New Matter Summer 2015

New Matter

THE AWARD WINNING PUBLICATION OF THE CHESTER COUNT Y BAR ASSOCIATION • CHESTER COUNT Y, PA www.chescobar.org

SUMMER 2015

SAVE THE DATE! LEGAL AID’S 5K

TRIAL RUN June 20th

EMPLOYEES OR INDEPENDENT CONTRACTORS?

FLYING SOLO: Let’s Talk Taxes!

BE A FELLOW OF YOUR BAR FOUNDATION

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New Matter CCBA Officers Craig Styer, President Bill Wilson, President-Elect Christine Zaccarelli, Vice President Mary-Ellen Allen, Treasurer Patrick McKenna, Secretary New Matter Committee Charles DeTulleo, Editor Rami Bishay Mark Blank, Jr. Keith Boggess Brian Doyle J. Stoddard Hayes Mary LaSota Andrew Lehr Deborah Lewis Shannon McDonald John McKenna Kim Denise Morton Mary Wade Myers Kevin Ryan Karyn Seace Alan Vaskas Bill Wilson CCBA Staff Wendy Leeper Executive Director Emily Boulanger Communications & Event Manager The Chester County Bar Association’s monthly publication, New Matter, has been provided to Bar Association members for four decades.

A valuable aspect of CCBA’s membership, New Matter aims to provide our members with information pertaining to current issues facing the practice of law, historic legal issues, continuing legal education opportunities, Chester County Bar Association activities, programs, meetings and functions, practice tips and procedures for attorneys, and items of personal interest to our membership.

The opinions expressed in this material are for general information only and are not intended to provide specific legal or other advice or recommendations for any individuals. The placement of paid advertisements does not imply endorsement by the Chester County Bar Association.

All rights reserved. No portion of this publication may be reproduced electronically or in print without the expressed written permission of the publisher or editor.

Content FEATURES Eleven Years Running............................... 6

SUMMER 2015

6

Eleven Years Running

Employees or Independent Contractors?............................................... 8 Flying Solo: Let’s Talk Taxes........................ 10 Things NOT to Say at My Memorial Service............................... 13 Be a Fellow of YOUR Bar Foundation...... 14 Take Pride & Take Ownership The Chester County Bar Foundation is YOUR Foundation..................................... 15 Take Note of the Case: The Confrontation Clause, Teachers, & Child Abuse.............................................. 19 DNB First, N.A. Has Reappointed All of the Members of Their Wealth Management Advisory Board......................................... 20 Pennsylvania Bar Association Formal Opinion 2014-500: Prosecutors, Public Defenders & Criminal Defense Attorneys Beware........................................ 24

IN EVERY ISSUE President’s Message................................... 4 Featured Member Profile Larry Goldberg & Joel Goldberg.................... 18 Save Our Environment.............................21 From the Archives New Matter—November 1983.....................23 The Blank Page......................................26 Tech Tips...............................................28

WANTED...

Your Ideas!

If you have an idea for an article, or would like to submit content, please contact Emily Boulanger at eboulanger@chescobar.org or (610) 692-1889.

PUBLISHER: Hoffmann Publishing Group 2921 Windmill Road, Suite 4, Sinking Spring, PA 610.685.0914 x201 • hoffmannpublishing.com FOR ADVERTISING INFORMATION: Tracy Hoffmann, tracy@hoffmannpublishing.com

President’s Message

L Craig A. Styer, President

THE TOP 10 BEST COUNTIES TO LIVE IN PENNSYLVANIA: 1. Cumberland County

2. CHESTER COUNTY 3. Centre County 4. Montgomery County 5. Bucks County 6. Montour County 7. Butler County 8. Delaware County

ike most parents, I want my kids to stay close to home when they’re older and have families of their own. As part of my “strategy” to encourage my kids to stay close to home, I repeatedly tell them how wonderful Chester County is and what a great place it is to raise a family. I am an unabashed cheerleader for our county. For example, did you know that real estate company Movoto recently ranked Chester County as the 4th best county in the country? They also ranked the Borough of West Chester as #2 in their top 10 most exciting places in Pennsylvania. We are fortunate to live, raise our families and practice law in this beautiful, economically strong region.

Chester County has not become one of the best counties in the nation by accident. The county is taking steps to maintain its economic prosperity and to remain a highly desirable location for individuals and businesses. A key recommendation of the county’s award winning comprehensive plan, Landscapes 2, is the preparation of an economic development strategy.

To implement this recommendation, a public-private partnership has been established and designated as VISTA 2025. The intent of the initiative is to identify goals and specific strategies that will enable Chester County to continue to thrive economically while maintaining its preservation of its natural resources.

The Chester County Economic Development Council managed the planning process with input from key county business leaders, educators and non-profit executives. The overarching principle guiding the county in this initiative is to ensure economic health in the region. For Chester County, the definition of economic health is encompassed by the concepts of sustainability, inclusiveness, and diversification. According to the strategy, sustainability speaks to a balance between progress and preservation; inclusiveness means that every person is an asset, someone who can contribute both to economic growth and to the community as a whole; and diversification addresses the county’s desire to keep its employment base spread across multiple sectors, and not be too dependent on a single industry or a single cluster.

The goals of the ten-year plan are supported by an extensive list of strategies and actions.

Some of these goals, set forth below, represent short-term opportunities and others a long-range vision for positioning the county.

GOAL 1: Maintain and enhance quality of “place” as a key component of economic health.

9. Adams County

GOAL 2: Position Chester County as a magnet for attracting talent and as a model for building an employer ready workforce.

10. Lancaster County

GOAL 3: Expand business attraction and retention efforts with a focus on targeted industry clusters.

GOAL 4: Establish an innovative culture that supports entrepreneurship and business growth.

GOAL 5: Support critical infrastructure in targeted corridors of opportunity.

County Commissioner Michelle Kichline serves as co-chair of VISTA 2025. Commissioners Kichline, Terence Farrell and Kathi Cozzone are scheduled to attend our Fall Bench Bar Conference, September 24-26, 2015, at Gaylord National Resort & Convention Center in National Harbor, Maryland. The Commissioners will have more to say about VISTA 2025 at the Conference so please plan to attend and engage them on this important initiative. In the meantime, to learn more about VISTA 2025 or to get involved in this exciting initiative, I encourage you to check out the website VISTA.TODAY.

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Fall Bench Bar Thursday, September 24th–26th

Gaylord National Hotel in National Harbor, Maryland Featuring Keynote Speaker

Joe Postone, the REAL Donnie Brasco OTHER SPEAKERS INCLUDE: Chester County Commissioners, Judges of the Chester County Court of Common Pleas

Check Out Some of the Activities Offered at the Conference!

Golf Outing at National Golf Club

The Capital Wheel

Water Taxi to Beautiful Alexandria

Relâche Spa & Salon

While you’re in town, don’t forget to check out the NEW Tanger Outlets!

