notes for a civil action

Pleadings

Jan files the complaint of negligence against  Beatrice Foods and W. R. Grace and Company.

Methods of Discovery

Jan starts the deposition by questioning many emplyees of the cattle tannery. Finally Al Love, a resident of Wooburn and father of eight, admitts he saw other employees of the tannery dumping  trichloroethylene in a pit referred to as “the swimming pool”. This gives Jan his first breakthrough.

Pretrial Hearing

Cheesman, the attorney for Grace Industries, attempts to have the case thrown out on by saying that the plaintiff does not have enough evidence or findings to keep the case going. However, the judge denies his motion. Jan is making a lot of progress in the case so he is called in for a settlement by the companies. He is offered $20 million to settle and replies with an offer of about $300 million. The attoneys for the defending companies laugh at this offer and walk out of the meeting.

Trial Stage

Selecting the Jury

When the case goes to trial Jerome Facher appeals to the judge to have no jury for the case. He claims the emotions of the jury would take the legal element out of the case and sway the results. He is granted his appeal.

Opening Statements

Jan opens saying he will prove the trichloroethylene has been negligently dumped by the tannery and it has resulted in the poluting of the drinking water, therefor resoncible for the deaths of the children. The Opposing attoneries state they will prove the tannery is not responcible for the deaths of the children.

Introduction of Evidence

Jan presents the testimonial from Al Love and the geological findings of the geologist he hired.

Closing Arguments

Jan closes with a summary of his evidnce and restates that Beatrice Foods and W. R. Grace and Company are respncible for the deaths of the children. The apposing attorneys close by saying the companies they are defending are not responcible for the death of the children.

Verdict and Judgement

Jan loses the case becuase there was not enough evidence.

Execution of Judgement

Stateless Society

Our existing society has a range of laws to protect and serve people and establishments. These laws protect citizens and establishments against crimes that are harm other people and take away from their quality of life. Our government also has programs to improve the quality of life. These programs include the building and maintenance of roads, public parks, and other public facilities. These programs are often funded by taxing the citizens of the society.

In a stateless society none of this exists. People can do what ever they want, when ever they want, and have no responsibility for their actions. People can cheat, kill, and steal with no consequences. There is also no organization that is responsible for the construction and maintenance of public projects. Therefor there is usually not a well developed transportation system or a very high quality of life.

Without a government containing a balance of power a nation would likely go into chaos. Eventually gangs would form and take a role of power and establish some sort of order. Murders and thefts would increase tremendously and merchants would most likely lie about the features and benefits of their products.

Hitler almost succeeded in eliminating the balance of power between citizens and government. If he had succeeded it would not have lasted for long. If abused enough the masses would rise up and defeat the government.

Chapter 2: Language of the law

1) Crime

2) Felony

3) Murder

4) Assault

5) Prosecutor

6) Burglary

7) Robbery

8) Misdemeanor

9) Defendant

10) Sentance

Chapter 2: Criminal Law

Criminal Law

Crime-is an act against the public good punishable by a fine or imprisonment or both.

I. Classification of Crime

1. Prosecutor- the state or federal government representing the public.

2. Defendant- the person who is accused of a crime.

Felonies: is a major crime punishable by imprisonment or death.

(Any type of punishment that is over 1 year)

(Murder, Manslaughter, Burglary, Arson)

Misdemeanors: a less serious crime with a less severe penalty, in some states this is called a petty offense.

(Fine or imprisonment in a country or city jail for less than one year)

II. Elements of a Crime

1. Criminal Act

2. Required State of Mind (Intent)

3. Motive ??????

Criminal Act- statutes that define a crime explains the conduct that is forbidden. In order for something to be considered a criminal act, there must be a statute that defines the act as criminal.

Required State of Mind-each statute defineing a crime also defines the state of mind of the individual.

*Statute forbiddign murder “The intentional taking of a persons life.”

*Manslaughter- “Involuntary act due to negligience.”

Motive- motive is not considered an element of a crime because the lack of a motive does not remove criminal liability. “A crime can be committed without a necessary motive.”

III. Particular Crimes

A. Crimes against people “Cides” Homocide-killing one human being by another , Suicide, genocide, fracticide

B. Crimes against property

C. Crimes against business interests/ computers

  1. Crimes against people- the “CIDES” Homocides, suicide, Genocide,
  2. Crimes against property
  3. Crimes against business intrests/computers

Homocide- killing of one human being by another, IS IT EVER JUSTIFIABLE

  1. Murder- killing of another individual with malice atorethought. First degree murder, severe cruelty, torture, while comitting a felony.
  2. Second Degree- same as first degree but not as cruel.

Types of Felonies-

  1. For a class A felony, the term shall be life imprisonment; 25-life
  2. For a class B felony, the term shall be fixed by  the  court,  and
    shall not exceed twenty-five years 15-25
  3. For  a  class C felony, the term shall be fixed by the court, and
    shall not exceed fifteen years; 7-15 yrs
  4. For a class D felony, the term shall be fixed by  the  court,  and
    shall not exceed seven years; 4-7 yrs
  5. For  a  class E felony, the term shall be fixed by the court, and
    shall not exceed four years. 1-4yrs

1. Manslaughter=

1st degree- with intent of injury.

