Fasten your seatbelts as the court and counsel zoom into the nitty-gritty of Rule 3A15, exploring its relevance to double jeopardy principles. They ponder on the common law that forbids a judge from reconsidering a motion to strike, scrutinizing its boundaries and applications. The journey gets more twisted as the parties explore the question of the detrimental reliance of the oral ruling and the constitutional argument that suggests states can draw the line earlier.
.The arguments conclude with a powerful argument from the Commonwealth urging the court to overrule the decision of the Court of Appeals. So, are you ready to dive in and challenge your understanding of legal principles?
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Your life has been disrupted. You have good doctors and they support you. Your personal injury or long-term disability claim seems like a slam dunk. But there’s a problem: The insurance company doesn’t believe you. “You can’t be hurt that bad! Our medical experts say you’re fine.”
You need a trusted advocate who can uncover all the facts, tell your story to the skeptical insurance company, and get you the money you deserve. You don’t have to do this alone. Contact our Virginia personal injury and long-term disability lawyers today for a free consultation or denial letter review.
Fasten your seatbelts as the court and counsel zoom into the nitty-gritty of Rule 3A15, exploring its relevance to double jeopardy principles. They ponder on the common law that forbids a judge from reconsidering a motion to strike, scrutinizing its boundaries and applications. The journey gets more twisted as the parties explore the question of the detrimental reliance of the oral ruling and the constitutional argument that suggests states can draw the line earlier.
.The arguments conclude with a powerful argument from the Commonwealth urging the court to overrule the decision of the Court of Appeals. So, are you ready to dive in and challenge your understanding of legal principles?
This podcast is brought to you by Virginia Injury and Disability law firm, Ben Glass Law.
Real legal help for real people
Your life has been disrupted. You have good doctors and they support you. Your personal injury or long-term disability claim seems like a slam dunk. But there’s a problem: The insurance company doesn’t believe you. “You can’t be hurt that bad! Our medical experts say you’re fine.”
You need a trusted advocate who can uncover all the facts, tell your story to the skeptical insurance company, and get you the money you deserve. You don’t have to do this alone. Contact our Virginia personal injury and long-term disability lawyers today for a free consultation or denial letter review.
I understand your point about the rule, because the rules never mentioned the text of the rules never mentioned. Isn't it fair, though, to say there was a double jeopardy objection? The one thing that's crystal clear is council objected and objected to the commonwealth presenting additional evidence. That's a discretionary call by the trial court. Am I going to permit someone to reopen something? Double jeopardy, though it's a little murkier, but isn't it a fair reading of the record to say council did object that this would violate double jeopardy? I know the words weren't uttered, but, reading the overall discussion, is that a fair reading that there was in fact a double jeopardy objection?
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Speaker 3:Welcome to this session of the Supreme Court of Virginia. The audio of this session is being live streamed on a link which can be accessed at vagov. I am Espinard Goodwin, Chief Justice of the Supreme Court of Virginia. All the justices of the court are present. For the third case we will hear today, Commonwealth v Puckett, Senior Justice Millette will be sitting for Justice Russell. Please call the first case.
Speaker 4:Commonwealth v McBride. Catherine Adelphio, assistant Attorney General, appellants Council. Donna L Biederman, appelese Council. May it please the court? Good morning, catherine Adelphio on behalf of the Commonwealth. The Commonwealth would ask this court to reserve four minutes for rebuttal.
Speaker 4:The Commonwealth asked this court to reverse the decision of the Court of Appeals because the Court of Appeals misapplied Rule 3A, col 15 by impermissibly prohibiting a trial judge from reconsidering the grant of a mid-trial motion to strike during the pendency of the same motion's hearing.
Speaker 4:And the Court of Appeals decision further violated the contemporaneous objection rule because the lower court found that McBride's objection was preserved for appellate review, even though his stated objection did not state with specificity the grounds upon which the Court of Appeals ultimately relied. Turning to the first issue, the Court of Appeals below improperly held that Rule 3A, col 15 precludes a trial court from reconsidering a motion to strike. In doing so, the Court of Appeals made motions to strike the one ruling that a court cannot reconsider even during the same motion's hearing. This is in contrast with the general jurisprudence that a court can modify any interlocutory order prior to a final judgment. And now the Commonwealth is not suggesting that the window for reconsideration of a motion to strike is that wide. We're not asking the Court to permit a trial court to reconsider a motion to strike at any time prior to.