CCBA Feature

Running ELEVEN YEARS

SAVE THE DATE! LEGAL AID’S 5K

TRIAL RUN June 20th

By Tony Verwey, Esquire

J

une 20, 2015 will mark the eleventh eleven years my junior, beat me by about edition of the Trial Run 5K to raise ten minutes and won her age group after funds for Legal Aid of Southeastern a warm up that included a large coffee, a Pennsylvania. The Trial Run has raised bagel, and a cigarette during her pre-run in excess of $150,000 since our first run and stretch. I washed that memory from my it has been a great journey that started on a mind and reminded myself that I did, cold February day in 2005. Chris Zaccarelli technically speaking, “run,” so I said “Yes, called me and posed a question, “You’re I am a runner.” a runner right?” I put down my corned beef special and thought about that for Then came the follow up question, a moment. Only a few short years earlier “Would you be interested in putting toI had run my first 5K in which my sister, gether a 5K to raise funds for Legal Aid

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of Southeastern Pennsylvania?” I thought, how hard could it be to set up a 5K with a hundred runners, thirty odd volunteers and menacing traffic? Neither of us really knew, but so began an adventure that we thought might have a good run of a few years. A decade later, and despite a few bumps, we are still going strong. The Trial Run has benefitted since its inception from unparalleled generosity and commitment.

Continued on page 7

www.chescobar.org Continued from page 6 In our first year, we were fortunate to have sponsors like Gavin Law and MacElree Harvey, who have stayed with the Trial Run 5K to the present. In fact, this year, Gavin Law and MacElree Harvey will once again serve as the event sponsors for the Trial Run, for which we are extremely grateful. We are honored by the year-inyear-out support of these firms, but they are not alone. Many Chester County businesses, law firms and individual lawyers have also generously supported the Trial Run over the years, both financially and as volunteers.

Many of our volunteers have been with the Trial Run since 2005, including our families. Our volunteers are really a special group of people, because they come out, not just when the weather is perfect, but when it’s searing hot or rainy and cold.

The deputies are from left to right: Cpl. Charles Glover, Cpl. Tom Janders, Deputy Doug Ahles, Deputy Phil Hostetter

Judy Craig (far left) Tim Steeves (far right)

They encourage our runners, ensure they are well hydrated, and control traffic to protect them during the run. The most challenging of these activities is traffic control. Having put friends like John McKenna, Bruce Laverty, John Zaccarelli and Pat McKenna at traffic control points, where they’ve been sworn at and nearly hit by cars, I cringe at their stories and appreciate their dedication in coming back year after year. We also have younger lawyers, like Kristen Ladd, who are taking on additional duties in organizing the run.

Our volunteers exemplify the true nature of the Chester County legal community and its commitment to this event in support of Legal Aid. Eleven years running, but not without all of you, our sponsors, our volunteers and our runners who have made the Trial Run the success that it has been. Now our few year run is entering its second decade. Thank you for your support and please continue to sponsor, volunteer, run the 5K and support Legal Aid of Southeastern Pennsylvania.

LEAD SPONSORS:

Harvey Strauss, Ted ​Fritsch, Liz Fritsch, Tony Verwey, Susan Strauss, Chris Zacarelli; KIDS: Jessica Zacarelli, Matthew Verwey, Jacob Zacarelli

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CCBA Feature

EMPLOYEES

or Independent Contractors?

By Kevin J. Ryan, Esquire

D

o your clients know the difference between an Employee and an Independent Contractor? Do you?

To help determine whether a worker is an employee or an independent contractor for wage withholding purposes, the IRS has developed a 20-factor control test based on common law principles. The 20 factors indicate what degree of control by the business over the worker is sufficient to establish an employeremployee relationship.

The importance of each factor varies depending on the occupation and the factual context in which the services are performed.

The 20 factors are designed only as guides for determining whether an individual is an employee. Special scrutiny is required in applying the 20 factors to assure that form isn’t elevated over substance. This test isn’t conclusive as to corporate officers and doesn’t apply to statutory independent contractors.

The 20 factors are enumerated in IRS Revenue Ruling 87-41 (1987) -1 CB296. They are:

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1.

instructions to workers

2.

training

3.

integration into business operations

4.

requirement that services be rendered personally

5.

hiring, supervising and paying assistants

6.

continuity of the relationship (permanency)

7.

setting the hours of work

8.

requirement of full-time work

9.

working on the employer’s premises

10. setting the order or sequence of work 11. requiring oral or written reports Continued on page 9

www.chescobar.org Continued from page 8 12. paying worker by the hour, week or month 13. payment of worker’s business and/or traveling expense 14. furnishing worker’s tools and materials 15. significant investment by worker 16. realization of profit or loss by worker 17. working for more than one business at a time 18. availability of worker’s services to the general public 19. firms’ right to discharge worker 20. worker’s right to terminate relationship

The IRS notes that the above factors describe three broad categories; (1) behavioral control, (2) financial control, and (3) the relationship of the parties. Each category contains types of information (facts) that illustrate the right to direct and control, or its absence. There’s no magic number of relevant evidentiary facts that’s dispositive. Instead, all the facts must be weighed in evaluating the extent of the right to direct and control. The IRS tends to pick and choose to its own benefit.

The Tax Courts view the degree of control exercised by the person for whom the work is performed over the individual who renders the services as the fundamental factor in these determinations. This means the “right to control” how the work is performed, whether or not any control actually is exercised. So, the courts must examine the degree to which the principal “may intervene to impose control.”

Remember the IRS has a myriad of reasons for attempting to treat everyone as someone’s employer!

With regard to employee-type benefits, the Tax Court has found that taxpayer’s receipt of employee benefits (participation in deferred compensation plans) was another factor indicating that a worker is an employee, not an independent contractor, and that the non-receipt of these benefits was a factor indicating independent contractor status. And the IRS has stated that the fact that a worker is excluded from a benefits plan because the worker isn’t considered an employee by the employer is a relevant factor, although not conclusive, in determining the status of a worker as an employee or independent contractor.

Access to employee benefits is, as such, an important factor in determining whether an employer-employee relationship exists;

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and it’s the availability of employee benefits, not the receipt, that’s determinative.

In a case that strikes close to home, a law firm’s office manager and secretary were improperly classified as independent contractors instead of common law employees. The court found that the law firm (1) exercised complete control over the details of the work performed by these individuals; (2) provided these individuals with office space, a desk from which to work; (3) compensated them in a way that precluded them from realizing a profit or loss from their work; (4) had a continuous and uninterrupted relationship with these individuals; (5) reserved the right to discharge these individuals at will; (6) considered their services an essential part of its business; and (7) provided them with certain employee benefits, such as vacation pay, sick pay, health insurance, holiday bonuses, and payment of employment taxes.

This is serious business and characterization of workers also impacts your clients’ workers’ compensation.

The penalties involved in mischaracterizing an employee as an independent contractor are severe. Know the rules and make sure your clients know them as well.

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CCBA Feature

Let’s Talk Taxes!

By Shannon K. McDonald & Mary R. LaSota, Esquires

Y

ou know this one: there are only two things certain in life: death and taxes. Well, as attorneys we’re pretty sure, up to a point, death can be ignored (unless you are an estate and trust attorney). But taxes, those are pressing. It’s June, you are rolling along and your practice is really soaring when “smack” you realize you have not paid quarterly taxes in a long, long time.

