Law Blog

Traditionally, it was assumed that teens accounted for most out-of-wedlock births.  However, the National Center for Health Statistics reports that the teen birth rate in the U.S. has declined to an all-time low, while unwed women in their 20s are increasingly having children.  These figures reflect the fact that more people in America marry later in life or cohabitate with their significant other without taking marriage vows at all.

Out-of-wedlock births have been on the rise since the late 1990s.  There were over 1.7 million households consisting of unmarried couples with children in 2004, compared with just 200,000 in 1970.  According to a report conducted by the Pew Research Center, almost 37% of children in the U.S. are born to unmarried women, and 47% of adults between the ages of 30-50 have cohabitated with a significant other at some point in their lives.  Currently, approximately 50% of children are born to unmarried, cohabitating couples, while in 1993, only about 33% were.

LegalMatch statistics, compiled from online intake reports completed by respondents across the nation, support these numbers.  According to 2008 LegalMatch case data, 40% of couples involved in child custody disputes are living together and have never been married to one another.  About 12% of respondents (comprised of men and women) chose “other” to describe their relationship status; a significant number of these “other” respondents stated that they are cohabitating or have cohabitated with their child’s other parent in the past, but never married him or her.  About 9.5% of respondents answered that they are separated and haven’t yet filed for divorce, while 7% stated that they are divorced and now married to someone else.  Finally, 6.7% stated that they are divorced and they, as well as their spouse, are living alone. 

Notably, fathers aren’t necessarily absent from the homes of unwed mothers.  A 2002 report conducted by the National Center for Health Statistics showed that about 20% of new mothers under age 20 were unmarried yet cohabitating with the father of their child at the time of birth. 

While younger adults have expressed less moral concern over out-of-wedlock children and cohabitation, many older adults have expressed significant concern over these trends.  Perhaps as part of a backlash, Arkansas and Utah have expressly barred unmarried couples from adopting, but these statutes may reflect a prejudice toward homosexual parents rather than any bias against unmarried couples in general.

Homeowners aren’t the only people affected by the foreclosure crisis.  Increasingly, renters who have dutifully paid their rent are being evicted from their apartments because their landlords face foreclosure.  In fact, over the last several months, as many as 70,000 renters have confronted foreclosure-related eviction.

Recently, government-run mortgage finance company Fannie Mae promised to assist tenants by signing new leases with those living in Fannie-owned properties that have been foreclosed.  Under the proposed plan, renters will be granted the option to lease month-to-month on foreclosed properties until the property is resold.  Fannie’s actions mark the first nationwide attempt to save renters caught in the mortgage crises.

While it’s a little disconcerting to see Fannie effectively become our national landlord, the mortgage behemoth’s actions may encourage private lenders to enact such programs; further, lawmakers may be persuaded into enacting more comprehensive relief measures. 

Still, there are potential problems with Fannie’s plan.  First, because the government lacks incentive to maintain rents at market rate, taxpayers may ultimately subsidize below-market rentals.  Second, government may waste taxpayer dollars because it lacks the necessary experience and/or infrastructure to manage these rental properties efficiently.  Third, Fannie’s action prevents these foreclosed properties from being sold on the open market, perhaps exacerbating the housing downturn and economic recession. 

While some states such as Minnesota have passed stricter laws to protect tenants from foreclosure, other states are dragging their heels.  For now, here’s some advice for prospective and current tenants.  Existing tenants should be wary if they suddenly become inundated by advertisements from local bankruptcy lawyers – this indicates the owner may be facing foreclosure.  Prospective tenants should perform a credit check on a property owner.  Also, look out for default or sheriff sale notices posted on the property (and don’t take the owner’s word, if he says things are “under control”). 

Further, check public records online or in your local county records office to see if the owner is failing to make payments or the property is in foreclosure; and while you’re at it, check to see if the owner owes property taxes or association dues – both clues that he may owe mortgage payments as well.  You can research your local foreclosure laws online too.  If you don’t have the time (or patience) to perform such due diligence, at least make sure to watch for a landlord who asks for an unusually high deposit or a number of advance rent payments. 

Recently, the U.S. Supreme Court refused to weigh in on what kinds of “victim impact” evidence is admissible in trials where jurors are deciding whether to impose the death penalty. The High Court refused to hear two appeals challenging the use of videos documenting victims’ lives and how their deaths have affected loved ones.  For example, in one case at issue, the victim’s mother narrated a 20-minute video set to the music of Enya, which included dozens of photos and video clips depicting the victim’s life. 

The Court hasn’t opined on this subject since the 1991 case of Payne v. Tennessee, in which it held that testimony showing a crime’s impact on the victim’s relatives and other survivors was admissible in the sentencing phase of capital cases.  In Payne, the Court set forth vague guidelines, stating:  “in the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.”  The California Supreme Court has issued this advice:  trial judges should be “very cautious” when allowing such evidence, and “irrelevant background music” should not be used. 

