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UNIT 1ETHICS AND THE
COURT SYSTEMTo see what is right and not to do it is want of
courage. Confucius 551BC - 479BC, Chinese
philosopher, The Analects, Book II, Chapter XXIV
HONESTY-- ability to be open and truthful in dealing with other people.
FAIRNESS --ability to treat people fairly and equally.
COMPASSION -- ability to be sympathetic and help others with problems.
INTEGRITY -- ability to do what is right, regardless of personal consequences.
FOUR ETHICAL CHARACTER TRAITS
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Ethics tell us what we should do
but
people don’t always do what they should do
LAWS
provide a standard
of behavior
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LAW
System of rules of conduct established by the government of a society to maintain stability and justice.
SIMPLE PUT:
Type of plan for controlling the conduct of people
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FOUR FUNCTIONS OF LAW
1. Settling disputes
2. Establishing and maintaining order
3. Protecting the individual and their property
4. Promoting the general welfare
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COST OF LAW
1. Freedom
2. Money
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SOURCES OF AMERICAN LAW1. ENGLISH COMMON LAW –practice of deciding cases
on precedence.
2. ROMAN CIVIL LAW –This is the law—no exceptions
DOCTRINE OF STARE DECISIS –
LATIN FOR: “let the decision stand”
(also known as “doctrine of precedent” or “precedence”)
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3. ECCLESIASTICAL LAW – Church Law
Very powerful
PRESENT SOURCES OF TODAY’S LAWSWhat is the highest law in the land?
THE CONSTITUTION (1789)
1. DEFINES LIMITS WITHIN WHICH THE FEDERAL
AND STATE GOVERNMENTS CAN PASS LAWS
2. NO LAW CAN CONFLICT WITH THE U. S. CONSTITUTION
IF A LAW CONFLICTS WITH THE U.S. CONSTITUTION, IT CAN BE DECLARED UNCONSTITUTIONAL 9
1. FEDERAL AND STATE CONSTITUTIONS limits of both defined by U.S. Constitution.
2. STATUTES (aka codified law) Law created for specific purpose enacted by legislative body ex: seatbelts 3. COURT DECISIONS (aka case law) Based on judicial
decision and precedent rather than statutes
COURT RESPONSIBILITY: a. Follow precedent
b. Enforce Statutes—Fed. Law enacted by Congress; State law enacted by State Legislature c. Provide Judicial Review to determine if law violates constitution thus declaring it unconstitutional.
4. ADMINISTRATIVE LAW – rules and procedures established by regulatory agencies (ex: energy, environment, int’l trade, taxation, immigration) 10
SOURCES OF AMERICAN LAW (CON’T)
SOURCES OF BUSINESS LAW
LAW MERCHANT – trading standards used by merchants
U.C.C. – Uniform Commercial CodeDefined as:Laws adopted by all the states to ensure uniformity and fair dealing in business and commercial transactions.
In other words, when business is done between states. Examples: movement of goods from one state to another, transfer of funds between banks. 11
U.S CONSTITUTIONSupreme law in the land
7 ARTICLES
27 AMENDMENTSFIRST 10 AMENDENTS – BILL OF RIGHTS
Protect citizens from State
WHO IS THE STATE?
1. U.S CONSTITUTION IS THE MOST FUNDAMENTAL LAW IN OUR COUNTRY
2. SPELLS OUT THE PRINCIPLES BY WHICH THE GOVERNMENT OPERATES
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FIRST AMENDMENT
This amendment guarantees the right of freedom
of religion, freedom of speech, freedom of press,
freedom for people to assemble peaceably, and
freedom for people to petition the government for
change.
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FLAG PROTECTION ACT (FPA) OF 1989
The FPA provided penalties of up to one year in jail and a $1,000 fine for anyone who “knowingly mutilates, physically defiles, burns, maintains on the floor or ground, or tramples
upon any flag of the United States” with “flag” defined as “any flag of the United States
DOES THIS LAW INFRINGE ON YOUR 1ST AMENDMENT RIGHTS FREEDOM OF SPEECH?
Click on the link below:Flag Protection Act - Wikipedia, the free encyclopedia
U.S. vs Eichman (1990)Does this act infringe on lst amendment constitutional rights
of freedom of speech? If so, how?
FIRST AMENDMENT
FREEDOM OF SPEECH
Three tests to determine if there is infringement on freedom of speech. The law:
1. must allow substantial other guarantees for speech to take place.