Then there’s the headache that begins pressing at the base of your skull in mid-January that you just can’t seem to shake. There are some good reasons to pay attention to your quarterly and yearly taxes, and they’re not all because of the fines and penalties. First and foremost, get organized. In your first years of practice you may be able to handle your own bookkeeping and tax filing, but as your practice grows you will need expert help.

A Shoebox of Receipts Ok, someone may have done this her first year in practice, but after that I invested in a scanner, and I scan in every receipt, and file it in a designated file on my computer. My receipts are forever preserved and organized so that if the taxman ever comes knocking on my door I have copies for each tax year. I also keep a backup copy on the cloud. I don’t scan receipts every day, but when I see a pile of them sitting on my desk, it’s a nice way to ease out of my day as an officer of the court.

An Excel Spread Sheet For your first couple of years of practice you may be able to get away with using an excel spreadsheet to track expenses and income.

The drawback is that it takes work, but if you’re comfortable in the fact that you were a business major in undergraduate school, and you have a brother who is a corporate accountant and will draw up a linked spreadsheet for you, this method works! Once you have all of the information entered, then you can use Turbo Tax to file your yearly taxes. Turbo Tax comes at various levels of free to not free, and the software will take you through the forms step by step. If information is entered correctly, the spreadsheet will have tracked your accounts over the course of the year and formulated things into deductible or not deductible based on your notations. Even if you use this method, keep copies of your receipts, just in case.

Bookkeeper As your practice picks up, your time becomes more valuable.

Consider hiring a bookkeeper for several hours a week. The cost can range from $15 to $60 per hour. Some of the tasks your bookkeeper can handle include billing clients, paying bills, tracking Continued on page 11

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www.chescobar.org Continued from page 10 expenses and assuring that every cost has been entered—and recorded correctly. If you have someone tracking and putting the correct numbers in the correct boxes, then at the end of each tax quarter and tax year, you are ready for tax time. No more digging through the shoebox of receipts. You will also have a better idea of how your expenses stack up against your gross revenue. If you decide to prepare your own tax returns, then your job is to determine which of those expenses is deductible, and your taxable income for each year. If you lack the knowledge to make those kinds of determinations, then you either need to learn it or hire an accountant.

Understand needs. Strategize options. Implement solutions.

Christine Palmer Hennigan Chartered Financial Consultant, Certified Divorce Financial Analyst

as recently quoted in theWall Street Journal

Software Solutions QuickBooks/Quicken are software solutions designed to manage your sales, inventory, income and expense reports and other needs of a small business. The software allows you to create customized invoices, track sales and expenses from month to month and year to year. You need a firm grasp on basic accounting principals. Remember garbage in, garbage out. I do know attorneys who swear it’s all they need, but I also know from personal experience that if you can’t get the program to link with your bank account, all the upgrades in the world won’t save you from an accounting headache. So try it for free before you determine this is the software for you. You can also combine QuickBooks with some time tracking software, including Minute7, but that’s a discussion for another day.

• Over 23 years of experience helping individuals and businesses achieve their short and long-term goals through sound financial planning.

An Accountant

Quarterly Estimated Taxes

Gosh, wouldn’t it be great if someone out there actually knew how to file the right forms every time, and actually knew what you could take a deduction for and what really counts as your income? Folks, we’re experts in the law, and we’d never counsel a client to go pro se; we know the importance of the expertise. Let’s use that knowledge to our advantage, and just hire an accountant.

Yes, it costs money, and I sure didn’t do it my first year in practice, but when you’re confronted with the February tax panic, and your shoebox of receipts is marred with coffee stains, that money is going to feel so well spent. Also an accountant can analyze the big picture and produce key financial documents, such as profitand-loss statements, of your business.

I cannot stress this enough, Pay Your Quarterly Taxes! In your first year you may not know this, but as a self-employed individual your federal taxes should also include self-employment taxes if your net earnings from self-employment are $400 or more. Selfemployment taxes consist of Social Security and Medicare taxes.

You can calculate the amount you owe for self-employment taxes using Schedule SE (Form 1040). Every quarter I take a snapshot of my income and deductions and re-calculate my estimated quarterly taxes based on my income and deductions for that quarter.

Yes, it’s a process, but as April 15th looms closer, I already know that most, if not all, of my taxes have been already paid. If you are using a bookkeeper, all of the information should be readily available to you. If you have an accountant, the accountant will take care of this calculation for you.

• Specializes in working with clients who are divorced, widowed or otherwise left to prepare for an independent future.

Call Christine at (610) 429-4020.

115 Westtown Road, Suite 202 | West Chester, PA 19382 CHenningan@DivorceWealthStrategies.com

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Now that you are organized, let’s take a look at those taxes, but first a shout out to one of the first attorneys I met in Chester County, Bruce Laverty, who gave me some very important advice, Don’t forget to include in your quarterly calculations your state when I was a novice to the solo world, and when I had just signed and local income taxes. Pennsylvania and your local government the lease for my first (sublet) office. Start a tax savings account, expect a cut too, and they want it quarterly. Pennsylvania’s quarhe said, and deposit one third of your revenue in it. Brilliant!! So terly prepayments are based on your personal estimate of what I did exactly as he suggested. The funds are safely tucked away so you are going to make. If you haven’t been in practice more than that I am not scrambling for a few quick clients and quick bucks a year, then do yourself a favor, and make a realistic estimate. as April 15th rolls closer and closer.

If you’ve been in practice more than a year, then Pennsylvania Continued on page 12 New Matter

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CCBA Feature Continued from page 11 will automatically want to use last year’s income as the estimate.

Personally however, I would expect to grow my income every year. So do yourself a favor; pay your quarterly taxes and pay a realistic estimate. You do not want to start the new tax year in arrears from last tax season because you did not bother to take the time to either make quarterly tax payments or to accurately estimate your quarterly taxes.

Year-End Taxes It’s now mid-January and you can now breathe easy because your yearly receipts are saved, your expenses and income are accurately tracked and your quarterly taxes are paid. The only item remaining for last tax season is to file your year-end taxes.

Being a solo practitioner is rewarding, challenging, and exhilarating, but it can also be lonely and overwhelming. Flying Solo is a column written by solo practitioners offering insight on best business practices, marketing tips, networking options, and tech advice for those individuals who have chosen to fly solo. Have an idea or question for our next column? Email us.

Shannon K. McDonald is an appeals and defense attorney. She has been flying solo since December 2011.

She can be reached at shannonk@mcdonalddefense.com.

Mary R. LaSota is a solo practitioner focusing on estate planning and administration, tax, and business planning. Mary took her practice solo in October 2013.

She can be reached at mlasota@lasotalawllc.com.

Goldberg, Meanix, McCallin & Muth Litigation Referrals Welcomed If you need help with a litigation matter, we can help • Develop a theme • Prepare settlement prospectus or brochure • Jury focus your case • Depose and find experts • Consult with you on trial strategy

Call Larry, Rich or Joel at 610-436-6220.

