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American Legal English Using Language in Legal Contexts

Debra S. Lee, J.D. University of Augsburg

Augsburg, Germany

Charles Hall The University of Memphis

IYkmphis, Tennessee

Marsha flurley, J.D. Ko.; C'niversity

Istanbul, Turkey

MICHIGAN SERIES IN ENGLISH FOR ACADEMIC & PROFESSIONAL PURPOSES

A//II Arbor

THE LL'IIVERSITY OF NllGfIGrL'I PRLSS

Copyright to by the University ofMichlgJn 1999 All rights reserved ISBN 0-472-08586-7 Published in the Uniled StJleS of Americ:! by The University of MichigJn Press Manufaclured in the United Slates of Ameri,:a

2006 2005 200~ 2003 6 5 -1 3

No part of Ihis publication mar be reprodu(cd. stored in a retrieval system. or transmitted in any form or by any means. deCironic, mechanical, or otherwise. without the wriuen permission of me publisher.

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Acknowledgments

We are grateful for the many students we have taught on three continents; with-out them and the feedback we received in our cJ.\sses, this book would have been impossible. Specidl thanks go to the students in legal programs fun by Intcma-tionill HOllse in Helsinki, finland, and the students in the Law and Language Program at the University of Augsburg in Augsburg, Germany.

In preparation of the final product, we received a tremendous amount of help [rom students in the editing phase of the writing process. Our special thanks to the following: Tracy D. Snyder. Tane! Duffy. Ton Davis. Mike Bodary. and Harold Terrell from the ESL Program at the University of Memphis; It'ns "Vllttk~, Simone Kraus, and Felix Mehler from the Law and Language Program at the UniversiLy of Augsburg; and Jenn-Mllfc Colombe! and Adolfo Err:lzuriz from the International MBA progrilm at the University of Memphis. Lars Barteit, a University of Augs-burg law student, deserves special thanks for his willingness to revise his paper on defamation for us to use for a listening exercise.

Throughout the writing process, many of our students from the Czech R~public have reviewed portions of the book and provided critical t~cdback. We would like to th

vi . Acknowledgme

opportunities to put some of the material into practice J[ seminars and

viii . Contents

Level II: Legal Listening and Writing 35 Essenlial Terms 35 Putting the Terms to Usc 35

Level Ill: Legal Thumbnail 37 Understanding Legal Citations 37 Locating the InformJtion 39 Underst

x - Contents

LeveillI: Legal Thumbnail 168 Building a Case 169 Damages 177 Litigation Costs 178

Level IV: Language Focus 180 Gerunds, Infinitives, and 7111ltCIauses 180

Level V: Additional Exercises 191 Risk Management: Exploring the Law 191 Law in Action: vVriting to Clients 191

Chapter Seven: Corporations 196

Level I: Discovering Connections 196 Activity 196

Level II: Legal Speaking and Listening 196 Conversations in the Corporate World 196

Level Ill: Legal Thumbnail 198 The Entity Theory 198 Formation of a Corporation 200 Contents of the Articles of Incorporation 200 Changes in the Corporate Structure 207 Takeovers 209 Termination of Corp or arc Existence 210 Problems That May Arise 2! I

Level IV: Language Focus 216 Modals and Semimodals 216

Level V: Additional Exercises 220 Case An

To the Student

Ama;Cllll Legal English: Usjllg Lllnguage in Legal Cvntex(s. What does that meJn? This book is designed to provide you with an introduction to basic leg.ll informJ-tion anu to improve your ability to understand and communic.lte with your legal counterparts around the world. This is not a comprehensive introduction to the law of the United States; that would be impossible in a book this size. However,:"I$ you go through the materials you will discover that the basic legal information given to you enhances YOUT ability to use legal language.

Ellglish projicicllcy IIceded: In order [Q gain the most benefit from this book, your gent'rai English skills should be fairly well developed. In instructor terms, we would S,lY you should be an intermediate to

xiv To the St!,J"nt

law works in your own country; what we have (lo~e is provide a simplifiC:Hion of some a~~ects of American law

xvi . To the Tel.

law, civil procedure, torts, etc). Edch chdpter, though they can be reordered if the instructor so desires, builds on information given in previous chapters, moving in the end to a culmination of iJll the skills in ChiJpter Nine, "The Mock Trial." Chap-ter Nine requires students to use all the skills that they have learned in the text, from oral communication, both spoken and written, to critical reading and re-search skills, by conducting a mock trial involving an automobile accident. Throughout the book, they have been given insights into the operation of a trial in the United States, and in the end, they are given the opportunity to put what they have learned into acrion.

Each chapter has five levels, which are organized as follows.

I. Discovering Connections: A schema activator-an activity designed to stim-ulate the students' thoughts about the chapter content.

II. Legally Speaking, Legal Discussion, Legal Terms, Legal listening, Legal Lis-tening and Writing, or legal Speaking and Listening: A practical application of legal language-designed to pur into practice some of the language used in a particular chapter.

III. Legal Thumbnail: This section of each chapter is designed to provide some basic legal information, since this is, after all, a content-specific text. The in-formation, however, is not intended to represent anything more than general knowledge, for as is pointed out repeatedly in the text, a statute mayor may not exist in a jurisdiction, and if the statute doc:s exist, it is most probably subject to different interpretations within those differenl jurisdictions. The Legal Thumbnail also presents legal vocabulary_ Law h,ls its own Lmguage, and it is vital that one understands lhe precise meaning of J legal t~rra since decisions in the United States may hinge on just such a point

Central to the Legal Thumbnails are the Flash Reviews; these short quizzes function in m,lnY different W;lYS. Often they m,lY serve as VOGlbul.lfY reinforcemt>nt exercises if Lhe preceding passage is pafticularly dense with le-gal terms. Sometimes they dre presented in order to gauge the student's un-derstanding of how legal reasoning is applied in a particular set of facls. Thev may also be used to focus the student's attention on facts that would be of ' crucial importance in arriving at a legal decision. No specific directions are given for any of the Flash Reviews so thJt your instructor IllJY choose to have you provide the answers individually or in J group eilher in writing or orally.

If you happen to be an attorney, you will notice what might appear to be glaring holes in"the law; but the purposes of the book are to provide a basic legal overview for students (Jnd to exercise language use. This is not intended to simulate ~ven a legal nutshell [abbreviated overview of the law written bv law professors for American law studentsl, but it is intended to provide a ' framework for practicing lise of kgallanguage.

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To the Teacher . xvii

Language Foclls Of Cultural Focus: Chapters Two and Three have a cultural foclIs-high-context and low-context communication and cullural defenses. Both topics are of current interest and have proven to be extremely interest-ing to students. In Chapter One, we talk about polite forms and silence as communication. In the remaining chapters we have a grammar focus based on areas that we have found to be a problem when teaching law and language courses.

Additional Exercises: Depending lipan the difficulty of the chapter, various exercises are included for the instructor to use if necessary_ The exercises arc designed as a review of the information covered in the preceding levels (I-IV). Not all of the exercises are advanced; we included some that ~1fe easier for intermediate-level students. You will have to determine which exercises will best benefit your students.

Listening tapes are availClble to use with the text. You will notice that the rapes include both native and nonnative speakers of English. This was done purposely because in the kgal world much of the business is conducted in English among speakers whose first language is not English.

Finally, this book is meant to help you engage students in collaborative aClivi-ties JOG create ,111 active classroom environment. Students actively engaged in Iht:: process ofle;uning are students who succeed in the classroom. "Ve wish you luck and hope that ~'ou enjoy using our work.

Introduction

Are we writing a law book with an emphasis on language or a Jangu

r " ... ,.L,.," ... ..:'JUI ':liYII';,{/

cases and statutes to introduce the studenfs tI ., II Th . .. J~ anguage. en, we provide I.:xeru~e.s J~d role plays so students can practice using the language.

A~ tl~e students work through the exercises, you might find that their legal a~aJysls .IS not what you would expect of an American law student. However, we did no~ m.tend that students would produce that type of

4 . Amedcan Leg( ~r'Jgli5h --------

Conversation Model

Level II: Legally Speaking Introductions

Hi Listen to the conversation twice. The first time you should just listen. The second I U f time you should attempt to answer the following questions on a separate sheet of

paper as the conversation is read to you.

1. Is this a classroom presentation? 2. Who tells everyone to sit down? 3. Is this the first time this group has met? 4. "Vhy doesn't the moderator introduce the speakers~ 5. What does Professor Arm teach? "Vhere~ 6. Vv'hat is Mr. Simone's problem? 7. How does he Correct the problem? 8. Why is Mr. Simone talking about the origins of American law~ 9. Is Mr, Simone an attorney?

10. What kind of American judges is Mr. Trommel writing about~ 11. How is Mr. Trammel financing his work on his dissertation?

Applying Your Knowledge

In groups of two, fiil in the ptlfentheses ( ) with appropriate items to creatl' your Own convers;]tion rh;]t you will then present to thl' class. You may change any-thing, be anyone, or have any title you want. \Ve have given you a few suggestions .md done the first line for you, but you m;Jy change that.

Speaker 1: (Good evening). My name is (Thomas Wang). I am (president) of (I ). \Vekome to our (2 ) meeting. Our (3 ), (4 ), will introduce (5 ) speaker.

Speaker 2: Thank you, (6 Our speaker for (8 is currently (10 ( [2

). It's (7 ) meeting. (9

) of( [[ ) and was abo (13

) to introduce

) at ) (14

(16 ). ( [5 ).

) me in welcoming

Speaker J: Thank you, (17 ), for that (18 welcome. I'm pleased to ( 19 ) have the (20 ) to (2[ ) this group.

Origins of the American Legal System . 5

Suggestions:

1. the Law Society the International Club the Defenders of Freedom 2. annual monthly weekly 3. vice president founder chair 4. (choose any name) John Drum Dahlia Tran 5. tonight's this afternoon's our first 6. Tom Mr. Wang Mr. President. 7. a pleasure an honor a privilege B. tonight's this afternoon's this morning's 9. He She Our speaker

10. professor president director II. law marketing personnel 12. DuVal Corporation the University of Shelby the Treasury Department 13. UN representative founder on the Board of Trustees 14. of mathematics of Dragonfly Software for ecological concerns 15. Join Help 16. him our distinguished guest Dr. Tao 17. Fred Madame Vice President (you could leave it blank) lB. kind warm generous 19. once agam (you could leave it blank) 20. privilege honor chance 21. speak to address talk to

Level III: Legal Thumbnail Founding of the U.S. Legal System

To begin to understJnd U.S. law, you must look at the founding of the United . Statl's .1OJ the uniting of lhe individual colonies into

.. ~ ~ .. " Lr;!;J ~ ( ber each of the states has its own state cOnstitutIOn)

federal c~nsl1:~~I~~utr~:~t; to j~dge the validity of stale statutes [codes J if they gave t~ein ~~~mct with the federal Constitution. Thisjudieial review of the state :~:::~es has become one of the major unifying forces In the UnIted St' tates~~: in-

. h h h Su reme Court carved Its powers rom ;;~:~~~~~I~ ~al;~::a~g:la~~gof tth: C:nstitution, The powers the Supreme C;urt g~1Ve itself Jnd the federal judiciJry have been crucial in the developmell t a Ameriem ];Jw.