Speaker 5:Is it really interlocutory? If you think about it, you grant a motion to strike the words are. I find that the government did not meet its burden, even looking at the evidence like most favorable to the government charges. Dismissed defendant could literally walk up. Stand up, walk out. What is the practical difference between that scenario and a jury returning a verdict of acquittal? Again, the defendant stands up, walks out or is taken back into the jail and processed out and there's no order, there's no written order, perhaps, depending on the court, for two days or two months.
Speaker 4:Certainly your Honor the comal, to just note that the position that's taking is not outside the norm. Other courts across the country have held that these are interlocutory decisions, and furthermore, with respect to this particular case. But is it?
Speaker 5:interlocutory because there's no written order. Is that what you mean? Or you just believe that it's always open until such time as what? When does that motion to strike decision not become interlocutory, or is it always interlocutory?
Speaker 4:I would say that, especially with respect to this case, there were still charges pending after the court granted the motion to strike with respect to the second and subsequent convictions. So certainly with respect to this particular case where the trial could continue with respect to the remaining the general Pee-Wood charge then in this case it was interlocutory.
Speaker 6:Why isn't the answer been told? Double jeopardy kicks in and, of course, the traditional power, the essential power, the power that must exist for courts to be able to reconsider its own decisions before it becomes beyond reconsideration. And the double jeopardy bar is that point where the Constitution steps in and says this is the line You're not going to be able to do it over. Why isn't that the answer? Do with orders written orders, nonwritten orders, oral orders or anything else.
Speaker 4:Your Honor. That is the answer. That's the position that the Supreme Court of the United States took in Smith versus Massachusetts, where they held that a court could that double jeopardy has never thought to bar the immediate repair of an error in the announcement of an acquittal, and certainly here. The Commonwealth immediately asked the court to re.
Speaker 7:But doesn't Smith suggest a different line at any point? Where a defendant relies on it and makes a strategic choice whether to put on evidence, whether to release witnesses that could potentially prejudice the defendant then it's unfair to say just kidding or take it back. Isn't that the line that Smith suggests? That due process would not allow the judge to say it. You put on your evidence regarding the other charges, you make strategic choices because this charge is no longer there and then to reinsert it back in that's unfair.
Speaker 4:Your Honor. That's correct and basically 3A-15 is not a rule that states that a court cannot reconsider its motion for recusal. There's nothing in that rule of court that states that there can't be an ongoing discussion, that a motion's argument can't continue after the motion to strike has been granted. It's the double jeopardy principles.
Speaker 7:Has it even been granted? Just because the word grant comes out of the judge's mouth, assume a just a complete misspeaking. Is it over at that moment?
Speaker 4:It is not your Honor. When rule 3A-15 is read in conjunction with the Virginia Maxim that courts only speak through their orders, it becomes clear that a mere verbal pronouncement of a decision does not render the decision.
Speaker 6:Tell me about this case Is, frankly, my experience as a trial judge cases coming in all day long, all week long, all month long. We make mistakes, we say things from the bench and we go oh wait a minute, that's a mistake. I didn't mean to say that, or I meant to say it, but I misunderstood what the witness said. I just heard it wrong or something like that. I don't understand how the motion to reconsider is not something that we don't exalt and celebrate because it allows judges to get the right thing, do the right thing.
Speaker 5:Certainly your Honor, I think actually that's a really good point. But what you're really talking about is an oral scrivener's error where there is a misspeaking, but in this case, the trial judge actually went through a fairly comprehensive analysis as to why, for instance, the documents didn't come in, why, therefore, the subsequent offenses couldn't be considered, and then the case is gone. Is that a little bit distinguishable from the scenario that Justice Kelsey talks about, or is it just the same thing?
Speaker 4:Your Honor the come up of maintain that is the exact same thing. The court has the equal ability to reconsider a misspeak, misspeaking from the bench or a genuine mistake of law. Trial courts have a duty, under this court's jurisprudence and ever, to correct mistakes once they are brought to.
Speaker 8:Smith seems to indicate that a state can draw a line before the double jeopardy line. So a state could write a rule that would require the court, once the words are spoken, to honor those words. Is our rule such a rule?
Speaker 4:It is not your Honor because it does not limit the common law ability for a trial judge to reconsider its motion or reconsider a decision and its duty to correct an error. If there's still time to correct an error, and under Smith v Massachusetts the time to correct that error would be once the defendant relies, to his detriment, on that trial court's decision.
Speaker 7:I'm most positioned that three C tells a trial court what it must do once it has finally granted a motion the motion to strike, actually granted it but doesn't tell us anything about when that occurs.