2. must be context neutral
3. must narrowly serve a significant state interest
15June 2009 - Supreme Court rules protests at troops' funerals can continue
Fall, 2010 – Snyder v. Phelps case to be heard by Supreme Court
Protests at a soldier's funeral –how did the high court rule?
ESTABLISHMENT CLAUSE—Congress shall make no laws respecting the establishment of religion.
1. LAWS MUST HAVE A SECULAR (not religious) PURPOSE.
2. NEITHER ADVANCES OR INHIBITS RELIGION. NO EXCESSIVE ENTANGLEMENT BETWEEN CHURCH AND STATE.
Which means: Congress must maintain “constitutional neutrality” in government/religion matters. Click on link below and read:
Lemon v. Kurtzman - Wikipedia, the free encyclopedia
FIRST AMENDMENTFREEDOM OF RELIGION
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CONSTITUTIONAL CLAUSECOMMERCE CLAUSE (Article I) states that Congress has the power to regulate commerce with foreign nations, among the states, and with the Native American tribes. 14th Amendment --PRIVILEGES AND IMMUNITIES CLAUSE protects a person's rights as a citizen of the United States from unreasonable State Action or interference
(i.e. 1873 Slaughter-House Case - The case involved a Louisiana state law that gave one meat company the exclusive right to slaughter livestock in New Orleans. Other packing companies were required to pay a fee for using the slaughterhouses. These companies filed suit, claiming that the law violated the Privileges and Immunities Clause of the Fourteenth Amendment and won.
EQUAL PROTECTION CLAUSE –The 14th Amendment, ratified in 1868, became part of the U.S. Constitution in the wake of the Civil War, with the direct purpose of protecting the legal rights of African Americans recently emancipated from slavery. The equal protection clause, however, has been applied by the courts to protect the rights of all individuals under the authority of the Constitution. (Brown vs. Board of Education 1964 case)
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CONSTITUTIONAL TESTS – when reviewing cases involving equal
protection issuesSTRICT SCRUTINY — must show compelling state interest ex: race Roe vs. Wade 1973
INTERMEDIATE SCRUTINY – substantially related to an important government objective ex: sex, gender
Craig vs. Boren 1976RATIONALLY RELATED – legitimate state interest
ex: hair length, tattoos, practicing w/o license
Can a public high school ban a certain brand of clothing because they think it is gang related?
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A DUAL COURT SYSTEMTwo parts of U.S. system of justice:
1. State Court system deals with local and state matters and violation of state laws.
2. Federal Court deals with federal matters and diversity of citizenship.
Diversity of citizenship – to sue in federal court, one of the criteria is the citizens involved in the suit must be from two different states or one from another country and money amounts of $75,000 or more.
JURISDICTIONPower and authority given a court to hear a case and make a judgment.
1. Subject Matter--type of case (not waivable)
2. Territorial - geographical area court serves
3. Personal Jurisdiction a. Based on physical presence in the state
b. Presence of property within the statec. Consent – crossing state lines/accept rulesd. Minimum contacts – ex: company branch,
phone call w/o physical presence
4. Venue--Best place for a trial to take place2009 – trial of Johannes Mehserlae Oakland transit officer, moved from Oakland to Los Angeles for fear of racial charged riots—white officer kills black unarmed man following transit fight.
2010 – Johannes Mehserlae claims he reached for his taser, not his gun. Jury found him guilty of involuntary manslaughter = 4 yrs. Riots have created unreleased damage estimates, over 80 arrests.
DISTRICT COURTS (U.S. District Court in Cleveland)
has ORIGINAL JURISDICTION — try case for first time
U. S. COURT OF APPEALS ( 11th District Court of Appeals – Warren)
Review cases on appeal from lower court -- APPELLATE JURISDICTION
OHIO FEDERAL COURTS(three levels)
SUPREME COURT (Columbus) – ORIGINAL JURISDICTION
Original jurisdiction over: a) public government officials, b) cases in which state a party; c) cases of constitutionality of federal law
A vote 4 out of 9 justices determine which cases on appeal will be heard by the Supreme Court
STATE COURT SYSTEMLIMITED JURISDICTION--minor matters handled by lower trial courts. (Ex: misdemeanors, civil actions involving small amounts of money.) Mentor Municipal Court (limited jurisdiction)a.Traffic - Mentor/Mentor on the Lake (Ex: speeding, seat belt violation, driving w/o insurance, running red light)
b.Small Claims -- up to $3,000 (Ex: unpaid debt, breach of contract, back rent, broken or damaged property, etc.)
c.Civil Division – over $3,000 – not over $15,000 (Ex: automobile or personal accidents, landlord-tenant disputes, product or professional liability disputes, etc.)
d.Criminal Division - all misdemeanors, domestic violence, OVI (OVI—operating while visibly impaired .08 blood alcohol level) replaced DUI
e.Arraignment—formal charges brought against you and you will have to submit a plea of guilty or not
guilty.
