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Justia › US Law › US Case Law › US Supreme Court › Volume 405 › ADDONIZIO v. U.S.
Rehearing Denied April 3, 1972 in No. 71-744. See 405 U.S. 1048.
On petition for writ of certiorari to the United States Court of Appeals for the Third Circuit. The petitions for writs of certiorari are denied.
'A co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together. If he is silent, he is taken to admit it and if, as often happens, co-defendants can be prodded into accusing or contradicting each other, they convict each other.' Id., at 454, 69 S. Ct. at 723.
'When the trial starts, the accused feels the full impact of the conspiracy strategy. Strictly, the prosecution should first establish prima facie the conspiracy and identify the conspirators, after which evidence of acts and declarations of each in the course of its execution are admissible against all. But the order of proof of so sprawling a charge is difficult for a judge to control. As a practical matter, the accused often is confronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of existence of the conspiracy itself. In other words, a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed. The naive assumption that prejudicial effects can be overcome by instructions to the jury, cf. Blumenthal v. United States, 332 U.S. 539, 559, 257, all practicing lawyers know to be unmitigated fiction. See Skidmore v. Baltimore & Ohio R. Co., 2 Cir., 167 F.2d 54.' Id., at 453.
There are other disabilities. Often testimony will be receivable only against a particular codefendant yet it may also inculpate another accused such as where (a) a codefendant 'opens the door' to prejudicial evidence by placing his reputation in issue,3 (b) a codefendant wants to place before the jury information which is helpful to him but is damaging to other defendants, or (c) the Government desires to offer evidence admissible against less than all of the codefendants. Cautionary instructions, of course, are routinely given where such circumstances arise but we have often recognized the inability of jurors to compartmentalize information according to defendants. Bruton v. United States, 391 U.S. 123 (1968). See also Jackson v. Denno, 378 U.S. 368, 388, 1786 ( 1964); Krulewitch v. United States, 336 U.S. 440, 453, 723 (1949) (quoted above).
This short-coming of the jury is compounded when, as here, the jury is also asked to digest voluminous testimony.
'In the trial of this case no less than 20 witnesses appeared and testified for the prosecution. Evans' counsel was given full opportunity to cross-examine every one of them. The most important witness, by far, was the eyewitness who described all the details of the tripe murder and who was cross-examined at great length. Of the 19 other witnesses, the testimony of but a single one is at issue here.' Dutton v. Evans, 400 U.S. 74, 87, 219 (1971).
may have lied as to his codefendants. The contrary conclusion, to borrow from Justice Jackson, would be 'unmitigated fiction.' Krulewitch v. United States, supra, 336 U.S., at 453.
In light of the claims of prejudice committed in this multi-defendant conspiracy trial, I would grant certiorari to consider whether the extensive reliance by the prosecutor on the coconspirator exception to the hearsay rule and the admission of the Gordon transcript deprived these petitioners of constitutional rights.
'(b) (2) The term 'extortion' means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.' 18 U.S.C. 1951, Act of June 25, 1948, c. 645, 62 Stat. 793, as amended.
Footnote 2 The potential for abuse of multi-defendant conspiracy proceedings has been discussed in O'Dougherty, Prosecution and Defense Under Conspiracy Indictments, 9 Brook.L.Rev. 263 (1940); Note, Developments in the Law: Criminal Conspiracy, 72 Harv.L.Rev. 919, 983 (1959); Wessel, Procedural Safeguards for the Mass Conspiracy Trial, 48 A.B.A.J. 628 (1962 ); Goldstein, The Krulewitch Warning: Guilt By Association, 54 Geo.L.J. 133 (1965).
'The reputation of the Apalachin delegates and the character of the meeting had been the subject of much public comment during the two years before trial. Many reports had described the lengthy criminal records of some of the delegates, had characterized the meeting as a convention of the 'Mafia' an had given other lurid details of what had occurred. None of this evidence was considered sufficiently material to the charge to warrant its introduction at trial.
'Towards the end of the trial, one of the defendants placed his reputation squarely in issue. He called witnesses who testified to his excellent reputation for truth and veracity at the time of the trial.
'Ordinarily it would have been entirely proper to attempt to refute this testimony by cross-examining with reference to the earlier publicity; the defendant himself had elsewhere complained about how much it had hurt his reputation. However, such evidence might have had equally serious adverse effects upon the nineteen co-defendants, who had done nothing to open the door against themselves.' Wessel, Procedural Safeguards of the Mass Conspiracy Trial, 48 A.B.A.J. 628, 631 (1962).
Footnote 4 Even at a severed trial of only one defendant, another alleged coconspirator may, if called to testify, invoke his privilege against self- incrimination. Where the severed trial is delayed until after the acquittal or finalized conviction of the witness, however, invocation of the privilege would be improper. In any event, even if the witness refused to answer questions, the defendant would at least obtain whatever inference of innocence might result from the apparent guilt of the witness.

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WERE YOU HURT IN A CAR ACCIDENT CAUSED BY A MEMBER OF YOUR FAMILY?
We have frequently discussed the importance of insurance in the car accidents. If you were hurt in a car accident caused by a member of your family, there are several concerns that your lawyer must have. Most car insurance policies and excess liability policies has what is called an intrafamily tort immunity or exclusion clause. What that basically means is that a member of your family may be excluded from coverage for damages to another member of your family. This is really important stuff because frequently people are injured as a result of 1-car accidents, and frequently those cars are driven by members of our family.
DOES GEORGIA PERMIT TO EXCLUDE FROM COVERAGE A CAR ACCIDENT CAUSED BY A MEMBER OF YOUR FAMILY?
The general rule in Georgia is that an insurer is not prohibited from included an intrafamily exclusion from coverage within a policy.
“[S]ince Georgia law does not require liability insurance in every case, we have concluded that exclusions are not per se prohibited but must be individually evaluated to determine whether they are against public policy.” (Citation omitted.) Southern Guaranty Ins. Co. v. Preferred Risk Mut. Ins. Co., 257 Ga. 355, 356, 359 S.E.2d 665 (1987). An intrafamily exclusion will be upheld if it does not unfairly penalize an innocent victim or expose the insured to unanticipated liability.
Id. Moreover, even in the absence of a policy containing an intrafamily exclusion, the doctrine of interspousal tort immunity may prohibit a suit between spouses, or the estates of spouses, as a matter of public policy. See Larkin v. Larkin, 268 Ga.App. 127, 128, 601 S.E.2d 487 (2004).
THERE ARE LIMITS ON THE ABILITY OF CAR INSURERS TO EXCLUDE FROM COVERAGE INTRAFAMILY TORTS.
In Govt. Employees Ins. Co. v. Dickey, 255 Ga. 661, 662, 340 S.E.2d 595 (1986), the Supreme Court of Georgia refused to enforce an intrafamily exclusion. It determined, however, that the exclusion was contrary to public policy only to the extent that it conflicted with Georgia's compulsory insurance law. Id.
Similarly, in Stepho v. Allstate Ins. Co., 259 Ga. 475, 383 S.E.2d 887 (1989), the Supreme Court of Georgia held that an intrafamily liability exclusion violated public policy because it left the victim unprotected by insurance coverage. That Court held, however, that the “insurer is entitled to rely on the intrafamily exclusion as to sums above those required by our compulsory insurance law. That is to say, the compulsory insurance law does not establish public policy as to sums greater than those required by such law.” Id. at 477(2), 383 S.E.2d 887.
Here, enforcing the intrafamily exclusion does not conflict with Georgia's compulsory insurance law because Shahzaman was insured, and Sultana's estate has been compensated, under National Casualty's general liability policy for the full amount required under such law. OCGA § 33-7-11(a)(1)(A). While Hoque may contend that the compulsory minimum insurance amount, as set by the Georgia legislature, is inadequate compensation for the loss of Sultana's life, Empire's intrafamily exclusion does not violate public policy because it does not prevent recovery of the compulsory minimum insurance amount. See Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 342(2), 329 S.E.2d 136 (1985).


FindACase | Colonial School District v. G.K.
Colonial School District v. G.K.
The Colonial School District (“the School District”) has filed this matter under Section 615(a) of the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. §1415(i)(2), seeking the reversal of the decision of a Hearing Officer who found it failed to provide a free and appropriate public education (“FAPE”) to G.K., a twelve year old student. As explained below, I find that the Hearing Officer's decision applies an erroneous standard in several respects and should be overturned.
The IDEA offers states federal funds to assist in educating children with special needs. Endrew F. v. Douglas County School District RE-1, 137 S.Ct. 988, 993 (2017), citing 20 U.S.C. §1400 et seq. In exchange, a state agrees to provide a free appropriate public education (“FAPE”) to all eligible children. Id., citing §1412(a)(1).
