INTRODUCTION TO LAW AND THE LEGAL ASSISTANT

INTRODUCTION TO LAW AND THE LEGAL ASSISTANT

COURSE CONTENT WORKSHEET

INTRODUCTION

1. Definition of a paralegal

A paralegal (or legal assistant) is a person, qualified through education, training, or work experience, who is employed by a lawyer, law office, government agency or other entity for the purpose of performing, under the supervision of an attorney, of specially-delegated substantive legal work, which would otherwise have been performed by the attorney.

2. Limitations on the activities of a paralegal

Paralegals may not give legal advice or represent a client in court.

The status of the paralegal as a paralegal must be made clear to the client.

3. Normal duties of a paralegal

Paralegals may properly:

a) take part in the initial interview with the client

b) perform factual investigation and do legal research

c) take photographs of scenes

d) interview witnesses

e) conduct pretrial discovery

f) prepare trial summaries and deposition preparation

g) various other pretrial preparation procedures

4. The study of law - the Socratic approach of law schools

Law schools provide rigorous training that formally and informally molds a certain type of thinking.

The Socratic method involves interaction between the law professor and the law student designed to foster analytical thinking (makes you Athink like a lawyer.@)

The law school focuses on developing an attitude of mind that seeks relevant legal issues in each human transaction and applies a technical analytical approach to solving problems.

The bar exam is the culmination of the legal training and requires an application of that analytical ability that was created by the law school.

5. What the lawyer needs to be

Provider of legal services

Advisor

Counselor

Negotiator

Most of this is not taught in law school.

6. Ethics - the unauthorized practice of law - giving legal advice

Subject to criminal and civil sanctions.

This protects the public from incompetence and gives the court the power to oversee the profession.

This includes:

a) legal representation before a court

b) preparation of legal documents (without supervision)

c) the giving of legal advice

Appearance in court is permitted for routine matters such as setting future court dates.

Preparation of legal documents: this can done as long as the attorney is ultimately responsible for it. An issue does arise as to whether helping a person fill out forms is a form of practicing law.

7. Ethics - confidentiality with 4 exceptions

The paralegal must maintain client confidentiality - the same rule as the attorney.

There are 4 exceptions to the rule, however:

a) when a third party is present

b) when the client waives the privilege

c) when the client accuses the attorney of malpractice

d) when the client discusses the commission of a future crime

8. Ethics - conflict of interest

Applies not only to an attorney having an interest (or the appearance of an interest) in the other side of the case, but to all employees in the office as well.

Disclosure of the problem can often solve the problem -- as long as no one objects.

This can include representing a client while having earlier represented the opposition party in another matter.

8A. Ethics - use of perjured testimony - the defendant as a witness

A lawyer cannot intentionally put false evidence into a trial. A real dilemma occurs when a client wants to testify in a way that the attorney knows is perjured. The A.B.A. gives the following (unrealistic) advice:

AIf withdrawal from the case is not feasible or is not permitted by the court, or if the situation arises immediately preceding trial or during the trial and the defendant insists upon testifying perjuriously in his or her own behalf, it is unprofessional conduct for the lawyer to lend aid to the perjury or use of the perjured testimony. Before the defendant takes the stand in these circumstances, the lawyer should make a record of the fact that the defendant is taking the stand against the advice of counsel in some appropriate manner without revealing to the court the client=s intent to perjure himself. The lawyer may identify the witness as the defendant and may ask appropriate questions of the defendant when it is believed that the defendant=s answers will not be perjurious. As to matters for which it is believed the defendant will offer perjurious testimony, the lawyer should seek to avoid direct examination of the defendant in the conventional manner; instead, the lawyer should ask the defendant if he or she wishes to make any additional statement concerning the case to the trier or triers of facts. A lawyer may not later argue the defendant=s known false version of facts to the jury as worthy of belief, and may not recite or rely upon the false testimony in his or her closing argument.@

9. Ethics - client solicitation

While advertising in general is now permitted, soliciting individual clients is still prohibited. This also cannot be done indirectly through a paralegal or relative.

10. Ethics - fees

Contingency fees are permitted in personal injury cases, but not in criminal or divorce actions. Contingency fees do not include costs, which the attorney may not pay.

Clients should not be charged at the attorney=s rate if the paralegal actually did the work.

11. Ethics - property and escrow money must be kept separate

Any money held in escrow (ie. for fees) or property belonging to the client must be maintained separately. There can be no commingling of funds.

12. Sources of law

a) common law - the bulk of case law brought over from England and the basis of our current law

b) statutes

c) constitutional provisions

d) case law

13. Stare decisis

The doctrine of precedent. Courts of appeals following their earlier decisions unless a significant change is appropriate.

