Suport Curs Drept Sem 1 2011

8/3/2019 Suport Curs Drept Sem 1 2011

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Suport curs drept (texte juridice) sem 1 2011-2012

The adversary system

The trial system in the United States is an adversary system. This means itis a contest between opposing sides. The theory is that the trier of fact (the

judge or jury) will be able to determine the truth if the opposing parties

present their best arguments and show the weaknesses in the other sidescase.

If a criminal case goes to trial, the prosecution has the burden of provingthe defendant guilty beyond a reasonable doubt. In a civil case, the burdenis on the plaintiff to prove his or her case by a preponderance of theevidence (greater weight of evidence). The standard of proof is moredifficult in a criminal case. This is because of a belief that more evidence

should be required to take away a persons freedom.The adversary process is not the only method for handling legal disputes.

Many countries use the inquisitional system, in which the judge is active inquestioning witnesses and controlling the court process, including thegathering and presenting of evidence. This differs from the adversary

process, in which these matters are left to the competing parties and a

decision is made by the judge or jury based on the arguments and evidencepresented.

The adversary process is often criticized. Critics say that it is not thebest method for discovering the truth with respect to the facts of a specificcase. They compare the adversary process to a battle in which lawyers actas enemies, making every effort not to present all the evidence. In thisview, the goal of trial is victory, not truth or justice.

On the other hand, the adversary process is the cornerstone of theAmerican legal system. Most attorneys believe that approaching the sameset of facts from totally different perspectives will uncover more truth thanother methods.

Crime GENERAL CONSIDERATIONS

Every crime is made up of certain elements. Elements are the conditionsthat make an act a crime. A crime cannot be committed unless all itselements are fulfilled. For example, robbery is defined as the unlawfultaking of goods or money from someones person by force or intimidation.Thus, the elements of robbery are (1) the taking of the goods or money, (2)


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the use of force or intimidation, and (3) the lack of consent of the personfrom whom the goods or money are taken.If someone picks your pocket without your knowing it, the person cannot

be convicted of robbery. This is because the person did not use force orintimidation one of the elements of robbery. However, the person could

be convicted oflarceny, because the elements of larceny do not include theuse of force or violence.

Almost all crimes require an act and an intent. Criminal intent means thatthe person intended or meant to commit a crime. Criminal intent usuallyinvolves knowing and willful action. If a person acts because of a mistakeor some other innocent reason, there is no criminal intent.A few crimes are strict liability offences. These crimes do not require

criminal intent. Strict liability offences make the act itself a crimeregardless of the knowledge of the person committing the act. For example,

the law makes it illegal to sell alcoholic beverages to minors. This is trueregardless of whether or not the seller knew the buyer was underage.Intent is different from motive. The motive is the reason a person commits

a crime. For example, in murder, the motive is the reason a person killssomeone (for revenge, to obtain money, or the like). A good motive seldom

justifies a criminal act. Robin Hood had a good motive. He stole from the

rich to give to the poor, but his actions were still unlawful.A single act can be both a criminal and a civil wrong. For example, if Paul

purposely sets fire to Floyds store, the state may file criminal chargesagainst Paul forarson. Floyd may also brings separate civil action againstPaul to recover for the damage to his store.

STATE AND FEDERAL CRIMES

There are both state and federal criminal laws. Some acts, such as simpleassault, disorderly conduct, drunk driving, and shoplifting, can be

prosecuted only in a state court unless they occur on federal property, suchas a national park. Other acts, such as failure to pay federal taxes, mailfraud, espionage, and international smuggling, can be prosecuted only in a

federal court. Certain crimes, such as illegal possession of dangerous drugsand bank robbery, can violate both state and federal law and can be

prosecuted in either state or federal court.

CLASSES OF CRIMES


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Crimes as classified as either felonies or misdemeanors. A felony is acrime for which the penalty is imprisonment for more than one year.Felonies are usually the more serious crimes. A misdemeanor is any crimefor which the penalty is imprisonment for one year or less. Minor trafficviolations are not considered crimes, although they are punishable by law.