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CCBA Feature

Things NOT to Say at My Memorial Service

By Barry Rabin, Esquire

W

hen it comes to the tricky subject of death, I tend to agree with comedian-writer-director Woody Allen, who was once quoted as saying, “It’s not that I’m afraid of death. I just don’t want to be there when it happens.”

I thought of this quote while attending the very meaningful annual memorial service held at this past December’s CCBA Annual Meeting.

As I listened to the various tributes to our esteemed departed colleagues at the bar, two thoughts occurred to me.

First, I’d love to be remembered by my fellow bar members someday in that manner (though hopefully not anytime soon).

And second, I just hope that nobody goes overboard in recalling my legal skills or career.

With this in mind, I have come up with my short list of some of the things I’m hoping my colleagues won’t say at my CCBA memorial service:

“He loved the Law.” Okay, I will admit to liking the Law (at least on some days).

But love is a pretty strong word here. Let’s put it this way: If I were dating the Law, I might give it an occasional hug, maybe a kiss on the cheek if the Law had taken me out for a nice dinner and a movie, but I certainly wouldn’t let the Law slip me the tongue. And I definitely wouldn’t sleep with it.

“He was a master in the courtroom.”

teachers, rocket scientists (real ones), college professors, steelworkers, barbers, bakers, and at least one perverted flasher (no jokes about the evidence not standing up in court, people!), but never to my recollection a lawyer. The closest I ever came to representing a lawyer was the time I represented myself in a small civil matter in front of a District Justice. For the record, I lost, thus proving true Abe Lincoln’s statement that he who represents himself has a fool for a client.

“His clients revered him.”

Not quite sure about this one, but I’ll have to object to it as being speculation. Many clients have thanked me, and most of them have seemed pleased with the services I’ve rendered to them. But I have no idea whether or not there’s been any revering going on. Besides, as my overhead continues to go up, I tend to worry less about being revered, and more about being paid. I’m not sure a statement like, “His clients actually paid him!” has quite the same ring to it.

“He had an encyclopedic knowledge of the Law.” Only if you’re talking about a really thin encyclopedia. While there are certain things I can probably rattle off from memory, I tend to have to look up almost everything else these days. I might, for instance, recall that there’s a three-pronged test that the courts use to decide a particular legal issue, but you wouldn’t want to try to eat dinner with the fork I’d make from memory, since it would probably only have one prong.

“He was born to be a lawyer.”

Was I? Then why did I spend so many years trying to get out Another obvious overstatement. While I’ve hopefully perof it? As a friend of mine likes to say, “Who do I have to sleep formed competently in the courtroom, nobody’s going to put with to get out of this business?!” me on their “dream team” of hot shot litigators. Besides, these days I find myself getting into the courtroom less and less often, to the point where even uncontested matters seem to be more “He loved the Chester County Bar challenging.

Association and the people in it.”

“He was a lawyer’s lawyer.”

Flattering, but factually inaccurate. Over the course of my legal career, I have at one time or another represented doctors, dentists,

Guilty as charged.

The writer currently practices law in Chester County, and is not holding his breath to have a professional writing career at this point.

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CCBA Feature Be A

community. I encourage you to support and attend our events which, in turn, benefit the Foundation. The success of these events depends on you.

Of YOUR Bar Foundation!

So you may ask, what can I do, in addition to attending events, to personally support the Chester County Bar Foundation? Become a Foundation Fellow!

Chester County Bar Foundation in 1985. I am proud to report that we have 158 The goal, then and now, is to fund initia- individuals who have committed $1,500 tives which strengthen the ties between to become a Fellow of the Foundation. It the residents of Chester County and the is through the continued support and the justice system. hard work of our dedicated Fellows that the Foundation has been able to grow and By adhering to our Bar Foundation’s expand over the last three decades.

By Lisa Comber Hall, Esquire mission to help Chester County citizens President, Chester County Bar Foundation understand, gain access to and benefit Fellows receive special recognition in from our legal system, we have been able the Bar Directory and we plan to have the to expand the ways in which we help the names of all the Fellows on a permanent s the President of the Chester citizens of Chester County. Today the glass wall display in our bar association ofCounty Bar Foundation (CCBF), I CCBF supports programs and services such fices. The CCBF is YOUR Foundation and am often asked by members of the as the Law Related Education for Youth we need your help to continue our goals Bar Association to explain to them what Program, Law Day, the Chester County and carry on our legacy. We offer payment the CCBF is and what it does. To pro- Historical Society, the Charles E. Swope plans over one, three or five years. Please vide you with a brief history, the Chester Scholarship and Matching Grant Program, contact Wendy at wleeper@chescobar.org County Bar Foundation is the charitable Legal Aid of Southeastern Pennsylvania, for more information and to make your arm of the Chester County Bar Association. Domestic Violence Center of Chester tax deductible Fellow commitment today.

In the early 1980s, four distinguished County, and the Crime Victims’ Center If you are already a Foundation Fellow, Chester County attorneys—Robert F. of Chester County. thank you so much!!

Adams, Esq., Carol E. Haltrecht, Esq., Hon. As in anything, all of this could not be Ronald C. Nagle and John A. Featherman As we celebrate our 30th anniversary this accomplished without tremendous fund- year, stay tuned for exciting news on how we III, Esq.—recognized a growing gap between the legal system and the citizens raising efforts year in and year out. Through plan to celebrate this important milestone! it serves. In an effort to re-connect the programs like the Foundation Golf Classic community with our legal system, those and Casino Night, we are able to continue four attorneys worked together to form the to carry forth the CCBF’s goals within our

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CCBA Feature

www.chescobar.org

Take Pride & Take Ownership

The Chester County Bar Foundation is YOUR Foundation of Chester County, and Domestic Violence Center of Chester County. Additionally, each year the Foundation awards the Swope Scholarship and Matching Grant.

You may not be aware of a unique grant recently made by the Foundation to the Chester County Historical Society for

By Steve McGann, Treasurer the preservation of one of the Top 10 Chester County Bar Foundation Endangered Artifacts in Pennsylvania, Passmore Williamson’s 1855 prisoner’s book. The book has legal and historical s you are likely aware, the Bar significance, as it is the record of visitors Foundation has a long history of to Chester County abolitionist, Passmore providing financial support to law Williamson, held in the Moyamensing related education, the Peoples Law School, Prison for 100 days for his refusal to presthe Access to Justice Program, Legal Aid ent a slave, who desired her freedom, and of SE Pennsylvania, Crime Victims’ Center her sons as ordered by the court.

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The Foundation supports the First Year Diverse Law Student Summer Internship Program. This is a major initiative of Bar Association President Craig Styer.

Just like public television, you don’t have to contribute, but doesn’t it make sense to support YOUR Foundation?

If you haven’t paid your voluntary annual dues, please do. Also, please consider supporting the Foundation as a Fellow. Your $1,500 Fellowship support can be paid over a period of up to 5 years. For more information, please contact Wendy Leeper at the Bar Association.

Customers Bank Community Support Program A relationship that benefits all of us.

As a vital member of our community, we want to support your favorite charity.