1\s a class revicw and discuss the following questions.

d . the Supreme Court the 1. \Vhv did the decision in lv!arbllry v. fvfa /5011 not give , , t' la 5'

right to review sta e.s w . . ation is "reviewed" in your system. YVnat op-2. Explai~ ~o an ~m:r~~~l:~: ~er~:~? Can vour courts tell the legislative br~lIlch portullltle~ ~XISt t. . ~ . to be :'illegal"? Are those opportunities even that a bw It IS conSidering IS gOIng

necessary in your system?

, j b fore -jvi1law countries, such as the continental European sys-~s we rnentlonet e 1'- d are not . co', based iJw systems. In other words, laws Jre statutory an terns, are ut:- .

---------------=-::-j--'-"-"-"-''>-'-' ---------based on case law created in COurls At this 't thet Id h I . . '. I n J wou appear t at U.S. aw was moving In the d' f f 1 . Irec Ion 0 J elVI code: there was a central federal author-I~Y that could creat~ ~eg[slation. declare state laws invalid, and enforce irs deci-sIOns. rnd~ed: the cUlzen,s of the United States thought it important to put both the ConstitutIOn and Universal civil liberties (the federal Bill of RightS-the first :~~ am:ndm~nts to the Constitution in 1789) in a written form, something that

Umted Kingdom .has never done. However, the crucial principles and ap-pro~c.hes that the Untted States inherited from its British origins have kept th traditIOns of common I I d h. e

. awa lye to ay In W ICh case law does carry authoritative weight.

. Exe(ose 3: Paraphfasing ~

Th~ following exercise is designed 10 practice paraphrasing. First, individual! review the sample section . Th.. Y

. given to you. en, In pairs, paraphrase the section in WrItmg.

l. In many cases a lawyer mu t h [J . I . 5 parap rase restate or summarize i1 statute or egal document for ~ client. A summary includes only the most important l~eas. A paraphrase Includes everything found in the original but expressed in ~I~e~en:: ~sually less Complex language. Look at this example of paraphrasing.

ng103. The Senate of the United States shall be composed of two Senators from each State chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote." [U.S. Constitution, Article I, Section 3( I) J Paraphra5~: Each state legislature will seiect two senators. Each senator will

serve a sIX-year term and have one vote in the Senate of the United States.

Now, you try to paraphrase Section 3(3). Original:, "No Person shall be a Senator who shall not have attained to the Age

of 30 Icars, and been nine Yc;.us a Citizen of the United States, and who shall n~,t, when elected, be an Inhabitant of that State for which he shall b ~mffi. e

Paraphrase:

J H . h . . -- ere IS t e text at the First Amendment to the USC . . ~ h ". . - onstltutlOn. try to para-~ ras.e I.t I~ ~odern, simple English. Your instructor mav choose to have you

a thiS individually or in small groups Remember ' h k - " In a parap rase we try to teep

all of the Ideas but change the wording so that it might be more under-s andable for others. vVe've given you three hints to help you.

Origins of the American Legal System . 9

10 . American I' '/ English

wait for one of the attorneys to cry, "Objection!" before he or she can step in to decide if

12 . American L I English

Precedent and Stare Dedsis In U.S. common law, some precedents have greater authoritative weight than oth. ers. The doctrine (or more accurately the tradition) of itllTe decisis et non quieta

HJvv~re is the umbrella under which precedent stands. Stare decisis [steri d;:}sUls;)s/ req.UIres thilt ~ourt~ follow common .b~ precedents. But a court is onlt~~9uired to fo.llo~ (ho:;~ pret.cdents that tHe bmdmg on that particular court. I~J.ndLrig au-thority IS a rulmg that was decided by

14 . American 11 English

One additional factor that seems to make u.s. law opaque is that in addition to federal law, there is also the complexity of the interactions of fifty sets of state laws. However, model codes [for use in any of the states J, such as the Uniform Business Code and the Model Penal Code, have been extremely helpful in recon-ciling the laws of the fifty states. Model codes are written by law professors, judges, and attorneys ilS guidelines for state and fedemllegislatures when promul-gating legislation. Unless specifically enacted by a state or the federal legislature, a model code has no force as law. Some states choose to enact only portions of a model code, some enact it in its entirety, and others choose not to accept any of a model code's provisions. However, use of the model codes by most states for at least some of the provisions has ensured some uniformity in U.S. law.

For attorneys, this complex system has an especially important consequence: in general, attorneys are licensed to practice only in their home states. If they wish to practice in another state, they must fulfill that state's requirements-such as taking a test on the specific features of that state's law [a-part of the bar examina-tionJ before they can practice. Fortunately, there are some states that have reci-procity agreements [two or more states honor each other's rights or privileges, such as practicing lawJ. While the specific forms of the laws may vary from state to state, the bi1sic job of research needed to understand those laws is the same.

Although time consuming, research in a common law country can also be ex-tremely interesting. Even though few cases will involve changing the existing law, for a U.S. attorney there is always the possibility thal his or her work will indeed bring about change and his or her case will be cited [referred toJ for many years. Most of the time, however, the process of researching and preparing a case in-volves deciding between differing interpretations of prior precedents that are un-clear or don't quite fit the facts of the pending case. The attorney's major task then becomes one of synthesizing the cases, taking care to separate persuJsive from binding authority and holding from dicta.

Holding y, Dicta

Related to the concept of kiD.ding and.persuasiy.e authority is the distinction between holding and dicta. Law students in most countries won't have to under-take a long and detailed study inlO the distinctions between the t\'IO, but they should be aware that an important difference does exist. American law students, especially when writing legal memoranda [information regarding the facts and the law on a particular issue usually written f~r courts J should understand the difference.

Holding~ The rule of law or legal principle that comes from the decision or the judgment plus the material facts of the case; binding authority.

Dicta-Other statements in the decision that do not form part of the holding; persuasive authority.

Origins of the American Legal System . 15

The precedent established by the case is the holding. In general, the holding of a case is binding authority, whereas the dicta are merely persuasive aut~ority; arguments based on dicta are not binding. However, do not assume l~at diCta . in a case are totally unimportant; sometimes the dicta become more Important III later years than the actual holding. For example, the dicta in the famous Supreme Court ruling in [mernatio1lal Shoe Co. v. lrVashington 326 U.S. 310, 66 S. Ct. 154, 90 L.Ed. 95 (1945) are still cited in many cases.

In International Shoe Co., the U.S. Supreme Court established the require-ments for personal jurisdiction over a defendant ina civil action. Personal juris-diction is important because it ~etermines whether a court can force a defendant to appear before it in response to a civil lawsuit. The specific holding in this case relates to corporate agents in the state of Washington and the systematic conduct of business within the state. In its opinion, the court discussed but did not rule on traditional ideas of fairness. The dictum that arose from this discllssion h

_________ 1_6_, _A_m_e_n:.,:"-,an ,Legal English ( --------

Exerdse 7. Case Hypotheticals and W n9

J . Either alone or in groups, decide which of the facts you can either broaden (e.g., old man to mlln to person) or leave out completely. We've done the first two. but you may choose to disagree with us if you have a good reason.

Fact Leave out or Broaden Change to armed robbcry ncilhc.>f stays the .same !ihort (DJlege professor broaden

" person

walkin~ " :' dark deserted street

downtown Memphis

old Albanian man waving a gun new Colt 45 pi'stoi shoot one shot

into the air

2. N~w writ~ one sentence that would be binding on as many cases as appro pnJte. We ve started the sentence for you. "The court held that a person is guilty of armed robbery when ... "

If all these terms seemalia!estrangeanddisturbing.don.td;~~i.li~.- it's (ammon lur studt'nts (rom civil (ode cou ntries to b~ J. bit confused. Let's look J.t what a German law student in Augsburg, Lars Barteit, wrote when he was asked to pre sent il paper on an aspect of U.S. law for a seminar on constitutional law. Here are some of his comments on the preparation for the seminar presentation.

As the case law system is based on the different cases decided on a topic, I started to get a feeling for holding and dicta, for opinion and dissent. I learned to distinguish between a plurality and iJ. majority opinion and under stood that they hilve i1 different weight within the argument to decide a case. Now. ho,,:,\eiver, my professor wanted to hear some kind of general rule includ-ing all the iin~lnces of the opinions of the court. Impossible-[ shook my head and pa?sed my hands over my tace. There is no way to put one of the systems into the other.

Origins of the American Legal System . 17

Remember that even though it looks as though there is no way [Q understand ou~ compared to yours there actually is, although it does take some work. Let s system '.,

look at another difference that IS not as Important.

Classification of law in the United States American attorneys do not normally see the broad general categories of law seen by their civil law counterparts. American iltiorne~s ~~uld gen~ra~ly think in the more specific terms of torts, contracts, products l!.1bllIt y, or cnmmall.ilw rather than just public or privilte bw. This is partly true because of the absence of SPC4 cialized courts such as those found in some civil law countries. Nonetheless. U.S. law can be separated into three ?road divisions:

I. law and equity; 2. substantive and procedural law; and 3. public and private ];.lw.

Although the most important distinction for an Amcriclfl attorney is the one be tween substantive and procedural law, let's begin with the development of II very

old distinction.

Law and Equity In everydilY English, equity means "fairness." In legal English it has J slightly different meaning although it is .still based on an idea that f.lirn('ss sometimes means the courts mllst go beyond the strict kgal codes. This distinction between actions ill: law

( Mr.lvlortvedt (the

Substance and Procedure

20 . American J.egal English ~--=-------

The distinction between substantive Jnd procedural law is much more important for modern attorneys. Basically, procedural law establishes the rules for enforcing or administering law. It involves issues of jurisdiction, pretrial actions, admis. sibility of evidence, and appeals. Procedural rules in part ensure that a trial is fair and timely. If a juror is biased, he or she can be dismissed. If evidence has been obtained improperly, for example. without a valid search warrant, procedural rules ensure that it will not be admitted in COUrt. Procedural rules .1lso govern whether or not the Court has the power to hear a case.