PARTIES TO CRIMES

The person who commits a crime is called the principal. For example, theperson who fires the gun in a murder is the principal. Accomplice issomeone who helps another person commit a crime. For example, the

person who drives the getaway car during a bank robbery is an accomplice.An accomplice may be charged with and convicted of the same crime asthe principal. A person who orders a crime or who helps the principal

commit the crime but who is not present (for example the underworldleader who hires a professional killer) is known as accessory before thefact. This person can usually be charged with the same crime, and canreceive the same punishment, as the principal. An accessory after the factis a person who, knowing a crime has been committed, helps the principalor an accomplice avoid capture or escape. This person is not charged with

the original crime but may be charged with harboring a fugitive, aiding theescape, or obstructing justice.

Crimes against the personinclude homicide, assault, battery and rape. All of those crimes are seriousoffences. A defendant found guilty of one of them may receive a harshsentence. However, the law also protects the defendant by defining various

levels of these crimes and by considering the circumstances of eachoffense.

HOMICIDE


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Homicide- the killing of one human being by another is the most seriousof all acts. Homicides may be either noncriminal or criminal.

Noncriminal Homicide- is the a killing that is justifiable or excusable andfor which the killer is deemed faultless. Examples of noncriminal homicideinclude the killing of an enemy soldier in wartime, the killing of acondemned criminal by an executioner, the killing by a police officer of a

person who is committing a serious crime and who poses a threat of deathor serious harm, and a killing performed in self-defense or in defense ofanother.

Criminal Homicide Murder, the most serious form of criminal homicide,is a killing that is done with malice. Malice means having the intent to killor seriously harm. At one time, there were no degrees of murder. Any

homicide done with malice was considered to be murder and waspunishable by death. To reduce the punishment for less grievoushomicides, most states now have statutes that classify murder according tothe killers state of mind or the circumstances surrounding the crime.First-degree murderis a killing that is premeditated (thought aboutbeforehand), deliberate, and done with malice (with intent to kill)

Second degree-murderis a killing that is done with malice but withoutpremeditation. That is, the intent to kill did not exist until just before themurder took place.

Felony murderis a killing that takes place during the commission ofcertain felonies, such as arson, rape, robbery or burglary. It is notnecessary to prove intent to kill; felony murder includes most killingcommitted during a felony, even if the killing is accidental. Most statesconsider felony murder to be first-degree murder.Voluntary manslaughteris an intentional killing committed undercircumstances that mitigate(lessen), but do not justify or excuse, thekilling. Manslaughter is based on the idea that even the reasonable

person may lose self-control and act rashly if sufficiently provoked.Involuntary manslaughteris an unintentional killing resulting from

conduct so reckless that it causes extreme danger of death or bodily injury.An example is a killing that results from playing with a gun known to beloaded.

Negligent homicide is the causing of death through criminal negligence.Negligence is the failure to exercise a reasonable or ordinary amount ofcare in a situation that causes harm to someone. Some states classify death

by gross, or extreme, negligence as involuntary manslaughter. The most


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common form of negligent homicide is vehicular, or automobile homicide.This is a killing that results from operating a motor vehicle in a recklessand grossly negligent manner. Any death that results from careless drivingmay lead to a civil suit for damages, but it is usually not considered acrime unless the death results from gross negligence.

ASSAULTAND BATTERY

Assault is any attempt or threat to carry out a physical attack upon anotherperson. An assault occurs when the threatened person reasonably believesthat he or she is in real danger. For example, suppose John points anunloaded gun at Maggie. This is an assault if Maggie reasonably believesthe gun is loaded. Battery is any unlawful physical contact inflicted by

one person upon another without consent. Actual injury is not necessary.The only requirement is that the person intended to do bodily harm. Today,there is often not much difference in law or practice between the use of thewords assaultand battery.

Just as there are degrees of murder, there are also different classifications

for assault and battery. Aggravated assault and battery is an assault withintent to murder, rob, rape, or do serious bodily harm. For example, if Johnknocks Maggie down while trying to snatch her purse, he is guilty of

aggravated assault as well as the crime of attempted robbery. Many statesimpose greater punishment when the assault is made with a deadly weapon(a weapon that could cause death). Many states also impose greater

punishment for assaults on police officers, prison guards or other lawenforcement officer.To deal with the growing problem of harassment, forty states now have

anti-stalking laws. Stalking occurs when a person repeatedly follows orharasses another person and makes threats, causing the victim to fear deathor bodily injury. Women are the targets of most of the 200000 cases of

stalking that are estimated to occur each year.