14. Obiter dictum

A comment in a court opinion that is not necessary for the ruling, but which indicates the court=s feeling about a related issue or what it might do in the future. It is not binding on the lower courts in that jurisdiction.

15. Case analogies

The technique of pulling a principle from one case which will apply to another (and totally dissimilar) set of facts. If a person walks into a tree, he is deemed negligent (for failure to pay an appropriate amount of attention to what he is doing). This principle will apply to a brain surgeon who is operating while worrying about his next mortgage payment).

16. Mandatory and persuasive authority

Cases from the court of appeals of one state are binding of the trial courts of that state. But cases from the court of appeals of another state are only persuasive rather than mandatory.

THE VIRGINIA COURT SYSTEM

17. Virginia=s trial courts

Virginia has a two-tiered trial court system: a lower court (the General District Court) which handles lesser offenses and other civil cases initially and the early procedural part of more serious criminal cases; and an upper level trial court (the Circuit Court) which handles the more serious cases and is also the second court to hear some of the cases heard initially by the General District Court.

18. A court of record

This is a court in which a verbatim transcript of all the proceedings (testimony, arguments, instructions, etc.) is available for appeal purposes.

The circuit court is the trial court of record in Virginia.

19. Criminal cases in Virginia

All criminal cases begin in the General District Court. After a local magistrate takes the prisoner from the police and into the court system (setting an initial bond and making sure a proper case has been alleged), the case comes up for an initial hearing, in which the judge sets the next court date, makes sure that a lawyer is provided for and that the defendant understands what is going on (can fairly be described as a housekeeping hearing - lining the case up so it is ready to go forward).

20. Arraignment

The hearing at which a defendant enters a plea of guilty or not guilty. It is handled prior to trial in misdemeanor cases by the General District Court and after indictment and prior to trial in felony cases by the Circuit Court.

INTRODUCTION TO LAW AND THE LEGAL ASSISTANT

COURSE WORKSHEET (CONTINUED)

21. Non-jury trial

If the case is a misdemeanor, it is next tried non-jury by a General District Court judge. No jury trials are heard in the General District Court.

22. Trial de novo

After the first trial of a misdemeanor case (non-jury), a second trial (with or without a jury) can be heard at the circuit level. It is an entirely new trial and completely erases the original one (including any sentence that was imposed).

23. Preliminary hearing

If the case is a felony, a preliminary hearing (designed to establish probable cause to believe that the defendant committed a felony) will be held by the General District Court. If probable cause is found, the case will be held for action by the grand jury.

24. Grand jury indictment

This is the charge established by the grand jury (a group of citizens by majority vote determining what a person will be charged with). About half the states (and the federal system) require grand jury indictments to charge a felony. It is not constitutionally required for states to proceed this way, although it is for the federal system.

25. Grand jury original

An indictment which is handed down before a person is even arrested. Such cases then proceed to arraignment and trial with no preliminary hearing necessary.

26. Civil cases in Virginia

Cases under $3,000.00 must begin at the General District Court.

Cases between $3,000.00 and $15,000.00 may begin at either court at the option of the plaintiff.

Cases over $15,000.00 must begin at the Circuit Court.

Cases beginning at the General District Court are handled in the same manner as misdemeanor cases (with a non-jury trial and trial de novo, with or without a jury, available at the request of either side).

27. Traffic cases

Traffic cases are handled in the same manner as misdemeanor cases with a de novo trial available at the circuit court (but only at the request of the defendant).

28. Juvenile and Domestic Relations General District Court

Includes separate judges but on the same level as the General District Court.

Handles non-jury (non-public) cases involving:

a) juvenile delinquents (those who have committed delinquent acts)

b) juveniles accused of traffic violations

c) children in need of services (CINS)(includes status offenders)

d) abused or neglected children

e) spousal abuse

f) adults accused of child abuse or neglect

g) visitation, support and custody disputes

h) child abandonment

i) foster care and entrustment agreements

j) court-ordered rehabilitation services

k) court consent for certain medical treatments

Delinquent acts: acts committed by juveniles, which would have been felonies if committed by an adult.

Status offenses: acts which are only considered illegal if committed by juveniles (ie. Truancy)

Records are kept confidential.

The court has jurisdiction over persons under 18....and can order institutionalization not to go past the child=s 21^st birthday.

There is a de novo trial available at the circuit level.

29. Child treated as an adult

For felonies in Virginia if the child is at least 14 years old. But the circuit court retains the power to treat the child as a child at any time after certification to the circuit court.

30. Virginia Court of Appeals

Ten judges elected for an 8-year term by majority of each house of the General Assembly.

