text:
When convicted felons are released on probation, may officers conduct a warrantless search of their homes without violating any constitutional rights protected under the Fourth Amendment? The Supreme Court, by conducting a balancing test, holds that officers may do so when they have a “reasonable suspicion” that probationers are violating their probation conditions; a standard of protection lower than the “probable cause” standard that protects fully free citizens from warrantless searches. The specific fact-pattern before the Court that prompted this rule, however, involved a probation condition that explicitly stated a probationer will be subject to warrantless searches.
But when the probationary condition is less explicit and merely subjects the probationer to unannounced home visits at any time, does the Court’s balancing test still apply, or does the legal analysis change? A current circuit split exists regarding that precise issue—the Fourth Circuit finds such warrantless searches based on a “reasonable suspicion” categorically unlawful, while the Eleventh Circuit permits them when they satisfy the Court’s balancing test. Although the courts’ different interpretations are sensible, as a public policy matter, the Eleventh Circuit’s interpretation should be adopted because it better promotes the rehabilitative and societal-protective purposes of releasing individuals on probation.
In the context of conducting warrantless searches of a probationer’s residence, the Supreme Court in United States v. Knights balanced the intrusion on the privacy of the individual against the government’s interests. For intrusion on privacy, quoting its precedent, the Court stated that “[i]nherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled.” The Court continued, “A court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.” Thus, an individual on probation has “a significantly diminished . . . reasonable expectation of privacy” that may be intruded upon to a greater extent than that of a free citizen.
In regard to the government’s interests in conducting the warrantless searches, the Court recognized that “[t]he recidivism rate of probationers is significantly higher than the general crime rate.” Furthermore, “probationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may . . . face revocation of probation, and possible incarceration . . . .” Thus, the government “may therefore justifiably focus on probationers in a way that it does not on the ordinary citizen.” After balancing both elements, the Court declared that these warrantless searches are lawful under the Fourth Amendment, subject to a “reasonable suspicion” standard.
The Fourth Circuit Court of Appeals, however, declined to use the Supreme Court’s balancing test and instead found that the warrantless searches are per se unreasonable, that a mere reasonable suspicion a probationer is violating conditions of probation does not justify the warrantless search, and that officers conducting these warrantless searches must either have a probable cause to do so or obtain a warrant even though probationer previously agreed to unannounced visits at home. To the Fourth Circuit, although the probationer consented to unannounced visits at his home, he did not consent to the warrantless searches. The Fourth Circuit refused to interpret the probation condition as consent to warrantless searches supported by an officer’s reasonable suspicion when the condition failed to mention warrantless searches entirely.
As a public policy matter, the appropriate interpretation courts should exercise is that of the Eleventh Circuit because it better serves the principal purposes of releasing individuals on probation. According to the Supreme Court, the “primary goals” behind probation are “rehabilitation [of the individual] and protecting society from future criminal violations.” Adopting the Eleventh Circuit’s approach furthers these two goals more so than the Fourth Circuit’s; it allows officers to better protect society from a particular violent or dangerous probationer, and rehabilitates probationers by encouraging them to acclimate to society and to refrain from probation-violating conduct.
To better understand this key distinction, consider the societal danger posed by probationers who were convicted of felony drug possession versus those convicted of felony drug trafficking. Under the former, the drug possessors will most often pose more of a danger to themselves than to society, and the government’s limited interest in protecting society would therefore not be sufficiently high to outweigh the probationers’ reduced privacy expectations— i.e., this would not allow reasonable suspicion warrantless searches. The individuals on probation for drug trafficking, however, often pose very high danger to society because of the threat that they may recommence their involvement in the drug trade. And in doing so, they would jeopardize the health and safety of society by perpetuating the spread of a cancerous market that has caused great harm to the lives of individuals and family members alike. Here, the government’s interest in protecting society would be sufficiently high to outweigh the probationers’ reduced privacy interest, thus permitting a warrantless search of these probationers when supported by an officer’s reasonable suspicion that they are violating the conditions of their probation.
In this regard, the Fourth Circuit’s interpretation hinders law enforcement from fulfilling their role as society’s protectors because the categorical bar on searches of both classes of probationers is overly broad and prevents reasonable suspicion warrantless searches of certain probationers who pose a real danger to society during their probation. Under the Eleventh Circuit’s interpretation, on the other hand, officers are in a better position to protect society from the harm of future crime because they are authorized to conduct these searches when a particular probationer’s criminal conduct creates a heightened government interest.
Second, the Eleventh Circuit’s interpretation promotes probationers’ rehabilitation by encouraging their re-assimilation into a society via a life free from illicit activity. Under this interpretation, the threat of warrantless searches pursuant to the specific probation condition is omnipresent. Probationers are required to live their daily lives unsure whether their home or person will be searched at any moment without a warrant. The only security they have in knowing that this event will not occur is derived from their own conduct. If probationers completely refrain from activity that violates their probation, then, in theory, officers will not have any “reasonable suspicion” that they are violating probation, and conducting a warrantless search would therefore violate the probationer’s Fourth Amendment rights. Justified by the reduced expectation of privacy inherent in release on probation, this impending uncertainty rehabilitates those on probation by encouraging them to operate in society in a manner that does not violate their probation.
While the Fourth Circuit’s approach may also promote the rehabilitation of the probationer through deterrence, it does so to a lesser extent because it provides the probationer with the unnecessary and potentially destructive opportunity to recidivate. Probationers who know with absolute certainty that they will not be subject to these warrantless searches have a greater opportunity to recidivate because the risk of these searches is eliminated and they know that the “threat of getting caught” is far lower. While the Fourth Circuit’s approach does not outright encourage probationers to violate their probation, it does give them a greater chance to do so. For instance, usually when an individual returns home from a rehabilitation facility, his or her family will take precautionary steps to eliminate the threat of relapse by removing prescription drugs and alcohol from the household. The Fourth Circuit’s approach, however, omits this precautionary step, and instead gives probationers the potentially devastating opportunity to fall back into old their old ways. The Eleventh Circuit’s approach, on the other hand, removes this recidivist opportunity. Therefore, because the Eleventh Circuit’s interpretation better promotes the primary policy motives for releasing an individual on probation—rehabilitating the individual while protecting society—it should be followed by other jurisdictions that might confront this issue in the future.
 See United States v. Knights, 534 U.S. 112, 122 (2001).
 Id. at 114 (“submit . . . to search at anytime, with or without a search warrant . . .”) (emphasis added).
 Compare United States v. Hill, 766 F.3d 243 (4th Cir. 2015) with United States v. Carter, 566 F.3d 970 (11th Cir. 2009).
 Knights, 534 U.S. at 118-19 (citing Wyoming v. Houghton, 526 U.S. 295, 300 (1999)).
 Id. at 119 (quoting Morrisey v. Brewer, 408 U.S. 471, 480 (1972)).
 Id. at 120 (citing U.S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Recidivism of Felons on Probation, 1986-89, at 1, 6 (Feb. 1992), U.S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Probation and Parole Violators in State Prison, 1991, at 3 (Aug. 1995)).
 See United States v. Hill, 776 F.3d 243, 245 (4th Cir. 2015) (“[Probationer’s] conditions of supervised release required him, among other things, . . . to permit probation officers to visit him at home at any time . . .”); see also United States v. Carter, 566 F.3d 970, 974 (11th Cir. 2009) (“[P]robation [condition] required [probationer] to . . . submit to visits by pronation officer at his home, workplace, or elsewhere”).
 Carter, 566 F.3d at 974-75.
 See Hill, 776 F.3d at 248 (4th Cir. 2015) (citing United States v. Bradley, 571 F.2d 787, 789 (4th Cir. 1978)).
 Knights, 534 U.S. at 119.
 See also Carter, 566 F.3d at 975 (“We conclude that . . . the government had a sufficiently high interest in monitoring [probationer] on account of his drug and violence-related crimes . . .”) (emphasis added).

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At a criminal trial, defense counsels failure to request that the judge instruct the jury on eyewitness identification in accordance with Commonwealth v. Rodriguez, 378 Mass. 296 (1979), fell measurably below the conduct that might be expected from an ordinary fallible lawyer, where the need for such an instruction in the circumstances of the case (i.e., the robbers were masked and otherwise unknown to the victims) was apparent [253-255]; however, although the instructions given, when considered in their totality, were inadequate to assist the jury in assessing the reliability and accuracy of the victims eyewitness identifications (specifically, the omission of an instruction regarding the capacity and opportunity of the eyewitnesses to observe the perpetrators was sufficient by itself to render the instructions inadequate, and the four-day delay between the robbery in this case and the identifications was a factor that the jury should have considered), the defendant failed to meet his burden to show that the result of the trial would have been different if the instruction had not been omitted, where the evidence of the defendants identity as one of the perpetrators was strong, in the form of a damaging identification by a coventurer, telephone records corroborating that coventurers testimony, and unimpeached testimony establishing a connection between the defendant and the getaway vehicle [255-260].
Elizabeth A. Billowitz for the defendant.
Karen A. Newirth, Kevin Puvalowski, Shin Hahn, & Jean Ripley, of New York, & Matthew Nickell, for The Innocence Network & another, amici curiae, submitted a brief.