Speaker 4:That's correct, your Honor. The first paragraph of rule 3, column 15, says that a trial court may grant the motion to strike if it finds as a matter of law that the evidence is insufficient. And basically paragraph C provides the remedy, but it doesn't say that the court can't the timing of it. I'm just repeating what the court said. This is to go to Justice Kelsey's point and Justice Man's point. There could be a situation where the court says I didn't, I'm going to grant the motion to strike because I didn't see the certificate of analysis was entered and without that you can't prove your case. Commonwealth Motion strike granted. And then the Commonwealth should have the opportunity to say wait, your honor, it was entered as Commonwealth exhibit 15. The goal of trials is to achieve justice and if the court can't correct that mistake that either factual mistake or legal mistake during the course of that same criminal motions argument, then we aren't accomplishing that goal of achieving justice.
Speaker 5:You think we even need to get there, given the preservation issues in this case.
Speaker 4:No, your honor, the Commonwealth would maintain that these arguments were not preserved. When counsel objected to the court's reconsideration of the motion to strike, she basically made general arguments and said it wasn't fair. I wouldn't have made these arguments had I known that the Commonwealth would have the opportunity to put on additional evidence. And these objections never mentioned rule 3a 15. They never alerted the trial court that the defendant was asking the trial court to consider an interpretation of rule 3a 15.
Speaker 1:I understand your point about the rule, because the rules never mentioned the text of the rules never mentioned. Isn't it fair, though, to say there was a double jeopardy objection? The one thing that's crystal clear is counsel objected and objected to the Commonwealth presenting additional evidence. That's a discretionary call by the trial court. Am I going to permit someone to reopen something? Double jeopardy, though it's a little murkier, but isn't it a fair reading of the record to say counsel did object that this would violate double jeopardy? I know the words weren't uttered, but reading the overall discussion, is that a fair reading that there was in fact a double jeopardy objection?
Speaker 4:Your Honor. I think it's certainly a closer question than the preservation of the rule based argument. The Commonwealth would maintain that it was still too general because it didn't alert the court that double jeopardy was implicated. Merely was a general argument that it wasn't fair that the Commonwealth was now going to have a chance to fix the identified errors or omissions in their evidence.
Speaker 7:Hypothetically, if defense counsel says you can't do that, you've already granted the motion you're required to dismiss, but never references the rule, would that preserve the argument?
Speaker 4:I think that still, the trial counsel would have to reference the rule 3A 15 and alert the court that the court needs to.
Speaker 7:If I object to something as hearsay, but don't cite rule 2, whatever, because I grew up before we actually had rules of evidence and therefore I don't know them by rule, I know them by. Have I not preserved that objection?
Speaker 4:I think that you've preserved that objection, but the flip side of it, your Honor, is if I say this is an exception to the hearsay rule and I don't state with specificity which exception to the hearsay rule I'm relying on. That I have not appropriately preserved my argument with respect to the exception to the hearsay rule. I see that I've run into my rebuttal time and I'd like to reserve the remainder of my time. Thank, you.
Speaker 3:You have 3 minutes and 47 seconds.
Speaker 9:Good morning Chief Justice and Associate Justices. My name is Donna Biederman and I am representing Dan Juan McBride in this case. The Court of Appeals was correct to reverse the Fairfax Circuit Court's decision reversing its motion to strike, because Virginia rule 3A 15 requires that once a judge is grant a motion to strike it must be entered on those charges.
Speaker 6:I have other rules too, though. If a rule says that there's no material issue, a genuine fact in the civil case, you shall, or now must, grant summary judgment. But all of the rules, they're written by the judges, they're not written by the legislature. We're interpreting our own intent. All the rules presuppose traditions, and one of the most, I would say, valuable traditions of the trial bench is humility and admitting when you're wrong or, in your case, at least giving the other side an opportunity to respond to when you made a change of mind. So how would we interpret this rule? To wholly exclude the power and, arguably, the virtue of judges reflecting and reconsidering prior to prejudice, prior to double jeopardy, prior to, of course, all that other stuff?
Speaker 9:Because the quality of acquittals is completely different than anything else. It is not relevant, in my opinion, in what happens in civil cases.
Speaker 6:Apparently it's not relevant enough for double jeopardy, which is a constitutional provision. So why would it be super relevant for some rule of court that we write and have the same axiomatic effect that even double jeopardy wouldn't give it?
Speaker 9:Because the rule says that a court must enter a judgment of acquittal when there is when a motion to strike is granted. When is the motion?
