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Legal Myths and Reality

By Judge Joan Shkane

This is a continuing discussion of Legal Myths and Reality, because an informed citizen is always the most successful citizen:

MYTH: The New York State court system only reacts to issues that fit a particular mold.  It is not proactive.

REALITY: Our modern state court system is very proactive, and seeks to help where needed. A good example is the Veterans Treatment Court. Everyone agrees that the men and women who have served our country in the military are true heroes and should be a source of inspiration. Sadly, they often serve multiple tours, sometimes without their families, and that can cause added stress. Not all can easily readjust to civilian life, and some have very little of a support system, in part because of frequent moves of residence. The incidence of mental illness and substance abuse among veterans is steadily increasing. This can result in legal troubles. In 2006, the concept of a Veterans Treatment Court was developed for New York State. The goal was to create a safe environment to help veterans in legal trouble regain stability, sobriety and good mental health. The courts are accessed through lower level trial courts whenever a criminal charge is pending. Through this procedure, the veteran and his/her issues come to the attention of the court system, and help can be offered.

Now there are 33 Veterans Treatment Courts across New York State, and over 400 across the U.S.    Oneida County is fortunate to have such a court. These fall under the umbrella of “problem solving courts”. They are making a difference in the lives of these heroes, who helped to make our lives safer.  Sadly, 37 New York counties do not have such a court. In many cases it is because of lack of court finances. New York is considering a law that would permit veterans in this kind of trouble to go to an adjacent county for adjudication and treatment.

MYTH: A prosecutor in a criminal case can pick and choose which witnesses (s)he will call to testify at trial.

REALITY: There are various legal rules governing who the prosecution MAY call as a witness, and who they MUST call. There can be serious consequences if the rules are not followed. One of the required witnesses the prosecution must call to testify is called a “missing witness”. If the accused is aware of a witness who might help the defense, then the accused must prove to the judge several facts in order to punish the prosecution case with the “missing witness” charge to the jury. They are: 1. there is a witness the prosecution did not call to testify, who has testimony to offer; 2. the testimony is on a critical issue; 3. the witness may testify favorably to the accused. If these factors are established, the judge must tell the jury about the existence of a “missing witness” who may offer testimony favorable to the accused. It’s not difficult to imagine the effect on the jury verdict if it appears that the prosecution is hiding evidence favorable to the accused. If the judge does not advise the jury of the “missing witness” and the witness’s expected testimony, even when the required factors have been shown to the judge, then the entire case can be reversed in the event of a conviction, and sent back to be retried. The premise is that telling the jury that the prosecution withheld the information this missing witness may offer will tip the scale in favor of the accused and result in a verdict of not guilty.  The idea is to keep the prosecution honest, but only if the accused can show the three steps have been met.

MYTH: When a child is conceived by artificial insemination using stored eggs and sperm for future use, that child cannot inherit from a deceased genetic parent.

REALITY: Life truly used to be simpler. If a person leaves eggs or sperm for future use, and then dies, a child can still be conceived by artificial insemination after the death of the donor. In November, 2014, New York State passed a law that such a child will be considered a “genetic child” and may inherit from the deceased parent if these four conditions are met: 1. the genetic parent must have said in writing no more than seven years before his/her death that the genetic material can be use after death; 2. notice of the existence of the genetic material must be given to the executor or administrator of the decedent’s estate within seven months of the death; 3. the decedent/donor’s writing about the material must be filed with Surrogate Court; and 4. the genetic child must be conceived within two years of the donor’s death or born no later than 33 months after the death. If all these steps are met, then the genetic child can inherit from the genetic parent. The purpose, of course, is to allow for the support of the after-born child, while protecting the rights of other heirs.  All of this should be discussed with your estate lawyer if you are considering leaving eggs or sperm for future use.

Giving attention to legal myths is not wrong. It can be a starting point for developing an interest in the law. However, if legal issues are important in your life, for instance regarding custody of your children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths. This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.


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