Felony- class b 15-25

2nd degree- Reckless causing of death of an individual.

Felony- class c 7-15 yrs

2. Assault and Battery- Felony/Misdemeanor

a. Assault- an attempt (threat) to injure an individual.

b. Aggravated Assault- Threat with the use of a deadly weapon.

c. Battery- unlawful touching of an individual, that is associated with an assault.

Only offense that can be tried criminally and civilly.

3. Kidnapping-

The unlawful removal or restraint of a person against their will. (i.e. Ransom, torture, rape)

A  person  is guilty of kidnapping in the first degree when he abducts
another person and when:
1. His intent is to compel a third person to pay or deliver  money  or
property  as  ransom,  or  to  engage in other particular conduct, or to
refrain from engaging in particular conduct

a)kidnapping in the 1st degree- A-1 life in prison

4. Sexual Related Offenses

Forced sexual intercourse-Rape

1. Minor “Statuatory Rape”- Age of consent is only 18

2. Adult

Rape in the 1st Degree-  A  person is guilty of rape in the first degree when he or she engages
in sexual intercourse with another person:
1. By forcible compulsion; or
2. Who is incapable of consent by reason of being physically helpless;
or
3. Who is less than eleven years old; or
4. Who is less than thirteen years old and the actor is eighteen years
old or more.
Rape in the first degree is a class B felony.

Rape in the second degree.
A person is guilty of rape in the second degree when:
1.  being  eighteen  years  old  or  more, he or she engages in sexual
intercourse with another person less than fifteen years old; or
2. he or she engages in sexual intercourse with another person who  is
incapable  of  consent  by reason of being mentally disabled or mentally
incapacitated.
It shall be an affirmative defense to the crime of rape in the  second
degree  as defined in subdivision one of this section that the defendant
was less than four years older than the victim at the time of the act.
Rape in the second degree is a class D felony.

Rape in the third degree.
A person is guilty of rape in the third degree when:
1.  He or she engages in sexual intercourse with another person who is
incapable of consent by reason of some factor other than being less than
seventeen years old;
2. Being twenty-one years old or more, he or  she  engages  in  sexual
intercourse with another person less than seventeen years old; or
3. He or she engages in sexual intercourse with another person without
such  person’s  consent  where such lack of consent is by reason of some
factor other than incapacity to consent.
Rape in the third degree is a class E felony.

Crimes against Property

A. Burglary in the first degree.
Burglarly is breaking and enering into at night with the intent to commit a lacrceny (Stealing)

Burglary in the first degree is a class B felony.

B. Robbery- the wrongful and taking away of one’s personal property that is accompanied by violence or threats. Felony

Robbery in the first degree is a class B felony.
C. Larceny-The unlawful taking and carrying away of anothers personal property.

Petty Larceny-misdemeanor $300 or less

Grand Larceny- More than $300

D. Embezzlement-unlawful taking of ones property, that was entrusted to you by that person. (Ex. Cashier, Bank teller, stockbroker) Bernie Madoff!

E. Arson- the willful malicious burning of a dwelling (home) or place of business.

Arson in the first degree is a class A-I felony.

Crimes against business interests

white collar crimes that involve deceit and fraud nonviolent

A) Larceny by False Pretense- intentionally decieving an individual to gain for the purpose of monetary gains. Ponzi Scams!

B) Forgery- false making or changing of a writing with intent to defraud. The “Writing ” was made without authorization.

C) Bribery and Extortion- Bribery is to pay/compensate or give something of value to a public official in order to influence them. Extortion is to accept a bribe.

 

Defenses to crimes

1) Insanity-

Tests

 

A) American Law Institute

B) McNaughton Test

2) Entrapment- When an individual is influenced to commit a crime by a public official that he or she would not have normally committed.

Chapter 1: You and the Law

Morals and Ethics

Laws

Morality = Right and Wrong = Ethics

  1. Morality- Values and individual is raised with that is accepted by society. (Southern States, Northern States, Middle East)
  2. Ethics- The values of right and wrong derived from ones morals.
  3. Does morality and ethics ever come in conflict?  Yes.
  4. Moral Person- An individual who believes in and accepts the values of society.
  5. Immoral Person- An individual who doesn’t abide or with intent deliberately goes against social morals.
  6. Amoral- “Sociopath” A person who has no regard for morality and is out of touch with the values of society.
  7. Law- A set of legal principles or guide lines set forth by government that promotes the general welfare of society.

How do we make ethical decisions?

  1. Feelings and Opinions
  2. The Greatest Good
  3. The Golden Rule

Articles To The Constitution

Article 1- Legislative Branch.

Article 2- Executive Branch.

Article 3- Judicial Branch.

Article 4- Relationship among states.

Article 5- The Amending Process.

Article 6- Supremacy Clause.

Article 7- Provided for ratification of the constitution.

Bill of Rights- Amendments 1-10

  • In order to protet the fundamental rights of citizens
  • Agreed uponthe signing of the US Consitution
  • Today there are 26 Amendments

Articles

Article 1-

Article 2- President can not declare war.