Judge John Trebets tries all misdemeanors and ordinance violations occurring within Mentor and Mentor-on-the-Lake. Mentor Municipal Court hears traffic citation cases, civil cases valued up to $15,000, landlord/tenant cases, and all Small Claims complaints valued up to $3,000. All felony cases are heard to determine probable cause and then bound over to the Lake County Common Pleas Court in Painesville.
STATE COURT (continued)
GENERAL JURISDICTION – criminal and civil casesCommon Pleas Court – Painesville (general jurisdiction)
a. Civil Division – over $500, no limit
b. Criminal Division – handles felonies
c. Domestic Relations—divorce, annulment, dissolution
d. Juvenile—delinquent (16-18), unruly (ex: curfew, skipping school, neglected,
or abused (homeless, destitute, or lack of parental care
e. Probate (wills, estate issues)
FEDERAL DISTRICT COURT (Cleveland)
3. Concurrent Jurisdiction with State courts
a. Amount in controversy $75,000 or more
b. Diversity of citizenship (citizens of different states)
c. Venue in federal courts
1. Federal laws, bankruptcy, patents, trademarks, admiralty (sea)
2. Violation of constitutional rights
1. Where plaintiff resides ( π )2. Where defendant resides ( )
3. Where claim arose
APPELLATE COURTS
(by rights)Ohio 11th District Court of Appeals--Warren
(closest court to us)Federal 6th Circuit Court of Appeals--Cincinnati
(Closest appellate court to us)How many Appellate Courts in Ohio?
(12 appellate courts)Ohio Supreme Court (Columbus, Ohio)
(7 justices)U. S. Supreme Court (Washington, DC)
(9 justices)
ADR ALTERNATIVE DISPUTE RESOLUTION
ADVERSARY PROCEEDINGS –
ADR when parties try to resolve disagreements outside of the usual adversarial system saving time and money
for everyone.Reactive--- Mediation – a third party helps both parties
find a solution
Arbitration – a third party settles the dispute for the parties involved
Proactive---Partnering – both parties get to know each other and work out a plan for resolving disagreements (business dealings)
TRIAL PROCEDURESCRIMINAL CASES – offenses committed against public
–case brought by government (murder, arson)
CIVIL CASES – individuals who believe they have been injured – case brought by individual
(defamation of character)
PARTIES TO LAWSUITPlaintiff ( π ) – person that accuses person of
crime
Defendant ( ) – person accused of a crime
RAND STUDY Defendant ( ) for every $1.00 lost in lawsuit,
add $.58 more for legal feesPlaintiff ( π ) for every $1.00 won in a lawsuit,
subtract $.41 for legal costs
LEGAL FEEA. Hourly – average $250
B. Contingency – 33 1/3 – 40% of settlement
(contingency means dependent upon)
C. Flat fee
**Get fee agreement in writing. If attorney will not put it in writing, look around for another attorney.
PLEADINGSFormal papers filed with the court by plaintiff
(complaint) and defendant (answer)
COMPLAINT 1. Plaintiff’s allegations or claims
showing the pleader is entitled to relief
2. Demand for judgment
WHO FILES THE COMPLAINT?
The lawyer on behalf of the plaintiff
Delivery of complaint with notice of lawsuit by the
court.
30 DAYS TO ANSWER A SUMMONS
1. Certified Mail/Express Mail-- return receipt request
2. Personal Service – deliver to you personally.
3. Residence Service – anyone 16 or older can accept.
4. Publication – publish in newspaper legal section.
ANSWERDefendant’s response to those allegations
Counterclaim - sue person suing you
Reply – answer to counterclaim
Affirmative Defenses (type of defense used by defendant in
seeking to avoid liability)
Statute of Limitations (15 years to sue) 12(b)(6) Motion -can be granted only if “it
appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.”
PRE-TRIAL HEARINGInformal meeting before a judge
a. Simplify issues b. Settle out of court
DISCOVERYMethods employed to bring facts out before triala. Depositions - questions asked by your attorney to
you or anyone with information about case.
b. Interrogatories – questions drawn up by one side to ask the other.
c. Request for documents –either side can request
d. Physical and mental examinations – either side can request
e. Requests for admission- evidence discovered after discovery
ROLE OF SETTLEMENTPressure is put on the clientIf an offer is made and rejected, there is a chance of getting less or nothing once the case goes to court.