Speaker 8:to strike granted. When is the motion to strike granted? The judge says I grant the motion to strike. Oops, I made a mistake. This is not this case.
Speaker 9:It's not this case.
Speaker 8:But when is the motion to strike granted?
Speaker 9:In this case, it is when the judge said I grant the motion to strike Now, after he said that the common law, what?
Speaker 8:precluded the judge from I'm sorry. What precluded the judge from recognizing that perhaps there was some misunderstanding between the judge and the commonwealth and saying I'm going to reconsider my motion to strike. Allow you to put on your evidence. What precluded him from doing that?
Speaker 9:In this case, what happened was that they had a lot of argument and then the judge made a decision and he granted the motion to strike.
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Speaker 9:And the Commonwealth got upset and tried to re-litigate it at that point, after it had already been decided by the court, and Rule 3A15 is what stopped them?
Speaker 7:Isn't rule silent? It doesn't beg the question. The rule says once it's granted you have to, but it doesn't tell us when it was granted, does it?
Speaker 9:It does not. But in this case the judge thinks he granted it because he said after he purported to reverse his grant to the motion to strike, he said that he was going to reverse his earlier decision.
Speaker 6:But even the judge thought Actually he said there was, quote, a misunderstanding as to what my ruling was JA 206.
Speaker 9:That referred to an earlier whirling. It did not refer to the ruling on the motion to strike.
Speaker 6:So the answer Justice Powell's question tell me if I'm putting words in your mouth unfairly. The answer is if you go. Okay, I think I've heard the evidence, I've heard this witness, I saw this certificate of compliance and I'm going to grant the motion. Oops, sorry, sorry, I forgot something. If I understand the logic of what you're saying, that's done. You can't forget too bad. So sad he forgot something crucial.
Speaker 9:I don't think that's the question that's at issue here, because what happened is that's not what happened.
Speaker 6:He didn't immediately try to read On your interpretation, your reading of this rule and how the parameters of the rule should be applied isn't the answer from your perspective. Please tell me I'm wrong. If I'm wrong, which is the whole point of my sermon? On this point, the answer to Justice Powell's question is yeah. You said oops, 10 milliseconds after you said I grant the motion. Too bad, so sad.
Speaker 9:I am not sure about that situation.
Speaker 6:Why? Why are you not but?
Speaker 9:in this case. That's not what happened.
Speaker 6:Why are you not sure? Your logic is the moment you say I grant the motion, you can't reconsider it, period.
Speaker 9:Isn't that what you're saying, once it's granted, yes, and he believed that he had granted it. Now, in a judge in that instance where he goes, I grant, I deny the motion to strike hasn't believed he had granted it at that point. This judge believes he had granted it. Once he has granted it, then it has to be entered as a judgment of acquittal If-.
Speaker 7:Let me ask a question about the specific facts of this case. Can you point to any, even given the timing? Can you point to any hypothetical detrimental reliance on the oral ruling that occurred here? Any witnesses released any change in trial strategy when the defense had to put on its case anything at all? No, there doesn't appear to be any of that, so we don't have a Smith problem here.
Speaker 9:So I don't believe that what Smith holds is that in every instance, if you don't go on and there is indetriment, that therefore you can change it. That's not what my reading of Smith is, my reading of Smith, is that there's that's why the Constitution says you can't change it. There's certain instances in which you can change it, and none of those instances occurred. Here I mean the court. Part of the problem is that this court has rule 3A15, which is a line that is earlier than the Constitution.
Speaker 7:I guess, based on Smith, you don't have a constitutional argument, it's purely a rule argument.
Speaker 9:Smith says you can draw the line earlier. And once you've drawn the line earlier, I believe it's also a constitutional argument. But Smith doesn't say everybody's in the same spot. In fact they say states can draw the line earlier, and this court has drawn the line earlier.
Speaker 2:This podcast is brought to you by Ben Glass-Law, a statewide leader in the personal injury field. We help the injured and disabled make great decisions about their legal situations. Visit our website at BenGlassLawcom or call us at 703-591-9829 for more information and a free evaluation of your case and if this court doesn't think that the rule should be that strong.
Speaker 9:With all due respect, the rule needs to be changed.
Speaker 1:Adult rules. When you're writing a rule, you can't anticipate every possible outlier variable, and the rules presuppose certain background principles, such as the ability to reconsider when you're wrong, because when do rules then start growing and growing? If you had to bake in all these principles?