HINES, J. In January, 2012, a Superior Court jury convicted the defendant, Santiago Navarro, on thirty indictments, ten each charging armed robbery while masked, in violation of G. L. c. 265, § 17; home invasion, in violation of G. L. c. 265, § 18C; and kidnapping, in violation of G. L. c. 265, § 26. The indictments stemmed from an incident during which the defendant and an accomplice invaded a home in North Andover and robbed the players in a high stakes poker game. The defendant appealed, asserting various claims of error. The Appeals Court affirmed the convictions. Commonwealth v. Navarro, 86 Mass. App. Ct. 780 (2014). We granted the defendant's application for further appellate review to consider the sole issue of the propriety of the judge's eyewitness identification instructions. More specifically, we decide whether the judge was required sua sponte to instruct the jury in accordance with Commonwealth v. Rodriguez, 378 Mass. 296 (1979) (Rodriguez), S.C., 419 Mass. 1006 (1995). For the reasons set forth below, we conclude that in the absence of a request, the defendant may not attribute the omission of a Rodriguez eyewitness identification instruction to judicial error and, as a consequence, he is not entitled to review on that ground. Instead, we review the issue under the rubric of the defendant's alternative claim that counsel's failure to request a Rodriguez instruction was constitutionally ineffective. We agree that counsel's performance in this respect fell measurably below that which might be expected from an ordinary fallible lawyer, Commonwealth v. Saferian, 366 Mass. 89 , 96 (1974), but we conclude that the lapse was not so prejudicial as to result in a substantial risk of a miscarriage of justice.
entered the game with one hundred dollars or more, with the option to reenter the game with more cash if he lost his initial stake.
On the night in question, the poker game started sometime after 9 p.m. with a small group that, around 10:30 p.m., had grown to eleven card players. Among this group was Christopher Maldonado, known as Shorty. After losing his money, Maldonado stayed in the apartment, where the victims observed him sending text messages on his cellular telephone. Sometime after Maldonado was out of the game, two masked men entered the apartment. One of the men was armed with a gun and demanded the card players to empty their pockets and place their cellular telephones on the table. After collecting the items, the assailants bound the victims' hands. Initially, Maldonado pretended to be a victim and, as with the others, the robbers bound his hands and demanded his cash. Later as events progressed, Maldonado announced that he set [the robbery] up and that he was hungry [for money]. Maldonado then assisted in collecting the victims' property and escaped with the robbers. After the robbers escaped, two of the victims freed themselves and, from a window in the apartment, observed the robbers getting into a dark blue Mitsubishi Galant automobile bearing Massachusetts license plate number 777-MF or 7777-MF. The victims got into a vehicle and pursued the robbers until they reached an entrance to Route 495. At that point, they abandoned the chase and returned to the apartment, where they were met by Detective Daniel G. Cronin of the North Andover police department. Detective Cronin commenced his investigation based on the victims' descriptions of the suspects and the getaway vehicle.
about her vehicle. [Note 1] Detective Cronin spoke to them and observed them as they entered the vehicle and drove away.
Four days after the robbery, Detective Cronin prepared and showed an array containing the defendant's photograph to some of the victims. Of the six victims who viewed the array, only two identified the defendant as one of the masked perpetrators, specifying that he was the assailant with the gun.
Nine days after the robbery, the police arrested Maldonado, who immediately began cooperating in exchange for concessions in a plea agreement. Maldonado testified at trial that he and the defendant, who was known to him as Raw, discussed a plan to rob the victims. About one week before the robbery, Maldonado and the defendant drove to the victim's apartment in a blue Mitsubishi Galant (described by Maldonado as having a license plate with a few 7's, M-F) and conducted their surveillance of the area. Maldonado and the defendant agreed on a plan for the defendant to enter the apartment during the game and commit the robbery. According to the plan, Maldonado would send text messages to the defendant to indicate when all of the players would be in one room and the defendant would then enter the apartment. The robbery occurred as planned, and Maldonado fled the scene with the defendant in the same Galant used to conduct their surveillance a week earlier.
To corroborate Maldonado's testimony regarding his contacts with the defendant on the evening of the robbery, the prosecutor introduced Fernandez's cellular telephone records. Those records established thirty to forty calls and text messages between Maldonado and the defendant beginning on the day of the robbery and ending in the early morning hours of the day after the robbery. At least twenty-five of those contacts occurred between the late evening on the day of the robbery and the early morning hours of the next day. Maldonado testified that the defendant used the telephone number associated with Fernandez's telephone and that he was corresponding with the defendant during those contacts.
examined him about his agreement with the Commonwealth and argued to the jury that Maldonado was not credible because his testimony was entirely self-serving.
proposition that counsel is relieved of the burden to request an eyewitness identification instruction when it is appropriate to do so.
In Rodriguez, the seminal case in our law on eyewitness identification instructions, we linked entitlement to the instruction to a specific request from the defendant. The necessity of a request is implicit in our statement that "a defendant who fairly raises the issue of mistaken identification might well be entitled to instructions" alerting the jury to the risk of misidentification and suggesting factors that might mitigate that risk in evaluating eyewitness identification testimony (emphasis added). Rodriguez, 378 Mass. at 302. The myriad post-Rodriguez cases, [Note 4] reflecting the state of the law at the time of the trial in this case, have reiterated that counsel should request a Rodriguez instruction when eyewitness identification is a live issue in the case. More recently in Commonwealth v. Franklin, 465 Mass. 895 , 912 (2013), we underscored the point, noting that "where requested by the defendant, . . . a judge should provide specific guidance to the jury regarding evaluation of such eyewitness testimony" (emphasis added). This court's reference in Franklin to "where requested" follows the path charted by Rodriguez and its progeny in presuming the necessity of a request by the defendant. [Note 5] Therefore, we reject the defendant's contention that at the time of the trial in this case a sua sponte Rodriguez instruction was required and that the failure to provide it sua sponte was error.
We address briefly the defendant's reliance on the Supreme Judicial Court Study Group on Eyewitness Evidence: Report and Recommendations to the Justices (July 25, 2013), available at http://www.mass.gov/courts/docs/sjc/docs/eyewitness-evidence-report-2013.pdf [http://perma.cc/WY4M-YNZN] (Study Group Report), to support the argument that at the time of the trial in this case the judge was obliged to instruct the jury sua sponte in accordance with Rodriguez. This reliance is misplaced. The Study Group Report is the product of this court's charge to the study group to offer guidance as to how our courts can most effectively "deter unnecessarily suggestive [identification] procedures and whether existing model jury instructions provide adequate guidance to juries in evaluating eyewitness testimony." Commonwealth v. Walker, 460 Mass. 590 , 604 n.16 (2011). Consistent with this charge, the Study Group Report marshals the current science underlying the reliability of eyewitness identifications, offers a blueprint for changes in our eyewitness identification jurisprudence, and documents with some urgency the need for specific reforms to mitigate the possibility of wrongful convictions based on mistaken identifications. It does not purport to be, nor is it, an authoritative statement of the law governing a judge's obligation to provide a Rodriguez instruction in the absence of a request by the defendant. Thus, we reject the defendant's suggestion that the Study Group Report should inform our review of the judge's instructions in this case.
the error, the significance of the error in the context of the trial, and the possibility that the absence of an objection was the result of a reasonable tactical decision." [Note 6] Azar, supra.
At the charge conference, the judge solicited proposed instructions from counsel. The defendant's counsel did not request a Rodriguez instruction. The judge, however, instructed the jury generally on the issue, highlighting the importance of the eyewitness identifications in the case and the Commonwealth's burden to prove beyond a reasonable doubt the identity of the perpetrators. In the only specific reference to the eyewitness identification issue, the judge instructed the jury on the possibility of an honest but mistaken identification in accordance with Commonwealth v. Pressley, 390 Mass. 617 , 619-620 (1983). At the end of the judge's charge, defense counsel offered no objection to the omission of the Rodriguez instruction.
risk of a miscarriage of justice. Azar, 435 Mass. at 686. In assessing the prejudicial effect of the Rodriguez omissions from the charge, we evaluate the impact of the claimed error in the context of the entire charge. See Commonwealth v. Nadworny, 396 Mass. 342 , 360 (1985), cert. denied, 477 U.S. 904 (1986).
"Now, one of the most important issues in this case is the identification of the defendant as the alleged perpetrator of the crime. Now, in addition in deciding whether or not to believe a witness who identifies the defendant as the perpetrator, remember that you must consider not only whether the witness is trying to tell the truth or is lying, you must also consider whether that witness's testimony is accurate or instead is an honest mistake. Sometimes people perceive an event erroneously or forget things or become confused.
"In deciding whether a witness is trying to be truthful is only the first step. You must then go on to decide whether the witness's testimony on this issue is accurate in fact.
"Now, I once again emphasize that the burden of proof that's on the prosecutor extends to every element of the crimes charged, and this specifically includes the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crimes for which he stands charged.
"If, after examining the testimony, you have a reasonable doubt as to the accuracy of the identification, you must find the defendant not guilty. In deciding whether or not to believe a witness who identifies the defendant as the perpetrator, remember that you must not only consider whether the witness is trying to tell you the truth or is lying, you must also decide whether that witness's identification is accurate or instead may well have been an honest good-faith identification that nonetheless may have been mistaken."
As given, the judge's instructions appropriately focused on the risk of an honest but mistaken eyewitness identification where, as here, the perpetrators were masked and unknown to the victims. The judge's strong caution as to this risk, together with his reiteration of the prosecutor's burden to prove identification beyond a reasonable doubt, provided some of the information necessary to assist the jury in deciding the credibility of the eyewitness identifications. "Although the charge touched on the thrust of Rodriguez by instructing the jury to consider the possibility of an honest mistake, [the instructions] did not equip the jury with the proper tools to help them recognize the circumstances that might lead a witness to make such a mistake." Commonwealth v. Monteiro, 51 Mass. App. Ct. 552 , 562 (2001).
The defendant characterizes the judge's charge as a "complete failure" to provide guidance to the jury on the evaluation of the eyewitness identification evidence presented at trial, and argues that the particular omissions from the Rodriguez instruction constitute reversible error. More specifically, he claims prejudice from the omission of the following Rodriguez factors: (i) capacity and opportunity of the eyewitnesses to observe the perpetrators; (ii) failed or inconclusive identifications; (iii) influence or suggestiveness in the identifications; and (iv) length of time between the event and the identifications. We consider each of the Rodriguez omissions as a factor in the determination whether counsel's lapse resulted in a substantial risk of a miscarriage of justice.
have been told in accordance with Rodriguez. [Note 8] As is plain, the Rodriguez language apprises the jury in a more detailed fashion of the factors that bear on their assessment of the opportunity and ability to observe the perpetrator. In addition, it is important for the jury's consideration of the accuracy and reliability of the identification to hear that instruction in the context of other factors bearing on that issue. We are persuaded on the basis of this omission alone that the eyewitness instructions to the jury were inadequate.
b. The defendant argues that the lack of the Rodriguez instruction on the effect of failed or inconclusive identifications [Note 9] was inadequate where some of the witnesses in this case were unable to make any identification from the photographic array, and those who did make an identification were inconsistent in their level of certainty. It is doubtful that the omission of this Rodriguez factor was problematic on either ground.