For example, there are set procedures that normally must be followed before evidence can be used against a defendant in a trial. A police officer cannot just walk up to your house and demand to be let in to search for anything that might be illegal. The officer must get a warrant from a judge first that basically says what the officer is looking for and where the officer will look.

Another principle based in common law is that police officers, even with war. rants, must knock on the door of a house and announce that they are police offi. cers, as heard in many films: "Open up. It's the police!" Let's look at a case taken to the Supreme Court in which the defense attorney tried unsuccessfully to argue that the "knock and announce" principle must always be enforced. In its decision the Supreme Court uses several English cases as precedent including the famous seventeenth-century Semayne's Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195 (K. B. 1603), which contains a reference to a statute on the same subject from 1275 that was based on even earlier common hlW!

Wilsoll v. Arkansas, 514 U.S. 927, lIS S. Ct. 1914, 131 L.Ed.2J 976 (1995) Facts: Arkansas undercover agents bought illegal drugs from Sharlene 'Wilson. Po.

lice officers were then given warrants to search Ms. 'Wilson's house and to arrest her. However, when the police omcers arrived at Ms. Wilson's house, they dis. covered that the front door was open. The police officers opened rhe screen door, which was unlocked, and walkt'd into the house. As they entered, rhey said rhey were police officers and that they had a warrant. "Once inside the home, rhe officers seized marijuana, methamphetamine, valium, narcotics paraphernalia, a gun, and ammunition. They also found petitioner [Wilson] in the bathroom, flushing marijuana down the toilet."

Attorney's reasoning: Because the police had not knocked on the door and an-nounced their presence, Ms. Wilson's anorney moved to suppress [not allow it to be used in the trial I the evidence (i.e., the drugs and gun) that the police

Origins of the American Legal System . 21

. h . h Tho> attorney maintained the police had violated thl:! und In t elr searc. ... h d a I' w knock and announce principle required by the Fourt Amen -common .1 ,

t's reJsonable search and seizure clause. m~n. The Supreme Court agreed that knock and announce was a common law Rui g .. I d tlng from at least 1275 and was part of the Fourth Amendment but prmclp ea.

noted that it was not a principle without exceptIOns.

Nevertheless, the common law principle was never stated as an i_n~~xible I cquiring announcement under all circumstances. Countervmlmg law

ru e r . d. h th at of physical harm to po-enforcement interests-Illclu 109, e.g., t e re lice, the fact that an officer is pursuing a recently es~aped arrestee, an~ the

'stence of reason to believe that evidence would likely be destroyed If eXI , . en-may establish the reasonableness of an unan advance notice were glV h k f nounced entry. For now, this Court leaves to the lower courts t etas 0 determining such relevant countervailing factors.

Action: The case was sent back to a lower court to decide if the facts in Wi/sofl would support the reasonableness of the unannounced entry.

This case shows the importance of procedural law in the United States. On the other hand, substantive law concerns the law dealing,with the facts of,the case 'tself such ;1S the law of torts, products liabil ity, corporatIOns, or contracts. In. the I , . IbId be an element of subst.m-"'1 the possession of dlega su stances wou, . yy/ son case, Id b t at pro -c-tive law, but gelling thl' evidence admitted into court wou e a p.lf I..

dural bw. . . T II S c distinction between procedural and substantive law IS taml lar to

In the Wilsoll case, the Supreme Court decided nO( to make a final judgment on what might be good reasons for unannounced entries. Let's see how you would ha ndle this issue.

I. Your instructor will assign one of the scenarios below (J-e) to pairs or teams of studl'nt~.

2. Then your instructor will randomly tell your group to defend or attack ver4

baIly the stilnCC that this scenario contJins a good reason for an un;.lIlnounced entry. Don't Worry; there are no real right or wrong answers in this exercise. In fact, these cases would keep American lawyers busy for a long time.

J. As a group, you will prescnt your arguments to the "court," your classmates. 4. Afrer eJch group presents its arguments, the entire class will act en banc [as a

group) Jnd decide if you proved your point or not. 5. Of course, you molY appeal to the supreme court, your instructor, if you are

dissatisfied with the "court's" decision.

ScenJrios

a. A police officer is chaSing a man who was shooting at people from his front yard into his house. The police officer doesn't knock and announce as he enters the man's house through the back door.

b. \oValking by a house,.1 police officer hears someone inside screaming: "Please don't shoot me!" She kicks in the door and rushes in without knocking and an-nouncing and finds a man pointing a gun ar a woman who turns out to be his wife.

c. While checking doors of businesses ro make Sure they are locked for the night, a police officer finds one unlocked. He enters quietly thinking there might be burghus and discovers the Owner of Ihe busin~ss sitting in a chair sllloking marijuanil. HI.' arrests Ihe OWner for possession of an illicit drug.

d. The police have a warrant to raid the house at 132 Robin where a band of dan4

gerous, armed counterfeiters are thought to be working. \oVithout knocking and announcing, the police kick down the doors and break in through the windows at 123 Robin by mistake. Inside the wrong house, they discover hundreds of TV sets Ihat all turn out to be stolen,

e, The polie-e think that a 78-year-old con artist [thief who tricks people out of their money) [or whom they have In arrest warrant might be living at 44ol3 Ar-ro!. At that house, they knock on the door and say, "Hello, pizza delivery." As the man opens the door to say he didn't order J pizza, the police arrest him.

': '

5 O,r me IHnencon Legal )ysrem . ~.J ungm J

, 'd private Law , ' " I pub . - an "v t> s hal'S is of very lIttle practlL

These commemaries state Ihal thI ,ragraph applies only to seVere health problems involving the "partment its imildew, noise, elc.). In Germany, your client would not be able to rely on Paragraph 544 if his or her health problems were creJled only by the polluted air in the neighborhood.

Time to research: approximiltely thirty minutes Reasoning: The commentary only addresses the apartment itself; the pOlluted

geographical area obviously is not subject to Paragraph 5

_________ 26 . American legal English

Silence

Many Americans are afraid of silenc . vous. As J result, they}'ump in I fiJJ"hn a conversJt~on_Silence mnkes them ner-

o [ w at they consider I . d . a conversation. Unfortunatel Ih' ong perlO s of silence in

d . y, IS attempt to rescue the .

ru e or Impatient to sp' k r h conversatIOn often seems .. a efS 0 at er langu' E I' h cultures. ages or ng IS speakers from other

Exerdse 10. Listening

Lis!:n to the following dialogue on the tn e and identi of dIfferent perceptions of silence. P fy what happens because

2. Write down the probl h em t at was created and h . I 3. Compare your answer with a t ow It cau d have been solved

tions the same? par nero Are the ansWers the same? Are the solu'-

Exercise 11. Fill in the Blanks ~

Legal Vocabulary. When writing about the law as possible. Use the correct term [ h you normally need to be as precise

s rom t e text to com I t h 'J . tences. Pay aUention to Ih . h .' pee t e ,0 lowmg sen~ . eng ttense(l[thet . b III the blanks. erm IS aver ) and [arm 3S you fill

I. An amendment [0 the U . d 5 . 3/4 of th b flIte tJtes Constitution must b..:- b

e states dare it becomes part of Ih C . . ------ y . e onstttutlOn.

2. Ninety percent of the cases in the United Stat. COurL e!) are ______ out of

3. Model codes. such as the ,\-fodd Penal Code. have been helpful in

. laws of the 50 sf

....... ~"!J".J"

3. 'Nhy is this court not overly con ( rhis case? .vith the privacy righrs of Richards in

4. The defendant maintains that;]n error wa '" error? s made In hJS {nal. What was that

5. In what way is (his case based on Wilson v. Arkansas?

Collaboration: Pair Work ReJd the folio ' " wmg portIOns trom the US Su Wisconsin,_U.S._. 117 S CI l416 .. preme Court decision in Richards v.

" .137 LEd 2d 615 (1997) Th . . out answers to the questions that follow Each' '. . en, In pairs, write one report. . pan will be allowed to submit only

Richards appealed his case to Ihe US S . The fOlloWing is a portion of th d ..... upreme Court, whJCh chose to hear it.

e eCISlon In that case.

+ + + In Wilson v. Arkonsos 514 US 927 (

Amendment incorporates 'the . I 1995): we held that the Fourth . Common aw reqUIrement th t I' .

tenng a dweUing must kno k h _ a po lee officers en-c on t e door and announ th" .

pose before attempting forcible ent . At . ce elr ldent~ty and pur-the "flexible requirement of re rybl the same time. we recognized that asona eness sho Id t b

ngid rule of announcement th t' u no e read to mandate a a Ignores co t T

ests," id., at 934 and (eft Ut th 1 un ervallllg law enforcement inter-, a e ower courts th t k f d ' .

cumstances under which, e as 0 etermmmg the cir-n unannounced ent . Amendment." Id., 936. ry IS reasonable under the Fourth

In this case, the Wisconsin Supreme Court co '. are never required to knock d ncluded that police officers

an announce their p search warrant in a felo d . '. resence when executing a

ny rug lOvestJgatlOn In s d" . Wilson holding and concluded th t W.ts . . 0 Olllg, It reaffirmed a pre disagree with the court's con 1 ~ 1 on dId not preclude this per se rule. We

c USlon that the Fourth Ad' blanket exception to the k k men ment permits a

noc and announce requ' e t ~ . . gory of criminal activity But b . If men or thIS entire cate-

. ecause the eVidence officers' actions in this case establishes that p~e.sented to support the nOunce was a reasonable one d h . the declSJon not to knock and an-

un er t e CJrcumstanc ffi of the Wisconsin court. es, we a rm the judgment

On December 31 1991 I' . , , , po Ice officers 10 M d' W

warrant to search Ste' R' h' a lson, lsconsin obtained a lOey IC ards hotel roo ~ d nalia .... The police requested a t h m or rugs and related parapher

warran t at wo Id h . authorization for a "no k k'" u ave gIVen advance

noc entry mto the h t 1 explicitly deleted those p rt' foe room, but the magistrate

o Ions 0 the warrant. App. 7, 9.