Speaker 9:That is why rules get changed. And in this fact, in this point, it said the court shall enter a judgment of acquittal. And then it decided that wasn't have to enter the judgment of acquittal. Then it can do that in the rules. But what the rule says, as it is right now, that if the motion to strike is granted and the trial court is very clear that it believes it granted the motion to strike, then you must file a judgment of acquittal.
Speaker 7:Wouldn't that be true? In every reconsider, any ruling, the trial court re-reviews and says I've thought about it some more, I'm changing my mind.
Speaker 9:Definitionally when it said the first thing, except for the misspeaking case that we've talked about that's true, yes, but the difference is in the fundamental difference between acquittals and everything else that we have, and I think that's a fundamental difference and that's why this rule applies only to the grant of a motion to strike. It doesn't even apply that the denial of a motion to strike. You can certainly keep arguing on that, but this rule says that when a judge grants a motion to strike and this court believes it granted the motion to strike, then it must enter a judgment of acquittal.
Speaker 7:What happens if his belief is wrong?
Speaker 9:Excuse me.
Speaker 7:What happens if we believe his belief is wrong? That he hadn't granted it yet it doesn't matter, he said it, but he hadn't done it.
Speaker 9:It doesn't matter if the court believes that he's wrong, because there is jurisprudence that says that even an acquittal, even if it's wrong, cannot be overturned, because that's the fundamental difference between acquittal and other things.
Speaker 7:But your argument is still begging the question of when he has been acquitted. If the trial judge is wrong, that him just saying it isn't enough, then what difference does it make that he believes he granted the motion? If we say under the rules that doesn't grant the motion, what difference does it make that he believes he had done it?
Speaker 9:Because he granted it.
Speaker 7:Unless we say that no, that's not enough. He's got to reduce it to writing or take some other step.
Speaker 9:Correct and I'm glad you've read up the reduced to writing issue because I think that's a red herring. There are many cases in which those types of things convictions, acquittals are not reduced to writing and they're still relied on by the courts. So, for instance, you have two charges that are severed. You go to trial on one of them. The first one is a DUI second. The second one is a DUI third. And if you get convicted of the DUI second, you can go right into the DUI. Third, the judge doesn't have to leave the bench, go off and write an order that says yes, he's convicted, and come back to start the DUI. Third, you can rely on the fact that he's conviction Until double jeopardy applies.
Speaker 8:You've mentioned several times the fundamental difference between acquittals and everything else. Until double jeopardy applies, what is the fundamental difference that would preclude a court from reconsidering this ruling, as it could reconsider virtually every other ruling that I can think of? Because, what is the fundamental difference?
Speaker 9:Because acquittals are sacrosanct in our program and it comes out of the double jeopardy clause and it also comes out of our state laws and rules, and rule 3A15 was designed specifically with that in mind, to say acquittals are different. If you have grant a motion to strike, then you have to enter a judgment of acquittal and the judge abuses discretion by not doing that here.
Speaker 1:Your opposing counsel point made a default argument that and putting myself in the shoes of this trial judge, court appeals is reversing me because I failed to apply this rule. The specific rule was never cited, the rules generally were never cited, the text from the rule was never mentioned. So is it really fair to and clearly there's an objection is it fair to pull out this rule as a club on a Pianse judge? You made a mistake. In these circumstances, what's your best argument for preservation on the rule point, as opposed to some of these other things?
Speaker 9:Your Honor. I find it other than the fact that she did not say anything about this particular rule. I find it hard to imagine that she could have anything further that would have preserved this, given the fact of how much and how strenuously she objected. She said that's what a motion to strike is. A motion to strike, that's what it is. This isn't even a jurisdictional or venue or something like that. It's one of the elements of the fence. And now I told her how she got to come up and correct it. She gave you whatever she gave you. She said that at one point.
Speaker 7:At another point she says Is that an objection judge did or is that an objection to reopening the evidence?
Speaker 9:She said that's what a motion to strike is. And I think those words suggest that she's saying a motion to strike is final. That's what she's bringing up to the court.
Speaker 1:and then later she says that sounds like a double jeopardy point to me, as opposed to. There's a specific rule as a matter of state law that says you've uttered those words. I need an order now. This is done.