None of the witnesses who were unable to identify the defendant from the photographic arrays made an in-court identification at trial. As to these witnesses at least, there was no necessity for a Rodriguez instruction. See Commonwealth v. Johnson, 470 Mass. 389 , 390 (2015) (declining to find abuse of discretion in judge's denial of request for eyewitness identification instruction where there was no positive eyewitness identification and "no other eyewitness testimony that significantly incriminated the defendant"). Two of the victims made what they described as positive identifications but neither failed to make an identification of the defendant when presented with the opportunity to do so.
The defendant's claim that the eyewitnesses contradicted their level of certainty does not, in any event, require an instruction on this factor. Both eyewitnesses testified to being one hundred per cent certain of their identifications. Although neither wavered from his claim to be one hundred per cent certain of their identifications, Detective Cronin testified that they expressed less than one hundred per cent certainty, an eight on the scale of one to ten. Even assuming a contradiction in the witnesses' level of certainty, this instruction is not intended to address that issue directly. Rather, it relates primarily to the situation where a witness has failed to make an identification or identified a person other than the defendant. See Commonwealth v. Bol Choeurn, 446 Mass. 510 , 518 (2006) (inconsistent identification portion of Rodriguez instruction properly given to jury on factors considered where witness identified photograph of someone other than defendant). Where neither scenario occurred here, this instruction would not necessarily have been helpful or required to assist the jury in assessing the eyewitness identifications. In these circumstances, the judge properly could have exercised the discretion to omit this factor, and no prejudice resulted from its omission.
c. Next, the defendant contends that the jury should have been apprised of the Rodriguez factor relating to the possible role of influence or suggestion in the identifications. [Note 10] More specifically, he argues that the jury should have been instructed that the identification procedures used by Detective Cronin did not comport with the protocol suggested in Commonwealth v. Silva-Santiago, 453 Mass. 782 , 797-798 (2009). He points out that there was no double-blind array; the photographs were shown to the victims simultaneously rather than sequentially; and the procedure was not recorded or otherwise documented.
blind procedure, a sequential array, and a recording of the procedure. Although we noted the efficacy of these procedures in minimizing the risks of misidentification, [Note 11] the protocol relates only to the content of the police officer's dialogue with the identifying witness. Furthermore, we pointedly declined to require a double-blind procedure where it might not be practicable, or either a sequential array or recording. Id. at 797-798.
d. As to the instruction on the length of time between the robbery and the identification, [Note 12] we agree that the lapse of time is a factor that may impair the reliability of an identification and that the four-day delay in this case is a factor that the jury should have considered. While appropriate, the omission of this factor did not seriously compromise the adequacy of the judge's charge or otherwise result in prejudice to the defendant.
executed the robbery and shared the proceeds.
We have taken due notice of the defendant's attack on the probative force of Maldonado's testimony, characterizing it as a self-serving ploy to secure sentencing concessions on the indictments for his participation in the crimes. Maldonado's self-interest notwithstanding, the defendant made no headway in impeaching the credibility of Maldonado's testimony, a task made all the more difficult by the telephone records that substantially corroborated that testimony.
Conclusion. Because the defendant has not met his burden to establish a substantial risk of a miscarriage of justice from the omission of the Rodriguez instruction, we affirm the convictions.
[Note 1] The judge excluded Milagros Fernandez's statement that she had come to the police in response to news reports that her automobile, the Galant, had been used as the getaway vehicle in the robbery.
[Note 2] We note that this case was tried before our most recent eyewitness identification cases, which altered our jurisprudence so as to give effect to certain generally accepted scientific advances in the understanding of the reliability of eyewitness identification. See Commonwealth v. Bastaldo, 472 Mass. 16 , 23-30 (2015) (holding that instructions on cross-racial identification required prospectively unless parties agree there was no cross-racial identification); Commonwealth v. Gomes, 470 Mass. 352 , 361-378 (2015) (augmenting and supplementing Rodriguez to include five specific principles shown to be generally accepted in relevant scientific community); Commonwealth v. Collins, 470 Mass. 255 , 259-267 (2014) (precluding in-court identification where witness made less than positive pretrial identification, except on showing of "good reason"); Commonwealth v. Crayton, 470 Mass. 228 , 238-244 (2014) (precluding in-court identification where witness made no pretrial identification, except on showing of "good reason").
[Note 3] The defendant also claims that omission of the Rodriguez instruction violated his constitutional right to a fair trial. However, he presents this claim in summary fashion only, omitting any reference to the constitutional provisions underlying this claim and making no attempt to explain how the application of these provisions compels the result he seeks. Because we deem the argument insufficient to meet the requirements of Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975), we decline to consider whether the omission of an eyewitness instruction in accordance with Rodriguez is a violation of the defendant's constitutional right to a fair trial.
[Note 4] See, e.g., Commonwealth v. Watson, 455 Mass. 246 , 259-260 (2009) (judge's eyewitness instructions in accordance with Rodriguez and Commonwealth v. Pressley, 390 Mass. 617 , 619 , given at defendant's request, sufficient without "cautionary" instructions); Commonwealth v. Pires, 453 Mass. 66 , 72 (2009) ("when the evidence so warrants and when a defendant requests the instruction," no harm in giving "honest but mistaken" language from Pressley with Rodriguez instruction).
[Note 5] Because the issue in this appeal involves the law at the time of the trial, we caution against any implication that a judge should not give an eyewitness identification instruction unless the defendant requests it. Before the adoption of the Model Jury Instructions on Eyewitness Identification, 473 Mass. 1051 (2015), ambiguity may well have clouded the boundaries of the judge's discretion to provide eyewitness identification instructions. The newly adopted model instructions seek prospectively to resolve that ambiguity by stressing the necessity of appropriate instructions tailored to the particular identification issues in the case. See id. at 1053 n.1 ("This instruction should be given in any case in which the jury heard eyewitness evidence that positively identified the defendant and in which the identification of the defendant as the person who committed or participated in the alleged crime[s] is contested").
[Note 6] Although "our courts strongly disfavor raising claims of ineffective assistance on direct appeal," we may resolve the defendant's claim because it fits within the narrow exception to the rule requiring such claims to be raised in a motion for a new trial where the "factual basis of the claim appears indisputably on the trial record." Commonwealth v. Zinser, 446 Mass. 807 , 811 (2006), quoting Commonwealth v. Adamides, 37 Mass. App. Ct. 339 , 344 (1994).
"Did the witness appear to know what the witness was talking about, what was the opportunity or lack of opportunity that the witness had to see and learn the facts about which he or she was testifying?
"What was the ability of the witness to understand, to recall and to accurately describe those things that a witness was testifying to?"
"Are you convinced that the witness had the capacity and an adequate opportunity to observe the offender?
"Whether the witness had an adequate opportunity to observe the offender at the time of the offense will be affected by such matters as how long or short a time was available, how far or close the witness was, how good were lighting conditions, and whether the witness had had occasion to see or know the person in the past."
Rodriguez, 378 Mass. at 310 (Appendix).
[Note 9] "You may take into account any occasions in which the witness failed to make an identification of defendant, or made an identification that was inconsistent with [the] identification at trial." Rodriguez, 378 Mass. at 311.
"If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to him for identification, you should scrutinize the identification with great care. You may also consider the length of time that lapsed between the occurrence of the crime and the next opportunity of the witness to see the defendant, as a factor bearing on the reliability of the identification."
[Note 11] In Commonwealth v. Silva-Santiago, 453 Mass. 782 , 797-798 (2009), we declined, based on concerns of practicality, to require a double-blind procedure. At the same time, we noted that "it is the better practice because it eliminates the risk of conscious or unconscious suggestion." Id. at 797.
[Note 12] In Commonwealth v. Cuffie, 414 Mass. 632 , 641 (1993) (Appendix), we revised the Rodriguez language on this point as follows: "You may also consider the length of time that lapsed between the occurrence of the crime and the opportunity of the witness, some time after the occurrence of the crime, to see and identify the defendant as the offender, as a factor bearing on the reliability of the identification."
[Note 13] See note 2, supra.


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Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (the “Cannabis Act”) came into force on October 17, 2018, resulting in significant changes to Canada’s cannabis legal landscape. Indeed, the Cannabis Act legalizes access to and use of cannabis for recreational and adult use. It also describes the federal government’s role as a supervisor of licensing, regulation and compliance for the various actors within the cannabis industry.
any substance that is identical to any phytocannabinoid produced by, or found in, such a plant, regardless of how the substance was obtained.
The present article will provide a brief overview of each of the aforementioned licence classes and their respective subclasses, if any, relating to this rapidly expanding sector.
conduct ancillary activities such as drying cannabis.
a maximum of 5kg of flowering heads harvested from such plants, except for plant seeds.
Standard cultivation, micro-cultivation and nursery cultivation may be conducted indoors or outdoors.
A micro-processing licence allows for the same activities as a standard processing licence; however its holder may not produce cannabis by synthesis.
Furthermore, a micro-processing licence holder may not possess more than 600kg of dried cannabis (or its equivalent) in a year. Such quantity restriction does not apply if the holder of a micro-processing licence also holds a micro-cultivation licence for the same site and the cannabis used for processing comes exclusively from that site.
sell or distribute cannabis products, other than plants or plant seeds, to a hospital employee, the whole for the purpose and in connection with the latter’s duties.
