He Didn't Have A Warrant!

Police officers are required to have a warrant before they search you or your home. There are a few exceptions to this rule.

ZDC Accepting New Criminal Defense Clients

Zimmmer, Duncan and Cole is always accepting new criminal defense clients. We have a rich history of criminal defense, and have extensive experience in the area.

It Couldn't Happen Here...Right?

Man held in jail without hearing. No probable cause. Right to be presented before a magistrate.

New SD Supreme Court Case: Medical Expenses Go Hand in Hand with Pain and Suffering Damages

New SD Supreme Court Case reaffirming the principle that medical damages go part and parcel with pain and suffering damages.

New US Supreme Court Ruling on Admissible Evidence

In Menandes Diaz v. Massachusetts, the United States Supreme Court recently decided that the United States Constitution required state prosecutors who want to offer crime lab reports as evidence at trial, to have the particular expert testify in person at the trial and be subject to cross-examination by the Defendant’s Lawyer.  Interestingly, the Supreme Court indicated that defense lawyers must assert the right to confront and cross-examine the expert witness before the State has to produce the witness to testify at trial.

What this means in South Dakota is that any prosecution expert trial witness who does a lab report, chemical analysis, finger prints analysis, blood spatter patterns analysis, blood chemistry analysis, gun, bullet, and really any other form of physical evidence subject to analysis by a laboratory must be supported by a witness and available for cross-examination.  This is typically how it is done anyway at trial, but there may be certain lab reports that are generally relied upon as part of other testimony.

There is no question that this decision will give defense lawyers another avenue to protect their client’s rights by cross-examining certain witnesses that might not otherwise have had to testify.  Defense Lawyers need to make sure they assert these rights.

US Supreme Court Ruling on Student Rights

The United States Supreme Court recently decided that public school officials are now limited in their ability to search students for drugs or other harmful items.  In Safford United School District v. Redding, the Supreme Court ruled that school official searches of the inter-clothing and undergarments of a student, in other words a strip search, will be pretty much prohibited from here on out under the United States Constitution.

The Court did not change the right of public school officials to search students’ back packs, notebooks, and other belongings along with their outer-clothing and pockets based upon reasonable suspicion.

This is a particularly difficult problem for school officials and for students and their parents.  It is also a good example of how difficult these cases are.  Certainly, the school officials want to provide a safe school environment for their students, faculty, and staff.  On the other hand, the United States Constitution protects all people, including students, from unreasonable searches and seizures.  This case points out the difficult issues that Courts, prosecutors, and defense attorneys face on these issues. 

The bottom line here is that students do enjoy some Constitutional protection from unreasonable searches and seizures, and they are not susceptible to the whims of school administrators.  Student searches by school officials require, at a minimum, at least reasonable suspicion of illegal activity before any search can be conducted. 

New SD Supreme Court Personal Injury Ruling

This week I am switching gears to talk about an interesting personal injury case that was just ruled on by the South Dakota Supreme Court.  In Klutman v. Sioux Falls Storm, the South Dakota Supreme court affirmed the trial court’s ruling in favor of the plaintiff, Gaylen Klutmen

Gaylen was 17 at the time of a Sioux Falls Storm promotional season kick-off event.  At one point during the event, children were invited to come on to the turf and play an informal game of touch-football.  The participants didn’t sign waivers and received no warning regarding the condition of the field.  After only a few plays in the game, Gaylen was running the ball up the field when he came to a sudden halt and fell backwards.  Gaylen had his foot caught in the turf, which caused a severe knee injury.  The trial court held the Storm liable for damages, and the SD Supreme Court affirmed this ruling.

So what’s the moral of the story?  Well, the answer to that question is two-fold.  First, it serves as a reminder to every person and business that they may be held liable for negligence for accidents that happen on his or her property.  Second, no one expects a life altering accident to happen to them in a situation as innocent as a promotional event.   But let’s face it: accidents do happen, and when they do you need an attorney to ensure you receive the damages you are entitled to. 

Celebrating Our Independence - July 4th

There will be no shortage of grand celebrations today, July 4th.  And for good reason.  Even back in July of 1776, John Adams, in a letter to his wife, predicted that the signing of the Declaration of Independence would "be celebrated, by succeeding generations, as the great anniversary festival."  However, Adams thought July 2nd would be the "big day", because that was when the Continental Congress voted for independence....in the typical style of politicians, it took two full days of debating to hammer out the details.  Finally, on July 4th, the document was released to the public.  And the rest, of course, is history.

Although it's not nearly as festive as fireworks, every year I download a copy of the Declaration of Independence and read it.  The famous line we all recognize is "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

The passages that follow, however, often get forgotten, and for me they are a pleasant reminder about how my career as a lawyer is connected to the struggle for freedom they started so long ago.  Part of the tyranny of King George involved his repeated attempts to limit the power of the courts, and also "For depriving us in many cases, of the benefits of Trial by Jury". 

After their long battle for independence, the Colonists eventually established an independent court system, along with the right of everyone to a jury trial for criminal and civil cases...in other words, protection for everyone whose life, liberty, or property was at risk.  For me, it is an honor to serve as an attorney, because we are vehicles for helping carry out the intent of that ancient document, one client at a time, and, when necessary, one jury trial at a time.

As part of your celebration today, I invite you take a few quiet minutes and read the text that started our revolution for freedom.  Happy Independence Day.