Some argue that video impact statements merely even the playing field for victims.  They claim that such evidence merely humanizes victims, and gives a voice to survivors who are uncomfortable testifying at trial in front of the defendant and others. 

While victim impact videos definitely have the potential to elicit sympathy from jurors, they can also be unfairly prejudicial to defendants; further, they often serve no legitimate purpose.  Should the decision to impose the death penalty be based on reason rather than emotion?  If yes, do victim impact statements aid that purpose?

Justice Stevens warned that “when victim impact evidence is enhanced with music, photographs, or video footage, the risk of unfair prejudice quickly becomes overwhelming. While the video tributes at issue in these cases contained moving portrayals of the lives of the victims, their primary, if not sole, effect was to rouse jurors’ sympathy for the victims and increase jurors’ antipathy for the capital defendants.”  And as Justice Breyer stated:  “The videos added nothing relevant to the jury’s deliberations and invited a verdict based on sentiment, rather than reasoned judgment.”

Every state that imposes the death penalty allows victim impact evidence to be presented during the sentencing phase of murder trials; however, without uniform standards, courts across the nation will inevitably impose different standards — some allowing highly emotional videos set to music,and produced by Steven Spielberg; others permitting only bare-bones testimony.  A defendant’s punishment should not depend upon how likable the victim was or how skilled the filmmaker is.  The High Court should set clear standards so victims and defendants across the nation get an equal shot at justice.

In early November, Vincent Romero and his roommate Timothy Romans were found shot to death in Romero’s Arizona home.  Police have charged Romero’s eight-year-old son with two counts of first-degree murder, and are relying heavily on a videotape in which the boy confessed to the homicides without his mother or lawyer present.  The boy’s attorney argues that the confession was coaxed, and a number of child psychology experts have questioned its reliability as well. 

The interview shows the boy changing stories, and talking calmly to investigators about the incident.  About forty-five minutes into the hour-long interview, he claims that an unidentified assailant shot both men, and that he later shot them in order to end their suffering.  

Child trauma experts have long-asserted that children are often unreliable witnesses: they may make up elaborate stories, confess to crimes they did not commit, or deny committing crimes when they are in fact guilty.  Children exhibit this behavior because their brains haven’t fully developed, they cannot make complete sense of questions, and they often feel pressured to answer in a way that they believe will please the adult interrogator.  When children are not accompanied by a parent or guardian, they are especially likely to give unreliable answers as they feel more vulnerable and less confident.

Under Arizona law, children are generally considered to lack the competency needed to be charged with homicide.  In this case, however, police are charging the boy with double homicide due to the exceptional facts and circumstances. 

In addition, it’s unclear whether the boy is legally competent to stand trial.  In order to be deemed competent, a child must be able to comprehend his rights and the consequences of his decisions; in addition, he must be able to participate meaningfully in his defense.  Given these criteria, are eight-year-olds ever competent to stand trial?

If a court-appointed psychologist finds that the boy is not competent, and he cannot be rehabilitated within nine months, Arizona law mandates that the charges must be dismissed.  The state would then have the option of seeking to have the boy committed in civil proceedings.

In this case, the prosecutor is attempting to put one of the homicide charges on hold until boy turns 15 and can be tried as an adult.  If this tactic works, instead of facing juvenile detention until age 18, the boy will face life in prison without the chance for parole. 

Given the severe consequences this boy may face, along with the unreliability of his confession and questionable ability to stand trial, the state should definitely be required to present more concrete evidence that he is indeed guilty.

The U.S. Constitution guarantees representation for criminal defendants who cannot afford to hire their own lawyer.  However, low-income persons facing civil issues must turn to legal aid organizations for help.  Unfortunately, large numbers of homeowners facing foreclosure are not getting the legal assistance they need. 

Legal aid and private lawyers can often help homeowners avoid foreclosure by negotiating directly with the bank, which most certainly has strong representation.  Legal aid lawyers may also help make the whole process more efficient, as forcibly evicting homeowners is a difficult process. 

Furthermore, the eviction of homeowners causes other problems down the line.  As homes are left vacant and contributing members of a community are banished, neighboring homes fall in value, and local businesses suffer from decreased business.  Therefore, it is in everyone’s interest to make sure homeowners can avoid foreclosure when possible.

States have taken varying approaches to this problem.  Ohio has taken action by implementing free legal aid programs for those facing foreclosure.  While most states offer some sort of resources, homeowners must beware of foreclosure rescue scams.  A new Florida bill intended to protect homeowners from these scams took effect in October, and at least 12 states have enacted similar laws to combat foreclosure scammers.  Only time will tell if these laws accomplish their goals, but in the meantime, homeowners can educate themselves on how to avoid mortgage foreclosure scams.