK, the ECtHR Chamber ruled that Ms S.J.’s expulsion would not breach article 3. Nonetheless, the Belgian government eventually decided to grant her indefinite leave to remain in Belgium on account of the strong humanitarian considerations characterising her situation. Accordingly, the Grand Chamber struck the case out on 19 March 2015, without departing from the Chamber’s finding of non-violation of article 3.
Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.
The only case where the ECtHR found the circumstances sufficiently exceptional to conclude that the applicant’s removal would be contrary to article 3 was D. v. UK (1997). The applicant was in an advanced stage of Aids and his short life expectancy was contingent on the continuation of the medical treatment available to him in the UK. He was close to death and had formed a bond with the carers who supported him through the end of his life. As he did not have any familial, social or other support in his country of origin, St Kitts, where the adequate medical treatment for his illness was not available, the ECtHR held that his deportation would violate article 3. This case contrasts with subsequent medical asylum cases where the ECtHR found that the circumstances of the applicants were not sufficiently distressing for an issue under article 3 to arise if they were expelled. Their situations were distinguished from D. v. UK on the basis that their illness had not reached a critical stage or that family members could take care of them in their country of origin.
It appears from this case-law that the expulsion of seriously-ill aliens may only raise an issue under article 3 where their illness is so advanced that their death is imminent. As long as their health condition is stable at the time of the proposed removal and they are fit to travel, the ECtHR does not consider as a relevant factor the impossibility in fact of accessing adequate medical treatment in the receiving state, even though this circumstance would most likely cause the applicant’s premature and painful death. In N. v. UK, for instance, N. contended that she would not be able to afford the necessary treatment in Uganda and the Court recognised that without such treatment her state of health would rapidly deteriorate, causing her intense suffering. Yet, her circumstances were not found sufficiently compelling to prevent her expulsion and she died within a few months of her return to Uganda.
The ECtHR has established that article 3 requires Convention states not to remove persons under their jurisdiction to countries where they would be at risk of being exposed to inhuman or degrading treatment. However, the Court has distinguished between situations where the prohibited treatment would emanate from the intentional acts or omissions of public authorities and those where the serious harm would stem from a naturally-occurring disease and the lack of resources to treat it in the receiving country. This distinction is difficult to reconcile with the absolute nature of the prohibition contained in article 3. It seems that it should not matter whether the suffering of an individual arises from an intentional act or a natural condition as long as it reaches a certain degree of gravity and can be prevented by the act of a Convention state. Indeed, even if a state’s responsibility is not engaged on the basis of the deficiencies of its health system, the actions subject to scrutiny under the ECHR are not those of the receiving state but of the expelling state. As pointed out by Judge Power-Forde in her dissent to S.J. v. Belgium (2014), the ‘crucial fact’ that will precipitate the suffering and death of the applicant is not the failure of the receiving country’s health system but the implementation of the removal decision by the expelling state. Pursuant to the rationale of article 3 in removal cases, i.e. protecting individuals from exposure to inhuman or degrading treatment outside the Convention system, the expulsion of aliens to a country where they run a real risk of suffering such treatment should engage the responsibility of the expelling state even though the serious harm is not strictly imputable to the receiving state.
The distinction made by the ECtHR on the basis of the source of the prohibited harm has brought it to adopt contradictory approaches in cases concerning the extradition of prisoners and in medical asylum cases. This difference of treatment is apparent when comparing Aswat v. UK (2013) and S.J. v. Belgium (2014). In the former, a mentally-ill suspected terrorist whose extradition was requested by the United States claimed that his transfer would expose him to a more hostile prison environment which could result in the deterioration of his mental and physical health. The Court agreed and held that his extradition would engage the responsibility of the UK under article 3. By contrast, in the latter, although it was established that the medical treatment upon which the applicant’s life and personal integrity depended would only be available in her home country at considerable costs, which she could not afford, the Court did not find that her removal would violate article 3.
Migrants suffering from life-threatening conditions are not only excluded from the protection of article 3 ECHR but also from the protective regime granted to refugees and persons otherwise in need of international protection by the EC Directive 2004/83/EC. In M’Bodj v. État belge (2014), the Belgian Constitutional Court requested a preliminary ruling by the ECJ on the question whether aliens suffering from a serious health condition should be included in the category of persons protected by this Directive. The ECJ ruled that, for the Directive to apply, the serious harm to which an alien would be exposed upon removal to his home country ‘must take the form of conduct on the part of a third party and that it cannot therefore simply be the result of general shortcomings in the health system of the country of origin.’ Accordingly, it was held that Directive 2004/83/EC does not protect seriously-ill aliens whose state of health is in risk of deteriorating if they are expelled, unless they are intentionally deprived of treatment in the receiving state.
The situation of illegal migrants suffering from a life-threatening condition in countries in which they have been refused asylum is very precarious. However, rather than extending the protective scope of human rights and EU law to afford a minimum level of protection to those vulnerable people, the ECtHR and the ECJ have accepted that European member states have the right to deport them even where such a course of action would in all likelihood bring about their death in dire conditions. It is to be hoped that the ECtHR will align its medical asylum case-law with the protective standard of article 3 as elaborated in other removal cases. The lowering of the very high gravity threshold required for article 3 to be engaged in medical asylum cases could have an impact on the ECJ’s interpretation of serious harm under Directive 2004/83/EC and on the domestic law of Convention states. Such a step is needed to prevent persons like N. being sent to their death with the sanction of European human rights law.
 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted OJ L 304/12.
 S.J. v. Belgium App no 70055/10 (ECtHR, 19 March 2015).
 S.J. c. Belgique App no 70055/10 (ECtHR, 27 February 2014).