The IDEA requires that every IEP include “a statement of the child's present levels of academic achievement and functional performance, ” describe “how the child's disability affects the child's involvement and progress in the general education curriculum, ” and set out “measurable annual goals, including academic and functional goals, ” along with a “description of how the child's progress toward meeting” those goals will be gauged. §§1414(d)(1)(A)(i)(I)-(III). The IEP must also describe the “special education and related services ... that will be provided” so that the child may “advance appropriately toward attaining the annual goals” and when possible, “be involved in and make progress in the general educational curriculum.” §1414(d)(1)(A)(i)(IV).
Endrew F., supra, at 994.
When disagreement arises as to the contents of the IEP, parents are entitled to what the IDEA calls a “due process hearing” before a state or local educational agency. Id., citing §1415(f)(1)(A) and (g). At the end of the administrative process, the unsuccessful party may appeal to a state or federal court. Id., citing §1415(i)(2)(A). The burden of proof is on the party bringing the administrative complaint, here A.K. and S.K., and this burden continues on appeal. Schaffer v. Weast, 546 U.S. 49 (2005).
In cases arising under the IDEA, we apply a “modified de novo” standard of review, under which we give “due weight” and deference to the factual findings of the hearing officer in the administrative proceedings. P.P. ex rel. Michael P. v. W. Chester Area School District, 585 F.3d 727, 734 (3d Cir. 2009). While factual findings from the administrative proceedings are to be considered prima facie correct, we may depart from those findings if we fully explain why by citing to the administrative record. S.H. v. State-Operated School District of City of Newark, 336 F.3d 260, 270 (3d Cir. 2003). We must accept the hearing officer's credibility determinations “unless the non-testimonial extrinsic evidence in the record would justify a contrary conclusion or unless the record read in its entirety would compel a contrary conclusion.” Id. (quoting Carlisle Area School District v. Scott P., 62 F.3d 520, 529 (3d Cir. 1995)). The district court may not “substitute its own notions of educational policy for those of local school authorities.” Id. Our review of legal standards and conclusions of law is plenary. P.O. ex rel. Michael P., 585 F.3d at 735.
Montgomery County Intermediate Unit No. 23 v. C.M., Civ. A. No. 17-1523, 2017 WL 4548022 at **1-2 (E.D. Pa. Oct. 12, 2017).
Decisions made by hearing officers “shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education.” 20 USC. §1415(f)(3)(E)(i). This is known for short as “FAPE.” A procedural violation may be the basis for relief, but only where the procedural inadequacies (a) impeded the child's right to FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of FAPE to their child; or (c) caused a deprivation of educational benefits. §1415(f)(3)(E)(ii); and see E.D. v. Colonial School District, Civ. A. No. 09-4837, 2017 WL 1207919 at *7 (E.D. Pa. Mar. 31, 2017).
Pennsylvania regulations provide that, in an administrative procedure pertaining to the provision of services under the IDEA, “the decision of the hearing officer shall include findings of fact, discussion and conclusions of law.” 22 Pa. Code §14.162. Further, “although technical rules of evidence will not be followed, the decision shall be based solely upon the substantial evidence presented at the hearing.” Id.
G.K. is a student identified as disabled under the category of autism, who for that reason needs special education and related services under the IDEA. Complaint at ¶9, citing 20 U.S.C. §1401(3)(A) and 34 C.F.R. §300.8(c)(1). A.K. and S.K. are his parents. Complaint at ¶3. G.K.'s disability causes difficulties particularly with reading comprehension, written expression, math problem-solving and social language/social skills. Hearing Officer Decision at 2. At all relevant times, G.K. attended school in the Colonial School District. Complaint at ¶3.
In G.K.'s fourth-grade school year, 2015-2016, he received special education services. In May, 2016, following a conference, his parents requested in writing that the School District not promote him to fifth grade for the 2016-2017 school year. S-16 at 1. They were concerned that G.K. had not demonstrated “grade level appropriate achievement/proficiency” in all respects, and they told the School District that they believed he should obtain mastery at the fourth-grade level before being presented with fifth grade work. Id.
The School District denied this request. In a letter of May 6, 2016, it stated that school data and “anecdotal information” showed that G.K. had made “excellent improvement” that year, both academically and socially. S-16 at 2. Also, they pointed out that G.K. would turn twelve at the end of the first semester of the 2016-2017 school year, and they stated that it would not be “appropriate or beneficial” for G.K. to be two years older than his classmates. Id.
We requested the [School District] to provide current assessment for G.K.'s reading and writing against 4th grade rubric, the school district has failed to provide this information. We requested G.K.'s current IEP goals and assessment but the school district has failed to provide this information. We feel we have the right to know where our child is assessed.
S-17 at 3. Clearly, G.K.'s parents wanted to see whether the “excellent improvement” of which the School District assured them would be proved by objective testing results.
After mediation, the parents and the School District reached an agreement. S-23. They agreed that G.K. would advance to fifth grade. Id. A “facilitated” IEP meeting would be held in September, 2016. Id. Further, it was agreed that the parents would be provided with “Benchmark Assessment” (i.e., standardized testing) results in July, for their use in assessing G.K.'s status “in relation to other students in his grade.” The School District also agreed to pay for an Independent Educational Evaluation for G.K. Id.
In July, 2016, Benchmark Assessment results were forwarded to A.K. and S.K. S-27. They showed that, while G.K. was functioned at an Advanced or Proficient level in some areas, as compared to other students finishing fourth grade, he was functioning only at a Basic level in other areas, and in some instances, was Below Basic.
On Wednesday, August 17, 2016, the School District sent the parents a copy of the Independent Educational Evaluation. S-28. According to the evaluator, the Wechsler Individual Achievement Test showed that G.K. functioned in the Average range in most of the subtests, and in some subtests was Above Average. Id. at 5-6. However, he was Below Average in reading comprehension and oral expression. Id. Notably, the Average range was quite wide, and included areas in which G.K. scored as low as the 19th percentile. Id. Thus, although when examining composite scores, G.K. was scored Average in every area except for an Above Average in basic reading, he was at or over the 50th percentile only in two out of nine areas. Id.
The tester also identified deficiencies in G.K.'s concentration and focus, and set forth strategies to address them. Id.
Parental Concern: All areas that are basic or below basic - how will school address? Response: We will write objectives that will get worked on on-going.
Parental Concern: How will I know which objective is being worked on when? Response: We will send home progress notes specific to objectives and curriculum instruction map - additional info will come home on a more regular basis.
Parental Concern: More rigorous homework, homework to reflect IEP. Response: Daily homework based on IEP.
Parental Concern: Can we meet again in November to talk about progress toward IEP goals/objectives with homework packet?
Response: Yes. Mid-November, week of November 7th.
Id. at 2. It is also noted under Parent Concerns: “Want tangible, measureable objectives that explain goals.” Id. at 1.
Following the September 27, 2016, meeting, the School District produced a revised IEP. S-34. It appears that this was forwarded to the parents by Ms. Rebecca Kaslow, G.K.'s special education teacher and language arts instructor at the time, on October 7, 2016. S-36, S-37. It set forth five long-term “Measurable Annual Goals” in which progress measures were described generally, such as “District and Teacher-made assessments” or “teacher/therapist observation.” Id. at 18-20.
These Annual Goals included one for reading comprehension involving answering factual and inferential questions; one for written expression; one for math word problems; a speech/language goal for producing verbal explanation; and a speech/language goal for drawing inferences as to the thinking and/or behavioral impact of a character on other characters in a picture or live scene. Id. at 18-20. The Annual Goals relating to reading comprehension and math word problems were accompanied by a number of Short Term Objectives, setting forth discrete sub-skills of the goal, to be evaluated by periodic data probes. Id. at 18-21.
We have carefully reviewed the IEP you've sent us, and we are afraid that the IEP goals and objectives do not appear to address the deficiencies identified in the end of school year assessments from last year. Furthermore, we are left to wonder what additional competencies are introduced in 5th grade that G.K. must master by the end of the year. Therefore, I think we need to have a workshop to hammer out the IEP ASAP.
I received your email and in order to prepare for the IEP meeting, would it be possible for you to share exactly which goals and objectives you are referring to? I am asking this just so the teachers could review what they wrote and be able to present to you possibly more of the wording that you are looking for. The other issue you raise regarding competencies can be addressed when we meet.
Id. The parents responded by reiterating the language in their first email: “Our concern is that there are identified deficiencies from last school year's assessment and we are not clear as to how they are going to be addressed. Plus, what other new competencies are introduced this school year, and how will they be addressed?” Id.
The IEP team will be available to meet with you Thursday, October 20, 2016, from 8:30-9:30. However, after just meeting with G.K.'s special education teachers to review the IEP that was developed with our input and unanimously agreed to at the September 27, 2016 PDE Facilitated IEP team meeting, we strongly believe that all of his identified needs - based on teacher and parent input, 2015-16 end-of-year curriculum-based assessments, and finding of the Independent Educational Evaluation ... are addressed in the IEP's goals, objectives and/or SDIs. That said, prior to the meeting, kindly provide us with those specific needs that you feel have not been addressed.
