circumstances test in Delaware

2026Mot. at 15. 115 US Dominion, Inc., 2021 WL 5984265 , at *26. 116 Id. 117 ZL Technologies, Inc. v. Does 1-7, 220 Cal.Rptr.3d 569, 589 (Cal. Ct. App. 2017). 23 the opinion can constitute actionable defamation.”118 Whether a statement constitutes a statement of fact or opinion is a question of law.119 As such, this Court must determine whether the statements expressed in FNN’s broadcasts are actionable: “whether a reasonable fact finder could conclude that the published statement declares or implies a provably false assertion of fact.”120 To answer this question, California Courts have developed

2024A reader may reasonably interpret the Article’s assertion that H.A. was wearing Black face as fact.101 California’s totality of the circumstances test centers on the statement’s “susceptibility of being proved true or false.”102 The CBS broadcast showed H.A. for approximately three seconds.103 In those three seconds, viewers could see that H.A.’s face was painted two colors: black and red.104 Deadspin published an image of H.A. that displayed only the portion of H.A.’s face painted black and presented it as a factual assertion that there was a “Chiefs fan in Black face” at the game.105 The com

2026Mot. at 15. 115 US Dominion, Inc., 2021 WL 5984265 , at *26. 116 Id. 117 ZL Technologies, Inc. v. Does 1-7, 220 Cal.Rptr.3d 569, 589 (Cal. Ct. App. 2017). 23 the opinion can constitute actionable defamation.”118 Whether a statement constitutes a statement of fact or opinion is a question of law.119 As such, this Court must determine whether the statements expressed in FNN’s broadcasts are actionable: “whether a reasonable fact finder could conclude that the published statement declares or implies a provably false assertion of fact.”120 To answer this question, California Courts have developed

2026Mot. at 15. 115 US Dominion, Inc., 2021 WL 5984265 , at *26. 116 Id. 117 ZL Technologies, Inc. v. Does 1-7, 220 Cal.Rptr.3d 569, 589 (Cal. Ct. App. 2017). 23 the opinion can constitute actionable defamation.”118 Whether a statement constitutes a statement of fact or opinion is a question of law.119 As such, this Court must determine whether the statements expressed in FNN’s broadcasts are actionable: “whether a reasonable fact finder could conclude that the published statement declares or implies a provably false assertion of fact.”120 To answer this question, California Courts have developed

2026Mot. at 15. 115 US Dominion, Inc., 2021 WL 5984265 , at *26. 116 Id. 117 ZL Technologies, Inc. v. Does 1-7, 220 Cal.Rptr.3d 569, 589 (Cal. Ct. App. 2017). 23 the opinion can constitute actionable defamation.”118 Whether a statement constitutes a statement of fact or opinion is a question of law.119 As such, this Court must determine whether the statements expressed in FNN’s broadcasts are actionable: “whether a reasonable fact finder could conclude that the published statement declares or implies a provably false assertion of fact.”120 To answer this question, California Courts have developed

2026Mot. at 15. 115 US Dominion, Inc., 2021 WL 5984265 , at *26. 116 Id. 117 ZL Technologies, Inc. v. Does 1-7, 220 Cal.Rptr.3d 569, 589 (Cal. Ct. App. 2017). 23 the opinion can constitute actionable defamation.”118 Whether a statement constitutes a statement of fact or opinion is a question of law.119 As such, this Court must determine whether the statements expressed in FNN’s broadcasts are actionable: “whether a reasonable fact finder could conclude that the published statement declares or implies a provably false assertion of fact.”120 To answer this question, California Courts have developed

2026A plaintiff can demonstrate actual malice through circumstantial evidence.129 Circumstantial evidence may include: (i) obvious reason to doubt the veracity of the informant; (ii) a basis wholly on an unverified, anonymous source; (iii) such an inherent improbability ‘that only a reckless man would have put them in circulation;’ (iv) financial motive; (v) a departure from journalistic standards; (vi) a preconceived false narrative; and (vii) a refusal to retract the statement and continuing to repeat statements that have been proven false.130 125 Mosesian v. McClatchy Newspapers, 233 Cal.App.3d

2026A plaintiff can demonstrate actual malice through circumstantial evidence.129 Circumstantial evidence may include: (i) obvious reason to doubt the veracity of the informant; (ii) a basis wholly on an unverified, anonymous source; (iii) such an inherent improbability ‘that only a reckless man would have put them in circulation;’ (iv) financial motive; (v) a departure from journalistic standards; (vi) a preconceived false narrative; and (vii) a refusal to retract the statement and continuing to repeat statements that have been proven false.130 125 Mosesian v. McClatchy Newspapers, 233 Cal.App.3d

2026Mot. at 15. 115 US Dominion, Inc., 2021 WL 5984265 , at *26. 116 Id. 117 ZL Technologies, Inc. v. Does 1-7, 220 Cal.Rptr.3d 569, 589 (Cal. Ct. App. 2017). 23 the opinion can constitute actionable defamation.”118 Whether a statement constitutes a statement of fact or opinion is a question of law.119 As such, this Court must determine whether the statements expressed in FNN’s broadcasts are actionable: “whether a reasonable fact finder could conclude that the published statement declares or implies a provably false assertion of fact.”120 To answer this question, California Courts have developed