Through our Customers Bank Community Support Program we can partner with you to make that a reality. For 2015, the eligibility parameters include the following: • Eligible accounts are business checking (including escrow accounts) and consumer checking accounts earning interest rates of 15 basis points or lower.

• Donations are based on average annual balances kept during the calendar year.

• The donation amount is calculated at 25 basis points based on the average annual calendar year balance in qualifying accounts.

• Yearly donation checks will not be earned or disbursed for amounts less than $100.

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| 15

Contact: Wendy C. Leeper, Executive Director of the Chester County Bar Association

610-692-1889 / WLeeper@chescobar.org

Collage reflects only those Fellows whose photos appear in the 2015 CCBA Directory. There are 48 additional Fellows not pictured.

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CCBA Featured Member Profile

By Stephanie Deviney, Esquire

Larry Goldberg, Esquire What was your first job?

When I was 8 years old, taking people’s groceries home from the local Acme in my wagon for 10 cents a trip.

What word best describes you?

Obsessive.

Where would we find you on a Saturday afternoon?

Stonewall Golf Club.

What is your favorite way to spend free time?

Reading and practicing acoustic guitar.

What is the last book you read?

Believer, by David Axelrod on the Obama campaigns.

What is your favorite TV show?

House of Cards.

What has been your best, worst and toughest decision?

Best: Marrying Darcie.

Worst: Spending too much time trying to get good at golf.

Toughest: I don’t agonize over making decisions; that doesn’t mean they have all been good.

I would not leave home without…

What do you like best about your job?

Phone 1st and guitar 2nd.

Being able to help people.

What is your greatest extravagance?

Trips to Darcie’s destinations.

What is the honor of which you are most proud?

Father to Joel and Ali, grandfather to Evie and Ilana.

What is the most important lesson you’ve learned?

If you want to be a man, act like a man.

Who is the person you are most interested in meeting?

I could give some good advice to Tiger Woods (not on golf).

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Do you have any goals that have yet to be achieved?

I am waiting for the day when my granddaughters will sit with Pop Pop and let him read to them.

What is a little known fact about you?

I sat for the LSAT in a church in Chinon, France while in US Army AND I shook JFK’s hand in Altoona, Pa. in 1960.

Joel Goldberg, Esquire Where are you living now?

Willowdale.

What was your first job?

Cleaning members’ golf clubs at a local country club.

What word best describes you?

Attentive.

Where would we find you on a Saturday afternoon?

What is the most important lesson you’ve learned?

You must have a thick skin to work for a parent.

Who is the person you are most interested in meeting?

My next client.

What is the last book you read?

Made to Stick,

by Dan/Chip Heath.

In the office or taking my one-year-old daughter somewhere with my wife.

What is your favorite TV show?

What is your favorite way to spend free time?

What has been your best, worst and toughest decision?

Catching waves in the ocean.

I would not leave home without…

Keys.

What is your greatest extravagance?

Traveling.

What is the honor of which you are most proud?

As Community Outreach Director in law school, I organized programs sending law students into inner-city schools to tutor children, and now continuing to help our community by serving as a board member of the Coatesville Youth Initiative.

Breaking Bad.

Best: Leaving San Diego after eight great years and returning to West Chester to help with my father’s law practice has been my toughest decision. It can also be my best or worst decision, depending upon the day.

What do you like best about your job?

Helping clients.

Do you have any goals that have yet to be achieved?

Dunking a basketball (I’ve given up trying).

What is a little known fact about you?

I played D1 golf in college.

CCBA Feature

www.chescobar.org

Take Note of the Case: The Confrontation Clause, Teachers, & Child Abuse

By Shannon K. McDonald, Esquire

O

© Bigstock Photo

n March 2, 2015, the Supreme Court of the United States (SCOTUS) heard argument in Ohio v. Clark. Darius Clark was convicted of child abuse, after his girlfriend’s threeyear-old son appeared at daycare with multiple bruises and a black eye. The day care teacher called the police and reported that the child stated Clark committed the acts. The child never testified, but the teacher did, and Clark was convicted based on her testimony. SCOTUS faced two issues here, one of which is legally interesting but now possibly irrelevant in Pennsylvania, and the other which is alive and well and which may signal a coming change in the law surrounding the Confrontation Clause.

Clark argued that an individual’s obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and second that a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualifies as “testimonial” statements subject to the Confrontation Clause.

But throughout, the justices also exto testify in court, it was a violation of pressed where the Confrontation Clause the Confrontation Clause to fail to give defense lawyers the same opportunity that line should be drawn, and they seemed to police and the teacher had: to interview find an apt subject in this three-year-old the child in the most compassionate way boy. Justice Kagan even pointed out that possible, but which would still afford them the current Confrontation Clause test, as Now, in Pennsylvania, teachers are man- an opportunity to test the reliability of the to “testimonial” evidence being prohibited, datory reporters, that is, if there is a chance child’s story. can apply to the statements of a three-yearthere is child abuse, they must report it to old. At one point the justices questioned police. Does this make the teacher an agent The justices focused their questions, in the various sides as to whether the hearsay of the government and therefore prohibit determining what role the teacher played, test might fit better in a case such as this. that teacher from testifying as to out-of- on her intent, and her primary concern. If Either way, at least when the accuser is court statements? The prosecution argued her primary concern was getting the child a very young child and the individual reno, the mere requirement of reporting, away from his assailant, then would she ceiving the otherwise testimonial evidence which exists in Ohio, does not make the be asking the questions in the same way is not truly a law enforcement agent, it teacher an agent of the government, and a police officer would, as an investigator? looks like change may be coming to the therefore her statements were not gathered If her concern was to immediately report Confrontation Clause, although what new in the same way as statements made by, say, the incident to police instead of to child analysis could be seen, is up in the air. a co-defendant who is being interrogated abuse authorities, does that change the by police. The defense argued instead way in which the Court should classify that even if the child was incompetent the teacher?

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CCBA Feature

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John McKenna, Esq., Shareholder/ Director, MacElree Harvey, Ltd. Anthony Morris Esq., Partner, Buckley, Brion, McGuire & Morris, LLP Stephen J. Olsen, Esq., LLM (Taxation), Partner, Gawthrop Greenwood, PC Robert Supplee, Esq., LLM (Taxation), Robert S. Supplee, PC Richard C. Weber, Board Chair, Managing Director, DNB First Wealth Management The DNB First Wealth Management Advisory Board has been in existence since April of 2012.

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www.johnbhenry.com 20 |

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JANUARY 22, 2016 WAYNESBOROUGH COUNTRY CLUB

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Save Our Environment

www.chescobar.org 25 Pa. Code § 102.14(a)(2) states that where the earth disturbance is proposed, and the project contains or is along or within 150 feet of protected waters in a high quality or special protection watershed, and where the waters fail to attain certain uses contained in Category 4 (waters impaired for one or more designated uses but not needing a total maximum daily load (TMDL)) or Category 5 (waters impaired for one or more designated uses and needing a total maximum daily load (TMDL)) on Pennsylvania’s Integrated Water Quality Monitoring and Assessment report, then a forested riparian buffer must be protected or created.