RAPE

Traditionally, the law has recognized two types of rape. Forcible rape isthe act of unlawful sexual intercourse committed by a man with a woman


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by force and without her consent. Statutory rape is sexual intercourse by amale with a female who has not yet reached the legal age of consent. Instatutory rape cases, consent is not an issue. Sexual intercourse with anunderage female is rape whether she consents or not.A number of states have recently rewritten their rape laws. The new lawsclassify the offense as sexual assault and make it applicable to both menand women.

Crimes against property

The category of crimes against property includes crimes in which propertyis destroyed (such as arson and vandalism) and crimes in which property is

stolen or otherwise taken against the will of the owner (such as robberyand embezzlement).

ARSON

Arson is the willful and malicious burning of another persons property. Inmost states, it is a crime to burn any building or structure, even if the

person who burns the structure owns it. Moreover, burning property withthe intent to defraud an insurance company is usually a separate crime,regardless of the type of property burned or who owned the property.

VANDALISM

Vandalism, also known as malicious mischief, is willful destruction of, or

damage to, the property of another. Vandalism causes millions of dollars indamage each year. It includes such things as breaking windows, rippingdown fences, flooding basements, and breaking off car aerials. Dependingon the extent of the damage, vandalism can be either a felony or amisdemeanor.

LARCENY

Larceny is the unlawful taking and carrying away of the property ofanother with intent to steal it. In most states, larceny is divided into twoclasses, grand and petty, depending on the value of the stolen item. Grandlarceny involves the theft of anything above a certain value (often $100 or


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more) and is a felony. Petty larceny is the theft of anything of small value(usually less than $100) and is a misdemeanor.The crime of larceny also includes keeping lost property when a reasonablemethod exists for finding the owner. For example, if you find a wallet thatcontains the identification of its owner but nevertheless decide to keep it,you have committed larceny. Likewise, you may be guilty of larceny if youkeep property delivered to you by mistake.

Shoplifting is a form of larceny. It is the crime of taking items from a storewithout paying for them. Some states have a separate crime calledconcealment. This is the crime of attempted shoplifting.

EMBEZZLEMENT

Embezzlement is the unlawful taking of property by someone to whom itwas entrusted. For example, the bank teller who takes money from the cashdrawer or the stockbroker who takes money that should have been investedare both guilty of embezzlement. In recent years, a number of states havemerged the crimes of embezzlement, larceny, and obtaining property byfalse pretenses (intentional misstatement of fact) into the statutory crime oftheft.

ROBBERY

Robbery is the unlawful taking of property from a persons immediatepossession by force or intimidation. Though included here as a crimeagainst property, robbery, unlike other offences, involves two harms: theftof property and actual or potential physical harm to the victim. In moststates, the element of force is the difference between robbery and larceny.So, a pickpocket who takes your wallet unnoticed is liable for the crime oflarceny. A mugger who knocks you down and takes your wallet by force isguilty of the crime of robbery. Robbery is almost always a felony, butmany states impose stricter penalties for armed robberies.

EXTORSION

Extortion, popularly called blackmail, is the use of threats to obtain theproperty of another. Extortion statutes generally cover threats to do future


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physical harm, destroy property or injure someones character orreputation.

BURGLARY

Burglary was originally defines as breaking and entering the dwelling ofanother during the night with intent to commit a felony. Modern laws have

broadened the definition to include the unauthorized entry into any

structure with the intent to commit a crime, regardless of the time of day.Many states have stricter penalties for burglaries committed at night,

burglaries of inhabited dwelling, and burglaries committed with weapons.

FORGERY

Forgery is a crime in which a person falsely makes or alters a writing ordocument with intent to defraud. This usually means signing, without

permission the name of another person to a check or some other document.It can also mean changing or erasing part of a previously signed document.Uttering, which in many states is a separate crime, is offering to someoneas genuine a document (such as a check) known to be fake.

RECEIVING STOLEN PROPERTY

If you receive or buy property that you know or have a reason to believe isstolen, you have committed the crime of receiving stolen property.Knowledge that the property is stolen may be implied by thecircumstances. In most stated, receiving stolen property is a felony if thevalue of the property received is more than $100 and a misdemeanor if thevalue is less that $100.