The competencies that will be introduced this year are those covered in the 5th grade core curriculum which is determined by the PA Department of Education. Please let me know if you would like a link to the PDE web site listing those competencies that we are required, per PDE, to instruct. These competencies will be addressed through G.K.'s instructional programming using the Specially Designed Instruction that is identified in his IEP.
I look forward to receiving from you those specific needs that you feel have not been addressed prior to that meeting.
S.K. replied on the same day: “Based on your response, I would like to file due process with the ODR regarding this matter.” Id. at 2. Ms. Chasen wrote: “I am sorry you feel the need to pursue the route of Due Process, but that certainly is your right. I do need to know if you still want to meet this Thursday, October 20, 2016 at 8:30 with the IEP team to address the concerns you have. Please let me know.” Id. at 1. S.K. wrote that they would not be attending the meeting. Id.
1. Parents and the school met at the end of last school year about achieving 4th grade competencies for our child prior to moving him up to 5th grade. The school officials told us that our child met all the competencies to move up. Upon reviewing the assessments conducted by the school, our child had many areas that were either basic or below basic in achievements.
2. Our child G.K. is placed in 5th grade with dubious IEP goals and objectives where we the parents have very little confidence that our child will be able to complete 5th grade successfully with passing grade/competencies.


74-1806. Meetings of board; records; compensation and expenses; rules and regulations; employees. The board shall meet immediately after appointment and determine the policies of the board and may conduct any business that may be before such board. Thereafter, the board shall meet as required by law, at times designated by the board and on the call of the administrative officer. The board shall keep a record of all its proceedings and a register of all applicants for licensure and all licensees. Members of the board attending meetings of such board, or attending a subcommittee meeting thereof authorized by such board, shall be paid compensation, subsistence allowances, mileage and other expenses as provided in K.S.A. 75-3223, and amendments thereto. The board shall adopt rules and regulations for the purpose of carrying out the provisions of this act. The administrative officer, with the approval of the board, shall have authority to employ inspectors and office personnel as may be deemed necessary to administer this act, and shall provide and maintain offices. The inspectors so appointed shall perform all of the inspection duties of the board. All employees of the board shall be within the classified service of the Kansas civil service act, with the exception of the administrative officer, who shall be in the unclassified service.
History: L. 1939, ch. 241, § 17; L. 1947, ch. 397, § 1; L. 1961, ch. 379, § 2; L. 1965, ch. 458, § 27; L. 1967, ch. 443, § 8; L. 1970, ch. 255, § 8; L. 1974, ch. 348, § 54; L. 1974, ch. 253, §4; L. 1979, ch. 241, § 1; L. 1990, ch. 225, § 21; July 1.


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Yanka KUPALA, the classic writer of Belarusian and world literature, one of the founders of modern Belarusian literature and literary Belarusian language, People's Poet of Belarus, the spiritual and moral leader of national rebirth in Belarus. A poet, playwright, publicist, translator, and public figure.
The real name of Yanka Kupala, as registered at birth, is Ivan Daminikavich Lutsevich. He was born on 7 July 1882 (new style) on the farmstead of Viazynka, Minsk district, Minsk province (now the village of Viazynka, Maladzechna district, Minsk region). His parents, Daminik Anufryevich and Bianigna Ivanauna, came from a minor gentry background, with the distinctions of the gentry class but close to the villagers in their economic status and mode of living. The Senate of the Russian Empire did not confirm the noble origin of the Lutsevich family. Though Ivan was recorded as nobleman when baptised at the Catholic church of Radashkovichi, later however, according to official documents, he belonged to the lower-middle class. The economic status of the Lutsevichs sharply deteriorated in the 1870s when the family was transferred from the farmstead of Piaski (also called Lazaraushchyna or Lutsevichi; now in Uzda district, Minsk region), where they had been living since the 17th century. (Until then, the Lutsevichs, though they had no perpetual land as a gentry paying money rent, but they had a manor on terms of free use.) Afterwards, Daminik Lutsevich was obliged to hold land on lease. The family had many children, and they often moved from place to place. Ivan, the eldest son in the house, was his father's main helper.
Since childhood the future poet had been interested in Belarusian folklore. He began reading rather early, craved for knowledge, yet his parents had no means to give him a complete, systematic education. The boy actively learned many things by himself. Between 1888 and 1890 he was taught by travelling tutors, studied at the people's school in Senno, and then at the private preliminary school in Minsk. Only at the age of sixteen he was able to finish a complete course (two classes in one year) at the people's school in Bialaruchi.
Between 1895 and 1904 the family lived on the farmstead of Selishcha (now in Lagoisk district, Minsk region). The acquaintance with Z. Chakhovich, the owner of the neighbouring estate, a participant in the Uprising of Kalinouski, deeply affected the young man's worldview. Ivan often used his rich library, which also contained illegal literature, mainly about the people's revolt of 1863. This acquaintance stimulated the development of national self-awareness in the young man and awakened his interest in the Belarusian past.
During six years (1902-1908) in order to support the family after his father's death in 1902, Ivan had not only to work on his homestead but was also looking for jobs in other places. He used to be a home tutor, a steward at the landlord's manor, a manual labourer, and for three years he had been working as an assistant brewer. This was the period of his first literary attempts.
The novice poet would read a lot, particularly liking the writers close to ordinary people and who wrote about their life and work. Of especial interest to him were the works by N. Nekrasov, A. Koltsov, M. Lermontov, T. Shevchenko, A. Mitskevich, Yu. Slavatski, M. Kanapitskaia, V. Syrakomlia, E. Ozheshko, and more. Later Maksim Gorki made a strong influence on Yanka Kupala.
The first poems, sentimental and romantic, were written in Polish (1902), but very soon the poet realised that his native Belarusian language was the only environment in which he could express in the best way his thoughts and aspirations. Writing in Belarusian was a very courageous decision at that time. The Belarusian language was banned, and book publishing in Belarusian was impossible. Ya. Kupala wrote in his autobiography, "In 1904 the Belarusian leaflets and revolutionary brochures in the Belarusian language came into my hands. This finally decided me as a Belarusian and that my only mission was to serve my people with my whole heart and soul". This awareness also came from the acquaintance with the 19th-century works of the Belarusian authors F. Bagushevich and V. Dunin-Martsinkevich.
The earliest among the poet's well-known works in Belarusian, "My Destiny" (June 15, 1904) expresses psychological sentiments of an ordinary man, his oppression, and predestination of the course of his life. On May 15, 1905 the Minsk-based Russian newspaper Severo-Zapadny Krai (The North-Western Land) published the poem "A peasant", the first printed work of the poet, which touches upon the topics of human dignity and self-affirmation of the labouring villager.
From this time the author began using the pseudonym Yanka Kupala instead of his official name, Ivan Lutsevich. The pen-name Kupala refers to the folk festival of summer solstice, Kupalle, related to the quest for the magic flower of happiness, which the poet understood as the pursuit of better destiny and bright future.
On May 11, 1907 Nasha Niva (Our Field) published Kupala's poem "To the Reaper", which became his first appearance in the Belarusian-language press. Thereafter his works were regularly published in this newspaper. The main themes of his poetry of that time were the wretched life of the villager and the beauty of his native land. Kupala was a Romantic poet, yet he also contributed to the ideas of revolutionary renewal, connecting the ideals of national rebirth with the radical revolutionary reforms.
During this time he produced the poems "In Winter", "To Nobody", "A Cripple", and "The Payment of Love", based on real facts from the life of the Belarusian villager, proving the author's love for romantic heroes and bright extraordinary events, as well as the dramatic poem "The Eternal Song", a hymn of peasants' yearning for happiness.
"The Flute", Kupala's first collection of poetry written in 1905-1907, and the poem "The Payment of Love" were published in Saint-Petersburg in 1908. These lyrics express in elegiac form the villager's perpetual complaints over his hard lot and the expectations of the common people and of the poet himself as an exponent of their thoughts and sentiments. The book included for the first time the poem "And, Say, Who Goes There?", which played an important role in the formation of the Belarusian nation, being an unofficial hymn of Belarus for many years. "The Flute" was twice confiscated by the authorities. On the occasion of the book's appearance in print, the Belarusian publicist and literary critic, U. Samoila, wrote about its author, "The sun of fresh and genuine poetry looked into the window of a dark, poor, yet large house of the Belarusian people! So let he be for Belarus like Shevchenko was for Ukraine!.. "
In 1908 and 1909 Yanka Kupala lived in Vilna (Vilnius), contributed to Nasha Niva, and worked as librarian in a private library. During this time he produced the poems "To Pilipauka" and "Why" based around the tragic events from the life of the Belarusian villagers.
In the years 1909-1913 Kupala studied the theory and history of literature at the Cherniaev General Education Courses in Saint-Petersburg, where he made acquaintance with the best representatives of Russian intelligentsia and revolutionary youth, was a member of the Belarusian Scholarly Literary Circle, a cultural educational organisation of Belarusian students at St. Petersburg University. In 1910 Kupala's works became known to Maxim Gorky, who showed great interest and genuine admiration for them. In summer 1912, a memorable meeting of Yanka Kupala and Yakub Kolas happened; until then they were little acquainted with each other, yet they well knew each other's literary works. This acquaintance gradually turned into friendship between the two great men of letters.