 S.J. (n 2) para 56.
 N. v. the United Kingdom (2008) 47 EHRR 39.
 D. v. the United Kingdom (1997) 24 EHRR 423; see also B.B. v France App no 47/1998/950/1165 (ECtHR, 7 September 1998) where the European Commission of Human Rights had found that the expulsion of the applicant would violate article 3.
 S.C.C. v. Sweden App no 46553/99 (ECtHR, 15 February 2000); Bensaid v. the United Kingdom (2001) 33 EHRR 10; Arcila Henao v. the Netherlands App no 13669/03 (ECtHR, 24 June 2003); Ndangoya v. Sweden App no 17868/03 (ECtHR, 22 June 2004); Amegnigan v. the Netherlands App no 25629/04 (ECtHR, 25 November 2004); N (n 6); Yoh-Ekale Mwanje c. Belgique (2013) 56 EHRR 35; S.J. (n 3).
 See N. (n 7) paras 32-41.
 N. (n 7) paras 47-48.
 ibid para 50-51; see S.J. (n 3), Opinion dissidente de la Juge Power-Forde p 39 and S.J. (n 2), Dissenting Opinion of Judge Pinto De Albuquerque para 2.
 Soering v. UK (1989) 11 EHRR 439 paras 90-91; Vilvarajah and Others v. UK (1991) 14 EHRR 248 para 103; Chahal v. UK (1996) 23 EHRR 413 para 79-81; Ahmed v. Austria (1997) 24 EHRR 278 para 39; H.L.R. v. France (1998) 26 EHRR 29 para 34; Salah Sheekh v. the Netherlands (2007) 45 EHRR 50 para 135; Hirsi Jamaa and Others v. Italy (2012) 55 EHRR 21 para 114.
 D. (n 9) para 49; N. (n 7) para 43.
 See Pretty v. the United Kingdom (2002) 35 EHRR 1 paras 49-52.
 S.J. (n 3) p 40-41.
 See previous post discussing Trabelsi v Belgium.
 Aswat v the United Kingdom (2013) 58 EHRR 1; S.J. (n 3), see Opinion dissidente de la Juge Power-Forde p 41-42..
 Aswat (n 19) para 57.
 S. J. (n 2) paras 123 and 126.
 C‑542/13 Mohamed M’Bodj v. État belge (ECJ, 18 December 2014).
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2. A police officer testified that "we did pry the screen door to gain entrance"; the attorney on the scene testified that a policeman "tried . . . to kick in the door" and then "broke the glass in the door and somebody reached in and opened the door and let them in"; the appellant testified that "[t]he back door was broken."
3. Other issues have been raised on this appeal but, in the view we have taken of the case, they need not be decided. Although appellant chose to urge what may have appeared to be the surer ground for favorable disposition, and did not insist that Wolf be overruled, the amicus curiae, who was also permitted to participate in the oral argument, did urge the Court to overrule Wolf.
6. See, however, National Safe Deposit Co. v. Stead, 232 U.S. 58 (1914), and Adams v. New York, 192 U.S. 585 (1904).
8. But compare Waley v. Johnston, 316 U.S. 101, 104, and Chambers v. Florida, 309 U.S. 227, 236, with Weeks v. United States, 232 U.S. 383, and Wolf v. Colorado, 338 U.S. 25.
9. As is always the case, however, state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected. We note, moreover, that the class of state convictions possibly affected by this decision is of relatively narrow compass when compared with Burns v. Ohio, 360 U.S. 252, Griffin v. Illinois, 351 U.S. 12, and Herman v. Claudy, 350 U.S. 116. In those cases, the same contention was urged and later proved unfounded. In any case, further delay in reaching the present result could have no effect other than to compound the difficulties.
10. See the remarks of Mr. Hoover, Director of the Federal Bureau of Investigation, FBI Law Enforcement Bulletin, September, 1952, pp. 1-2, quoted in Elkins v. United States, 364 U.S. 206, 218-219, note 8.
11. Cf. Marcus v. Search Warrant, post, p. 717.


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Please read the following privacy statement on collecting and storing personal data, purposes of processing, disclosure of data to third parties, cookies, data subject’s rights, the right to object and data security on our website. We strictly observe the legal provisions of the European General Data Protection Regulation – GDPR (“Datenschutzgrundverordnung – DSGVO”), the German Data Protection Act (“Bundesdatenschutzgesetz – BDSG”) and the German Telemedia Act (“Telemediengesetz – TMG”).
Data protection protects personal data. Personal data is information about you that can be used alone, or combined with other information, to identify you personally, e.g. your name, address, e-mail address or telephone number and possibly also usage data like your IP address.
ENDEMANN.SCHMIDT Partnerschaft von Rechtsanwälten mbB, Arnulfstraße 56, D-80335 München, Deutschland, Telephone: +49.89.2000568-0, Fax: +49.89.2000568-99, Email: muenchen@es-law.de is responsible for this website.
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In the event, that we are processing your personal data on the basis of legitimate interests according to Art. 6 para. 1 sent. 1 lit. f GDPR, Art. 21 GDPR gives you the right to object at any time to processing of personal data on grounds relating to your particular situation or if personal data are processed for direct marketing purposes.
If you wish to make use of your right to withdraw or object, please send an e-mail to k.wolf@caprica-consulting.de.
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We apply appropriate technical and organisational security measures, in order to protect your data against partial or full loss and against unauthorised access by third parties or manipulation. Our security measures are continuously improved in line with technological progress.
Due to the on-going development of our website and services and changing legal regulations it may become necessary to adjust this Privacy Statement. Please find the latest version of the privacy statement any time under https://www.es-law.de/en/privacy-statement/ from where you can also print it out.

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