The riparian buffer standards contained in 25 Pa. Code Chapter 102 were adopted in 2010 after an extensive period of public comment and response. There are some exceptions, and the rules regarding the location and composition of the riparian forested buffer are detailed.

Stream Buffers May be Breached— Amendments to Section 402 of the Pa. Clean Streams Law Signed into Law

By John R. Embick, Esquire Chair, Environmental Law Section, 3/31/2015

O

n October 22, 2014, former Governor Corbett signed into law amendments to Section 402 (Potential Pollution) of the Clean Streams Law, 35 P.S. §§ 691.1 et seq. Act 162 of 2014 adds a new subsection (c) to § 402, 35 P.S. § 691.402(c). The new amendments became effective 60 days thereafter, on December 21, 2014.

New section 402(c)(1) specifies that in instances where a riparian buffer or forested riparian buffer is required by the relevant administrative rules and regulations set forth in 25 Pa. Code Chapter 102 (Control of Erosion and Sedimentation), an applicant for an NPDES construction stormwater permit may seek to demonstrate that other best management practices (“BMPs”), design standards, or other alternatives may be used in lieu of a riparian buffer, so long as the BMP or other alternatives has “substantially equivalent” effect.

25 Pa. Code § 102.14 (a) (1) indicates that where an earth disturbance activity is proposed in a high quality or special protection watershed, the buffer distance shall be 150 feet.

In addition, section 402(c)(2) of the new amendments basically provides that if a project is within 100 feet of a protected water, then an applicant must provide offsetting buffers in a one-to-one ratio somewhere else nearby.

On March 21, 2015, PaDEP published proposed guidance documents relating to the manner in which the regulated community could demonstrate “substantially equivalent” performance.

In a proposed guidance document entitled: “Riparian Buffer or Riparian Forest Buffer Equivalency Demonstration,” DEP ID: 310-2135-002, the Department provides interim final technical guidance and outlines the equivalency demonstration criteria and process related to the riparian buffer or riparian forest buffer equivalency demonstration required by Act 162 of 2014.

In a companion proposed guidance document entitled: “Riparian Buffer or Riparian Buffer Offsetting,” DEP ID: 310-2135-003, the Department provides interim final technical guidance relating to the offsetting criteria and process related to Continued on page 22 New Matter

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CCBA Feature Continued from page 21 the riparian buffer or riparian forest buffer offsetting required by Act 162 of 2014.

disturbance or development. The buffers act as a highly efficient filter and treatment system for sediment and other pollution that runs off development sites and also help prevent flooding downstream and protect water quality.

The amendments to the Clean Streams Law reportedly were supported by the Pennsylvania Builders Association, and were opposed by virtually every environmental advocacy group in the It remains to be seen whether there Commonwealth, including PennFuture, actually are pollution control alternatives the Pennsylvania Environmental Council or BMPs which are “substantially equivand the Fish & Boat Commission. alent” to the 150 foot riparian forested buffers. Many conservation groups felt that The instances in which the amendment strong protection represented by riparian to sec. 402(c) (1) applies seem fairly narrow: buffers was required for Pennsylvania’s the project must be near special protection most valuable, sensitive and high quality waters, and require a NPDES stormwater waters, and that the new amendments are construction discharge permit. However, a step backwards. these waters are arguably the most sensitive and deserving of a high level of protection.

The new amendments to the Clean Streams Law do not mandate or specify A forested riparian buffer is considered what control alternatives are “substantially to be the gold standard of stream and equivalent,” and none may currently exist. The wetland protection in connection with amendments nevertheless will afford an appreventing pollution associated with earth plicant the ability to make the demonstration.

Thinning the Herd

By Kevin J. Ryan

Detective Spagnola has moved to a suburban police force to get away from the brutal crimes seen by him as a Philadelphia homicide detective. Shortly after his arrival there are a series of seemingly unrelated murders in his quiet upper middleclass township.

Unbeknownst to the detective there is a serial murderer afoot who is a true predator and is both clever and brutal in his attacks. Four murders go unsolved. The murderer matches wits with the detective, local and state police and the medical examiner, taunting them with brazen behavior.

As Spagnola believes he is closing in on his perpetrator he is injured when an SUV, laying in wait for him, crashes into his car on his way home from work, side lining him from the pursuit. Is the predator done, or has it just begun?

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The guidance document published by PaDEP regarding the “substantial equivalency” demonstration suggests that the PaDEP thinks that the demonstration theoretically can be achieved, at least with utilization of the “capture and reuse” BMP. What this means is that runoff from the development site must be captured and reused somehow on site.

A lot of people were upset by the cost and effort associated with complying with the riparian buffer zone requirement, and felt that the 150 foot buffer requirement was arbitrary and did not adequately accommodate site-specific conditions. It is clear that many people also viewed the forested riparian buffer requirements to be an unreasonable restriction on their rights to use their property as they saw fit.

The new amendments may provide some relief, but how much is not clear as yet.

From The Archives ( New Matter—November 1983)

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CCBA Feature

PENNSYLVANIA BAR ASSOCIATION FORMAL OPINION 2014-500: Prosecutors, Public Defenders & Criminal Defense Attorneys Beware

By Shannon K. McDonald, Esquire

O

n November 20, 2014, a formal opinion was issued by the Pennsylvania Bar Association with what may qualify as a shocking result.

The inquiry was whether a prosecutor may propose, at an early stage of proceedings, that a defendant accept an early favorable or deferred disposition conditioned upon forgoing one or more of the following: a preliminary hearing, formal arraignment, receipt of discovery, bill of particulars, filing of an omnibus pretrial motion, or file notice of affirmative defenses. Furthermore, the committee asked whether a criminal defense attorney could ethically recommend acceptance of the prosecutor’s offer. The conclusion: it is unethical for a defense attorney to recommend any waiver of rights without actually ensuring its knowing and voluntary (which the committee posits the defense attorney cannot do without having discovery and adequate time for investigation). And, it is unethical for a prosecutor to recommend that a defendant or the defense counsel actually waive, and it is unethical for any program to require the individual to waive those rights.

The committee went through both early alternative disposition (EAP) (a program

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non-existent in Chester County, but the court has similar programs) and ARD (which in this county requires you to give up all rights listed by the committee and then some). The committee then discussed that the failure of the defendant to accede to waiver will result in rejection from the program. This particular problem is something I have counseled many defendants about, when we discuss potential defenses which may arise and the impossibility of cross-examining the officer or witness before deciding to waive. Additionally, although the Public Defenders are known for having preliminary hearings in this county, many private defense attorneys make it standard practice to waive, because the prosecutors represent that they will give the defendant good will. Further, as PCRA counsel, I have run into a number of counties where the various defense attorneys have told me it was standard practice in their county to not file pretrial motions, or face the consequences.