Article 3- The Judicial branch

Amendments

1- freedom of speech, the press, and to petition.

2- right to bear arms.

3- quartering act.

4- search and seizure.

5- right to remain silent, due process, eminent domain, and double jeopardy .

6- speedy and public trial, attorney must be provided.

7- Civil trials.

8- Excessive bail, and cruel and unusual punishment.

9- Enumerated powers.

10- States have the power to create laws that are not listed in the constitution.

Case Laws

Hazelwood v. Kuhlmeier (1983)

A student wrote about controversial topics in a school newspaper. The Principal took it out.

The students appealed it based on the first amendment right.

The school stated the newspaper was a private forum and they had the right to censor it.

The Supreme court decided the school had the right to censor it to protect the welfare of the students.

Regents of the University of California v. Bakke

Bakke was denied from admission while minorities with lower scores were admitted.

Allan Bakke felt the school had violated the 14th amendment.

The college stated the program helped curve the issues faced by minorities.

The Supreme court decided the minority quota was unconstitutional.

Gideon v. Wainwright

Gideon was not allowed to have a lawyer when he couldn’t afford one.

Gideon was convicted because he had to defend himself.

He appealed the decision based on the 6th amendment right, arguing he would have have a better chance had he been provided a lawyer.

The Supreme court ruled it unconstitutional to deny anyone a lawyer when being tried.

Pointer v. Texas

An individual named Stevenson was indicted for murdering a hotel manager.

He was convicted but the courts reversed the conviction because the evidence was inadmissible.

Pointer requested to cross examine a witness and was denied.

Miranda v. Arizona

Miranda was accused of raping a woman.

He admitted it.

His Miranda rights were not read to him.

He argued his was denied his 5th and 6th amendment rights were denied because when arrested he was not read his Miranda rights.

The Supreme court argued all must be read their Miranda rights when arrested.

Pleasy v. Fergeson

Pleasy was sitting in a section of the train that was for whites only.

Pleasy was 1/8th black.

He argued his 13th and 14th amendment rights were violated.

The Supreme court deemed separate but equal constitutional.

New Jersey v. T.L.O.

A student was found smoking in the bathroom of a school.

The vice principal searched her bag and found cigarettes, rolling papers, marijuana, and money.

She was arrested of possession and intent to distribute marijuana.

She argued she was illegally searched.

The Supreme court ruled that students are guaranteed the fourth amendment and fifth amendment rights at school but school officials are allowed to search a student based on probable cause.

Roe v. Wade

Roe wanted to abort her pregnancy because she felt she couldnt support the baby.

The state claimed she couldnt abort the baby.

She claimed they violated her first, fourth, fifth, ninth, and fourteenth amendment.

The Supreme court ruled in favor of Roe.

Griswold v. Conneticut

The director of planned parenthood was found guilty of providing contraception advice to people.

They argued it was against their 14th amendment right and intruded marital privacy.

The Supreme court deemed all contraception legal.

Mapp v. Ohio

Cleveland police suspected Mapp was hiding an arsonist in her house.

They unlawfully searched her house and found pornography in her basement  which is unlawful in Ohio.

Mapp appalled to the Supreme court claiming the police violated her fourth amendment right because they didn’t have a warrant.

The Supreme court ruled that the evidence was inadmissible because the evidence was gained illegally.

Carroll v. United States

Two men were arrested because the police found alcohol in their car.

The men appealed saying they needed probable cause to search their vehicle.

The police claimed they had probable cause.

The Supreme court claimed warrants are not needed for all vehicle searches because a vehicle car leave the state while a house can not. They did state there must be cause to search a vehicle.

Olmstead v. US

Olmstead was convicted via wiretapping of violating alcohol laws.

Olmstead claimed illegal search and seizure and illegal self incrimination.

The defense stated the wiretaps were placed on their property and not on his property.

The Supreme court stated the 4th and 5th amendment rights were not violated.

It was later overturned and declared wiretapping to be illegal.

Tinker v. Des Mois

Tinker protested the Vietnam war by wearing black arm bands to school.

The school suspended them for it.

Tinker argued this violated the 1st and 14th amendment.

The school claimed tinkers actions disrupted the learning environment.

The Supreme court ruled in favor of Tinker.

Marbury v . Madison

Marbury claimed he had a write to see the papers officiating his position as a supreme court judge.

Madison denied Marbury the position because his papers could not be found.

Marbury did not become a Supreme court justice.

Gibbons v. Ogden

Gibbons stated he could use the water ways.

Ogden stated he had a license to use the water ways so no one else should be allowed to.

The Supreme court declared Gibbons was allowed to use the water ways because they were public.

US v. Leon

Police received tips about drug dealers.

Police filed for a warrant and were granted one but it was later deemed invalid.

the police searched the houses and the evidence was deemed admissible.

Although the warrant was deemed invalid the evidence was upheld.

Weems v. United States

Weems was unfairly punished. He was sentenced to 15 years in prison and hard labor for a small offense.

The Supreme court interpreted the punishment as cruel and unusual.