Speaker 9:I think it's both, I don't think it's just one or the other. See, she also goes on and say if the judge says, okay, yes, I grant the motion to strike, then it's improper for them to call different witnesses and put in other, different evidence. And that goes to that question as to whether they can open and put in other evidence. But what the judge did here is grant the motion to strike and then allow in other evidence and then after that reverse, try to reverse its decision granting the motion to strike. So it wasn't even that he reversed it based on the evidence that was given during trial. It was before the motion strike was made. He also included evidence that was from after the motion strike. Very quickly, there are a couple other things I wanted to say, and that is that this doesn't, this is not the same thing as when a Scrivener's an oral Scrivener's analysis or mistaken speaking. This is when a judge grants a motion is a direct question and let's make a different question, a question of law.
Speaker 6:I'm a trial judge. I hear a motion strike, someone cites Jones versus Commonwealth, and I read it. And I'll be darned, I didn't know that was there. I grant the motion to strike and that immediately, within a minute, the prosecution says it was reversed. Yesterday the Capella Court reversed it. Oh, I'll be darned, I didn't know that either. I'll continue with this trial. No, the Supreme Court of Virginia held. You can't reconsider.
Speaker 9:You can't reconsider. Once you've acquitted somebody, you cannot reconsider it. That is what the all of the precedent in this court and the Supreme Court says, even if it's a mistake what?
Speaker 6:precedent.
Speaker 9:I was looking for that while she was talking. I know I have it in my briefs. I don't have it.
Speaker 6:I'll look for it in the brief.
Speaker 9:I don't have it here. Yeah, the only two questions here are really whether this was a final order and whether she objected to preserve the evidence. And we would ask your. We would say that you have to answer both those questions in the affirmative and ask the court to to deny the appeal and to reinstate the Court of Appeals decision. Thank you.
Speaker 3:Thank you, counsel. I know I allow counsel for the defense to go over four minutes and we'll add a minute to your rubric, I hope.
Speaker 4:I won't use all that time and I also hope I do not have this wrong, but I think I heard counsel concede that McBride was not prejudiced by the reconsideration of the motion to strike because he did not take any actions in reliance of the statement from the bench and if that's the case then there was no violation of double jeopardy under Smith versus Massachusetts. And because the rule 3a, colon 15, does not preclude the reconsideration of motions to strike, the Commonwealth asks this court to reverse the decision A question counsel.
Speaker 8:Could he have been prejudiced by his argument with regard to the motion to strike? They haven't proven that this is the same defendant different birthdays, different names, different addresses, which probably would have been the same evidence he would have put on in his case in chief. Could he have been prejudiced by the argument that he makes?
Speaker 4:Yeah, I don't think that's the kind of prejudice that the that Smith versus Massachusetts contemplated. Certainly during any other sort of motions ruling for example a hearsay argument once if a party objects because there's a lack of foundation, the opposing party has the opportunity to put on evidence with respect to the that lays the appropriately the appropriate foundation. I think that there are 2 now 2 questions in this court. One, whether the court had the general power to reconsider its motion to strike and what then? Whether the decision, what it did in this case after it did that, was appropriate. But once the court determined that it could reconsider its motion to strike, it certainly had the discretion to reopen, to permit the Commonwealth to reopen its evidence and put on additional evidence, and it had the jurisdiction to, and if that was a mistake it had the jurisdiction to make that mistake. But the Commonwealth is asking this court to render a ruling that makes clear that motions to strike can be reconsidered during the course of the same motions hearing.
Speaker 6:Did the defense ever ask for a continuance or any leave to further prepare?
Speaker 4:No, your Honor, certainly they did not.
Speaker 8:And you are asking us to specifically limit it to during the course of the same motions hearing or your Honor.
Speaker 4:I think that I limited myself in that statement to the court. I think that the Commonwealth maintains that the motion to strike can be reconsidered until jeopardy attaches or double jeopardy would be violated. That's correct and that is the concern that the United States Jeopardy attaches when the jury is yes. Your Honor until double jeopardy is violated.
Speaker 5:And that last interchange doesn't it support Justice Kelsey's comment that you said one thing, you realize that it put you a little bit in a corner. You immediately reconsidered and nobody said too late, just that simple.
Speaker 4:Certainly your Honor. I am certainly human and I frequently make mistakes and, as the United States Supreme Court has recognized multiple times, judges are human. They will make mistakes like any other person, and they should have the ability, and they in fact have the duty, to correct those mistakes at the time that they are made. So the Commonwealth would ask this court to reverse the decision of the Court of Appeals. Thank you.
Speaker 3:Thank you, counsel. Please call the next case.
Speaker 2:The proceeding has been a production of Ben Glass Law, a Fairfax, virginia based personal injury and long-term disability law firm. For a free evaluation of your claim, visit us at BenGlassLawcom or call us at 703-591-9829.