Origins of the American Legal System 29

The officers arrived at the hotel room at 3:40 a.m. Officer Pharo, dressed as a maintenance man, led the team. With him were several plainclothes offi-cers and at least one man in uniform. Officer Pharo knocked on Richards' door and, responding to the query from inside the room, stated that he was a main-tenance man. With the chain still on the door, Richards cracked it open. Al though there is some dispute as to what occurred next. Richards acknowledges that when he opened the door he saw the man in uniform standing behind Offi cer Pharo. Brief for Petitioner 6. He quickly slammed the door dosed and, after waiting two or three seconds, the officers began kicking and ramming the door to gain entry to the locked room. At trial, the officers testified that-they iden-tified themselves as police white they were kicking the door in App. 40. When they finaUy did break into the room, the officers caught Richards trying to es-cape through the window. They also found cash and cocaine hidden in plastic bags above the bathroom ceiling tiles.

... [T]he Wisconsin court found it reasonable-after considering criminal conduct surveys, newspaper articles, and other judicial opinions-to assume that alL felony drug crimes will involve "an extremely high risk of seriou-s if not deadly injury to the police as well as the potential for the disposal of drugs by the occupants prior to entry by the police." Id., at 847-848,549 N.W.2d, at 219. Notwithstanding its acknowledgment that in "some cases, police officers will undoubtedly decide that their safety, the safety of others, and the effec-tive execution of the warrant dictate that they knock and announce," id., at 863,549 N.W.2d, at 225, the court concluded that exigent circumstancesjusti-fying a no knock entry are aLways present in felony drug cases ....

We recognized in Wilson that the knock and announce requirement could give way "under circumstances presenting a threat of physical violence," or "where police officers have reason to believe that evidence would likely be de stroyed if advance notice were given." 514 U.S., at 936. It is indisputable that felony drug investigations may frequently involve both of these circumstances. [n.2] The question we must resolve is whether this fact justifies dispensing with case by case evaluation of the manner in which a search was executed. [n.31

The Wisconsin court explained its blanket exception as necessitated by the special circumstances of today's drug culture, 201 Wis.2d, at 863-866, 549 N.W.2d, at 226-227, and the State asserted at oral argument that the blanket exception was reasonable in "felony dr~g cases because of the convergence in a violent and dangerous form of commerce of weapons and the destruction of drugs." Tr. of Oral Arg. 26. But creating exceptions to the knock and announce rule based on the "culture" surrounding a general category of criminal be-havior remphasis addedJ presents at least two serious concerns. {n.4]

First, the exception contain~ ( isiderable overgeneralization. For example, while drug investigation frequently does pose special risks to officer safety and the prese/Vation of evidence, not every drug investigation wilt pose these risks to a substantial degree ....

A second difficulty with permitting a criminal category e>:ception to the knock and announce requirement is that the reasons for creating an exception in one category can, relatively easily, be applied to others. Armed bank rob-bers, for example, are, by definition, likely to have weapons, and the fruits of their crime may be destroyed without too much difficulty. If a per se e>:ception were allowed for each category of criminal investigation that included a con-siderable-albeit hypothetical-risk of danger to officers or destruction of evi-dence, the knock and announce element of the Fourth Amendment's reasonable-ness requirement would be meaningless.

Thus, the fact that felony drug investigations may frequently present circumstances warranting a no knock ent'Y cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case. Instead, in each case, it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock and announce requirement.

Although we reject the Wisconsin court's blanket e>:ception to the knock and announce requirement, we conclude that the officers' no knock entry into Richards' hotel room did not violate the Fourth Amendment. ...

+ + +

1. What Me the cruci;]1 facts of the casl..'? 2. What is the legal reasoning that aBc-wed the Wisconsin Supreme Court to

issue a blanket exception to the knock and announce rule? 3. In what way had the U.S. Supreme COUrI "invited" courts to create exceptions

to knock and announce as was done in R;chards v. W;scvmin? 4. Does the U.S. Suprcille- Court agrt'e th.u in Richards v. lVis(ol1sili the otlkers

were justified in ignoring knock and announce? Why or why not? 5. "ThaI is the U.S. Supreme Court's basic response to the Wisconsin blanket

rule? Why?

6. What is meant by the phrase '''culture' surrounding a gener;)l category of criminal behavior"?

7. Do you think thai if the \-Visconsin bhlnket rule were allowed to stand, a judge granting a search warrant could order officers to knock ilnd announce in cer-tain felonious drug investigations in which it appeared there were no special risks? Why or why not?

8. In the end. who must determine if a "no knock" entry is justified~

Origins oj the American Legal System . 31

_. . h US Supreme Court's decision satisfactory for thc 9. In your opmlOn. ~~ t Cd 'h' rts' r tl e'lCcuseu an I e cou .

po Ice, 1, . h I nded if you had been a justice of the Supreme How would you ave respo 10. Court and had to decide the case?

Oral Argument: Role Play . work in airs; one of you is a judge and the other is a pro:e-

Select;] partner ,Ind. . P b. . 'rch warrant to search Sharlene Wd-~ ho IS tryIng to a tam a !:ie... . cuting attornt.:y ~ . a warrant The attorney must attempt to

h e The Judge agrees to ISSUI..'. f sons ous. b d this information rom

. h dge to issue a no knock warrant ase on convmce t e JU Wilson v. Arkansas_

+++ . . November and December 1992, petitioner Sharlene Wilson made a senes ~:~~r~otics sales to an informant acting at the direction of the Arka~~:: s~:~~

P I I late November the informant purchased manJuana and me . p o ICe. n, b 0 December 30

. t the home that petitioner shared with Bryson Jaco s. n , ammea dt etherat the informant telephoned petitioner at her home and ~rrange 0 me d b l a local store to buy'some marijuana. According t~ testl~ony presented 't ~ o;~e etitioner produced a semiautomatic pistol at thiS meetlOg and wav: 1 10 ~nformant"s face, threatening to kill her if she turned o~t to be working for the

police. Petitioner then sold the informant a bag of manJuana. + + +

Reading for Details: True or False Use thl..' extract from Ricll/Jrds v. Wisconsi" to determine if the followi ng S[Llte-rnents ,Ire True (T) or F~dse (F).

~ .. J. . ,':1. lOOUlh:cmcnt rule in ~\'ilsvlI I. The U.S. Supreme COLIrt mantiJrt: J f1gll al v: Arkallsas. _ ffi pted to . . '. knock search warrant, a police 0 lcer altern 2. Atter securing a no . . _ . n

gT';lhi~ ~~~:~::::~~ ~:I~::~:'sc:~t:: ;~t:~i~~:~~~eJ~I:::~nrt:~a:sl~ ~::ul't of 3. the ruling in W;{SO/l L'. Arkclllias. . E -I rt must decide if a no knock warrant is appropfl~lte ~r not.

4. ,lL 1 COU b -f!' t t JUStify a no 5. The possible destruction of evidence may e sut lClen 0 .

6 ~~t~~~]eg~t;i,e U.S. Supreme Court agreed that the no knock entry was jus-. . . - d h 'tV' - n 'in blanket t'xLepllon tified, in their Jict.l, the court crltlcrze t e ISLa!:i .

to knock and announce. h k-k 7. Tht! U.S. Supreme Court agreed with the trial court th.1t t e no nOL

entry in this case was appropriate.

32 . Amedcan Legal English ;----------

,

8. Th~ U.S. Supreme Court criticized the magistrate who (ailed to give the police officers a no knock warrant.

9. In its decision, the U.S. Supreme Court wanted to achieve a bJlance be-tween the needs of the police and the rights of citizens. The U.S. Supreme Court held that the evidence obtained by the no knock entry ~hould have been suppressed in {he original trial bcc.mse the blanket exception the Wisconsin Supreme Court mJintained was incorrect.

Simplification and Interpretation: Paraphrasing Here is the federal "knock d " '. .

" . an ,lnnounce stature wntten In torma/leg,1/ En~lish. USll1g t'veryda~ English, rewrite this statute and add

IiIll/m(On Legol English -------------------

Lawyers in any jurisdiction in the L :'ed StoHl'S rely on legal authority in Of-def to win their cases. Ll!glll tllllhority is a very general term used to refer to a case, slatute, regulation, treatist', law review article, or other legal reference Source. These Sources may either provide information tha! will be binding on a court, forcing it to follow the line of reasoning in a previous decision (precedent), or they may provide information that is merely persu.lsive information that may possibly sway a judge to decide in .1 client's t~lvor but does not require the judge to act in accordance with the previous decision.

legal authority is binding only when it is precedent Precedent is.1 case opin-ion that guides a judge in subsequt.'nt c.lses bcciluse Ihe prior C.lse has similar facts or raises similar issues of 1.1W. Judges decide Cases before them on the basis of principles established in prior decisions. As We discussed in Chapter One, this common law concept is called stare decisis.

Activity 2

You are an attorney prep

""'" ILUlI I..l:fya( tngl1511

n. Use the esscnti;11 terms and the oncs yl .blTned (rom fens and Simone to compldl! the memo w~'ve stCase in the legal sense has two meanings. First, it refers to a legal action be-tween two or more parties that is initiated in a trial court, often with ajury {citi-zens who issue a verdict (decision by the jury on liability of the defendant) Jfter hearing bOlh facts and law]. The case may move through the v;Jrious I~vels of the court system on a series of appeals in which there are no juries. Second. case is also a term used [Q refer to the written opinion of a judge aniculating the ra~ tiona Ie of the decision of the court through an explanation of the I;J\V Jnd its application to the t~h.:ts in that panicular case.

Understanding Legal Citations A leg,ll cit;}tion refers to the full text of a statute. a C;JSC. or some othcr source of legal information. The important thing to remo::'mber is th~lt lhese cit,ltions Jre illways unambiguous: rhey tell you exactly where you can locate the original Jocu~ menL If the legal citalion is to a statute. the citation will direct you to the appro-pri.lle volume and section Ilumba of the coJe. For exampl~, II{ FS.C. 100 I woulJ rl'lt-r to the 100 1st sec lion of the 18th volume of the United States Code.

It the cil.Hion is [Q a case, it will cont:1in both the style of a case or heading {the names of the parties who are involved in the litigation] and sufficient infor-m;Jlion to iocJte the text of the C;lse. Full texts of cases are found in volumes called reporters. which record and preserve decisions of J particular court or courts i.llld are usually based on geography. There are slate reporters. regional rcporters. federal reporters, Jnd U.S. Supreme Court reporters. In regional re~ poners. for example. cases heard in state courts in Delaware Jnd Connecticut

In a civil case, rhe losing party may apJ ~ at least once as a matter of right. The court that has power to hear that appe ..... I~ called the appellate court. Nor-mally this is the intermediate appellate court since most states and rhe federal system have three-tiered systems. Since the facts are considered to have been de-termined by the trial court, the appellate court will only hear questions of law. In other words, the question becomes whether the trial court understood and acted in accordance wilh the law in the jurisdiction.