UNAUTHORIZED USE OFA VEHICLE

Several crimes may occur when a person takes a motor vehicle without theowners consent. The crime of unauthorized use of a vehicle is committed ifthe person only intends to take the vehicle temporarily. This crime, which

includes joyriding, is usually punished as a misdemeanor. However, if theperson intends to take the car permanently, then the crime may be larcenyor auto theft. The crime of carjacking occurs if a person uses force or


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intimidation to steal a car from a driver. Carjacking is a federal crime andis punishable by a sentence of up to life in prison.

The jury system

The jury system, as it exists now, is entirely the creation of the British andAmerican legal systems. Efforts to introduce trial by jury into the legalsystems of other nations had some limited success in the 19th century.Beginning about 1850, however, juries were gradually abolished or usedfar less throughout Europe. In the 20th century, with the rise of Fascism,

Nazism, and Communism in Europe and elsewhere, jury systems were

abolished outright. They were done away with in Japan in 1943, duringWorld War II. In the second half of the 20th century, more than 90 percentof all jury trials took place in the United States. Most of the remainderoccurred in England and other nations of the Commonwealth, especiallyAustralia and Canada.Selection. In the early centuries of the trial jury system there were some

minimum requirements for service as a juror, such as ownership ofproperty and clear mental competence. Women were not allowed to serve.This has changed in the 20th century. The principle of random selectionfrom among qualified voters has come to be common in the United States,

England, Canada, and Australia. Some Canadian provinces still haveproperty qualifications, and in Quebec women are still not allowed to serveas jurors. In most places persons who are employed in certain professions

lawyers, physicians, clergy, police are exempt from jury service.To be called for jury duty does not necessarily mean that one will

actually serve. Before the trial begins, potential jurors are questioned bythe judge and by lawyers for the defendant and the plaintiff. The lawallows the lawyer to challenge jurors for cause, such as a specific bias inthe case. A limited number of peremptory challenges are also allowed;these are challenges for which no cause need be stated. This screening

process is called vo ir dire, meaning "to say the truth." It can become verycomplex and time-consuming, especially in a case that has received a greatdeal of publicity.Function. During a trial, whether civil or criminal, the jury is under the

supervision of the judge. It is he who decides what evidence the jury mayhear, according to complex and established rules of evidence. If the judge


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decides the evidence presented leaves no matter of fact to be resolved, hemay direct a verdict of acquittal. This effectively ends the proceedings. Ina civil trial the judge may, on his own, find in favor of the defendant or the

plaintiff. But in a criminal trial he may not direct a guilty verdict; this isthe responsibility of the jury. The judge, in most cases, also explains thelegal aspects of the evidence and the duties of the jury. If the jury's verdictis completely at odds with the weight of the evidence, the judge may set it

aside. The exception to this rule is acquittal in a criminal trial: acquittal isfinal, and the persons cannot be tried again for the same crime. This iscalled the principle of double jeopardy.

In many jurisdictions, if a verdict of guilty is rendered by a jury, the jurymust also be present for a hearing on sentencing and may be asked todecide what the sentence should be. In civil cases, the jury is asked todecide on the damages to be awarded to the plaintiff. In some jurisdictions

the awarding of damages or sentencing are part of the original trial. Inother places they become the subject of what is virtually a second trial.Where the death penalty is in effect and could be a sentence, a jury isrequired at least to express an opinion on whether it should be used.Merits and criticisms. Along with other parts of the political structure, the

jury trial system has come under a great deal of criticism for its

competence and performance. It has been claimed that because juries aredrawn from such a wide range of the populace, they do not have theintelligence or sophistication to deal with the complexities of law. Tocounter this criticism, it is argued that a jury of nonexperts brings a gooddeal of common sense and openness to a trial. This results in cases beingdecided in the spirit of the law, rather than by the rigidity of individualstatutes. A jury also may provide a useful counterweight to the biases (ifany) of the judge and lawyers involved in a trial. Although juries arestrictly confined by law to the finding of facts, their presence frequentlyinjects a sense of justice into the proceedings, either on the side of thedefendant or the plaintiff.

Documents

Suport Curs Drept Sem 1 2011