In 1910-1913 Kupala produced the romantic poems "The Gravemound", "Bandarouna" and "The Lion's Grave", based on folklore, and the dramatic poems "A Dream on the Mound" and "During the Halt", in which he showed himself as an exponent of national romanticism. These works are permeated with deep philosophical thoughts about the past and present of the poet's native land.
The second book of poetry "The Minstrel", revealing the poet's romantic attitude and his suffering over the fate of his native land, was published in the autumn of 1910. The third book "On Paths of Life" was published in 1913. In addition to works of clear patriotic and civil orientation this included the masterpieces of Kupala's philosophical, landscape and intimate lyrics. In these books Kupala calls for struggle against social and national oppression.
Besides, Kupala began working as a playwright. His first endeavours in this field were rather successful and laid the beginning for the Belarusian national comedy and drama. The comedy "Paulinka" and the theatre farce "Prymaki" ridicule the vulgar routine life of the lower ranking nobility. The characters of Paulinka and her beloved boy, Yakim, represent new ideas appearing in the village life. The drama "The Ravaged Nest" shows the hard destiny of the landless peasantry after the Reform of 1861 and their pursuits of better future.
Kupala also showed himself as a translator. Before 1913 he translated from Russian into Belarusian works by I. Krylov, A. Koltsov, and N. Nekrasov; from Ukrainian, T. Shevchenko; from Polish, A. Mitskevich, M. Kanapnicka, W. Syrakomlia, and the plays "The Village Girl" and "Courtings" by V. Dunin-Martsinkevich. Thanks to Kupala's works of Petersburg period, Belarusian literature began penetrating into European cultural space. The urgent problems of the day were shown in them with deep philosophical understanding, on high artistic level, and with regard to national cultural characteristics.
Between October 1913 and August 1915 Kupala again lived in Vilna, worked at the Belarusian Publishing Association, and contributed to Nasha Niva; as an editor of this newspaper he was subjected to legal prosecution by the tsar's authorities. He participated in the arrangement of literary meetings with the Russian, Lithuanian and Polish writers; maintained friendly relations with the Lithuanian cultural figures: the poet L. Gira, the composer S. Shymkus, the painter and composer V. Churlenis. In 1914 he met the Russian poet V. Briusov, whom he regarded as his teacher and who later translated some of his verse into Russian.
The motives of national rebirth and safeguarding the native language became increasingly expressive in the literary works of that time. Kupala's publicistic writings called for better social conditions for the broad masses and touched upon the issues of national self-consciousness. In 1913 in the article "Why is Our Song Crying?" he gave his view on the principles of contemporary Belarusian literature, that is the need for national idea, democratism, and orientation to the high artistic level of European literature. In the article "And Yet We Live!.." he polemised both with the Polish nationalists, who thought of Belarus as part of Poland, and with the local chauvinist Black Hundreds, who treated the country as a "true Russian land", and showed the achievements of the Belarusian national rebirth and cultural movement. In his article "Do We Have the Right to Reject Our Native Language?" Kupala referred to his native language as the people's highest value. At this same time the masterpieces of his love lyrics and a cycle of his anti-war poetry "The Songs of War", echoing the beginning of the First World War, appeared in print.
In summer 1915, with the German troops approaching, Nasha Niva ceased publication and Kupala left Vilna.
From September 1915 Kupala lived in Moscow, where he studied history and philosophy at the Shanevski People's University. In January 1916 he married Uladzislava Frantsauna Stankevich. Soon afterwards he enlisted in the army; he served as a seniour worker in a roadmaking squad of the Warsaw Road Communications District in Minsk, Polatsk and Smolensk. Throughout the year of 1918 Kupala lived in Smolensk. From July he was a supply agent at the Food Committee of Western Region and traveled extensively around the Smolensk, Orel and Kursk provinces. In autumn 1918 he applied to the department of art history at the Smolensk Branch of Moscow Archaeological Institute. The life conditions and the war did not stimulate the creative process. From the mid-1915, and for over three years Kupala wrote no poetry.
The Revolution of 1917 and the Civil War, 1918-1920, gave birth to the motives condemning violence, anti-humanism, and class hatred. At the end of October 1918 after a long literary silence Kupala wrote the poems "For My Native Land", "On the Road", "The Song", "To My People", and "To the Rally!", revealing his disillusionment in the Revolution and concern for the Belarusian people, calling on them to unite and to decide their fate themselves.
From January 1919 Kupala permanently lived in Minsk; for a time he worked as a librarian at the institution of the People's Commissariat of Education. He continued to stay in Minsk during the Polish occupation (August 1919 - July 1920), and in early 1920 he endured a severe disease. After the Red Army came, he was an editor at various Belarusian publications, an assistant head at the literary publishing department of the People's Commissariat of Education, and contributed to the magazine Volny Stsiag (Free Banner).
In 1919-1920 Kupala wrote many publicistic works. In the article "The Cause of Belarusian Independence in the Past Year", etc. he provided insight into the ways of the Belarusian people to national self-determination, promoting national revolution as an ideal that could make possible for each people to become master of their own fate, as opposed to social revolution. Kupala's vision was marked by democratism, anti-violence, and assertion of humanistic spiritual values. At this time he also wrote some of his poems and translated "The Word about Igor's Regiment" and the workers' hymn "The Internationale".
Between 1921 and 1930 Kupala actively participated in the literary, social and cultural life, in particular in the foundation of the Belarusian State University, the National Theatre, and several publishing houses, worked in the commission for establishing the Institute of Belarusian Culture. He was elected a full member of this Institute, which was reorganized into the Belarusian Academy of Sciences in 1928. He also headed a literary-art section of the scientific terminological commission at the People's Commissariat of Education. In 1924 and 1925 he was a technical editor at the Belarusian State Publishing House. On June 10, 1925 the Council of People's Commissars of the Belarusian Soviet Socialist Republic (BSSR) awarded Yanka Kupala, the first among Belarusian writers, the honorific title of the National Poet of Belarus, with a right to a lifelong pension and relieving him of all the positions in order to build favourable conditions for his creative work. From 1928 Kupala was a full member of the Belarusian Academy of Sciences; and from 1929, of that of Ukraine.
The book "Heritage", which included poetry written between October and December 1918, appeared in print in 1922. The book was entitled after the programme philosophical-patriotic poem of the same name. All the works are here linked by the thought about the destiny of the Belarusians at the turning point in history, showing the tragedy of the revolutionary events that brought new trials to the native land. The poetry book "The Unknown", which included verse written predominantly in 1919-1924, came out in 1925. The poem of the same name "The Unknown" deals with national construction in Belarus and the spiritual self-determination of the Belarusian people. The book "Fading", with poetry written mainly before 1915 and in 1918-1919, was published in 1930.
The tragicomedy "Tuteishiya" (The Locals), written in 1922, voices an idea of Belarusian national independence both from the West and from the East, denouncing opportunism and national nihilism in a high satirical form.
Beginning in the second half of the 1920s Кupala was openly persecuted as one of the so-called natsdems (national democrats). In May 1930, Zviazda (The Star), the official organ of the Belarus Communist Party, issued an article in which Kupala was denounced as "an ideologist of bourgeois national rebirth". Kupala's relatives were dispossessed of their property as kulaks (better-off peasants), yet they avoided deportation to the North. In the summer of the same year Kupala was summoned to the GPU, or State Political Office, to be interrogated in the concocted case against the Union for the Liberation of Belarus, slated for the role of the leader of this mythical organization. In November, Kupala was again giving evidence at the GPU. During the interrogation he showed fortitude and dignity, as was admitted even by the investigators, and declined the accusations against himself and the others. Persecution by the repressive organs and the poor psychological condition resulted in his attempting suicide on November 20, 1930. In December 1930 Zviazda published a so-called "letter of repentance", written, according to many researchers, from dictation, in which the poet was forced to accept his "mistakes" and "harmful looks", and in which he promised "to do his best for the socialist construction".
Later Kupala was repeatedly elected a member of the Central Executive Committee of the BSSR and a delegate to the BSSR Supreme Council and the Minsk Town Council; he was one of the editors of the BSSR Constitution text, participated in various committees for celebrations and commemoration of the classic authors of Russian and other national literatures, participated in many literary conferences and congresses. In May 1934, he was elected to the Union of Soviet Writers. The impression was created that he actively participated in public life, yet this only served as a mask for the authorities to cover the policy of moral terror conducted by the Stalinist regime against Kupala.
Kupala's literary activity slowed sharply and it was not until the mid-1930s it again revived, with the Liaukouski Cycle. As to the poems "Over the River Oressa" (1933) and "Barysau" (1934), written in the style of socialist realism, their artistic value was not adequate to the poet's creative potential. The collection of poetry "The Song of Construction", in which Kupala showed the process of construction of new forms of life, was published in 1936. "To an Order-Bearing Belarus", the collected works of Soviet period, appeared in print in 1937. Apart from these, in the 1930s Kupala translated Pushkin's poem "The Bronze Horseman" and a number of poems and verses by T. Shevchenko.