Provinces and territories are responsible for determining the specific form of distribution and sale of recreational cannabis in their respective jurisdictions, as well as their supervision.8 Indeed, the regulation of cannabis in Québec is defined in An Act to constitute the Société québécoise du cannabis, to enact the Cannabis Regulation Act and to amend various highway safety-related provisions. Under sections 25 and 27 of this act, only the Société québécoise du cannabis (SQDC) may distribute and sell recreational cannabis in Québec through its points of sale or its website.
In contrast, other provinces such as Ontario, Alberta, Manitoba, Saskatchewan and Newfoundland and Labrador have opted for a private recreational cannabis retail model.
obtain cannabis by altering its chemical or physical properties by any means, the whole for testing purposes.
distribute cannabis plants and plant seeds to licensed cultivators and exemption holders.
The Cannabis Act states that licences and permits authorizing the importation or exportation of cannabis may be issued only in respect of cannabis for medical or scientific purposes or in respect of industrial hemp.11 A holder of said licence must obtain either an import permit or an export permit for each shipment of cannabis that is either imported exported.
In summary, there are many different licenses that authorize the pursuit and execution of specific cannabis-related activities in Canada. Our legal advisors will be pleased to assist you in the determination of which licence class or subclass, including those described hereinabove, is the most suitable for your needs, as well as throughout the entire application process for such a license, if need be.
1 Cannabis Act, art. 2.
2 Cannabis Regulations, art. 11.
3 Cannabis Regulations, art. 11, 13.
4 Cannabis Regulations, art. 14, 16.
5 Cannabis Regulations, art. 17.
6 Cannabis Regulations, art. 17, 21.
7 Cannabis Regulations, art. 26.
8 Cannabis Act, art. 69.
9 Cannabis Regulations, art. 22, 25.
10 Cannabis Regulations, art. 28.
11 Cannabis Act, art. 62.
12 Cannabis Regulations, art. 204, 213.

matches:
art. 2
art. 11
art. 11
art. 14
art. 17
art. 17
art. 26
art. 69
art. 22
art. 28
art. 62
art. 204


text:
The Connecticut Unfair Trade Practices Act ("CUTPA") provides a powerful tool in business litigation. It prohibits unfair competition, unfair acts or practices and deceptive acts or practices. A CUTPA claim is frequently asserted in commercial litigation involving trade or commerce in the State of Connecticut because the act can reach conduct that may not be considered unlawful under other statutes or the common law, because it may provide a private remedy where a private remedy is not provided by another statute and because it may allow a successful plaintiff to recover its attorneys' fees and expenses, punitive damages and injunctive relief in addition to actual damages.
The Connecticut Unfair Trade Practices Act does not define the conduct that constitutes unfair competition or an unfair or deceptive act or practice. Over the more than 35 years, the Connecticut courts have rendered hundreds of decisions addressing whether particular business conduct violates the act. In addition, many Connecticut statutes, even those without express private remedies, provide that a violation also constitutes a violation of CUTPA.
Although the Connecticut courts have decided thousands of cases interpreting and applying CUTPA since it was enacted, there are still many questions about how CUTPA should be interpreted that have not definitively been answered. See David L. Belt, Unresolved Issues Under the Connecticut Unfair Trade Practices Act, 82 Conn. B.J. 389 (2008). HSSK's intimate familiarity with this large body of decisions helps it to represent its clients more effectively and efficiently in matters in which CUTPA claims are or may be made.
The attorneys at Hurwitz, Sagarin, Slossberg & Knuff, LLC have extensive experience in both bringing and defending CUTPA claims. In November, 2009, HSSK, with David Slossberg as lead counsel, won a jury verdict of $14.765 million in a class action on behalf of some 500 Connecticut auto body shops against a major insurance company based on a violation of CUTPA. Post-trial motions in that case are now pending. See Artie's Auto Body Shop v. Hartford Fire Ins. Co., 287 Conn. 208, 947 A.2d 370 (2008)(affirming certification of class) and Artie's Auto Body Shop v. Hartford Fire Ins. Co., 50 Conn. L. Rptr. 790, 2010 WL 4354114 (Conn. Super. Ct. Oct. 14, 2010) (denying motion to set aside the verdict).
HSSK member David Belt is a leading authority on CUTPA. He is a co-author of the treatise on the act, Connecticut Unfair Trade Practices, Business Torts and Antitrust, published by West as Volume 12 of the Connecticut Practice Series. He is also the author of the chapter on Unfair Trade Practices in the Connecticut Lawyers' Benchbook, published by the Connecticut Bar Association and a number of articles on unfair trade practices and antitrust law. He is a member of the Executive Committee of the Antitrust and Trade Regulations Section of the Connecticut Bar Association, of which he has served as chair.
Co-counsel for Connecticut auto body shops in class actions against insurer for steering insureds to preferred auto body shops. See A&R Auto Body Specialty v. Progressive Cas. Ins. Co., 2008 WL 2229888 (D. Conn. May 28, 2008); Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., 20110 WL 4354114 (Conn. Super. Ct. Oct 14, 2010).
Represented real estate investment firm claimed by the Commissioner of Consumer Protection to have improperly charged apartment tenants for water based on a ratio utility billing system; resolved by an assurance of voluntary compliance.
Co-counsel in defense of civil RICO and unfair trade practices action by liability insurer alleging that defendant billed insured's for services not provided. See Allstate Insurance Co. v. Seigel, 312 F.Supp.2d 260 (D. Conn. 2004).
Represented major supermarket chain in class action alleging improper collection of sales tax and unfair trade practices.
Connecticut counsel for video game manufacturer in action brought by administratrix of estate of minor alleging that video game caused son's friend to stab him, claiming violating of the Connecticut Unfair Trade Practices Act and the Connecticut Product Liability Act. See Wilson v. Midway Games, Inc., 198 F.Supp.2d 167, 106 ALR 5th 759 (D. Conn. 2002).
Co-counsel for plaintiff in claim against health benefit plan administrator and its corporate customer for breach of contract, bad faith, unjust enrichment, interference with contract and unfair trade practices which deprived plaintiff of the fees he earned, a case successfully resolved by settlement. See Feen v. Benefit Plan Administrators, Inc., 28 Conn. L. Rptr. 137, 2000 WL 1398898 (Conn. Super. Ct. Sept. 7, 2000); Feen v. Benefit Plan Administrators, Inc., 1999 WL 33972 (Conn. Super. Ct. Jan. 13, 1999).
Represented counsel for plaintiff business consulting company in federal court action against defendant company which allegedly entered into an agreement for plaintiff to develop a credit card processing program. See 456 Corp. v. United Natural Foods, Inc., 2011 WL 87292 (D.Conn. Jan. 11, 2011).
Represented engineering firm specializing in use of powder coating technology in federal action against non-profit industry organization alleging breach of contract, misrepresentation and violation of CUTPA by directly competing with member of organization. See Powder Coating Consultants v. The Powder Coating Institute, 2010 WL 582613 (D.Conn. Feb. 16, 2010).
Represented defendant limited liability company and its sole owner in action alleging breach of contract, fraud, conversion and violation of CUTPA, successfully defeating claim that corporate veil should be pierced and defendant's owner held personally liable. See Optical Design Associates, Inc. v. Sunshine Confinery, LLC, 2010 WL 1495425 (Conn. Super. Ct. Mar. 9, 2010).
Lead counsel for class of independent auto body repairers against national casualty insurer in federal class action alleging steering repair work to favored auto body shops and suppressing labor rates in auto body industry. See, A&R Body Specialty v. Progressive Casualty Co., 2008 WL 2229888 (D.Conn. May 28, 2008).
Represented defendant limited liability company and its sole owner in action by creditor alleging, among other things, a violation of CUTPA arising out of an alleged "bust out scheme" to place debtor's assets out of creditor's reach. See Master Halco, Inc. v. D'Angelo, 351 B.R. 207 (D.Conn. 2006).
Represented national cabinet manufacturer in defense of case alleging wrongful termination of distributors.
Represented machine and tool company in action in which major firearms manufacturer alleged it had misappropriated trade secrets.
Represented class of purchasers of children's bedroom furniture alleged to contain formaldehyde for deceptive marketing in violation of CUTPA and the Connecticut Products Liabilities Act. See Stefan v. P.J. Kids, LLC, 2005 WL 834208 (Conn. Super. Ct. Mar. 1, 2005).
Represented major real estate developer in action in which seller of commercial shopping centers alleging that developer had violated CUTPA by misrepresentations and had tortiously interfered with contract between seller and its employee. See Beckenstein Enterprises-Prestige Park, LLC v. Lichtenstein, 37 Conn. L. Rptr. 627, 2004 WL 1966863 (Conn. Super. Ct. Aug. 11, 2004).
Connecticut counsel for co-defendant in multidefendant actions in which the State of Connecticut and a labor union health fund sought to recover for health care costs alleged to have been incurred as a result of the use of tobacco products. Connecticut Pipe Trades Health Fund v. Philip Morris, Inc., 153 F.Supp.2d 101 (D. Conn. 2001).
Connecticut counsel for plaintiff manufacturer of reverse vending machines in federal action against competitor to recover for misappropriation of trade dress for its machines. See Tomra of North America, Inc. v. Environmental Products Corp., 4 F.Supp.3d 90 (D.Conn. 1998).
Co-counsel for co-defendant in an action brought by the State of Connecticut against the major tobacco companies and others alleging violating of antitrust laws and the Connecticut Unfair Trade Practices Act and seeking billions of dollars in damages. See State v. Philip Morris, Inc., 2005 WL 2081763 (Conn. Super. Ct. Aug. 3, 2005); State v. Philip Morris, Inc., 1998 WL 800274 (Conn. Super. Ct. Oct. 27, 1998).
Represented defendant fund manager in action involving a claim for a multimillion-dollar fee in connection with the placement of investment interests. See Conning Corporation v. Davenport Group, 1992 WL 329298 (Conn. Super. Ct. Nov. 2, 1992); Conning Corporation v. Davenport Group, 6 Conn. L. Rptr. 340, 1992 WL 98135 (Conn. Super. Ct. Apr. 20, 1992).