The following Cholet will help you visualize how the cases move from court to COurt.

Levell Trial COllrt_

State system: e.g., Circui! Court of Shelby County, Tennessee Federal system: District Court

State Courts

Level 2 Appellate -

c.g., Court ofAppcals ofTenncssec

U.S. Court of Appl'als

levc/ 3 COllrt of Last Resort e.g., Supreme Court of Tennessee U.S. Supreme Court

Each of the fifty states and several territories has its own system so the chart above and the explanations below are very generalized overviews.

Level J: Trial COlirt Also referred to as the court of general jurisdiction, the court of record, or the court of origillJI jurisdiction PlaintiJI versus ddendant: jOllllSOl1 v. PletllikoJI Issues oUJct: what happened? jury is presl'med with evidence and renders verdict Issues of hnv: was the defenda nt's action legJ.1 or illegal? judge presides over case, instructs jury on 'olW, enters juJgment The losing party has appeal as;l mJtter of right to Ihl' next It.'\'eL

Level 2: Appd/flle COllrt Intermediate appel/a Ie jurisdiction Appellant versus appdlee Or petitioner versus respondcnt lOSing party versus winning party in the previous trial or sometimes appellee versus appellant depending on the triJ.1 (ourt designation Only issues of law may be considered by thl' appellJte court.

.18 America~_ Legal English ------------------

Th~re are also special r~porters of U.S. Su~.eme Court cas~s r u.s. R.~porler (U.S.), Supreme Court Reporter (5. Ct.), and the lawyer's Edition (L.Ed., L.Ed.2d) I and the various state reporters, which are often just excerpts from the regional reporters.

Of course, it would be impossible to report all cases heard at the federal and state levels in the United States. Statutes establish the criteria for inclusion of cases in the reporters, Once dL'cisions are published, they serve as precetil!nt for Jny future decisions in the same jurisdiction.

The style of case (the names of the parties involved) W,IS mentionctl earlier, and it is good to keep in mind that the order of parties may, in some states, switch back and forth through a series of appeab. This name changing can be very con~ fusing unless you are able to decipher it. For example, in Alasb Sherrie Johnson sued Patrick Pletnikoff. The trial court designation (as in all states) was johnson v. Pletllikoff. Sherrie Johnson won at the triolleyel, so Patrick Pletnikoff appealed the trial court's decision. at which time the style changed to Pletniko!f v. johnson [P1ctllikoff v. /ollllson, 765 P.2d 973 (Alaska 1988) J.

In most other states and in the federal system. the appellate courts retain the original trial court designations on appeal. fn:1 Tennessee appdlate case (one of the states that retain trial Court designation), Sandra Kilpatrick sued James "V. Bryant for medical malpractice. She lost at the trial court level and appealed. The style of the case on appeal was Kilpatrick v. Bryant (Kilpatrick v. Bryaw. 868 S. W2d 594 (Tenn. 1993)). The same would have been true if ,he had won at the trial court level and BrY'lOt had appealed.

How, then, does an attorney know Wh.H'S going Oil? fn th.e he.ldnot\!, many states indicat\! arter the party n.lmes the case history (e.g" P/;lintiff~AppelJant ~r

Deend.1I1t~Appellee). ff not, the attorney's next option is to read [lie summary of [h .... case in the headnote or delve into the ,Ktual court opinion.

Actually loc.lting the case in a reporler is simple once you understand the shorthand used in case citations. Let's look:lt one citation (often called just a cite) to see what we can learn: P/l.'llIikojfl: jil/lll~O/I, 765 P.2d lJ7) ({\b~ka 19X5). The case is found in the 765(h volume of the Pacific Heporla, Second Series, on page 973. The case was decided ill AIJska in 1988.

Exercise 1. Citation Review '

In pairs, review the fol/owing citations and answer the questions for each.

UI/ited States v. Alvarez, 755 F.2d 830 (I' th Cir. 1985) -12 U.s.c. 9401 (1938) CromptOI/ v. Commol/lVealth. 239 V;]. J 12,389 S.E.2d 460 ('990) Dav;; v. Monmllto Co., 627 F. Supp. 413 (S.D. W.Va. 1936) Kan. Stat. Ann. 59-102 (1933 & Supp. 199~) Hal/l'. United States, 454 A.ld 31 Legal Authorities and Reasoning . 39

What type of authority is cited? . ~: In which publication on which page would you expect to find (he materIal? Is it a state or federal decision/statute? 3.

locating the Information

Th first step in researching the legal authority in a jurisdiction is il ge~er

42 . American I -, English --------

Th!'" following ch

44 . American Legal English ,---------------

Procedural History The proc~uural history is a brief recitation of whilt the courts have done- with this casco This s~ction also includes the basis for review and an abbrevi.lleu recitation of the prcvioll!i court's holding. There is also il single line indicating the court's dis-position orthe (;.Ise [Wh,lt the COLIrt decided to do \'I-'ith the casel. V.,Ic have JdJed e.'\planatory statements in bold to the va rious sections of the procedural history.

+++ Defendant was convicted in the United States District Court for the District

of Nebraska, Warren K. Urbom, Chief Judge, of interstate transportation of a stolen motor vehicle [previous court's holding-the District Court], and he appealed. The Court of Appeals held that the evidence was sufficient to support the trial court's finding that defendant knew the vehicle was stolen and that he caused it to be transported across state lines [basis for defendanfs appeal implied-insufficient evidence to support lower court's decision].

Affirmed [Court of Appeals' disposition of the case]. +++

Hlesr Key NlIlIIbfr System Sections numbered according to a s)'stem of key words provide references to legal issues. General topics discussed in the case (e.g., Labor Relations, Sales, or Civil Rights) arc in bold print followed by a key symbol and a number reference to sections in the reporters' indices that list similar cas~s, that is, cases that rely on simil,lr legal principles. \Vhen there is more than one kC)' number in the head-note, thL'Sl' ke~ numbers are numbered 1,2,3, and so forth. The opinion is then diviued inlo sections by\Vest: [II. '~J, [31, ;lnd so on. ThL' numbers inJic,l[e the sections in which a discussion of the p,lrticular legal discussion can be located within the text of the opinion. In our example, there is only one key note; how-ever, a complicated case may contain references to many points of law.

+++

Automobiles ~ 355(12) {Note: A section number woutd be before "Auto-mobiles" if there were more than one key number in the opinion. Key and KeyCite West Group.] Evidence in prosecution for interstate transportation of stolen motor vehicle was sufficient to support trial court's finding that defendant knew vehicle was stoten and caused it to be transported across state tines. 18 U.S.C.A. 2312.

+++

Legal Rep'CSetlf11livC5 The nJmes of the attorneys for both plaintiff and defendant, the ,lUorncys' law tirms, and the city within which the attorneys practice are listed.

Legal Authorities and Reasoning . 45

+++ Floyd A. Sterns, lincoln, Neb., for appellant. Daniel E. Wherry. U.S. Atty . and Rob~rt F. Kokrda. Asst. U.S. Atty . Omaha. Neb., for appellee.

+++

Opinion

The opinion includes thl' names of the judges who heard the case, the holding, and the rationale. This section is the official court deciSIOn and is what is used b~ attornevs when writing legal memoranda. The he

46 . Amedcan Legal English -'--'--------

Stlltutory or C0ll111101/ Lal\' Basis/or thl' Dt'{is//JJI After the specific procedural history, the court will often summarize lhe statutory or common iJw bJsis for its decision. Sometimes.1t the end of the summary, the court will give the Jisposition or Ihe GISI.'.

+++

To sustain a conviction under 18 USc. 2312. there must be some evi-dence before the jury which establishes that the defendant transported a motor vehicle in interstate commerce and that he knew that it was stolen. White con-cedes that the vehicle crossed state tines and was in interstate commerce. His principal contention is that the evidence did not establish either that he knew the vehicle was stolen or that he caused the vehicle to be transported.

When reviewing the sufficiency of the evidence to support a conviction, we must view evidence in the light most favorable to the government, Glosser v. United States, 315 U.S. 60,80.62 S. Ct. 457, 86 LEd. 680 (1942). and accept as established aU reasonable inferences that tend to support the jury's verdict. United States v. Overshon. 494 F.2d 894 (8th Cir. 1974), cert. denied, 419 U.S. 853.95 S. Ct. 96,42 l.Ed.2d 85 (1974).

+++

FactslBackgTOllllri A detailed recitation of the t:,cts of the case is given. This includes identitic

48 . Amen"coll Legal English

Fillal DispOsitiun vIr"!! Case The last section of each opinion contains the conclusion of the COurt regarding tile C"se_ In some instances, the holding of the court is foond in this scction; "t uther times, however, you must m"ke" determination of tile holding by com-bining key clements from the wion,Iie of the COUrt_ Here is the holding in OUr example (;1Se.

+++ The jury had sufficient evidence before it to determine that White knew

the car was stolen, and that he caused it to be transported across state lines. For this reason, we sustain the conviction.

+++

1. Read IS U.S.c. 2312.

2311. Transportation of stolen vehicles Whoever tr"nsports in interst"te Or foreign commerce a motor vehicle or "ircr"n, knowing the same to h"ve been stolen, shall be fined under this title or imprisoned not more than 10 ye;Jrs, or bOlh.

, look back "t the holding. What~s the difference he tween "tramported across st;ltc lines" ;1!ld "caused to be transported across st.He lines"?

3. PafJphrose the holding from this case to show that the elements of 18 U.s.c. 2312 necl'ssJry for conviction have been met.

Case Briefings

law students in the United Stales brief countless numbers of c"ses during their legal studies. One of the rlSons for this is to enable them to brn how to re"d "nd understand the Coses, especially those that are long and complicated. Briefing helps you capture the import"nt elements of a case. For shorter cases of one to three pages, the "brief" is sometimes longer than the actual case itself The point, however, is an amplified understanding of the law underlying the case and, .once ),ou h'lVe that understanding, the abilit), to read severol cases and synthesize the Cil.~es to come up with a general rule o(law.

Since there are many ways to brief J c"e, your instructor may give YOll a dif-lerent format anJ instructions to follow. If not, follow the format given below. USc the Jctual opinion [or briefing the (Jse rather than the headnotes.