In 1937 Kupala again found himself in the list of repression victims, but the local repressive organs, though they appealed to the higher authorities for his arrest, received no sanction. At the same time simultaneously, in January 1939, Kupala was decorated with the Order of Lenin. In October the same year he attended, with the group of Belarusian writers, the People's Congress of Western Belarus, which adopted the declaration for the inclusion of Western Belarus into the Belarusian Soviet Socialist Republic. In 1941 Kupala was awarded the USSR State (Stalin) Prize of first degree for his book "With My Heart", which included the poem "The Destiny of Taras", a poetic description of the life of Taras Shevchenko, the prominent Ukrainian poet, and the poems glorifying the Soviet life, written in 1937-1939.
During the Great Patriotic War the poet lived in Moscow, and then in the village of Pechischi near Kazan. In his poetry and publicistic writings of that time he called for struggle against the Nazis and expressed confidence in the victory over the enemy. The articles with the poet's signature were posted in the newspapers Pravda, Izvestiya, Krasnaia Zvezda, and the like. Kupala was a presidium member of the Pan-Slavic Anti-Fascist Committee, and took part in various public actions against the invaders. In June 1942 he left for Moscow to participate in the celebration of his 60th birth anniversary. On 28 June he tragically died in unexplained circumstances, having fallen into the staircase opening at the 10th floor of Hotel Moskva.
In 1962 the urn with the poet's ashes was taken to Minsk to be buried at Military Cemetery.
Yanka Kupala's life was full of trial and hardships. Yet his high virtues of a man, citizen and artist--honesty, humanism, love to his people and his native land, allegiance to the main idea of his life, that is the national, social and spiritual liberation of all people, artistically reflected in his works--these remained unchanged and unquestioned in the course of time. Kupala ranks among the greatest writers of world literature, who are destined to deeply cognise their time, people and history, and express this in a sparkling manner peculiar to them alone.
One cannot but agree with the Belarusian literary critic who told of Kupala's work in the following words, "Kupala's creative output is a chronicle of life of the Belarusian people, reflecting their ideology and poetic vision at the turning points in the history of the first half of the twentieth century. It is remarkable for deep national character and artistic originality."
Tvardovski's vision of Yanka Kupala is also very accurate, "A lyric of striking talent, the Belarusian bard, who expressively revealed the soul of his country and whose poetic nature represented the creative power of his people."
The sonorous adjectives that are often heard in reference to Kupala as a great people's poet, a prophet of national rebirth, and even founder of the nation are proved to be quite appropriate here. Kupala ranks among those prominent writers whose works, being of perpetual value, make up the classics of national and world culture.
Kupala's work and his role in the national rebirth of Belarus have been highly evaluated by his descendants.
His literary legacy is studied by a special field in Belarusian literary studies known as Kupalaznaustva (Studies of Yanka Kupala).
His works were repeatedly issued in single editions. The collections of his works were published in 1925-1932 (in six volumes; the first ever collection of volumes in the history of Belarusian literature), 1928-1940 (four volumes), 1952-1954 (six), 1961-1963 (six), 1972-1976 (seven), 1995-2003 (nine).
Many of Kupala's verses and poems are included in school curriculum in Belarusian literature. In the years 1959-1965 the Kupala Literary Prize was awarded for works of poetry and drama; and from 1965, the Kupala State Prize of Belarus.
In Minsk there is the Yanka Kupala State Literature Museum, which has four branches: the "Akopy" in Lagoisk district, the "Yakhimaushchyna" in Maladzechna district, the Kupala Memorial Reserve "Viazynka", where the traditional Kupala festivals of poetry are held each year, and the "Liauki" in Orsha district.
The poet's name is attached to the Literary Institute of the Belarusian Academy of Sciences, the National Academic Theatre in Minsk, the University of Grodno, a village in the Glusk district, a village in the Pukhavichi district, a number of collective farms, libraries, schools and streets in many towns and villages throughout Belarus.
Yanka Kupala has been extensively portrayed in art. Many sculptural, musical and cinematographic works, paintings, and poetic pieces are dedicated to the poet. The monuments to Kupala are erected in Viazynka, Akopy, Radashkovichi, Liauki, and Minsk. The commemorative plaques are attached to the houses in which Kupala lived at different time - in Liauki (Orsha district), Viazynka and Yakhimaushchyna (Maladzechna district), the villages of Sennitsa (Minsk district), Staraia Belitsa (Senno district), Bialaruchi and Kosina (Lagoisk district), in the towns of Marian Gorka, Barysau, Maladzechna, and Kapyl. A number of paintings dedicated to the poet's personality and work were assembled in the album "Yanka Kupala in the works of Belarusian artists". Many art exhibitions were dedicated to the poet's jubilee dates. A commemorative coin was released specifically on his 110th birth anniversary. The composer V. Pomazau produced the vocal symphony "Yanka Kupala". The poet's life and creative work were portrayed in the documentary chronicle "Аnd Cried the Cuckoo", the television films "A Bow to My People for their Songs", "Never Have I Died", and "Mass for Kupala".
Kupala's works have inspired many composers. M. Churkin produced the opera "The Ravaged Nest". The poem "The Lion's Grave" laid the ground for the opera "Masheka" by R. Pukst and the symphony "Poem-Legend" by Ya. Glebau. Based on subjects from "The Gravemound" and "The Lion's Grave" Ya. Glebau also produced the ballets "The Darling" and "The Gravemound". I. Luchanok wrote the poem-legend "Gusliar" based on "The Gravemound; G. Garelava wrote the symphony "Bandarouna"; Yu. Semianiaka, the music comedy "Paulinka". The popular vocal instrumental ensemble "Pesniary" performed an opera parable "The Song of Fate" with Kupala's verse. The poet's lyrics were also set to music by M. Aladau, M. Antsau, A. Bagatyrou, K. Galkouski, A. Grynevich, M. Matsison, S. Palonski, A. Pashchanka, R. Pukst, L. Ragouski, A. Sakalouski, A. Turankou, U. Terauski, Ya. Tsikotski, M. Churkin, L. Yampolski, and more.
Kupala's dramatic pieces were staged in many theatres. His plays "Paulinka" and "The Ravaged Nest" and the poem "The Lion's Grave" were made to films.
Yanka Kupala has won international recognition, as is testified by a broad public resonance his works received in many countries, being translated into nearly a hundred languages. The poem "And, Say, Who Goes There?" was translated into 82 foreign languages, including the most widespread, such as English, Arabic, Italian, Chinese, German, Russian, French, Hindi, Japanese, and more.
The commemorative signs in honor of Yanka Kupala outside Belarus speak of his world-wide esteem. His monument stands in New York's Arrow Park; another one is in Moscow. The commemorative plaques are placed in Saint-Petersburg, Smolensk, Kislovodsk, the village of Pechischi near Kazan and the village of Sofino in Moscow Region (Russia), Vilnius (Lithuania), the village of Gaspra near Yalta (Ukraine). Kupala's name is attached to the steamships in the Dunai and Volga Steamship Companies. His name is also given to the school and street in Dushanbe (Tadjikistan), a library in Kharkov, streets in Kiev and Zaporozhie (Ukraine), Tashkent (Uzbekistan), Tbilisi (Georgia), Riga (Latvia), Nizhni Novgorod (Russia), Bialystok (Poland), and more. In 1932, the poet's name was attached to the library in Port Allegro, Brazil.
The centenary of the poet was celebrated under the aegis of UNESCO.
In 1996, the Yanka Kupala International Fund was established.
In 2007, Belarus celebrated at national level the poet's 125th birth anniversary.
The website "Archives of Belarus" presents a virtual exposition of 116 documents on Yanka Kupala, among these are the poet's autographs, original works, text records, documentary photographs, drawings and plans, and sound recordings. The documents are organised by six topics illustrating various aspects of Kupala's life and creative work. The materials are in Belarusian, Russian and Polish.
The source materials were selected from the holdings of the seven Belarusian archives--the Belarusian State Archives-Museum of Literature and Art, the Belarusian State Archives of Films, Photographs and Sound Recordings, the National Archives of the Republic of Belarus, the National Historical Archives of Belarus in Minsk, the Belarusian State Archives of Scientific Documentation, the State Archives of Minsk Region, the National Historical Archives of Belarus in Grodno--and the Kupala State Literary Museum.
The survey of documents and the article on Kupala's life and work were prepared by teamwork of archivists from the Belarusian Research Centre for Electronic Records with the assistance from the Department for Archives and Records Management of the Republic of Belarus.
The English page is abridged from the Russian version, which additionally offers Kupala's first editions with annotations and quotations and the survey of archival collections on Kupala in Belarus and abroad.
The examples of Kupala's poetry can be found on a separate website Belarusian Literature in English translation, the project implemented by the Yanka Kupala Central Public Library with the support of the National Commission of the Republic of Belarus for UNESCO.