Represented state medical association in connection with investigation by Justice Department into whether association engaged in improper sharing of wage information among hospitals.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


DeOliveira v. Ross & Roberts, Inc.
The claimant was represented by Laurence Parnoff, Esq., 1566 Park Ave., Bridgeport, CT 06604.
The respondents were represented by Kevin J. Maher, Esq., Maher & Williams, 1300 Post Road, Fairfield, CT 06430.
This Petition for Review from the March 30, 1995 Finding and Award of the Commissioner acting for the Fourth District was heard March 15, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the March 30, 1995 Finding and Award of the Commissioner acting for the Fourth District. He argues on appeal that the commissioner erroneously failed to find that the claimant’s depression and anxiety were caused by his compensable injury. We affirm the trial commissioner’s decision.
The claimant had been employed by the respondents for almost twenty years as of Thursday, May 11, 1989. That evening, he injured his back lifting a heavy bag off a skid and filed a report before leaving work. The next day, the claimant’s son drove him to work, where the claimant informed two supervisors that he had been hurt on the job and required medical attention. One of the supervisors told the claimant that the respondents had no company doctor, and that he was free to go to a “Med Now” facility if he so chose, although the supervisor could not approve treatment there. The claimant did so, but did not feel better by the following Monday, and sought the services of Dr. Forte, a chiropractor. The claimant was also examined by an orthopedic specialist, Dr. Dworken.
Dr. Forte opined that the claimant’s lumbar injuries were directly and causally related to his alleged work injury. The history that the claimant provided to Dr. Dworken also corroborated his testimony. Both physicians kept the claimant out of work for at least several weeks; he was finally released for light duty work on September 11, 1989. The claimant alleges that he again became totally disabled on December 20, 1989, because of emotional and psychological problems stemming from the May injury. Pursuant to Dr. Forte’s referral, he began treating with Dr. Gang, who diagnosed him as suffering from depression and atypical anxiety with symptoms of post-traumatic stress. He attributed this depression as a joint result of the physical effects of the injury and the fact that he was not being compensated, which created major financial stress for the claimant and left him feeling that he was being treated unfairly by his longtime employer, who was extremely dilatory in settling his case. The commissioner also cited similar testimony by Dr. D’Apice, whom the claimant was referred to by Dr. Gang.
The commissioner concluded that the claimant had suffered a compensable injury to his low back, and that he was totally disabled from the date of injury until September 19, 1989. He also found that the claimant had conducted job searches thoroughly during his period of temporary partial disability, and that he would be entitled to benefits for that period as well. The respondent’s denial of the back injury claim was deemed to be unreasonable by the commissioner, and attorney’s fees were awarded to the claimant. The commissioner also decided that the treating physicians were Drs. Forte and Dworken. He approved Dr. Dworken’s bills, but deferred approval on Dr. Forte’s charges. The commissioner went on to find, however, that the claimant’s emotional and psychological problems were not related to his physical injury on May 11, 1989. Instead, these problems “are a result of his frustration with the treatment he received by his employer, the delays in resolving his claim, a sense of loss of honor, and other factors which he attributes and blames on the employer.” Subsequent to the commissioner’s denying all but one paragraph of his Motion to Correct, the claimant petitioned for review to this board.
It is beyond debate in this forum that a claimant has the burden of proving that he has suffered a compensable injury, and that it is the job of the trial commissioner to evaluate the evidence that the parties present in deciding whether that burden of proof has been met. Crochiere v. Board of Education, 227 Conn. 333, 346-48 (1993); Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). This board only reviews factual findings to ascertain whether there is support in the record for those findings, and to determine whether uncontradicted and material facts have been omitted by the trial commissioner. The commissioner will not be second-guessed as to the inferences he or she draws from the testimony of a witness, and is never required to accept the statements of a lay witness or a medical expert as the truth. Webb, supra, 71.
In accordance with that principle, it is perfectly clear that the commissioner was not required to accept the testimony of Drs. Gang and D’Apice regarding the causal connection between the claimant’s physical injury and his emotional trauma. See Nasinka v. Ansonia Copper & Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 334-36, 1592 CRB-5-92-12 (April 27, 1995). No medical opinion is binding as a matter of law. The real question in this case, however, is whether the commissioner could conclude that the claimant’s psychological problems were not compensable even though he specifically found that those problems were a result of the claimant’s frustration with his employer’s treatment and the delays in resolving his claim. The commissioner’s prior finding that these problems “were not the result of the physical injury of May 11, 1989, nor did they flow from said injury” seems to clarify the facts as the commissioner found them: although the back injury itself did not cause the emotional deterioration of the claimant, the frustration that the claimant felt at his employer’s unreasonably dilatory tactics in contesting his claim was a key factor in producing his psychological difficulties.
This board must determine if the conclusion that the claimant’s psychological problems are unrelated to his compensable injury may legally stand in light of these findings. See Crochiere, supra, 347. We will overrule that decision only if it was illegally inferred from the underlying facts, or if the commissioner incorrectly applied the law in this case. There are several reported CRB decisions that guide us as to the law here. In order for an injury to be work-related, the employment must be the proximate cause of the injury. Cole v. Norwalk Wilbert Vault Co., 4 Conn. Workers’ Comp. Rev. Op. 155, 156, 330 CRD-2-84 (Feb. 26, 1988), citing Madore v. New Departure Mfg. Co., 104 Conn. 709, 713 (1926). Our decisions apply a “substantial factor” analysis when proximate cause must be determined, and recognize that causation may be interrupted where an intervening event has played a causal role in a claimant’s disability. Hanzlik v. James Freccia Auto Body, 15 Conn. Workers’ Comp. Rev. Op. 2, 1984 CRB-7-94-3 (Nov. 1, 1995); Anderson v. UConn Health Center, 11 Conn. Workers’ Comp. Rev. Op. 197, 198, 1318 CRD-6-91-10 (Sept. 23, 1993); Cole, supra, 157.
In cases where a claimant has been injured while participating in a vocational rehabilitation program, we have held that the injury is compensable absent evidence of some intervening causative activity. Zullo v. Caron Roofing Company, Inc., 12 Conn. Workers’ Comp. Rev. Op. 357, 358, 1634 CRB-4-93-2 (Aug. 2, 1994) (chair collapsed while claimant was attending class); Cole, supra, 156-57 (claimant injured left wrist and elbow while at welding school). This is because the claimant’s presence at the training site in both cases was a direct result of his original work-related injury. However, we have also held that a claimant who was injured in a car accident while driving home from an informal workers’ compensation hearing was not entitled to benefits under the Workers’ Compensation Act. Fantasia v. Tony Pantano Mason Contractors, 14 Conn. Workers’ Comp. Rev. Op. 36, 38, 1819 CRB-5-93-8 (May 4, 1995). Along with our reliance on the “coming and going” exception, see Dombach v. Olkon Corporation, 163 Conn. 216 (1972), in Fantasia we cited with favor the rulings of other courts that have shown reluctance to extend coverage to injuries sustained by a claimant while pursuing a workers’ compensation claim against his or her employer. See, e.g., Hendrickson v. George Madsen Construction, 281 N.W.2d 672, 674-75 (1979) (heart attack suffered after testifying at workers’ compensation hearing not compensable).
Unlike the Cole and Zullo cases, this case does not involve a claimant who was physically injured while participating in a workers’ compensation-sponsored program. Instead, the claimant has been found to have suffered a psychological injury brought on by his employer’s adversarial tactics during the administration of his claim. Although this board is adamantly opposed to the use of dilatory tactics by any party in the workers’ compensation forum, we do not believe that an injury sustained in this manner results as a matter of law from his compensable injury. The conduct that led to the claimant’s psychological distress was the product of human actions that were not a direct result of the original back injury. Thus, that injury was not a substantial factor in causing the claimant’s psychological problems, even if the employer’s subsequent conduct was a primary cause.
Moreover, the legislature has prescribed a remedy in § 31-300 C.G.S. for the unreasonable contest of liability by an employer or insurer: the allowance of a reasonable attorney’s fee to the claimant. We do not believe that it would be appropriate to infer that an alternative remedy must be made available as well if the unreasonable contest has extraordinary detrimental effects. Therefore, we hold that the trial commissioner’s decision must be affirmed.


text:
Electronic equipment and methods for permitting quick control of the operating state of a source equipment side from sink equipment. A television receiver (sink equipment) 100 and an amplifier (repeater equipment) 200 are interconnected over an HDMI cable 610, and the amplifier 200 and a DVD recorder (source equipment) 300 are interconnected over an HDMI cable 620. Each of the pieces of equipment includes, in addition to an HDMI receiving unit and an HDMI transmitting unit, a high-speed data line I/F included in a bidirectional communication unit that uses predetermined lines of the HDMI cable. The bidirectional communication unit is used to transmit channel selection information, a remote control code instructing recording, “theater mode” designating information, a remote control code, or the like from the television receiver 100 to the audio amplifier 200 or DVD recorder 300.
The present application is a national phase entry under 35 U.S.C. §371 of International Application No. PCT/JP2007/071649 filed Nov. 7, 2007, published on May 15, 2008 as WO 2008/056707 A1, which claims priority from Japanese Patent Application No. JP 2006-301486 filed in the Japanese Patent Office on Nov. 7, 2006, Japanese Patent Application No. JP 2007-050426 filed in the Japanese Patent Office on Feb. 28, 2007, and Japanese Patent Application No. JP 2007-201517 filed in the Japanese Patent Office on Aug. 2, 2007.