Legal Authorities and ,Reasoning . 49

B . f Eler;;ents . .. Case ne .. n if you need to review 11 In

.. h Id be able to find the case agal , . J. CitatIOn. It-, ou _,

full. .. ( . to show the COUrt that the case you . .. I t r svnthesls I trying - th t h.ls 2 Facts. N'eec:-.: tor a e '. . d .. tinguishable Ir011l the CJse a ,

k I: n is either sllndar to or Is arewor 10_ - _ -"'-milar"tSSlles. _._, been bricf~.: lnJ IIlvolvc::. Sl _.. d].lb completely understand the L.lse,

. .: 0 ('tiurJI backgroun .d d. 3 Legal HISlOr. : pr L -ourts h.we dcCI e f I - t th' lowerc, _ f h YOU must bt Jware 0 \\' 1.1 t: s of hw as rdated to the laLlS 0 t e

. . form] The queslion. .. ~ 4. !ssuc(s) I In "uestlon :. e What are the problems In thiS case. . __

case that tht' ..::ourt must deLld . to the issues plus the matenallaLls . .. The answers . 1ft 5 Holding(s) and DISpOSitIOn. h I of law becal.!Se the essentla ac s

Id' d'ffers (rom t e ru e , (I of the case. The ho mg., d' I holding and nol in the rule 0 :.1W,

. I .. mclude m t 1e . of the partlCu ar c.be are h. f different holdmgs.

I d f om a synl CSIS 0 h. b ~ a which is de\e ope r .' . f hy it decided JS it did. T IS can t:

6 Reasoning. The court's diSCUSSion 0 w II as public polio, depending on the mixture of CJses and stamtor}' law, as we ,

issues invo/yt'd in the case,. . dl a licable in this case. This is normally Rule of Law. The law that IS broa y pp . I fa -IS Other elements of the I.IW 7. .. _I sion of tht! matena . L the holding wnhollt IIlL u. . ht ;Ilso be indudt:tl here. that weren't Jppliclblt: to the law nllg ,

., - t and brief u.s. I'. ~Vllirc. P"I)' thiS lorm.l Now let's see how we (;111;1 r Brier

\1'1-, -,' "'J '68 (8th Cir. [977) u.s. v. II t', :> __ 1-._ _

Facts . .ove that he kne-", the vehicle W.IS h the evidence docs not pi Whit" alleges t at I . I to be transported. .

stolen or thai he c.lused .the ve llC e unlocked station WJ!on in ConnectiCut \Nhite and two

50 . Amen'can Legal English

Issue

Was sufficient evidence presented to the iury to find I\'h', 'It t" , ." J e gUi yo Illterstate

Iransport

52 . America. gal English

Within this same period, if you ceased to act as chairman (for any reason other than immorality, inefficiency, incompetency or fai/ure to co-operate with the plans and policies of the University, or faIlure to perform satisfactority the duties assigned ta you, or far conduct that has destroyed your usefulness to the institution), you would be considered for immediate tenure as a teaching faculty member. Existing Murray State Uni

vers1ty pro-

cedures for consideration of tenure would be foHowed and Would include consideration of Murray State University and prior service.

The short answer to this contention is that during his three years at the Uni-versity Plummer never ceased to act as Chairman of the Art Department and never became eligible for consideration for immediate tenure as a teachi~'g faculty member.

Reliance is also placed upon the opinion of this court in 50ni v. Boord of Trustees of the University of Tennessee, 513 F.2d 347 (6th (if. 1975), cert. de-nied, 426 U,S. 919, 96 S, Ct. 2623, 49 l.Ed.2d 372 (1976). This reliance is mis-placed because Soni is clearly distinguishable on its facts from the present case.

The judgment of the District Court is affirmed. No costs are taxed. The parties wilt bear their own costs on this appeal.

+- ....

Shepardizing The..' Aml.'rican legals),sleTll rdies hl';lvily upon Ihe developmenl of bl\' Ihrough cases. Flexibility, a benefir of that syslem, is a dis.ldvanlage to the legal research novice. Since there are many influences 011 the court, both legal and societal, a decision wilh basically the same facts may be decided in two different ways at dif-ferent times bec]use of ,~r.ltlltory or policy changes. Though leg.11 reSC;1 rchers do not usually encounter Ihis problclll wilh more reccnr C;lses, it is important to bl' thorough. J\Jerely locating c.!ses is not enough. Ir is ,lIsa necessary to nwke sure lhat rhe cases found are still considered "good law." Tht' cases may have becn re-versed, overruled, or reinterpreted in ways thaI make them in,lppropriale or evcn dangerous to the case you are researching.

In order [0 make sure that the cases cited .1S precedent are truly precedcnr, you should usc Shepard's Citators, either as hard-copy books or as an Oil-line service. These cit.ltors give the history of the case in a concise form and identit), other cases and authorities th,\[ cite the Case as precedent or note thaI the case is no longer considered precedent. Looking up a GISt' in this work is so crucied that

Legal Authorities and Reasoning . 53

d h'lS become an integrallerm and concept of American the term shepar IZlI1g Legal English.

Legal Reasoning

',' .' 'lS drJwn between It'gal authority and legal Earlier in the chapte~ a.JI:.rmLtIOn wI', ,1, thorilv is Ihe "What" alld legal reJson-

. T " prj\, It even morc, ega ,IU, . I '. reasonmg, 10 Slm I. '", J 10 have located sources Iftlere]S

"h "I Ih'r ,,,,ords II Jo\:~ no goo ing is the ow. nOt: ~ 'k' II '111 work for your client. Though there may d t nding of how to m.l t: l\: h . no U11 ers a I ' I, 'In t to 'I p.lflicuhlf set of facts, t ere 15

. of 'I code t 1.1l IS re eV, , , be only one sec lion , " e -edent A legal researcher or practl-I I)' one Clse lh.lt can serve as pr l . , d very rare}, on . . I . h t relate the statUle and the case law In or er . must find SOllle wa\' Ifl W lie 0 lioner, "

to underst .. md how the bw is appIJed.

Synthesis , . h f 0 11 onc of two dirccr]onsdepemlrng onlhe oa 'h Icgal reseilfC r I I'

One can appr l .., d' b' ' d and attornevs do nor rc yon cases ' t" CIvIl law ]S co t.: ase , ,

type of law 111 ques IO~., d legal commentaries. Common law relies I 'fy t r" rdvlIlg mstea on , to c an SI"" , nlv lor backgroun wor , d' these souru.::s arc 0 . Th' k of them as basic en9c1ope las. . . I' I 'morandJ or III court. m ,

cite these 10 eg.l me J (I [ts 'onlracls elc ) ;,1:;0 proVIdes a . J~ ,. JlS oj t II' I III V on 0 "l , , .

Thl'ser]es t"Stll/l.lIIt/ . . I ,hi' authority lh.m genefilllt.:gal en-I . r 1 but is 'o\lSIJ~r~d more va U.l e .. synt leSIS 0 il\V L, '1' f law by various legiil authofitIes,

,. TI" volumes are a COlllpl atlOl1 a . d cyciupeU];1S, le:.e ' h 1 '\ze the hw on various Issues an I r"orswosyntles including judges ,lOti .1W pro ess" , ,, not considered law in Ihe Unired

' t form These statule.s are .. put it III a statu ory . I' can be found in court opl11lOns

. II t' l-es to Restoternen s St.lIes, but OCC.ISlOIl;l y re ere, c J' 'ubmitted to the courts. ,

or legal memoran '1:', b I 31 s)'Ilthesis consider the followmg d d "hat IS meant ya eg., I To UI1 erst.lIl \ d) f T t K493 (J96j) relating to c asses

" h R' '1' t III 'nt (Secon 0 lor s y , "statute' fro,m t t! t.:S.1 e c _", . , ongful death actions, which was de-

. "d I' h mw be beneflcld,fIes 111 \\ r h of IlldlVI UiI:. \V 0 '. '. , d the comments to the stalute t .11

' .' l tion ot vaflous cases, an velopt"d tram ,I Lompl a k \II rhal contributory negligence means par-follow. First, however, you need ro no. " " e 'I de.nh ti.ll responsibility tor whatever happens, III th]!) Las,. .

54 . American Ltytll English

...(1)3 Beneficiary Under;l Death Statute (I) Unless otherwise provided bv st;Hutc the con ' . beneficiary under a death stat .'d ,. tnbuto_ry negligence of one olher beneficiary. ure Oes not bar recovery lor rhe benefit of any

(2) VVhethcr the contributorr ne '1'" ' st.1turc bus 'd" ,g Igenct' of a bene(jclary under a de'Hh

. or rt' Uces feCo\'en' to the nl' I (h' upon the- statute. " en 0 IS O\\ln bL'nefit depends

. a. DijJerclll kinds OJdl',lth 5lll/lIlcs. r\ "death' , .".", ' "IVeS'1 right of '1'( . ' st,lIl1tl' IS a st

56 . Amencan Legal English

The following chart might help in your an'llysi:; of thest: Glses.

C

58 ' Amedcan Legal English

}i: A lawyer dies sever

60 . American Legal English

, In terlll:-; of high-context and low-context cultures, explain the miscommuni-cation:-; in the following scen.lrio:-;.

62 . American Legal English

114 (N.D. 1996). The decisIOn wilt not be overturned on appeal unless there is a plain abuse of discretion. Mehf, supra; Knoop, supra. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable man-ner. Knoop, supra; 5pilovoy v. 5pilovoy. 488 N.W.2d 873 (N.D. 1992). We witt not find a trial court's decision arbitrary, unreasonable, or unconscionable "if the decision is the product of a rational mental process in which the facts and law are stated and are considered together for the purpose of achieving a reasoned and reasonable determination." Gissel v. Kenmore Township, 512 N.W.2d 470 (N.D. 1994); see also Bachmeier v. Wallwork Truck Centers, 544 N.W.2d 122 (N.D. 1996) [stating abuse of discretion standard].