2026Mot. at 15. 115 US Dominion, Inc., 2021 WL 5984265 , at *26. 116 Id. 117 ZL Technologies, Inc. v. Does 1-7, 220 Cal.Rptr.3d 569, 589 (Cal. Ct. App. 2017). 23 the opinion can constitute actionable defamation.”118 Whether a statement constitutes a statement of fact or opinion is a question of law.119 As such, this Court must determine whether the statements expressed in FNN’s broadcasts are actionable: “whether a reasonable fact finder could conclude that the published statement declares or implies a provably false assertion of fact.”120 To answer this question, California Courts have developed

2024Sept. 12, 1986)). 41 Holmes v. State, 135 A.3d 79 (TABLE), 2016 WL 1055050, at *5 (Del. 2016) (quoting Turner, 957 A.2d at 574 ). 42 See, e.g., Morrison, 135 A.3d at 70 . 43 Holmes, 2016 WL 1055050, at *4 (quoting Hubbard v. State, 16 A.3d 912, 917 (Del. 2011)). 12 The State has the burden to demonstrate a valid waiver.44 When considering the circumstances of the waiver, the court “may consider whether the defendant: (1) Comprehended the nature of the right he forfeited; (2) Indicated, by words or conduct, an affirmative desire to relinquish the right; and (3) Voluntarily relinquished the righ

2024Sept. 12, 1986)). 41 Holmes v. State, 135 A.3d 79 (TABLE), 2016 WL 1055050, at *5 (Del. 2016) (quoting Turner, 957 A.2d at 574 ). 42 See, e.g., Morrison, 135 A.3d at 70 . 43 Holmes, 2016 WL 1055050, at *4 (quoting Hubbard v. State, 16 A.3d 912, 917 (Del. 2011)). 12 The State has the burden to demonstrate a valid waiver.44 When considering the circumstances of the waiver, the court “may consider whether the defendant: (1) Comprehended the nature of the right he forfeited; (2) Indicated, by words or conduct, an affirmative desire to relinquish the right; and (3) Voluntarily relinquished the righ

2024Sept. 12, 1986)). 41 Holmes v. State, 135 A.3d 79 (TABLE), 2016 WL 1055050, at *5 (Del. 2016) (quoting Turner, 957 A.2d at 574 ). 42 See, e.g., Morrison, 135 A.3d at 70 . 43 Holmes, 2016 WL 1055050, at *4 (quoting Hubbard v. State, 16 A.3d 912, 917 (Del. 2011)). 12 The State has the burden to demonstrate a valid waiver.44 When considering the circumstances of the waiver, the court “may consider whether the defendant: (1) Comprehended the nature of the right he forfeited; (2) Indicated, by words or conduct, an affirmative desire to relinquish the right; and (3) Voluntarily relinquished the righ

2020The U.S. Supreme Court extended that right in Miranda v. Arizona, 384 U.S. 436 (1966), to in-custody interrogations of a suspect of a crime and established procedures to assure that custodial interrogations respect that right.4 The Delaware Supreme Court stated in Marine v. State, “it [Miranda] established that law enforcement officials may not constitutionally subject citizens to custodial interrogations without their having been first advised of certain rights protective of their Fifth Amendment privilege against self-incrimination.”* The Court went on to say, “The obligation of police to du

2018Ch. 2007). 113 473 A.2d 805 . 114 Rales v. Blasband, 634 A.2d 927, 933 (Del. 1993). 115 Id. 116 Id. at 933-34 & n.9.

2018Ch. 2007). 113 473 A.2d 805 . 114 Rales v. Blasband, 634 A.2d 927, 933 (Del. 1993). 115 Id. 116 Id. at 933-34 & n.9.

2018Under Delaware law, depending on the factual scenario, there are two different tests for determining whether demand may be excused: the Aronson test and the Rales test.112 The test articulated in Aronson v. Lewis113 generally applies when “a decision of the board of directors is being challenged in the derivative suit.”114 On the other hand, one of the circumstances in which the test set forth in Rales v. Blasband115 would govern is when “the board that would be considering the demand did not make a business decision which is being challenged in the derivative suit,” such as “where directors a

2016To determine the reliability of the identification, the trial judge must apply the Neil v. Biggers totality of the circumstances test and consider: first, the opportunity of the witness to view the criminal at the time of the offense; second, the witness‘ degree of attention; third, the accuracy of the prior description; fourth, the level of certainty demonstrated by the witness at the confrontation; and fifth, the length of time between the crime and confrontation.). 28 Id. 29 Def.‘s PCR Motion, Sep. 15, 2015, p. 82-88. 30 Atkinson v. State, 778 A.2d 1058, 1062 (Del. 2001). 7 to cross-examine

2016IV). 4 Flonnory v. State, 109 A.3d 1060, 1063 (Del. 2015). 5 Missouri v. McNeely, 133 S. Ct. 1552 (2013); Flonnory, 109 A.3d at 1064 . 6 Flonnory, 109 A.3d at 1065 ; Higgins, 2014 WL 1323387 , at *2. 3 with police; and (4) the length of detention and the nature of questioning, including the use of physical punishment or other coercive police behavior. 7 The Delaware Supreme Court has provided some guidance on what “other coercive police behavior” is.

