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Ch. 15 Law in America
Sources of American Law
• Early systems of Law
• The earliest known written laws or rules were based on
practices in tribal societies.
• Code of Hammurabi –a collection of laws assembled
by Hammurabi, king of Babylonia from 1792 to 1750
B.C. This code was made up of 282 legal cases that
spelled out relationships among individuals as well as
punishments in areas that we would now call property
law, family law, civil law, and criminal law.
• The laws that govern our lives and protect our rights
are commonly known as constitutional law, statutory
law, administrative law, common law, and equity.
• The Constitution establishes our country as a
representative democracy, outlines the structures
of our government, and sets forth our basic rights.
It applies to all Americans and is the supreme law
of the land.
• The term constitutional law applies to that branch
of the law dealing with the formation,
construction, and interpretation of constitutions. It
decides the limits of the government’s power and
the rights of the individual.
Statutory Law
• A statute is a law written by a legislative branch of government.
Statues may limit citizens’ behavior when for instance, they set
speed limits, specify rules for inspecting food products, or set
the minimum age to obtain a work permit.
• Statutes are also the source of many rights like: the right to get a
driver’s license, check your credit record, or return merchandise
that you bought but do not like.
Administrative Law
•Administrative law cases deal with problems of fairness and due
process because most administrative agencies either regulate
people’s behavior or provide or deny government benefits such as
welfare payments or medical insurance.
Common Law
The single most important basis of the American legal system
is the common law. This is law made by judges in the process
of resolving individual cases. Because it derives from the
decisions of judges in settling cases, common law is also called
case law.
Equity
•Equity is a system of rules by which disputes are resolved
on the grounds of fairness. An equity court could require an
action beyond the payment of money or even stop a wrong
before it occurred. For example, an equity court could
issue an injunction to prevent and action such as a
neighborhood building a fence across your property.
•In the nineteenth century America equity & common law
merged. Today a single court can administer both systems.
Equal Justice Under the Law
• It means every person, regardless of wealth,
social status, ethnic group, gender, or age, is
entitled to the full protection of the law.
• Due Process of Law-The government must
follow proper constitutional procedures in
trials and in other actions it takes against
individuals.
The Adversary System
• The courtroom is a kind of arena in
which lawyers for the opposing
sides try to present their strongest
cases. The lawyer for each side is
generally expected to do all that is
legally permissible to advance the
cause of his client. The judge in
the court room has an impartial
role and should be as fair to both
sides as possible, especially in
implementing the essence of the
law.
• Some say this encourages lawyers
to ignore evidence not favorable to
their sides and to be more
concerned about victory than
justice.
• Presumption of
Innocence- In the
United States system a
person although accused,
is innocent until proven
guilty. It is not mentioned
in the constitution. The
burden of proving an
accusation against a
defendant falls on the
prosecution. The
defendant does not have to
prove his or her
innocence. Unless the
prosecution succeeds in
proving the accusation,
the court must declare
the defendant not guilty.
Civil Law
• Civil laws concerns disputes among two or more
individuals or between individuals and the
government. Civil cases arise because one party
believes it has suffered an injury at the hands of
another party or wants to prevent a harmful action
from taking place. About 90% of the cases heard in
state courts concern civil laws. Four of the most
important branches, or types, of civil law deal with
contracts, property, family relations, and civil
wrongs causing physical injury or injury to
property, called torts.
Contracts…
• Contracts- A contract is a
set of voluntary promises,
enforceable by law,
between parties who
agree to do or not do
something. Ex.- join a
health club, buy a car
with credit, get married…
• Expressed contract-the
terms are specifically
stated by the parties,
usually in writing.
Contracts…
• Implied contract is one in which the terms are are
not expressly stated but can be inferred from the
actions of the people involved and the circumstances.
• The contract’s elements must include an
• 1)offer (a promise that something will or will not
happen)
2) acceptance (one party to a contract must then accept
the offer made by the other party.
3) consideration (They must give, exchange, perform,
or promise each other something of value.
Property
Law
• Real property- land and
whatever is attached to or
growing on it such as trees
and houses.
• Personal property includes
movable things like
clothes or jewelry as well
as intangible items like
stocks, bonds, copyrights,
or patents.
Family Law
• Another branch of civil law
deals with the relationships
among family members.
• Today marriage is a civil
contract entered into by both
parties. Divorce legally ends a
marriage and leaves both parties
free to remarry. Legal disputes
involving such domestic
relations account for a large
number of civil cases in state
courts.
Torts or Civil Wrongs
• A tort is any wrongful act, other than a breach of
contract, for which the injured party has the right to sue
for damages in a civil court. Those responsible for
damage caused to someone’s property, such as breaking
a window, or for injury to someone caused by
negligence. These cases increased after the industrial
revolution.
• There are two major categories of torts-intentional tort
involves a deliberate act that results in harm to a person
or property-ex. Hitting someone or spreading lies about
them. Assault and battery and defamation of character
are examples.
• Negligence is involves careless or reckless behaviorleaving a sharp knife where a small children could easily
reach it for example.
Court dates set in case involving infant's death
Surrounded by family and fellow church members, DeWayne and Maleta
Schmidt made their first court appearance Monday in a case involving the
death of their infant daughter.
They will not make another court appearance for more than six months.