The opinion provides specific rules where they feel the defense counsel and the prosecutors are violating the Rules of Professional Conduct (“Rules”). The committee asserts that a defense counsel

cannot know if he or she is competent to take on the case, or is being competent in the resolution, without reasonable investigation (violation of Rule 1.1). The committee states an independent investigation by defense counsel cannot be adequate for reasonable investigation, instead, the defense counsel must know what the prosecutor is actually relying on in prosecuting the charges (violation of Rule 1.1; 1.7). A defense counsel, according to the committee, cannot either obtain informed consent from his client nor represent to the court that the defendant is acting knowingly and voluntarily if counsel does not have full and complete information (violation of Rule 1.1; 1.7; 8.4).

The committee offers a reasoned opinion (well-reasoned or not is your call) and emphasizes the coercive nature of the failure to step in line. The committee reviews some unnamed counties’ prosecution practices of deeming attorneys who don’t waive as being “not team players,” subject defendants who refuse programs to less favorable treatment, and even employment interests of defense counsel. All of these were reviewed as conflicts of interest for Continued on page 25

www.chescobar.org Continued from page 24 It ’s even worse for the prosecutor: the defense counsel, and violations of the “Prosecutors are not only advocates for special rules for prosecutors. the Commonwealth but also ministers The 11-page opinion boils down to of justice, which role carries with it the this: “A defense lawyer who advises a duty to insure that a defendant is afforded client to accept or reject a plea or deferred procedural and constitutional safeguards. adjudication under these circumstances is RPC 3.8.” “If a prosecutor requires the subjecting himself to potential allegations waiver of discovery as a condition of a plea of ineffective assistance of counsel, a finding or deferred adjudication; he is intentionof which may constitute grounds for disci- ally evading his legal and ethical duty to plinary charges based on violation of Rule disclose evidence favorable to an accused 1.1.” “Moreover, because of the personal that is material to either guilt or punishpressure being applied to defense counsel, ment. Such conduct violates Rule 3.8(d) the attorney’s personal interests in retaining [and 8.4].” “Moreover, by engaging in the employment and the favor of the court coercive practice which requires defense conflict with the attorney’s duty of fidelity counsel to violate his/her own duties under to the client, and there is a significant risk the Rules, a prosecutor knowingly assists or that the representation of the client will be induces defense counsel to violate the Rules, materially limited by a personal interest of in violation of RPC 8.4(a).” “In particular, the lawyer, in violation of Rule 1.7.” “Where where a prosecutor is communicating with a defense lawyer recommends such a waiver a pro se defendant who has to make the to a client and conducts no investigation choice between accepting the offer and under these circumstances, the defense securing counsel, the prosecutor must lawyer provides no actual assistance and make certain to avoid giving advice other only nominally represents the defendant.” than the advice to secure counsel, as the

prosecutor would know that the interests of such person are or have a reasonable possibility of being in conflict with the interests of the Commonwealth.”

I hate to use so many quotes, but this opinion mean serious business. It seems to be the PBA’s idealistic attitude which has influenced this matter, but their opinion is in line with the Pennsylvania Criminal Defense League, and the National League.

The opinion implies that waiver, followed by a guilty plea, when any possible defense exists, is not only ineffective assistance of counsel, but also prosecutorial misconduct and grounds for disciplinary action against any attorney involved.

Of course, this is advisory, but PCRA counsel will want to use this. All counsel out there, private and public, state and defense, may need to change attitudes toward the preliminary hearing and pretrial motions and investigation.

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| 25

The Blank Page

LAWYER SANCTIONED. Amount:

$1,000,000.00!

By Mark Blank, Jr., Esquire

Y

es, you read it correctly. It is not an error or a typo. That is right, two commas and six zeros; not one-hundred, one-thousand or even ten-thousand.

One-Million Dollars! Philadelphia Common Pleas Judge Paul P. Panepinto levied a sanction for almost One-Million Dollars against attorney Nancy K. Raynor (a resident of Berwyn with a defense practice located in Malvern).

It all started with a medical malpractice suit against Roxborough Memorial Hospital and some of the doctors (Sutch vs.

Roxborough Memorial Hospital). Ms. Raynor was counsel for one of the Defendants.

Plaintiff was in the hospital for treatment related to lung cancer. She subsequently died. Pretrial, Judge Panepinto ruled that there could be no testimony to the effect that Plaintiff had been a smoker. However,

26 | N e w

Matter

certain other risk factors for cancer would be allowed. Upon examination, one of the expert doctors did, indeed, testify that, among the risk factors for cancer, Plaintiff smoked. Judge Panepinto subsequently delivered a cautionary instruction to the jury. The trial proceeded to verdict and the jury awarded $190,000 in favor of Plaintiff.

Nevertheless and notwithstanding, Judge Panepinto, besides the million-dollar prize that he awarded to Plaintiff ’s counsel, granted a new trial which, in fact, resulted in favor of Plaintiff in the amount of 1.9 Million Dollars. All issues, including the sanction and the new trial (with respect to the latter, both the granting of and the verdict in) are on appeal.

Superior Court (courtesy of local attorneys Jim Sargent and Maureen McBride of Lamb McErlane) issued a stay on the enforcement of the liens pending the appeals. So Ms. Raynor’s professional and personal life can now function while the appeals are being considered. (The Superior Court stated, in so many words, that it is watching Judge Panepinto).

Did Ms. Raynor instruct the witness not to so testify and the witness by accident blurted it out? That appears to be an issue which, at the time of this writing, is being litigated. (As an aside, multiple witnesses have corroborated that the expert witness was in fact told not to so testify. And in the second trial, the smoking testimony was allowed: That trial concluded with a verdict that was ten times larger than in the first trial).

Regardless of the outcome of all of this, Now (to add insult to injury), the sanc- the writer has this to say: last month (April tion order was reduced to a judgment in 25th, to be exact) marked 39 years as a Philadelphia County. The judgment was member of the Bar. I (and to my knowledge, transferred to Delaware County (which nobody else) have never seen anything like now is a lien on Ms. Raynor’s residence) it. By the way, there is much more, but and Chester County, resulting in a freeze space will not permit me to elaborate. (In on Ms. Raynor’s office accounts, payroll fact, I could probably write a law review accounts, personal bank accounts, and article or even a treatise. But I will save receivables. (Plaintiff ’s counsel apparently that for another day). worked quite swiftly to execute, notAs in The MTA (The Kingston Trio, withstanding that an extension had been requested and an application for a super- 1959): “Citizens hear me out. This could cedeas had been filed ). The Pennsylvania happen to you!” Or, could it really?