matches: V. V. V. V. V. V.


Richard J. Stall, Jr., under appointment by the Supreme Court, and Don W. Goldstein for Defendant and Appellant.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, William R. Pounders and Roger W. Boren, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Archie Theodore Ruthford appeals from a judgment entered upon convictions by jury of two counts of armed robbery. (Pen. Code, § 211.) He contends that the prosecutor engaged in prejudicial misconduct by failing to disclose to defense counsel the principal motivation for the adverse testimony of a key prosecution witness and by forestalling defense counsel's awareness of such motivation through misrepresentations made to the court. We conclude the prosecutor was guilty of prejudicial misconduct which denied defendant a fair trial and accordingly reverse the judgment.
Two men appeared at an apartment occupied by Mrs. Constance Hannaford and Mr. Ferdinand Castillo. The spokesman for the two, Fred Thomas, said he was looking for a rental apartment for himself and his wife. The men examined a vacant apartment in the same building and thereafter returned to Mrs. Hannaford's apartment. Thomas then produced a gun and announced a "holdup." He and his companion took certain personal property in the possession of Mrs. Hannaford and Mr. [14 Cal. 3d 402] Castillo and ordered them into a bedroom where they were bound face down on a bed. Despite the victims' disclaimers that no more articles of value would be found, the two intruders ransacked the apartment, found a coin collection and threatened to harm the victims if more valuables were discovered. Mr. Castillo offered to disclose where some money was located if the men would not harm Mrs. Hannaford. The two agreed and Mr. Castillo led them from the bedroom to a cache of money in the pocket of a coat hanging in a closet.
After the men left and the victims had freed themselves, Mr. Castillo observed the car from which he had seen the two robbers emerge when they first approached the apartment. He called an alarm to bystanders and rushed to the vehicle. Thomas emerged from the car, ordered Mr. Castillo not to take down the license number and kicked and punched at him. The second man remained in the car which Thomas thereafter reentered and the two drove away.
The car was traced through its license number and was found to be registered in Thomas' name. It was subsequently discovered abandoned in a parking lot. Thomas and defendant, who were neighbors, left Los Angeles with their wives the evening of the robbery and spent several days in Las Vegas. Upon returning they vacated their respective apartments. Several items stolen from the victims were later discovered in a Las Vegas pawn shop.
Mr. Castillo was unable to identify defendant as Thomas' accomplice in the robbery. Mrs. Hannaford was unable to identify defendant from among photographs shown to her, or at a lineup, but positively identified him in court as the second man who had entered her apartment. She testified that she had paid little attention to the accomplice during the robbery, that she had looked directly at him "[j]ust for a split second" but had had a good side view of him and that she had had no opportunity to view defendant's profile until she observed him in the hallway of the courthouse immediately prior to the preliminary hearing.
Defendant took the witness stand in his own defense and denied any participation in the robberies. He admitted having known Thomas and said that up until the time of trial he had considered him a friend. He remembered the day of the robbery because it was his wife's birthday and he had decided to take her to Las Vegas. Although he was unemployed at the time, his wife did have a job. He testified that Thomas and his wife were invited to make the trip to Las Vegas but Thomas protested that he had no money for such a journey. Later, sometime between 12 and 1 o'clock, Thomas returned stating that he now had money.
The two couples drove to Las Vegas where defendant and his wife remained until the following night, leaving Thomas and his wife to return by bus. Defendant further testified that he felt compelled to return to be present at a garage sale to be held at his daughter-in-law's home as he planned to use the proceeds for a trip abroad. He also told the jury, somewhat inconsistently with the foregoing testimony, that he and his wife had moved out of their apartment across the hall from Thomas' apartment because defendant's wife had been diagnosed as having cancer and required hospitalization. Further, he stated that her last paycheck had been delayed and that they had no money for the rent.
Following defendant's conviction, he received a letter from Thomas which stated, in part: "The D.A. came to see me and offered me [my wife's] freedom in return for my testimony against you." Defendant thereupon moved for a new trial on the ground that the People had suppressed relevant evidence bearing on the credibility of Thomas. At a hearing on the motion for a new trial it developed that Mr. Norris, the deputy district attorney assigned to try the case when Thomas and defendant were charged as codefendants, had talked with Thomas after he had entered his plea of guilty. Thomas volunteered that he would be willing to testify against defendant if his (Thomas') wife, who had been convicted of robbery committed by her and her husband, would receive a lenient sentence. She had been preliminarily sentenced to the Department of Corrections for 90 days' evaluation pursuant to the provisions of Penal Code section 1203.03.
Deputy Norris discussed Mrs. Thomas' case with the trial deputy who was assigned to the court of the judge before whom Mrs. Thomas was later to be arraigned for sentencing. The trial deputy discussed the matter with the judge and thereafter related to Deputy Norris that in sentencing Mrs. Thomas the judge "would consider" Thomas' cooperation. [14 Cal. 3d 404] Deputy Norris relayed this assurance to Thomas in the presence of Deputy District Attorney Arnold Wiener, the deputy who, following Thomas' pleas of guilty, prosecuted defendant. Deputy Norris also informed Deputy Wiener independently of the meeting with Thomas, of the nature of the agreement struck with Thomas regarding his testimony against defendant. Although the alleged bargain was never characterized as a "promise" of leniency to Mrs. Thomas, Deputy Norris understood and apparently shared Thomas' belief that the so-called bargain was premised upon a "guarantee" that by agreeing to consider Thomas' cooperation the sentencing judge had thereby indicated that Thomas' wife, if incarcerated at all, would not receive a state prison term. In Deputy Norris' words: "Mr. Thomas agreed upon [hearing of the judge's willingness to consider his cooperation] to testify, and, in essence, what he has indicated here in court is probably the way he understood it; [the judge], by considering it, would certainly mean no State Prison."
In the light of the circumstances hereinabove described, defendant's principal argument at the hearing on his motion for a new trial was that Thomas had given perjured testimony at trial and that the prosecution had known the same to have been false. The trial court may well have correctly concluded that Thomas' testimony was not perjured. At the hearing on the new trial motion Thomas, a manifestly clever witness, was asked only if he had received special consideration with regard to his plea bargain and his own sentencing. Thomas aptly responded: "I was never even asked why did I testify. I was asked specifically was there leniency to me. I was asked specific questions about my own case. There was never -- no specific question, 'Where [sic] you promised anything at all?' There was always a qualification on the question, and I answered the questions as they were asked. They were asked semantically. I answered them semantically."
It is a common practice for law enforcement officers or prosecutors to offer certain inducements for the testimony of prosecution witnesses since this is often the only means of obtaining crucial evidence.  Yet, as we have often stated, the role of the district attorney is more than that of an advocate. "His duty is not to obtain convictions, but to fully and fairly present to the court the evidence material to the charge upon which the defendant stands trial. ..." (In re Ferguson (1971) 5 Cal. 3d 525, 531 [96 Cal. Rptr. 594, 487 P.2d 1234]; see also People v. Kiihoa (1960) 53 Cal. 2d 748, 753 [3 Cal. Rptr. 1, 349 P.2d 673]; People v. Sheffield (1930) 108 Cal. App. 721, 732 [293 P. 72].) The fundamental responsibility to present material evidence to the court includes a duty to disclose to the defense substantial material evidence favorable to the accused in appropriate cases. (In re Ferguson, supra, 5 Cal. 3d 525, 532.) Unless the prosecutor is required to make such disclosures the adversary system of criminal justice would be reduced to one in which the determination of guilt or innocence may be controlled by the prosecuting attorney's tactical choice to suppress favorable evidence, or his negligent failure to disclose it, rather than by the well-informed decision of the finder of fact. When such conduct hinders the ascertainment of truth, restraints must be imposed to prevent the denial of a fair trial as guaranteed by the due process clause of the Fourteenth Amendment of the Constitution of the United States.
Subsequent to Brady and Ferguson, the United States Supreme Court has reiterated the requirement that prosecutorial suppression of substantial material evidence favorable to the accused requires reversal, irrespective of the prosecutor's good or bad faith. (Giglio v. United States (1972) 405 U.S. 150, 153 [31 L. Ed. 2d 104, 108, 92 S. Ct. 763].) Giglio involved the alleged denial of a fair trial when the prosecution failed to disclose to the jury an alleged promise of leniency to a key prosecution witness in exchange for his testimony. The court held that the failure to disclose to the jury or to the defense evidence of the alleged inducement, and the failure to correct misleading statements by the witness which implied that no inducement had been offered, denied the defendant a fair trial as the evidence thus suppressed by the prosecution related to the credibility of a key witness whose testimony may have been determinative of guilt or innocence. (Id. at p. 154 [31 L.Ed.2d at p. 108]; see also Napue v. Illinois (1959) 360 U.S. 264 [3 L. Ed. 2d 1217, 79 S. Ct. 1173].) Giglio imposed upon the prosecution the duty to correct false or misleading testimony concerning inducements for incriminating testimony and the duty to disclose such inducements to the defense and to the jury.