2016IV). 4 Flonnory v. State, 109 A.3d 1060, 1063 (Del. 2015). 5 Missouri v. McNeely, 133 S. Ct. 1552 (2013); Flonnory, 109 A.3d at 1064 . 6 Flonnory, 109 A.3d at 1065 ; Higgins, 2014 WL 1323387 , at *2. 3 with police; and (4) the length of detention and the nature of questioning, including the use of physical punishment or other coercive police behavior. 7 The Delaware Supreme Court has provided some guidance on what “other coercive police behavior” is.

2015See State v. Fierro, 853 N.W.2d 235, 243 (S.D.2014) (ruling that a Fourth Amendment totality of the circumstances analysis must be performed to determine whether consent to a blood draw was voluntary); State v. Wulff, 157 Idaho 416 , 337 P.3d 575, 581 (2014) (same); Byars v. State, — Nev. -, 336 P.3d 939 , 942 (2014) (same); State v. Butler, 232 Ariz. 84, 87 , 302 P.3d 609 (Ariz.2013) (same). .Flonnory, 2013 WL 3327526 , at *6. .

2015See State v. Fierro, 853 N.W.2d 235, 243 (S.D.2014) (ruling that a Fourth Amendment totality of the circumstances analysis must be performed to determine whether consent to a blood draw was voluntary); State v. Wulff, 157 Idaho 416 , 337 P.3d 575, 581 (2014) (same); Byars v. State, — Nev. -, 336 P.3d 939 , 942 (2014) (same); State v. Butler, 232 Ariz. 84, 87 , 302 P.3d 609 (Ariz.2013) (same). .Flonnory, 2013 WL 3327526 , at *6. .

2015By its very nature, a blood draw is an intrusion into the human body that is fundamentally different from a breath sample.1 The General Assembly has acknowledged that the “normal rules of search and seizure law” apply in this context.2 And the normal rules require a search warrant for a blood draw absent a recognized exception to the warrant requirement. 1 See Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 625 (1989) (“Unlike blood tests, breath tests do not require piercing the skin and may be conducted safely outside a hospital environment and with a minimum of inconvenience or em

2015See State v. Fierro, 853 N.W.2d 235, 243 (S.D.2014) (ruling that a Fourth Amendment totality of the circumstances analysis must be performed to determine whether consent to a blood draw was voluntary); State v. Wulff, 157 Idaho 416 , 337 P.3d 575, 581 (2014) (same); Byars v. State, — Nev. -, 336 P.3d 939 , 942 (2014) (same); State v. Butler, 232 Ariz. 84, 87 , 302 P.3d 609 (Ariz.2013) (same). .Flonnory, 2013 WL 3327526 , at *6. .

2015See State v. Fierro, 853 N.W.2d 235, 243 (S.D.2014) (ruling that a Fourth Amendment totality of the circumstances analysis must be performed to determine whether consent to a blood draw was voluntary); State v. Wulff, 157 Idaho 416 , 337 P.3d 575, 581 (2014) (same); Byars v. State, — Nev. -, 336 P.3d 939 , 942 (2014) (same); State v. Butler, 232 Ariz. 84, 87 , 302 P.3d 609 (Ariz.2013) (same). .Flonnory, 2013 WL 3327526 , at *6. .

2015See State v. Fierro, 853 N.W.2d 235, 243 (S.D.2014) (ruling that a Fourth Amendment totality of the circumstances analysis must be performed to determine whether consent to a blood draw was voluntary); State v. Wulff, 157 Idaho 416 , 337 P.3d 575, 581 (2014) (same); Byars v. State, — Nev. -, 336 P.3d 939 , 942 (2014) (same); State v. Butler, 232 Ariz. 84, 87 , 302 P.3d 609 (Ariz.2013) (same). .Flonnory, 2013 WL 3327526 , at *6. .

2015See State v. Fierro, 853 N.W.2d 235, 243 (S.D. 2014) (ruling that a Fourth Amendment totality of the circumstances analysis must be performed to determine whether consent to a blood draw was voluntary); State v. Wulff, 337 P.3d 575, 581 (Idaho 2014) (same); Byars v. State, 336 P.3d 939 , 942 (Nev. 2014) (same); State v. Butler, 232 Ariz. 84, 87 (Ariz. 2013) (same). 33 Flonnory, 2013 WL 3327526 , at *6. 10 application to the facts of this case.

1992Beyond that observation, it is not our province to impose a wholly separate analysis contrary to the statute’s clear and unambiguous language. 2 See Spielberg v. State, Del.Supr., 558 A.2d 291, 293 (1989) (“Where the intent of the legislature is clearly reflected by the unambiguous language in the statute, the language itself controls”).