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In Memoriam

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New Matter

| 27

Tech Tips

Thoughts on Using Digital Photographs

AS EVIDENCE

By Keith E. Boggess, Esquire

T

echnology has always been a part of a law practice—from typewriters to robust computers. Today’s technology, however, changes at a dizzying pace. It seems that once something new is learned, something else has taken its place. With the ethical responsibility to keep abreast of changes, lawyers will not be bored evolving with their office technology.

able, and photography has been used by the courts for a long time. Usable photography was invented around 1839 by Louis Daguerre. While some inventors laid the foundation of photographic process, such as Thomas Wood in 1800 and Mr. Daguerre’s partner Nicéphore Niépce, Mr. Daguerre’s method was the one embraced originally by the world. The method was called the daguerreotype. Such early pictures were Another technology domain, which not used in the courtroom due to the fact this article will explore, is technology as that the picture was produced on silver evidence in a trial, specifically digital pho- coated copper plates, a process that was tography. In earlier articles, this author has time-consuming and expensive. Also, explored using social media as evidence in photographs had to be carefully staged. court. An inseparable part of social media is By the 1850s, inventors developed a new photographs. Today, most photographs are process that involved using glass plates to digital, and the difference between digital create a negative of an image. From that photography and print photography should negative, multiple positive prints could be understood because digital pictures can be made. This led to the ability of making multiple copies and, more importantly, be manipulated even more than film. lowering the cost of photography. At that point, photographs began to appear as visual evidence. Their use was still not common because the photographic process A LONG HISTORY OF PICTURE was still labor intensive. The pictures had POWER IN THE COURTS to be developed immediately after they The power of a photograph and other were taken on the spot. visual media in the courtroom is indisput-

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New Matter

By the 1880s, the new technology of using dry plates to take pictures and then sending them off for development vastly increased the popularity of photography and made it accessible to almost everyone.

Events could now be captured with less cost and in a less staged fashion. Then roll film arrived, and, in the mid-20th century, color film. As the technology advanced, so did its use in courts. First, pictures were used for only illustrative purposes.

Eventually, pictures became to be viewed as direct evidence.

In the late 1950s, scientists discovered a way to scan images into computer memory, and by the late 20th century, Kodak had developed a way to capture images on a megapixel sensor (ironically, Kodak decided to focus on film photography and is still paying dearly for that decision). Now, in the digital age, photographs can capture amazing detail and, important for this article, images can be manipulated completely or in the smallest detail.

Continued on page 29

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sees the scene. For one, the human eye can focus on what the mind tells it to focus on.

A photograph, on the other hand, has the visual weight of the composition that will attract the eye and, consequently, the attention of the mind. In some ways, a painting or a drawing can more accurately capture a scene as how the eye sees it. The artist is rendering what he sees; the camera only captures what it is designed to capture.

Continued from page 28 PHOTOGRAPHS AS EVIDENCE Photographs have been and are used as evidence, and there lies the problem.

Within the picture taking a moment lays distortion, shadows, and the camera’s inability to focus on an object like the human eye. The reader may recall the various photographic hoaxes promulgated throughout the decades. Some of the more popular ones have been fairies and, more recently, ghosts.

Those familiar with photography know that when the device captures the light, it is not capturing it in the way a human eye

the photographer. He or she only needs to have been at the scene during the time in question and testify that the picture represents the scene. In that context, a picture is entered into evidence under a theory of illustrative testimony. The picture, to put it another way, is there to illustrate the testimony of the witness.

A second theory for admission has gained ground through the years as technology advances. Photographs also can be admitted as direct evidence under what is called the silent witness theory. The picture is considered self-authenticating, needing no witness to testify to it. To be admitted under that theory, witnesses testify to the reliability of the photography system and the chain of custody employed. Examples of evidence admitted under this theory are video surveillance cameras and other more technologically advanced image capturing systems like cash register cameras.

Related to that, the human eye can see many more details of shadows than what a camera sensor can pick up. Thus, light and shadow play a critical part in a photograph’s composition.

An example is the vacation No matter what theory, any photograph picture on the has the potential to mislead and deceive. beach during the Digital photography has changed the middle of the day. A way pictures are captured and presented. person may take a pic- Images can be manipulated easily both at ture of a friend, seeing the time of taking the picture and during all the facial details. post-processing with computer software. In When he or she later the film days, photographers adjusted expolooks at the captured sure through burning and dodging in the image, that friend looks dark room. Now computer software gives like a raccoon—the eyes are so much more power to not only manage nothing but impenetrable shadows (a the exposure but to retouch and even add technique to handle that, by the way, is to or delete things in the picture. Colors can move the person into a shady spot that be changed; people can be removed; trees still shows the background and use a flash). can be added. Not much imagination is needed to see how photographs provide an For photographs as evidence, the op- opportunity to influence. Below are some portunity to manipulate images through thoughts for a lawyer facing photographs composition exists. The rules of evidence being offered as evidence. have been the safeguards against that possibility. They have traditionally required that photographs be relevant and authenticated before the images can be REALITY CHECK FOR PHOTOS The first area to consider is distortion. admitted as evidence by the trial court. The long-standing key question for authentica- Each lens has a different focal length, tion is whether the photograph represents which can be defined as the distance bethe subject fairly and accurately. The focus tween where the light in the lens converges is on the picture and not necessarily the and the camera sensor. The reader does photographic process. The witness who not have to understand the technicalities authenticates the photograph may not be Continued on page 30 New Matter

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Tech Tips Continued from page 29 of this process, but the reader should un- the light is placed will have an effect on derstand that different focal lengths will the subject. Light placement can narrow lead to lens distortion. A wide angle lens features of a person or can widen them. often causes what is called a barrel distor- Lighting techniques can hide flaws or can tion. A telephoto lens produces at times make beauty stand out. Lighting can also a pincushion distortion. Those lenses can make a person look sinister (think about distort the appearance of distance between the result of a person videoing a deposition objects. A telephoto lens may make objects casually placing a strong light to the appear closer to each other than they really side of the witness). Also, taking are (an occurrence called compression). A photographs of accidents should be wide-angle lens can make objects appear done in similar light conditions, for farther apart. The reader can easily imagine how the light was hitting the scene the applicability of such occurrences in will support what the witness saw. accident cases involving car crashes.

In considering the above, this Another area to consider is that of author suggests that today authencamera position. Changing the camera ticating photographs being offered position also changes the perspective. If as evidence is more important that the pictures are being offered to illustrate it was ten years ago. A wise attorney what the witness saw, they should be taken should go beyond the traditional from the witness’s perspective and not question of whether the picture is from another one. But changing camera a fair and accurate representation of position can influence the viewer in many the scene or subject as remembered by the more subtle ways. It can make objects seem witness. A lawyer should take the “digital taller or farther away. An image captured photography factors” into account and be from a low perspective can make people prepared to challenge the authenticity of seem a little more authoritative. In contrast, what is being presented through expert a picture taken from a higher perspective analysis, subpoenaing the original images, makes the subject seem more vulnerable. and verifying the chain of custody.

A third area to consider is lighting. Light illuminates. It reveals. But light can also be used to guide the viewer’s focus onto something. For example, there are five basic patterns of portraiture light. Where

If applicable, can the meta-data of the image be provided? What is the theory of admissibility? If the theory is the silent witness one, a lawyer should focus on the reliability of the technology and the chain of custody.

Remember, the above factors matter because the camera does not see what the human eye sees; it sees what it was designed to see. In the end, a lawyer should be prepared when photographs are offered for admission to investigate them for deception or prejudice (such as in the case of photographs of grisly and morbid scenes).

The attorney should also investigate be- The well-known photography author Bryan yond the surface of the picture: What was Peterson stated that every photograph is the lens used? What camera was used? Did a lie, but within that lie is a mountain of the picture go through post-processing? truth. Knowing the lies illuminates the If so, what software program was used? way up that mountain.

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