 We recognize the foregoing cases as establishing a duty on the part of the prosecution, even in the absence of a request therefor, to disclose all substantial material evidence favorable to an accused, whether such evidence relates directly to the question of guilt, to matters relevant to punishment, or to the credibility of a material witness. We next consider the effect on a judgment of conviction of a prosecutorial failure, whether intentional, negligent or inadvertent, to disclose such evidence when the same bears on the credibility of a material witness.
 We note, preliminarily, that when the evidence which is suppressed or otherwise made unavailable to the defense by conduct attributable to the state bears directly on the question of guilt our initial inquiry is whether such conduct resulted in denial of a fair trial. If so, the [14 Cal. 3d 407] judgment of conviction must be reversed without weighing the degree of the prejudice to the accused. (Pyle v. Kansas (1942) 317 U.S. 213, 216 [87 L. Ed. 214, 216, 63 S. Ct. 177]; People v. Kiihoa, supra, 53 Cal. 2d 748, 754; see also In re Imbler (1963) 60 Cal. 2d 554, 567 [35 Cal. Rptr. 293, 387 P.2d 6], wherein we stated: "Moreover, suppression by the state of material evidence alone deprives a defendant of due process of law.") It is necessary in such circumstances, of course, that the materiality of the evidence suppressed or otherwise not disclosed be examined in order that we may judge whether an accused has been fairly tried, but that examination is one which goes to the question of the materiality of the evidence rather than prejudice to the accused.
 Our review of the record indicates that substantial material evidence which was favorable to defendant was improperly suppressed by the prosecution in the instant case. The deputy district attorney was aware of the inducement for Thomas' testimony; he was also aware that Thomas' testimony would be extremely damaging to defendant. Yet, the deputy either wilfully or through inadvertence not only failed to disclose details of the inducement for Thomas' testimony, but also forestalled further inquiry by affirmatively representing to the court that no [14 Cal. 3d 410] promises had been made to Thomas. He thereby effectively foreclosed a crucial attack by the defense upon the credibility of the key prosecution witness. The only material evidence against defendant other than the testimony of Thomas was Mrs. Hannaford's identification. The identification, although reflecting Mrs. Hannaford's conscientious conclusion, indicated some uncertanity on her part. fn. 4 It is also significant that Mr. Castillo, who had far more opportunities to observe the accomplice during the robberies, was unable to identify defendant as Thomas' accomplice. Thomas' testimony at the close of the prosecution's case, which if believed fully implicated defendant in the robberies, was wholly devastating. In the words of the trial judge, "Mr. Thomas' testimony certainly wrapped up the case so that there was little room for doubt as to whether or not [defendant] was guilty."
Defendant denied any participation in the robberies and presented an alibi defense which created a direct conflict in the evidence. In resolving the conflict, however, the jury was deprived of crucial evidence that Thomas had a motive to lie. Moreover, the record demonstrates that the jury had difficulty resolving the conflict. It deliberated for two and one-half days before returning the guilty verdicts. It is apparent that to this jury the case was closely balanced and the misconduct which forestalled effective impeachment of the key prosecution witness was critical. We cannot, accordingly, conclude that the constitutional denial was harmless beyond a reasonable doubt.
FN 1. Thomas, who had originally been charged with 16 counts of armed robbery entered guilty pleas to 4 counts, including 1 count related to the instant case. The prosecution dismissed the remaining charges.
"The Court: ... I have to inherently distrust the statements of a coconspirator [Thomas], and it is too easy for him to fabricate, and so I am going to be very rebellious about letting you introduce that into this trial in view of the fact that he was arrested -- was he granted immunity of some kind?
"Mr. Wiener: No. There is no immunity. He is convicted, I think, of 10 counts. There was no promise made to him.
Although Wagner states the proper prejudicial error test when prosecutorial misconduct in the form of improper cross-examination is involved, it cannot control when, as in the instant case, the misconduct assumes federal constitutional dimensions in the form of intentional suppression of material evidence favorable to the accused. Moreover, prosecutorial misconduct occurring in open court is less likely to affect the outcome of the case in instances when the jury can be admonished not to draw unfavorable inferences from improper questioning. (See People v. Wagner, supra, 13 Cal.3d at p. 621.) When the prosecution suppresses evidence, the court and the defendant are powerless to remedy the misconduct through such admonitions.
FN 4. For a discussion of the dangers inherent in eyewitness identification, see Sobel, Eyewitness Identification: Legal and Practical Problems (1972) at pages 1-15.


United States Court of Appeals for the Federal Circuit ______________________ JACQUELINE H. JONES, Claimant-Appellant v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________ 2017-2120 ______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 15-3919, Chief Judge Robert N. Davis, Judge Mary J. Schoelen, Judge Margaret C. Bartley. ______________________ Decided: March 13, 2019 ______________________ MEGHAN GENTILE, Veterans Legal Advocacy Group, Arlington, VA, argued for claimant-appellant. Also represented by HAROLD HAMILTON HOFFMAN-LOGSDON, III. ALBERT S. IAROSSI, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by ROBERT EDWARD KIRSCHMAN, JR., LOREN MISHA PREHEIM, JOSEPH H. HUNT; BRIAN D. GRIFFIN, SAMANTHA ANN SYVERSON, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. JONES v. WILKIE 2 ______________________ Before MOORE, REYNA, and CHEN, Circuit Judges. CHEN, Circuit Judge. Jacqueline Jones, who substituted as appellant for her deceased husband Josephus Jones, appeals the decision of the U.S. Court of Appeals for Veterans Claims (Veterans Court), which affirmed the Board of Veterans’ Appeals (Board) decision denying an earlier effective date for service-connected compensation for post-traumatic stress disorder (PTSD). Ms. Jones argues that the Veterans Court erred in using a heightened legal threshold to determine whether the Veterans Administration (VA) was required to assist Mr. Jones in obtaining his VA treatment records, which he asserted might contain an earlier, informal claim that could entitle him to an earlier effective date for benefits. Because the Veterans Court erred in analyzing the VA’s duty to assist, we vacate the Veterans Court’s decision and remand for consideration of Mr. Jones’s complete VA treatment file. BACKGROUND In general, the effective date of a VA benefits award is the date the VA receives an application for the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, under the VA regulations that applied to Mr. Jones’s claims, if an applicant submitted an “informal claim,” 1 the VA was required to The VA previously recognized formal and informal claims. See 38 C.F.R. § 3.1(p) (2000). For formal claims, the VA required applicants to file forms providing specified information. See Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999). The regulations further provided that “[a]ny communication or action, indicating an intent to apply for one or more benefits . . . from a claimant . . . may be 1 JONES v. WILKIE 3 send the applicant a formal application form, and, assuming the applicant returned the form within one year, the VA would deem the formal application submitted as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2000). Mr. Jones served in the Marine Corps from 1968 to 1970. A VA psychiatrist treated him and diagnosed him with PTSD in 2000. J.A. 1; J.A. 17. Mr. Jones formally applied for disability benefits for PTSD in April 2011. J.A. 27. In February 2012, the VA Regional Office (RO) awarded Mr. Jones a 100% disability rating for PTSD, effective April 13, 2011, the date the RO received his formal application. J.A. 2; J.A. 37. Later in 2012, Mr. Jones filed a notice of disagreement arguing that he should receive an earlier effective date that reflects VA medical treatment for PTSD beginning in 2000. Mr. Jones asserted that he “did not file until 11 years later because the doctors did not explain to [him] what PTSD really was back in 2000.” J.A. 61. On July 17, 2015, the Board denied Mr. Jones’s claim for an earlier effective date. The Board acknowledged the existence of “VA medical records showing treatment for mental health symptoms” in 2000, but the Board found that the records before it “[did] not indicate an intent to file a claim for benefits and are not considered an ‘informal claim’ under any applicable regulations at the time.” J.A. 17. Mr. Jones appealed to the Veterans Court, which affirmed the Board’s decision. The Veterans Court did not considered an informal claim.” 38 C.F.R. § 3.155(a) (2000) (emphasis added). The VA amended 38 C.F.R. §§ 3.1 and 3.155, effective March 24, 2015. 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014). Claims and appeals pending under the regulations that existed as of that date continue to be governed by the preexisting regulations. Id. JONES v. WILKIE 4 review Mr. Jones’s complete treatment files. The Veterans Court noted: “The Secretary tacitly admits that the complete VA medical records from 2000 and 2001 are not in the record . . . .” J.A. 1. In light of Mr. Jones’s statement that he did not request benefits until 2011, however, the Veterans Court found that “the likelihood of such an informal claim [from 2000 or 2001] appearing in the unobtained VA medical records is extremely low.” J.A. 3. Further, the Veterans Court found, even if the records contained a communication that met the definition of an “informal claim,” Mr. Jones had not shown that such an informal claim was received by the “benefits section of the VA,” as opposed to a doctor at the “Veterans Health Administration.” J.A. 4. Mr. Jones passed away in October 2016, and his wife substituted into the case and appealed on his behalf. DISCUSSION We have jurisdiction to review a Veterans Court decision “with respect to the validity of a decision of the Court on a rule of law or of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision.” 