FIG. 9 shows an example of the arrangement in the communication system 10 shown in FIG. 1 of the high-speed data line interface 103 of the television receiver 100 and the high-speed data line interface 203 a of the audio amplifier 200. The interfaces 103 and 203 a constitute a communication unit that performs local-area network (LAN) communication. The communication unit performs communication using a pair of differential lines out of the multiple lines constituting the HDMI cable 610, that is, in the present embodiment, a reserved line (Ether−line) coupled to an unused (reserve) pin (14 pin) and an HPD line (Ether+line) coupled to an HPD pin (19 pin).
the communication unit transmits at least control information, which signifies control by a control unit of the electronic equipment to attain an operating state selected by a user in the electronic equipment and is used by another control unit of the another electronic equipment to control an operating state of the another electronic equipment to be same as the operating state selected, to the another electronic equipment, wherein the control information is transmitted immediately when a single operation is performed by the user to select the operating state in the electronic equipment.
the communication unit transmits the control information to the another electronic equipment, wherein the control information signifies control by a control unit of the electronic equipment to attain an operating state selected by a user in the electronic equipment and is used by another control unit of the another electronic equipment to control the operating state of the another electronic equipment to be same as the operating state selected, wherein the control information is transmitted immediately when a single operation is performed by the user to select the operating state in the electronic equipment.
the electronic equipment comprises a communication unit that performs bidirectional communication using predetermined lines included in the transmission medium, and a control unit that controls an operating state on the basis of control information received by the communication unit, wherein the control information signifies control by another control unit of the another electronic equipment to attain an operating state selected by a user in the another electronic equipment and is used by the control unit of the electronic equipment to control an operating state of the electronic equipment to be same as the operating state selected, wherein the control information is transmitted immediately from the another electronic equipment when a single operation is performed by the user to select the operating state selected in the another electronic equipment.
the communication unit receives the control information from the another electronic equipment, wherein the control information signifies control by another control unit of the another electronic equipment to attain an operating state selected by a user in the another electronic equipment and is used by a control unit of the electronic equipment to control an operating state of the electronic equipment to be same as the operating state selected, wherein the control information is transmitted immediately from the another electronic equipment when a single operation is performed by the user to select the operating state selected in the another electronic equipment.
"High-Definition Multimedia Interface Specification Version 1.3". Internet Citation, Jun. 22, 2006, XP002391813, Retrieved from the Internet: URL:http://www.hdmi.org/download/HDMI-Spec-1.3-GM1.pdf [retrieved on Jul. 24, 2006].
"High—Definition Multimedia Interface Specification Version 1.3". Internet Citation, Jun. 22, 2006, XP002391813, Retrieved from the Internet: URL:http://www.hdmi.org/download/HDMI—Spec—1.3—GM1.pdf [retrieved on Jul. 24, 2006].
Communication pursuant to Article 94 (3) EPC, from European Application No. 07831380.6-2202, dated Jun. 18, 2012.
Communication pursuant to Article 94 (3) EPC, from European Application No. 07831382.2-2202, dated Jun. 21, 2012.
Hitachi et al: "High-Definition Multimedia Interface Specification Version 1.1" Internet Citation May 20, 2004, page COMPLETE XP007909795 Retrieved from the Internet: URL:http://www.hdmi.org/download/HDMI-Specification-1.1.pdf> [retrieved on Sep. 16, 2009].
Hitachi et al: "High—Definition Multimedia Interface Specification Version 1.1" Internet Citation May 20, 2004, page COMPLETE XP007909795 Retrieved from the Internet: URL:http://www.hdmi.org/download/HDMI—Specification—1.1.pdf> [retrieved on Sep. 16, 2009].
IEEE Standard for Information Technology Telecommunications, Supplement to Carrier Sense Multiple Access with Collision Detection (CSMA/CD)Access Method and Physical Layer Specifications. Physical Layer Parameters and Specifications for 1000 Mb/s Operation Over 4- Pair of Category 5. Balanced Copper Cabling, Type 1000 BASE-T.
Office Action from Japanese Application No. 2008-543096, dated Nov. 22, 2012.
Office Action from Japanese Application No. 2008-543107, dated Mar. 19, 2013.
Office Action from Japanese Application No. 2008-543112, dated Nov. 27, 2012.
Office Action from Japanese Application No. 2008-543113, dated Jan. 8, 2013.
Office Action from Japanese Application No. 2008-543113, dated Jul. 10, 2012.
Office Action from Korean Application No. 10-2009-7006203, dated Sep. 12, 2013.
Supplementary European Search Report Application No. EP 07831380, dated May 25, 2010.

matches:
§371
Application No. 07831380
Application No. 07831382
Application No. 2008
Application No. 2008
Application No. 2008
Application No. 2008
Application No. 2008
Application No. 10


text:
DIAMOND NATIONAL v. STATE EQUALIZATION BD.
The incidence of state and local sales taxes falls upon appellant national bank as purchaser and not upon vendors, and therefore the national bank is exempt from the taxes under former 12 U.S.C. 548 (1964 ed.), which was in effect at the time here pertinent.
49 Cal. App. 3d 778, 123 Cal. Rptr. 160, reversed.
The judgment is reversed. We are not bound by the California court's contrary conclusion and hold that the incidence of the state and local sales taxes falls upon the national bank as purchaser and not upon the vendors. The national bank is therefore exempt from the taxes under former 12 U.S.C. 548 (1964 ed.), which was in effect at the time here pertinent. First Agricultural Nat. Bank v. Tax Comm'n, 392 U.S. 339, 346 -348 (1968).
Since the case involves a federal claim of immunity from state taxation, we are not bound by the California court's determination of where the incidence of the tax falls. 2 On the other hand, we are not free simply to disregard the state court's determination. 3 More narrowly, I believe we must accept the state court's interpretation of the meaning of a state statute insofar as it defines the legal obligations of the vendor, the purchaser, and the tax collector independently of any claim of federal immunity.
In this case we have the benefit of completely consistent construction by the California courts since the statute was enacted in 1933. Both in cases involving a federal claim of immunity, 4 and also in cases which involved no question of federal law, 5 the California courts [425 U.S. 268, 270] have unambiguously held that the statute imposes no legal obligation on a purchaser either to pay the tax himself or to reimburse his vendor.
Deciding where the legal incidence of a state tax falls is not the most intriguing task that judges are called [425 U.S. 268, 272] upon to perform. Such work is facilitated, however, when the controlling standards are expressed in simple language. I had thought two rather clear rules controlled this case. First, the location of the economic impact of a tax does not identify the place where its legal incidence falls. Second, it is only if the State imposes a legal obligation on the purchaser either to pay the tax, or to reimburse the vendor for a tax payment, that the legal incidence is on the purchaser. The Court's disposition of this appeal apparently is not predicated on either of those rules. However, I am persuaded that they require us to affirm the judgment of the California Court of Appeal.
[ Footnote 1 ] 49 Cal. App. 3d 778, 123 Cal. Rptr. 160 (1975).
[ Footnote 2 ] See Society for Savings v. Bowers, 349 U.S. 143, 151 .
"When a state court has made its own definitive determination as to the operating incidence [of a tax], our task is simplified. We give this finding great weight in determining the natural effect of a statute, and if it is consistent with the statute's reasonable interpretation it will be deemed conclusive."
[ Footnote 4 ] The very question which confronts us here arose in Western Lithograph Co. v. State Board of Equalization, 11 Cal. 2d 156, 78 P.2d 731 (1938); in that case the plaintiff-vendor claimed not to be liable for taxes measured by sales made to the Bank of America National Trust and Savings Association. The Supreme Court of California affirmed the denial of a refund, holding that the incidence of the tax was on the retailer, not on the consumer.
[ Footnote 5 ] In National Ice & Cold Storage Co. of California v. Pacific Fruit Express Co., 11 Cal. 2d 283, 79 P.2d 380 (1938), the court held that the vendor could not add sales tax reimbursement to the price paid by a vendee under a pre-existing contract, even though the court was required, in order to reach this result, to hold unconstitutional a section of the taxing statute which expressly allowed such a result. The court reasoned that while it [425 U.S. 268, 270] was not beyond the power of the legislature to impose a tax on the consumer, it had not done so, and it was beyond the power of the legislature to require the vendee to pay the vendor's debt.
That this left the California sales tax reimbursement as a matter of contract between vendor and vendee is affirmed by the later holdings of the lower California courts in Clary v. Basalt Rock Co., 99 Cal. App. 2d 458, 222 P.2d 24 (1950), which held that there was no venue against the vendee in a particular county because it could not be found that any tax obligation arose against the vendee when a sale was made, and Livingston Rock & Gravel Co. v. DeSalvo, 136 Cal. App. 2d 156, 288 P.2d 317 (1955), where the vendor under a lease-sale overlooked providing for sales tax reimbursement. Although the vendor had been held liable for payment to the State, the court held that the vendor could not collect the tax from the vendee.
"But the controlling significance of First Agricultural Bank for our purposes is the test formulated by that decision for the determination where the legal incidence of the tax falls, namely, that where a State requires that its sales tax be passed on to the purchaser and be collected by the vendor from him, this establishes as a matter of law that the legal incidence of the tax falls upon the purchaser." United States v. Mississippi Tax Comm'n, 421 U.S. 599, 608 .
In this case, unlike First Agricultural Bank, the State does not require that its sales tax be passed on to the purchaser.
" 6052 Collection by retailer from consumer. The tax hereby imposed shall be collected by the retailer from the consumer in so far as it can be done."
On its face this provision could reasonably be read to require that the tax be paid by the consumer. However, in the face of the state courts' consistent interpretation of the state statute as not requiring that result, we are not free to place our own interpretation on the statute.

matches: v. v. v. v. v. v. v. v.


The Summons and Complaint must be served by sheriff or other process server. Service means it must be given to you or left at your unit with a person “of suitable age and discretion.” VRCP 4.
Generally, a tenant/defendant must file an Answer 21 days after the day the Complaint was served. But in eviction cases, there can be exceptions to the general rule.
If you file a Motion to Dismiss before you file an Answer, the Answer deadline is postponed until 14 days after the court rules on the Motion to Dismiss. VRCP 12(a)(3)(A).