THE TRIAL
VOIR DIRE
selection of the jury in criminal trial---
(8 seated, 1 alternate)
1. Challenge for Cause – obvious reason for excusing prospective juror.
2. Peremptory Challenge – dismissed because not right for this jury (limited to 3 releases)
3.Civil Case - ¾ majority to win case
4.Criminal Case – unanimous verdict to win case
French for “to tell the truth”
In selection of jury, oath applied to proposed witnesses/jurors
that they will tell the truth
OPENING STATEMENTS(Preview of what evidence will show
and what trying to prove)
1. Plaintiff – delivers opening statement first
2. Defendant (optional)
EXAMINATION OF WITNESSES(by subpoena—court order to appear to testify)
1. Direct Examination – plaintiff or defense attorney questions own witness.
2. Cross Examination – plaintiff or defense attorney questions other party’s witnesses.
3. Re-Direct –re-questioning your witness after cross.
4. Re-Cross – if you re-direct, other side can re-cross.
MUST STAY WITHIN SCOPE OF QUESTIONS ASKED.
OBJECTIONS1. OVERRULED – over lawyer’s objections,
questioning allowed
1. SUSTAINED – over lawyer’s objections, judge agrees –witness disregards question, jury ignores question/answer
CLOSING ARGUMENTS1) Summary of evidence
2) Why judge/jury should find for their client
1. π attorney presents first
2. presents attorney last
3. Optional Rebuttal by π
JURY INSTRUCTIONJudge explains law to jury and instructs jury on
proper law to apply
JUDGMENT BY THE COURT 1. Verdict – Decision by members of jury
2. Judgment – Court decision in the case
DELIBERATIONSJury goes to jury room to decide verdict
REMEDIESPlaintiff’s entitlement to relief
1. Payment of damages
2. Equitable remedy
a. Specific Performance — defendant
to do something as promised in contract
b. Injunction – order to stop defendant from performing an action
EXECUTION OF JUDGMENT1. Writ of Restitution – take property to sell
2. Writ of Replevin – commonly used to take property from an individual wrongfully in possession of it and return it to its rightful owner.
3. Writ of Garnishment – money taken out of pay check.
4. Bank Attachment –accounts at bank used as part of judgments
5. Financial Statement – bankruptcy proceedings review financial statements to determine ability to repay debt.
6. Certificate of Judgment to BMV (Bureau of Motor Vehicles) – refers to surrender of drivers license, license plates or proof of ownership in traffic-related cases
7. Lien – claim against the property of another.
8. Aid in Execution – debtors who fail to appear may be held in contempt with a bench warrant being issued for their arrest.
CRIMINAL TRIAL PROCEDURE1. Arrest – person deprived of his/her freedom
a. Warrant – directive to arrest individual (4th amendment)
b. Miranda Rights - Inform defendant of why arrested
(5th amendment)
2. Bail – Money or property left with court to get out of jail
3. 5th Amendment & 14th Amendment to Constitution – “no state shall deprive any person of life, liberty of property without due process of law
4. Search warrant – court order to search specific areas
5. Frisk—Limited search w/o warrant. Belief concealing weapon
6. Probable Cause – search without warrant (4th amendment)
INDICTMENT/ARRAIGNMENT (criminal trial cont.)
INDICTMENT – Written accusation charging individual with crime as determined by grand jury evidence.
ARRAIGNMENT– Accused brought to court, read indictment, asked to plead guilty/not guiltyif pleads not guilty, case goes to trialif pleads guilty, judge imposes sentence.
CRIMINAL TRIAL (cont.)
TRIAL--Criminal case with jury, verdict must be unanimous—guilty beyond reasonable doubt or not guilty.
Mistrial—jury cannot agree, new trial.
SENTENCINGFine – payment of money as penalty for crime.
Imprisonment – confinement for crime as determined by judge
DEATH PENALTYConstitution guarantees fair
treatment to defendant
Appeals made to state’s highest court.
ORGARY ALVORD – 35 years on death row &
still counting
JUVENILES(Under the age of 18)
• Handled by the juvenile court which has limited jurisdiction.
• Designed so each case is handled individually.• Detention hearing to determine whether to hold
juvenile offender or send home on probation.
1. Offender sent to foster home.
2. Offender sent to reform school.
3. Offender may pay damages or parents of offender pay damages.