38 U.S.C. § 7292(a). “We review de novo legal determinations of the Veterans Court.” Geib v. Shinseki, 733 F.3d 1350, 1353 (Fed. Cir. 2013). A. Secretary’s Request for Remand The Secretary acknowledges that the Veterans Court did not have Mr. Jones’s complete medical files, and so the Secretary initially argues that this court should remand the case to the Veterans Court—without reaching the merits—for consideration based on a complete record. 2 See 38 The Secretary previously requested remand in a motion filed after Ms. Jones filed her opening brief but before the Secretary filed his brief. ECF No. 31. We denied 2 JONES v. WILKIE 5 U.S.C. § 7252(b) (“Review in the [Veterans] Court shall be on the record of proceedings before the Secretary and the Board.”). The Secretary argues that the RO and the Board actually reviewed Mr. Jones’s treatment records. The Secretary notes that the RO’s Rating Decision stated that the evidence it considered included, among other things, “VA treatment records, dated August 8, 2000 to February 1, 2012, from VA Medical Center - Detroit, received February 7, 2012 (Virtual VA).” J.A. 38. Moreover, the Board noted that “the RO assisted the Veteran by obtaining his postservice mental health treatment records.” J.A. 15. The Secretary suggests that the problem was not that the RO or Board failed to obtain Mr. Jones’s medical records but that the VA failed to include those medical records when assembling the record for the Veterans Court. The completeness of the record presents a question of fact outside of this court’s jurisdiction, a point we have made more than once in the past, albeit in nonprecedential opinions. See Campbell v. Shinseki, 404 F. App’x 493, 496 (Fed. Cir. 2010) (“[W]hether records were missing from Campbell’s file also presents a question of fact outside this court’s jurisdiction.”); Harrison v. Shinseki, 364 F. App’x 630, 632 (Fed. Cir. 2010) (“Whether records are missing from Ms. Harrison’s file is a question of fact and thus not within this court’s jurisdiction.”). We cannot, therefore, second guess the Veterans Court’s finding that the Board did not review Mr. Jones’s complete history. See J.A. 2 the motion without prejudice pursuant to Federal Circuit Rule 27(f), which states that “[a]fter the appellant . . . has filed the principal brief, the argument supporting . . . remand should be made in the brief of the appellee. . . .” ECF No. 48 at 2. JONES v. WILKIE 6 (finding that Mr. Jones’s “complete VA medical records from 2000 and 2001 are not in the record”). 3 We are, however, in a position to decide a legal issue squarely presented by the briefs, namely, whether the Veterans Court applied the correct legal standard when it ruled that the VA fulfilled its duty to assist Mr. Jones in obtaining “relevant” treatment files. We turn to this issue next. B. VA’s Duty to Assist Because Ms. Jones believes that Mr. Jones’s treatment records from 2000 and 2001 may contain an informal claim for benefits, she argues that the VA was required to assist him in obtaining his treatment records before rendering a decision on his claim for an earlier effective date. The statute governing the VA’s duty to assist states, in relevant part: “The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by the Secretary.” 38 U.S.C. § 5103A(a)(1). The statute specifically requires the VA to assist in obtaining “[r]ecords of relevant medical treatment or examination of the claimant at Department health-care facilities . . . if the claimant furnishes information sufficient to locate those records.” 38 U.S.C. § 5103A(c)(1)(B). The parties do not dispute that Mr. Jones provided information sufficient to locate the records in question. However, an exception to the duty to We also decline to consider a declaration from the Deputy Vice Chairman of the Board, presented for the first time on appeal, asserting that Mr. Jones’s medical records were part of Mr. Jones’s claim file when the Board issued its July 17, 2015 decision. See Appellee’s Supp. Appx. 1–7. The Secretary waived reliance on this evidence by failing to present it to the Veterans Court. See Charles v. Shinseki, 587 F.3d 1318, 1322 & n.2 (Fed. Cir. 2009). 3 JONES v. WILKIE 7 assist is that “[t]he Secretary is not required to provide assistance to a claimant under this section if no reasonable possibility exists that such assistance would aid in substantiating the claim.” 38 U.S.C. § 5103A(a)(2). The Veterans Court found that even if the Board had not obtained or reviewed Mr. Jones’s complete treatment records, “the likelihood of such an informal claim appearing in the unobtained VA medical records is extremely low” because “Mr. Jones never alleged that he ever expressed an intent to file a claim to his VA doctors in 2000 or 2001.” J.A. 3. The Veterans Court made its finding “[i]n view of Mr. Jones’s allegations in the record,” id., which included Mr. Jones’s statement that he “did not file until 11 years later,” J.A. 61. Thus, the Veterans Court found that Mr. Jones failed to show how the unobtained medical records have a reasonable possibility of substantiating his entitlement to an earlier effective date. J.A. 4. We agree with Ms. Jones that the Veterans Court erred as a matter of law in requiring an impermissibly high threshold to trigger the VA’s duty to assist. While the Veterans Court mentioned the “no reasonable possibility standard,” it actually required Mr. Jones to show more than what the statute requires. Section 5103A does not allow the VA to avoid the duty to assist in obtaining records based on a mere belief that the likelihood of finding a record substantiating a veteran’s claim is “low” or “extremely low.” Rather, the applicable standard is whether “no reasonable possibility exists that such assistance would aid in substantiating the claim.” 38 U.S.C. § 5103A(a)(2) (emphasis added). Thus, to trigger the VA’s duty to assist, a veteran is not required to show that a particular record exists or that such a record would independently prove his or her claim. Moreover, the Secretary acknowledges that regulations implementing Section 5103A require the VA to assist JONES v. WILKIE 8 obtaining VA medical records without even considering the records’ relevance: In a claim for disability compensation, VA will make efforts to obtain the claimant’s service medical records, if relevant to the claim; other relevant records pertaining to the claimant’s active military, naval or air service that are held or maintained by a governmental entity; VA medical records or records of examination or treatment at non-VA facilities authorized by VA; and any other relevant records held by any Federal department or agency. 38 C.F.R. § 3.159(c)(3) (emphasis added). In Sullivan v. McDonald, 815 F.3d 786, 790–91 (Fed. Cir. 2016), we held that because the above regulation uses the word “relevant” as a modifier for three of the four categories of records it identifies, but not for “VA medical records or records of examination or treatment at non-VA facilities authorized by VA,” the VA may not consider relevance when determining whether to assist in obtaining VA medical records. 4 Thus, in the instant case, the Veterans Court erred in ruling that the duty to assist only “includes obtaining records of treatment at VA facilities that are relevant to the claim.” J.A. 2. The Secretary’s contention that any legal error is harmless in light of Mr. Jones’s admissions is unpersuasive. In Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009), we held that it was not harmless error for the VA to base its rating decision on a subset of a veteran’s medical The Sullivan court explained that its holding was not inconsistent with 38 U.S.C. § 5103A(c)(1)(B), which mentions “relevant” medical records, because “the statute permits the VA to provide additional assistance to claimants beyond that required by § 5103A, and the VA did so with respect to VA medical records when it promulgated § 3.159(c)(3).” 815 F.3d at 791. 4 JONES v. WILKIE 9 records. “The fact that the VA considered some of the relevant records . . . does not excuse the fact that it failed to consider all of them.” Id. Moreover, we were unwilling to assume what the contents of the remaining records would show. “We fail to understand how the government, without examining the [omitted] records, can have any idea as to whether they would, or would not, support [the veteran’s] claim for an increased disability rating.” Id. at 1375. 5 CONCLUSION Because the Veterans Court applied an incorrect legal standard regarding the VA’s duty to assist in obtaining medical records, we vacate the Veterans Court’s decision. We remand to the Veterans Court with instructions to remand to the Board, and with further instructions for the Board to remand to the RO to obtain and review Mr. Jones’s complete VA treatment records for PTSD and determine whether Mr. Jones is entitled to an effective date prior to April 13, 2011. We are not in a position to decide the factual question of whether any portion of his treatment records constitutes an “informal claim” within the meaning of the applicable statutes and regulations. Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). We leave it to the RO to make that determination in the first instance. 6 The Secretary attempts to distinguish Moore on the grounds that it involved a claim for a higher disability rating, and the missing records related to a recent hospitalization. However, the Secretary does not explain why these distinctions would make a difference regarding the VA’s requirement to consider complete medical records. 6 At this time, because the record is incomplete, we also decline to address the Veterans Court’s ruling that an informal claim must be received by the “benefits section of the VA,” as opposed to any other section of the VA. J.A. 4. 5 JONES v. WILKIE 10 VACATED AND REMANDED COSTS Costs to Appellant.
The Veterans Court erred in applying a heightened standard to determine whether the Veterans Administration had a duty to assist a veteran in obtaining his treatment records.