If you got a Notice of Hearing for Rent into Court with your Complaint, and the Rent into Court hearing date is before the 21-day Answer date, and you go to that hearing, your Answer deadline is 14 days after the Rent into Court hearing. 12 V.S.A. § 4853a(a).
If there is no Rent into Court hearing scheduled when the Complaint is served, or you don’t show up at the Rent into Court hearing (see below for why this not a good idea), you must file a written Answer with the court 21 days after the day it is served. VRCP 12(a)(1).
When you file your Answer with the court, you need to send a copy to the landlord, and file a Certificate of Service with the court. VRCP 5.
For what to put in your Answer, see The tenant’s answer, below.
What is “Rent into Court”?
If you are behind on the rent at the time a case is filed in court or at any time after that, the landlord can make Motion for Rent into Court. Even if you are being evicted for a reason other than non-payment of rent, if your rent is behind, the landlord can make the motion. 12 V.S.A. § 4853a.
The court can order you to pay your rent to the court clerk until the case is over. The reason the landlord wants this is because if you are late paying the court clerk, the law says the landlord can get an immediate Writ of Possession. After the Writ is served on you, you have to be out in five days. 12 V.S.A. § 4853a(h).
Another reason for the Rent into Court law is so that by the time a case is decided, there is money to pay the rent that has accrued (built up) between the time the court case starts and ends. If the court rules that the landlord is not entitled to all the rent because of problems with the unit, the remainder goes back to you.
You can oppose the Motion for Rent into Court in writing before the hearing.
The court shouldn’t order Rent into Court if your rent is all paid up. It can only order Rent into Court if you are behind in paying your rent. 12 V.S.A. § 4853a(d).
You may be lawfully withholding rent. 9 V.S.A. § 4458. The law requires that there are enough facts for the court to decide that: “the tenant is obligated to pay rent and has failed to do so,” 12 V.S.A. § 4853a(d). If you gave notice to the landlord of a defect that materially affects health and safety, and the landlord has not made the repair, you are lawfully withholding rent. 9 V.S.A. § 4458. If you are lawfully withholding rent, you are not obligated to pay. A Rent into Court order can be risky for you if you have a hard time getting to the court building, and if you are lawfully withholding rent, the court shouldn’t make it easier for the landlord to get a Writ of Possession.
There was not enough time between the time you were served and the motion day. The timing is important, because you must have ten days’ notice before the Rent into Court hearing. 12 V.S.A. § 4853a(b). The landlord is responsible for getting you served in time.
Most important: This court hearing is not the end of the case. It is only about whether you should pay your Rent into Court while the case is going on. It also says how much and on what days you have to make the payment. On a later date there will be a trial to decide if you can keep possession and whether either party owes money damages to the other. If you don’t show up and you haven’t answered, make sure you file a written Answer to the Complaint within 21 days from when you were served.
At the hearing, the court can grant or deny the landlord’s request for a Rent into Court order.
You don’t show up and the landlord does. With you not there, the landlord can get what the landlord wants.
You come to the hearing, but haven’t filed a written opposition in advance of the hearing.
The landlord doesn’t show up.
How much Rent into Court can a court order the tenant to pay?
the rent that wasn’t paid from the date the eviction case was filed in court, or if the Summons was served before the case was filed, from the date the Summons was served. VRCP 3, 12 V.S.A. § 4853a(d).
Example: December’s rent was not paid. The termination date was January 4th. The landlord files in court January 14th. The Summons, Complaint and Notice of Rent into Court hearing was served January 17th. The Rent into Court hearing happens on January 28th. The court will order that you pay your current rent for February on February 1st, and order that you pay the rent due between January 14th and February 1st also on February 1st.
If you have a good reason (the timing of benefit or paychecks is a good reason) you can ask that the court order include dates that make it possible for you to pay on time. Keep in mind that the court will not accept personal checks, only money order, bank checks or cash. 12 V.S.A. § 4853a(e) When asking for payment dates, you have to think about how you will get the money to the court by those dates.
The landlord can get a Writ of Possession if you do not pay Rent into Court as ordered. If you get a Motion for a Writ, or are served with a Writ of Possession, and you want to pay up and stay in the unit, you must immediately (the same day) file a written Opposition to the Motion for a Writ, or a Motion to Quash the Writ, and pay the payments due under the order into court.
The court will review your opposition. The court may decide to let you stay, but it may decide that even if you have the money now, the fact that you didn’t pay on time means that the landlord can get a Writ of Possession.
At the beginning of the case you should look at the landlord’s Complaint and attachments. You can file a motion to dismiss the court case if the landlord failed to follow the law.
Landlord didn’t attach a document to the complaint.
Landlord did not attach the termination notice with the Complaint, 12 V.S.A. § 4852.
There is a written rental agreement and the landlord failed to attach it to the Complaint. 12 V.S.A. § 4852.
The landlord has received some rent paid by a Section 8 subsidy, and has failed to attach the tenancy addendum of the Housing Assistance Payments (HAP) contract.
Landlord didn’t give notice to the housing authority.
The termination notice leaves something out, or says something wrong.
The termination notice for any grounds isn’t effective to terminate the tenancy because it didn’t give the legally required amount of days in advance of the termination date. 9 V.S.A. § 4467.
The notice is no good.
The termination notice for non-payment isn’t effective to end the tenancy because the tenant paid all the rent owed in time. 9 V.S.A. § 4467(a).
The landlord got the timing of the termination notice wrong.
The termination notice for any grounds isn’t effective to terminate the tenancy because it wasn’t delivered enough in advance of the termination date. 9 V.S.A. § 4451(1), 4467.
The case was filed before the termination date stated in the termination notice. 12 V.S.A. § 4851.
The case was filed more than 60 days after the termination date stated in the notice. 9 V.S.A. § 4467(k).
When you file your Motion to Dismiss with the court, you need to send a copy to the landlord, and file a Certificate of Service with the court.
If an eviction was for non-payment of rent, you can pay all rent and costs into the court and stay in the unit. 12 V.S.A. § 4773. You can do this at any time before the sheriff comes to put the you out (before the “execution of the Writ of Possession”). Any time means: after the case is filed, after trial, after judgment, and after issuance and service of the Writ of Possession. You have to pay all the rent in arrears, plus court costs, which are the filing fee listed in 32 V.S.A. § 1431(b)(1) paid by the landlord and service fees (usually around $60 but the exact amount can be seen in the court’s file on the sheriff’s return of service). Once you have paid all the rent and court costs, you should make a motion to the court to dismiss the case.
The law allows you to get an eviction dismissed this way once every 12 months.
Your written Answer admits or agrees with, or denies or disagrees with the numbered “allegations” (factual statements) in the landlord’s Complaint. An allegation may include facts you agree with and facts you disagree with. Your Answer should state specifically what you agree with and disagree with.
Use our sample Answer form.
Download a Word version of the Answer form.
Download a PDF version of the Answer form.
When you file your Answer with the court, you need to send a copy to the landlord, and file a Certificate of Service with the court.
In an Answer, an affirmative defense is you stating the reasons even if the landlord is right, why the landlord can’t win. In an Answer, affirmative defenses need only state the law of the affirmative defenses, and do not need to state all the facts, (even though you will have to prove those facts at trial). In writing down an affirmative defense, you are preserving your right to prove it at trial. If you don’t raise it, you lose your right to prove it at trial. Some affirmative defenses can also be the reason for a Motion to Dismiss. You can do both a Motion to Dismiss and list it in your affirmative defenes in your Answer.
The termination notice was not legally effective to terminate the tenancy.
You have paid all the money owed. 9 V.S.A. § 4467(a).
Unlawful discrimination. 9 V.S.A. § 4503.
The landlord failed to follow rules regarding the calculation of rent.
The landlord takes payments from the Housing Authority for your Section 8 subsidy, and has not followed the rules for evicting you.
Landlord breached the warranty of habitability. 9 V.S.A. § 4458.
The landlord breached your right to quiet enjoyment of the dwelling; meaning, something the landlord did, or allowed other tenants to do, changed the conditions of the apartment (such as breached your privacy, noise, activity, access).
Offset – The amount you owe to the landlord is lessened by the amount the landlord owes you. For example, the money owed for rent should be offset for damages owed by landlord as a result of other violations of RRAA (for example by the time you get to trial, you could be owed security deposit refund).
The landlord violated the anti-retaliation part of the RRAA. 9 V.S.A. § 4465(b).
When you file your defenses with the court, you need to send a copy to the landlord and file a Certificate of Service with the court.
A counterclaim is you asking the court to give you a money judgment or other order against the landlord because of something the landlord did wrong that caused you damage. You need to write down the facts that entitle you to win on your counterclaim.
If you want to file counterclaims, you have to pay a filing fee or request a fee waiver. Check 32 V.S.A. § 1431(b) (1) to find the amount of the filing fee or use this form to request a fee waiver.
Use our sample Counterclaims form.
Download a Word version of the Counterclaims form.
Download a PDF version of the Counterclaims form.
When you file your counterclaim with the court, you need to send a copy to the landlord and file a Certificate of Service with the court.
Ask for the actual amount of money that you are owed back from the landlord because of his or her actions. You should be ready to prove that the landlord owes you this amount with receipts or other documents or testimony.
You can also ask for an amount to compensate you for “pain and suffering.” It may not be easy to put a dollar value on things like “distress.” But the more accurate you are in estimating the value of your loss, the more likely you are to recover that amount.
If the landlord’s action were outrageous and intentional you can ask for triple damages for the landlord’s violation of the Consumer Fraud Act.
If the landlord has violated the warranty of habitability, the illegal eviction law, or the prohibition against retaliation, you can ask the court for the landlord to pay your attorney’s fees and court costs.
You can ask the court to order the landlord to repair any defective conditions in your apartment and decrease past and/or future rent to reflect the true value of the premises until all repairs are made.
Any other relief the court decides is necessary and just under the circumstances.