Dohman refutes as not supported by the record several statements made by the appellee in its brief and during oral argument For example, Dohman chal-lenges the appeltee's assertion that Dohman made his comments "in a sarcastic and demeaning manner" and "jabb[ed] his finger [at] the jury." Appellee's Brief at 1-2. The appellee also stated that "[aJs the jury was leaving the courtroom. Mr. Dohman, while standing and gesturing at the jurors, ... verbally assaulted them" using a "threatening tone of voice and intimidating body language." Id. at 2. We agree with Dohman that some of the appellee's accounts, whether or not they are accurate, are not preserved in the record. But, our opinion is not based upon these unsupported assertions. See Flex Credit, Inc. v. Winkowitsch, 428 N.W.2d 236 (N.D. 1988) [refusing to consider on appeal evidence which did not appear in the record of the trial court proceedings]; N.D.R. App. P. 28. Nor is our decision based upon Dohman's accounts which are not evident from the record, such as Dohman's characterization of one of his comments as a "rather quiet statement~it wasn't a yelling, or a pOinting, or a gesturing." Rather, we rely on the judge's description of the colloquy, which is found in the record, to conclude that the district judge did not abuse his discretion in finding Dohman in contempt of court.

Following Dohman's comments directed at the jurors, the trial court de-picted Dohman's conduct as an "outburst." Consistent with the statutory defi-nition of "contempt of court," an "outburst" is defined as "a bursting out" or "a violent expression or demonstration of intense feeling." Webster's Third New International Dictionary 1601 (1971). Similarly, in his order, the judge de-scribed the context for his finding of contempt. explaining that Dohman com-mitted contempt of court "because of his unwarranted and outrageous behavior in making disparaging comments in a loud angry voice to the jurors after they had delivered their verdict ... ." The judge further clarified that "such behav-ior occurr[ed] in the presence of the Court" and that it was "necessary to im-pose a punitive sanction in order to preserve order in the Court and to protect the dignity and authority of the Court ...

Legal Authorities and Reasoning . 63

Judge Bohlman recognized that jurors have the right to expect that the judge presiding at the trial will prevent verbal atta:ks ~y a lawyer~ a party, or other participants in the trial. In fulfilling that obl1gatlOn to the Jurors, th~ ud e may very Vlell impose punitive sanctions For disparaging comments dl' ~ec;ed at jurors following the announcement of their verdict. We conclude that the record supports and justifies the judge's order of contempt and pumtlVe sanction. We affirm the district court's order.

+++

Chapter Three Criminal Law

level I: Discovering Connections People Jrollnd the world h'l\' - . '" .-crimes ,md [he crimintlis \ ~ e.1 Pl:Cu.JafhfasCIIlJUOn with law as it relates to

v a comma ( em Open

66 . American Legal English

Putting the Terms to Use '.n order to. lind ~omeone guihy" of.1 aime, (he prosc.'cution has to prove lhe de-lend.lOt glllliy ot all dements of the crime (,IS dt'lilled b~' SI

68 . Amen'can Legal English

/lot be ,IS abhorrenL to YOll' "t . 'h b t" . h . ,IS I mIg t L' to someonl? who believes that rehabilita-t ~on It~. e mo.st sUllable theory. In the United .states, the debilte reaches constitu-

lO~a ImenSJOIlS because of the Eighth Amendment ro the USC ' , h 'h hOb' " onsWutlOn

w Ie pro 1 Its crud and unusuJI punishment. '

Excessive h.lil sh,dJ not b' . . I ., " _ . 'I' e rcqulrc( ,nor eXLeSSlve Irnes unposed, lltlr cruel and unu~U;l pUlllshmcnts intlicted.

b '. Cour~s ;~r~ generJlly rd,ucrant to rule that il punishment is crud and unusual e(.lUse t e JU ges usually feel thaI if the legisl.IIure permits it then th' P "I

ment mUst b" bl ' e unlS 1-cabilit of th: ~t~~t;] e. However. on occ~sion, ~ourts have considered Ihe appli-"

'I ~. .g. h Amendment to certam punrshments, particularl)' in cases mo vl/lg ImpOsitlOn ofth d h I

Ihe C II . C e eat pena ty. ""'hen doing so, the\' have considered 'OOW1~'K~ .

I. the re/;.lIionship of the t I ' . sen enLe to 11(' maXllllUm sentence for other crimes

conSIdered more heinous [horrible/; 2. the severity of the punishment in other jurisdictions; and 3. the absence or relative nbsence of violence.

\~I ile ~here are argll~lents both for and against the death pen;.ilty, il is In o.lSl1

ect a JW In most Amencan stal A ,. f' r eight f I 'Ii' . es., mnt.'>ty OlernatlOJ};11 reports that in 1998 thirrv-

. 0 I Ie Itty t\merlcJn st,Hcs have the death pen,lit" ThL'dL'JII '.1 '1' ' exists under fcder 11 IJw A . ." ] pen,] tya so

d ,. , others that discuss the death pen.llty can be found at the LegJllnfor-malion InstiLUte website (www.law.comdl.eclu) in the u.s. Supreme Court his-toric d~cisions section.

In Fun11lllJ the Supreme Court in a 5-4 decision (ound the death penalty, JS then implemented in most states, viol

70 . Amedcan Legal english

5. Never forget to verify the validity of your source. For example, an Amnesty Internation.ll web page is a more credible web site than a web page of an individual.

6. If you can't find anything appropriate via the general search engines, check the fOllowing sites. Against the Death Penalty: htrp://www.essclHi;ll.orgldpicldpic.html For the Death Penalty: http://ww\\.nra.org.!crimcstrike/(sdp.html UVvtt!: The lnterner is constantl), ch,mging, so if these Sill'S are unavaihlble, rou will h.we to find other useful sit~s to prepare your arguments.]

7. Prepare your arguments for an or:J1 debate on the necessiC)' for the death penalty. You can also consider constitution;]1 arguments.

Debate 1. Review the arguments gathered by members of your group during the research

phJse of this exercise. 1 Consiuer possible counterargumcnts that might bl' proposed by the opposing

tcam and prepare responses to them. (You might want to do some reseJfch on the opposing side of the argument.)

3. In larger groups, select a spokesperson for eJch separate argument so that everyone has a chance to speJk.

4. L1Ch side will hJve a total of fifteen minutes to present rhe argument, with a rebuttal time of ten minutcs.

5. The team to begin will be determined by 01 coin toss immcdiJtcly prior to the dd);]fe.

Criminal court judges don't make decisions about punishment solely on the basis of public policy and social welfare. The judges are guided by legislative or case guidelines that have classified offenses bJscd on their severity. Punishments h.we to be meted out in ac(ord;lIlcc with thl' law. Thc next sections provide a brief introduction into the classification .?

3. How do you think tht':it' olklls(.'s are chlssdled JI1 thl.' Ul1llt:d::it.ltl.'~.

72 ' American LeYl11 English

Crimina! liability Ikcall from Level II that there an.' Ihree common clements in all aimes: /IIcns fCll, IIC/US fClIS, i1l1(1 causation. Man)' jurists would also include concurrence [both the /IIellS rca and t/(lllS rells mUst be connected[. [n other words. the prosecution [allofllt'y representing the statl', ,1Iso commonly n:rerred to ,IS the prosecuting attorney, district attorney, or OA[ hilS 10 prove Ihal these clemt.'llls \Vere prc;;t.'nt bt.'fore he or .~he can obtain il conviction.

The prim;lr}' stilJld~lf(J of proof in ,I crilllillilltri~ll is that the prosccution IllLlst prove all dt.'ll1('nrs of an offense bl'yonJ a reasonJblc doubt"-the tJcts as proven establish guilt. Public policy re'-l.uires Iha[ thl' burden on the prosecution be it heavy one beGluse in the U.S, system c\'ery person musl be consicit.'red innocent until proven guilty. Determining which standard is appropri,Ite is a legi.11 dccision b'lsed on case Jnd statutory law.

Mens Rea

MCIIS rca or tbe intent is often tht' most difficult aspcct of the crime to prove. If the required mental slate for the offense is be-king. no crime hilS been committed. The mental stJte required to commit a crime varies with the crime. In CO/rl11loJ/-lI'call" I'. Woodward, 7 Mass. L. Rptr. 4--19 (J 997) (the trii.11 of .1 British au pair accused of killing an infallt in her care), for example, the stare of 11,:I;]ssachusclls cllJrgL'd Woodward with sl.'cond-degrec Illurder.ln iviassachusclts, rhat ch;nge rcquires "01;1Iice," which hi1.~ becll intl.'rpretcd to mcan an intentiollal ilct [h.lt crL'atcs i1 ~ubstilnti;ll risk of dC;l[h. WooJw.lrJ \\',lS colwictcd of :;ecolltl-degrce murder bY;1 jury, a verdict fhat WJS bter reduced to involuntary Illanslaughter by Judge ZOl'bel. (A reductiOIl of it jury Vl'rdict is possible..' in a limited number of states ilnd is

74 . American Legal English

Actus Reus

Perhaps the ,ca~.it:'~~ :,Jf the, dem~nt5 to ul~derst,mJ is the actus reus or the "wrong-ful deed." It I,., ')Imp!' th~ .lCt th.u the defendant has committed [hat has caused h.lrm. Norm;JJ/y rr.t:

76 . American Legal English

Kidl/l/ppillg Model Pell;!1 Code 212_I Jdines kidnapping tiS follows.

A person is guill)' of kidnapping ifhe unlawfulJ}' removes another from hjs /emphasis addedl place of residence or business, or a 5ubsl;1ntial distance from the vicinity where hl' is founo. or if hi.' lInlawfully confines another for a SUbSIJlltia/ period in J place of iSO/;ltioll, wilh ilny of the following purposes:

(a) to hold (or ransom or reward, or as a shield or hostage; or (b) to facililatl' commission of any felony or flight thereafter; or (c) to inllict bodily injury on or to terrorize the victim or another; Or (d) to intafere with the performJnce of any governmentJI or political

function_

I. Carefully rend the provision on kidnapping in the MPC. 2. To whom does the his refer in the statute? 3. 'Vorking in pairs, review the following scenJrios and determine if the actor is

guilty of kidnapping under the MPC. 4. Pay p;1rticul.lr Jttention to rhe l,lngllJge of the code itself and be prepared to

defend your ansWCT in class.