The Schmidts each face a charge of criminal recklessness for not seeking
medical attention for their daughter last summer because of their religious
beliefs.
They instead asked church elders in Morgantown to come to their home
outside Franklin and pray for their daughter in the hours after her birth.
Their daughter, Rhiana Rose Schmidt, died less than two days after birth
because of puerperal sepsis, a general infection typically treated with
antibiotics.
A grand jury decided in early July that the couple should face criminal
charges, more than 10 months after the Johnson County Sheriff's Office
forwarded its investigation to the county prosecutor for review.
While not uncommon across the state and country, the underlying legal
question raised by this case has not been argued in Johnson County before,
Welliver said.
Under Indiana law, depriving a child of medical care is felony neglect, except
when care was deprived because of the parents' religious beliefs, Welliver
said.
In similar cases nationwide and in Indiana during the 1980s, parents have
been charged or convicted of child neglect, involuntary manslaughter or
reckless homicide, he said.
Steps in a civil case
• Civil cases are called lawsuits. The plaintiff is the person
who brings charges in a lawsuit, called the complaint. The
person against whom the suit is being brought is the
defendant. The p. usually seeks damages, an award money
from the defendant. Next step Hiring a lawyer…
• Filing a complaint-legal document filed with the court
that has jurisdiction over the problem. It tells the defendant
what is at issue. The defendant receives a summons, an
official notice of the lawsuit that includes the date, the
time, and place of the initial court appearance. The
defense attorney must file a motion to dismiss, asking the
court to end the suit. If the court denies the motion, the
defendant must then file an answer, or formal response to
the charges of the complaint, within a certain time, usually
10 to 60 days. Failure to do so results in a victory for the
plaintiff.
• Pretrial Discovery-occurs when both
sides prepare for trial by checking facts
and gathering evidence to support their
case. They may interview witnesses,
examine records and photos etc.
• 90% of all civil lawsuits are settled before
trial through one of several techniques:
Settlement, mediation-(settling outside of
court) or trial but this may take years…
The Award
• When the plaintiff wins, the court awards
damages, injunctive relief(preventing a
future act), or both.
• Small claims court-Most states today have
provided an alternative to lengthy trial
process by creating small claims courtUsually with claims up to $1,000-$5,000.
Criminal Law
• The government charges someone with a
crime and is always the prosecution. The
defendant is the person accused of a crime.
A crime is an act that breaks a criminal law
and causes injury or harm to people or
society in general.
Types of Crime
• Petty Offenses-Minor
crimes such as parking
illegally, littering,
disturbing the peace,
minor trespassing, and
driving beyond the
speed limit etc.
Usually resulting in a
ticket or citation.
Misdemeanors
•Misdemeanors-More
serious crimes like
vandalism, simple
assault, stealing
inexpensive items,
writing bad checks and
being drunk and
disorderly. A person
found guilty may be
fined or sentenced to
jail, usually for one year
or less.
•
Felonies
• Felonies-Serious crimes
such as burglary,
kidnapping, arson, rape,
fraud, forgery,
manslaughter, or murder.
These crimes are
punishable by
imprisonment for a year or
more. In the case of
murder the punishment
could be death. People
convicted of felonies loose
certain rights such as the
right to vote, possess a
firearm, or serve on a jury.
Steps in a Criminal Cases
• Investigation and Arrest
• Police believe a crime has been committed and start an
investigation to gather enough evidence to convince a
judge to give them a warrant to arrest someone.
• Initial Appearance-Whenever someone is arrested, he
or she must be brought before a judge as quickly as
possible, usually within 24 hrs., to be formally charged
with a crime. The judge explains the charges to the
defendant and reads the person’s rights.
• If the charge is a misdemeanor, the defendant may
plead guilty and the judge will decide on a penalty.
If the defendant pleads not guilty, a date is set for
trial.
• When the crime is a felony, the defendant usually is
not asked to enter a plea. Rather the judge sets a
date for a preliminary hearing.
• Preliminary Hearing or Grand Jury- In federal
courts and in many state courts, cases will go to a
grand jury to determine if there is enough evidence
to “hand up” an indictment- or formal charge.
• Plea Bargaining- 90% of all criminal cases,
the process comes to an end with a guilty
plea because of this process. The
prosecutor, defense lawyer, and police work
out an agreement through which the
defendant pleads guilty to a lesser crime in
return for the government not prosecuting a
more serious crime. This helps to reduce
the tremendous volume of criminal cases.
Arraignment and Pleas
• At the Arraignment the judge reads the formal charge
against the defendant in an open courtroom. During this
process the judge may ask the defendant questions to
ensure the person understands the charges.
• The defendant then enters one of four pleas
• 1) not guilty 2) not guilty by reason of insanity
• 3) guilty or in some states 4)no contest (I will not contest
the decision- but it doesn’t go on record as a guilty plea.
Last steps…
• The Trial
• The Decision-Nearly all
criminal cases require a
unanimous vote for a
verdict, or decision, of
guilty. If the jury cannot
agree on a verdict, a
situation known as a hung
jury, the court usually
declares a mistrial. A new
trial with another jury may
be scheduled later.
• Sentencing
• Sentencing-When the
verdict is not guilty the
defendant is released
immediately and cannot
be tried again for the
crime (usually) If the
verdict is guilty the judge
usually determines the
sentence-the punishment
to be imposed.
Setting the Scene