If the you do not file an Answer in the required amount of time, the clerk can enter a default. VRCP 55. After a default is entered, the landlord doesn’t have to send you copies of paperwork filed with the court anymore, VRCP 5, so you may not know the landlord has requested that the court grant her judgment by default.
If you think you may have missed the filing deadline, go to the court and ask to see the file. Sometimes you can call the clerk and ask for the status. File a motion to file a late Answer. If you don’t take these steps, you may not know Default Judgment has been granted until you are served with the judgment or a Writ of Possession.
If you are served with Default Judgment or Writ of Possession and you never filed an Answer, you should immediately file a Motion to Vacate the Default Judgment. The request must state the reason you didn’t file an Answer on time, and also that you have defenses to all or some of the landlord’s claims.
[W]e have generally been particularly attentive to the goal of adjudicating a case on its merits. Because “a judgment by default effectively deprives a defendant of an opportunity to have the merits... determined through the normal adversary judicial process, “ we have held that “the rules relating to default judgments should be liberally construed in favor of defendants, and of the desirability of resolving litigation on the merits, to the end that fairness and justice are served.” Desjarlais v. Gilman, 143 Vt. 154, 157, 158-59, 463 A.2d 234, 236, 237 (1983); see Courtyard Partners v. Tanner, 157 Vt. 638, 639, 595 A.2d 287, 288 (1991) (mem.) (“[T]he trial court should generally reopen ‘absent culpable negligence or deliberate purpose to delay.’ “ (quoting Childs v. Hart, 131 Vt. 241, 243, 303 A.2d 139, 141 (1973))); Dougherty v. Surgen, 147 Vt. 365, 366, 518 A.2d 364, 365 (1986) (“[A] court should be indulgent in opening decrees entered by default.” (quotation omitted)).
This rule exists so that trial can go faster and make more sense if both parties know what the other party is going to say. The law thinks it is not fair if one party tries to surprise the other at trial. If a party receives written questions and does not answer them, the court can decide not to allow them to present the evidence the questions asked for at trial, VRCP 37(d) , or can decide that the Admissions requested are deemed admitted, just as if the party had agreed with all the facts claimed by the other party.
When you send the landlord your written questions, file a Certificate of Service with the court.
You should settle your eviction case if you can get what you need by settling. It is important to think about what you want most and what the landlord wants most. If you can each get what you want most, even if you can’t get everything you want, you can settle. Do not agree to move out unless and until you have a new place to live. Don’t agree to something unless you know for sure you can do it.
What do landlords often want?
What do tenants often need?
Change to the cost of the unit. For example, if you are supposed to pay for heat, but it is expensive because there is no insulation, and so you can’t pay your rent, maybe the landlord would agree to insulate or pay for heat.
Money to move. Maybe the landlord will give you money to move, or will agree you don’t owe any more money (“waives back rent”).
Example: A settlement might be a repayment plan where you agree to pay your monthly rent plus an extra amount each month for back rent. In exchange, the landlord may lower the amount of money that you must pay back and drop the eviction case.
After an eviction case is filed with the court, there are two things to take care of to settle the case. First, between you and the landlord, create a written agreement about who is going to do what, and when. A settlement is a contract, and it should write out everything each of you is going to do.
At trial, the landlord (plaintiff) goes first, and has to prove the elements of his case by admissible evidence. The tenant (defendant) may object to evidence, see below, and gets a chance to ask questions of the landlord’s witnesses. If the tenant filed a counter-claim or affirmative defense, the tenant goes second, and has to prove the elements of them by admissible evidence.
*if the termination was for cause, the notice of termination was specific enough to let the tenant know what part of the rental agreement or RRAA was breached.
You still live in the unit.
You owe the landlord money for rent, utilities, and/or repairs.
In an eviction for cause, the causes listed in the termination notice happened, and show that violated your duties in the RRAA and/or the rental agreement.
In an eviction for sale of the building, the landlord must prove that there is a contract for sale of the building.
If you don’t object, the court can consider everything the landlord says, everything the landlord’s witnesses say, and all the documents the landlord brings.
There are rules to make sure that the testimony and documents are reliable and should be believed. If you think any of the requirements listed below are NOT met, be sure to tell the court when the witness testifies or tries to show the court documents.
A witness should only testify to what she herself saw, heard or felt. A witnesses’ testimony is only reliable if it is based on personal knowledge, not what someone else said. If a witness, including the landlord, is not testifying based on what she saw, felt or heard, it is hearsay and you should object. Vermont Rule of Evidence VRE 801(c).
Documents or papers that were made in the regular course of business or transactions may be admissible. VRE 803(6). But, if a document was made up the day before court to prove the landlord’s case, it is not admissible under the business records exception to hearsay. For example, the landlord could bring the carbon copies in a receipt book, or a print-out of a rent ledger. The landlord shouldn’t bring a list made yesterday from notes in her calendar. If her calendar was the way she kept track of rent payments all along, her calendar could be evidence.
It is the defendant’s job at trial to insist that the rules be followed. So, when the landlord is trying to get the court to consider something that doesn’t follow the rules, the defendant (the tenant) can stand up and say “objection,” and then, when the judge asks why, say the reason. Here is a list of objections.
Hearsay: Each thing the landlord says has to be based on something the landlord personally heard, saw, or felt. If the landlord is repeating something someone else said or wrote down, it is hearsay. Affidavits or statements about the case are not admissible. However, the landlord can repeat something the tenant said. VRE 801(d) (2).
Not relevant: if the landlord says tenant should be evicted for a reason not listed in the Complaint or any termination notice sent before or after the lawsuit is filed, it isn’t relevant to the lawsuit. Sometimes landlords say irrelevant things to try to make the judge feel bad for the landlord, or to make you upset. VRE 401.
Not an authenticated document: Documents made by someone who is a not you, the landlord or a witness at trial must be the original document and/or also have a sworn statement from the maker of the document saying it was made at the time of the event in the document, by a person with knowledge, in the regular course of business. VRE 902(11). This could be Invoices for repairs or services or receipts for supplies. A landlord’s written list of cost of repairs is not admissible evidence of the cost of repairs.
When you ask questions on cross examination, ask in a way that requires they be answered “yes” or “no.” This way you have more control over the information that goes to the court. You are allowed to cut off the answer if the witness wants to explain away a simple “yes” or “no” answer.
pictures of the bad condition (peeling paint, broken window, water leak stains and damage) of the dwelling.
a witness who heard landlord’s discriminatory remarks. It is not hearsay to repeat something the landlord said. Hearsay is when someone else’s comment is offered to prove what was in it is true. A discriminatory remark can be testified to to prove that it was said, not that it is true.
After both sides have presented their evidence, the court will ask if there is any more evidence. The court will rarely allow more time to submit evidence. Bring all the evidence (witnesses, doucments, pictures) you have the day of trial. If trial is finished that day, the court will say the evidence is closed.
The court could decide the case on the day of trial, or could take some time to decide the case. If the court decides the case on the day of trial, the court may tell the winner to write up a judgment for the court to sign, or the court may write a judgment itself. The day the court clerk makes a docket entry of the signed judgment is the day of judgment. VRCP 58.
If the court “takes the case under advisement,” and ends court for the day, that means the court will send a written decision in the mail. Before a decision is issued, you have the right to stay in the rental unit. You will owe rent for that time. If there is a Rent into Court order, you must keep paying into court.
The judgment may include the issuance of a Writ of Possession. It is still the landlord’s responsibility to serve the Writ of Possession. If a Writ of Possession is issued, it is only effective for sixty (60) days and has to be served in that time, or it expires. VRCP 69. 12 V.S.A. § 2681. The landlord can ask the court to issue a new Writ of Possession.
If the court orders that the landlord can have possession, the court can issue a Writ of Possession on the day judgment enters. 12 V.S.A. § 4854. Within 10 days of the entry of judgment, the defendant can request a stay of the Writ of Possession, VRCP 62(a)(3)(B), and filing the Motion for Stay acts as a stay until the motion is decided. This is true even if the Writ of Possession has been served.
Once a Writ of Possession is served by the Sheriff, you have 10 days to get out. 12 V.S.A. § 4854.
If either party wants to appeal the court’s decision, a notice of appeal must be filed with the trial court within 30 days of the date of judgment. VRAP 3, 4. A filing fee must be paid and copies of the notice of appeal given to the other parties. If you cannot afford the filing fee, bring this form with you to the court house or send it to the court. Filing an appeal does not automatically stop an order for possession, VRCP 62(a), but the trial court has discretion to stop an order for possession if requested. VRCP 62(d)(3). If the trial court refuses to stay the order for possession, the defendant can ask the Supreme Court to stay it. VRCP 62(f), VRAP 8.
Remember, if the eviction was for non-payment of rent, you can pay Rent into Court and stay in the unit. [See Reasons to dismiss, above.] 12 V.S.A. § 4773. You can do this at any time before the sheriff comes to put you out. Remember, to stay, you have to pay all the rent in arrears, plus court costs (which you can find in the court’s file on the sheriff’s return of service). Once you have paid all the rent and court costs, you should make a motion to the court to dismiss the case.
After judgment, the court issues a Writ of Possession. The landlord gives it to the sheriff to serve. After the court issues a Writ of Possession, it must be served on you within 60 days or it has no legal effect. VRCP 69.
If the Writ of Possession is issued because you missed a Rent into Court payment, you have to be out five days after service of the Writ. 12 V.S.A. § 4853a(h). If the Writ of Possession is issued after a judgment on the whole case, you have ten days after service of the Writ to get out.. The sheriff can “execute the Writ of Possession” by coming back to the dwelling and making sure the you are out. 12 V.S.A. § 4854.
The sheriff just makes sure the tenant is out, not the tenant’s things. If you leave any belongings in the unit, the landlord must keep them for fifteen days before disposing of them. 12 V.S.A. § 4854(a). Make arrangements with the landlord to get your belongings within 15 days. After that the landlord is not responsible to take care of them anymore.