Scel/arios

a. During a bank robbery, one of the robbers holds a gun to the bank president's head while her cohorts arc getling the money fmm rhe s;lli:. 'she tells the presi-dellt he is her "ho5/;lge." The robbery takes 10 minutcs to complete after which the robbers leave the bank president unh'lrmeu.

b. A farmer picks up a menIally ill hitchhiker and takes him to his farm, which is 50 miles from the nearest town. The hilChhiker is told he h.1S to work at the farm ulltil he is able to pay the IJrmer back for the ride. Because the hitchhiker is mentally ill, he doesn't realize that he can simply walk away from the farm and find another ride /0 town.

c A I3-year-old girl agrees to go to an oUI-of-state concert with a 16-year-old boy from her high '.school. They .wend the concert without/elting her parents know ilnd don't return for three days, during which time her parents have in-formed the police thar their daughter is missing_

d. A t~lther, who was granted the right during a divorce proceeding to see his dilughtcr on rhe weekends fvisitCltion rights/, doem't bring the girl back on Sunday night. He and his dal!ghta h,1\'e gone to ~Iexico for two weeks without obt3ining prior approv;:d of the mother, who \\';IS granted cu.;fnnv Iw tho __ ~ ___

Criminal Law . 77

_. - ,d 1 other takes her daughter and flees the .stak, DUflng 1 divorce pro!...ee mg, a m .11 b e. ' .. _ I h hld because she fears that the fa.ther WI e

. nin o in hiding \Vii 1 t c C 1 b remal _ v. d " h gh the mother believes that the father h;'IS een granted JOint ClLSto ~ even t au ;busing the child.

. d h' MPC a written in the dr,lft (Ode i!selL COlor.ldlJ N,jl ,'very st.lIe h,lS en;tLte Ie.::. _ l ... , i kd gStHutc is one of tht' states Ihat chose to change Ill' 'I napplll _

d . kidll"lpping in the first and second degree. P;l~' 1. Re;ld the Colora 0 statutes on '-' close attention to the language of tbe statutes.

~ R 'v St-II I R-3-30 I. First degree kidnilpping Colo. t.: .~ . h d . an)' of the following acts with [he intent thcreby ( I) An\' person w {) Ot.:S. . .

- ' - - - other person to milke .. my conCCSSl(m or give up to lorcc the Vldll11 or any r " I" J to secure il release of a perSOll under the 0 -anything of va lie 111 or er _ .

I" 'I '. -"Iual or apparent control commits first degree bdnapP1l1g; enl t'r s..... c: I th T or

"bl "" d c'urics any pt'fson I rom one p acc to .1Il0 t.:, (1) Forc] v seizes an ~ , I .. J 'S any person to go from ont' pbce to ;lOother; or (b) Entices or perSU,l l: . (c) Imprisolls or forcibly secretes ;Jny .persoll: ... ~ I I' S" t "'11..'-'1-10" Second degree klllnapplIlg (00. ,C\' . t.l _ Y

78 . Amen"can Legal EngUsh

Crimes against Property

Common property crimL's indude larceny! taking of property of another with intent to permanently deprive the person of the propertyl. embezzlement !fraud. ~llent (o.nversion of the proFccty of ;1Il0[hcr~all accountant t.lkes 1lI0llCY belong. IIlg to his or ha emplnycr lor hi~ or her own lIseJ, robbery /which is larceny with two .1ddition.11 eleml'nts~the property must bt.' l;lkL'1l from Ihl..' victim's pl..'rson or presenCt' and the tilking must be by violencc or intimidation/, arson f 1ll,1liciolJS burning of the dwelling of anothcr~m~lny modern st.Uutes define arson as i n-eluding nonresidential buildings/, ,llId burglary.

Burglllry At c~mmon law, burglary was defined:1s the breaking and entt'fing of a dweIIing ilt night for the purpose of committing a felony. The "breaking" clement included entry through usc of forct', fraud. or Ihreat of forct.' in .IJJitinn to ilctuJlly OPCI1-ing a door or window. The 't.'ntry" element WilS defincd as the entry of

80 - Amen"can Legal English

burglary lses in New Mexico from one in Alasb. In the Alasbn case IAmvic ". ."i/lltC o/Af"ska, 699 P.2J 81)0 (Alasb Ct. App. 1985) [. rhe defendant was apprc. hended [(aught) in a walkin cooler with a case :.>f beer in his h,Inds. The ..:ooler section \~'as not open to the publiL. bUI the twt'ntyfourhour store WJS open 10 the public He \\,;15 LOllvi(ted by the Irial (ouft but 'lppeJkd, contending Ihatlh ..... st;l!Ulory ..... It'ment.') for bur:;lary were flot Illet. On appe,ll he argued that he(ause the building W,IS opl'n 10 the public, the "unauthorized enlry" ~Iement oJ" Ihe 0[" .. knse h,ld nlH been proven. The Court of Appeals agreed and reversed the coll\'ic tion, Iwlding that the "unauthorized ent r( requirement under the stat LI te had not been met.

In the Ne\,: hicxico case, two convictions were consolid.lled for purposes of .lp peal. One Glse Involved facls substantially similar to those in Ambic. The ddendant ~'as found. with the intent to ste,ll, on the loading dock of an JUto parts store. In Inc SCCOllll lSe, thl" Jdt:lldallt cnlercd'l hospital ol:lee and stolc.I purse. Bolh de fendallts ciled Amlnc and requested lhal the New I\-Icxicn court reverse the cOI1\'ic~ lions because their acts did not fall wilhin the statutory definition ofburg1arr.

\':'ith your partner from exercise 8, decide on the amwcrs to Ihe following ques~ tlons. Be preparL'd to defend your amwers orally.

I. \\'hich of the three statutes (~'I PC, Alasb, and i':ew ;"Ie.'\ico) include breakinl! into a p.lrkcd car as burglary? ~

1 Is a person who enters his own house in order to commit a crime ~uiltv of burglary under any of the stllwtes? Why or why not? '"' .

3. \Vould brc.1king into an RV r fl.-ere'llion;11 vchicle I be hurt:laf\' under ,lll\' of the statutes? L' .

--I. look at Alask,,'s definition of a building.

AI"sb Stat. I LB 1.900 (b) (3) Cum.Snpp.19S(i: "I Bluilding': in addition t.o Its usu;11 lllL'aning, includes any propelled vehich~ or structure adapted lor overnight accommodarion of persons or (or carrying on business ....

Now, how would you answer question Y

Continuing to \York with the same partner from exercises ~ and 9. write the fol-lowing ~efinilions. E.'\ch

82 . American Le!j ... l English

SvlicjtatiOIl As wilh attempt. the specific crime (such ilS burglary) does not have to be com-pleted to convict a pany o( solicitation. Solicit.uion in and o( itself is a crime. Solicitation is the act of convincing another pcr!:iOIl to commit OJ crime. The persuader doesn't have to lake part in the crime to b .... guilty of solicitation. A common example might be the hiring of ,1 thief 10 steal business records from a competitor. If Bill solicits James 10 break into Bauxite Corporation ilild S!t\11Ihe latest profit reports, and James reports the cOllvas;llion lO the police, Udl canllol be charged with burglary, but he C,ln b!..' charged with solicitation. Under the MPC, Ihe solicitor of a crime can abo be charged al the- sarnL' level as the person actually com milling the crime if the crime is successful. In the above example, if James h'1(1 stolen the records, both },lmes ;IDa Ui/l could have bl'e-n charged with burglary.

COIJspimcy like solicit~ltion, conspiracy is a crime in itself..-\t comillon law, conspiracy re-quired an .lgrcClllent betweell .It leasl t\\'o peoplL' to commit an unlawful act. However, the MPC changes the definition some\Vh,H so that olle person agreeing with another who is simply pretending to agree to commit the unlawful

84 Amen'can Legal English -------

In 1t):-l7, th~ W,tshington SupreJlll' Court rl'\'i~wed an appeal bv th~ ::;t a tl." of \V;'~hington [SttllC I'. (JIIt'IIS, 107 W;Jsh. 2d :-l48, 733 P.2d 9:-l4 (19871' ofa pretrial revlt.,'w [revie\.-\' ofkgal issue prior to trial I to dt't~rmine \vhether the jurv should he allowed 10 consider whether premeditalion WJS present or not. Whe~ the lrial court refused to allow the jUf}' to decide on the issue of premeditation, thl' stale appealed.

I. Ikyiew the following 1:lcts bellm.-listening (0 a tape slImrn.uizing lhe Offcns judgment. \Villi

86 . Amedcan Lega{ English

\'Vork in p,lirs on the following writing l'xercise:.. Each pair may turn in only one mL'll1oran{lul1l.

I. You ;lre working in the distrIct attornt:y's officL' in Bangnr, :\L1illl'. YOll havL' rc-cenlly been infof11ll'1.i of;l C.lse Involving il de;uh in.l hun ling accident (b;ISL'd on an .[("tual case). As IhL' prosecuting atl()rne}~ you h'l\"1.~ Lo decide if Lh ... ' perpe-lrator [person accused of committing;' crimL'j has indeed committed J crime, wh;1t the crime is, Jnd if you should prosecule.

; \Vrile a memorandum for the file (informal bUI infornltlti\'c) discmsing vour options .mel your decision. ~ ,

.1. The bcts .m.' as follows.

Da\'id noth, forty-five, wenl deer hUIHing in lhc ,"'Iaine woods with a friend. Hc fired al Wh;ll hL' thought was a deer bUI instead killed t-..larjorie WcstOll, who \vas sta.nding in her b,lCkyard.lvls. Wcston \\".IS wc'lring white mittens

88 . Amedcan Lt~_ .;"nglish

~~~rfS have n~t a/wJys defined the word know (or juries but have simply left it to [ C Jury to dccait' what kllow means. This test h']s b"n 't' ,'. d' d' , bee >,' ec cn IUZI.' III 1110 ern tImes

JUSc someone who IS men rally ill might know that what he (lr 'h ' d' , ".;rang b r b .::; e IS olng IS lest. u may nor t' able to resist the ad. Thi.~ led to the irresistible impulse

The focus \ 'itl th' "1 I . ( I h ,\ 1 L' IrreSISII) L' lI11pulsL' Il'S( is nol thl' de-rendallt's knowlt'dge o w It't er i1n ,let is right or wrong bUI whether Ihl' ddl'nthnt -1 "., .' ..... If conlrol Sr'lI 'S tho t . h - . . ' L,1l m,UI1l,111l 5e -~['N' h' . t: ;J p('rn11l ( I.' use oj !IllS ks[ usc both lhe irrl.'sislible impulse 'lIld L I ag teo test when in'l L1cr" I' " tl t-. !:i r mg r Ie .Jury on [he insanity adensl.'. An\' of the

uce ,IdOLS IS '1 complete d f 'n" (h ' ..:rime) t h .. ". . ~ l: 5e . ( e ~)l'fpetrator cannot be convicted of the

ate comnm;slOn at the ..:rllllt' for which the defend'ilit h'l' bid ' ,!:i cell c l