Virginia=s intermediate court of appeals. It handles the final appeal in misdemeanor and traffic cases (in which there is no incarceration) and in domestic relations cases.

It is an intermediate court for felony cases (which did not involve the death penalty) and in misdemeanor and traffic cases which do involve the death penalty.It also is the court of final appeal in cases from administrative agencies and the Virginia Workers= Compensation Commission.

31. Virginia Supreme Court

Seven judges elected for 12-year terms by a majority of each house of the General Assembly.

The chief justice is the senior justice.

Takes cases directly from the circuit courts in civil and death penalty cases and from the Virginia Court of Appeals in misdemeanor and traffic cases with incarceration.

32. Options available to a court of appeals

Affirm the lower court decision: if the only error that was made was harmless.

Reverse the lower court decision: if the error was prejudicial (and cannot be corrected with a new trial, such as lack of speedy trial)

Reverse and remand for a new trial: if the error was prejudicial but the problem can be corrected with a new trial.

THE FEDERAL COURT SYSTEM

33. Geographical breakdown: districts and circuits

The United States and its territories are broken down into federal districts for trial purposes, with groups of districts forming circuits for appeal purposes.

There are 94 federal districts. Virginia includes two federal districts (Eastern and Western).

There are 13 federal circuits, numbered 1 to 11, one for the District of Columbia and one called the Federal Circuit. Virginia is located in the Fourth Federal Circuit.

34. Magistrate judges

Formerly known as U.S. Magistrates. They handle felony cases through the preliminary hearing, are empowered to handle misdemeanor cases (with or without a jury) at the option of the defendant (who can also opt to have his case heard at the U.S. District Court level instead).

If a misdemeanor is handled by a magistrate judge, a U.S. District Court judge can review and modify the magistrate=s order.

35. U.S. District Courts

They handle felony trials and misdemeanor cases which were not handled by the magistrate.

They also handle civil actions involving a federal statute or diversity of citizenship (if there is at least $50,000.00 claimed as damages).

36. U.S. Courts of Appeals

They take appeals from the various U.S. District Courts. Circuits are comprised of several districts within a certain geographical area.

There are 13 federal appeals courts: Numbers 1 through 11, the District of Columbia Circuit and the Federal Circuit.

The D.C. Circuit: is unique due to the need to handle appeals from the numerous federal administrative agencies.

The Federal Circuit: handles specialized cases (such as patent and trademark) for the entire country.

The Fourth Federal Circuit: includes all the districts found in Virginia, West Virginia, North Carolina, South Carolina and Maryland.

37. U.S. Supreme Court

9 justices appointed for life.

All cases are heard en banc (meaning that all the justices hear the case).

Handle most cases on a discretionary basis by writ of certiorari.

Handle some cases as a matter of right (ie. cases in which a state statute has been declared to be in violation of the U.S. Constitution).

COURT SYSTEM FOR THE DISTRICT OF COLUMBIA

38. Local (non-federal) court system

Trial court: Superior Court for the District of Columbia

Appeals court: Court of Appeals for the District of Columbia

Not as efficient as Virginia. It is built on the federal system which is not designed to handle the volume typically handled by a state court.

39. Tips on how to name the courts

Name the level first (ie. General District Court, Circuit Court, U.S. Court of Appeals) and then name the geographical area it serves. This is the largest area that it serves...so it is the General District Court of Fairfax County, even if there is a satellite courthouse in Springfield handling the case).

40. Due process of law

The entire set of procedures in place to guarantee fairness by the government.

The due process clause guarantees that the government shall not take away life, liberty or property without due process of law.

Due process is guaranteed by the 5th Amendment (limiting the federal government) and by the 14^th Amendment (limiting the states).

41. Procedural due process

Limits the executive and judicial branches of government. This therefore include police actions prior to arrest and actions taken within the court system and by the correctional system as well.

42. Substantive due process

Limits the legislative branch of the government. It requires that any law passed by the legislature serve a legitimate governmental purpose (ie. safety) and also that it not be unreasonable intrusive on the rights of the people (it must infringe as little as reasonably necessary on the rights of the people).

43. Purpose of the rules of evidence

They are designed to ensure as much as possible that the evidence that is admitted at trial is reliable and relevant.

Sometimes the rules serve a higher societal purpose, such as prohibiting marital confidential communications (in order to solidify marriage).

44. Hearsay

Hearsay is testimony by a witness of what was said to him by someone who is not available to testify.

The hearsay rule: hearsay is inadmissible as evidence of the truth of what was said.

Numerous exceptions are permitted due to their peculiar reliability and need for the evidence to be admitted.

45. Dying declarations

These are statements made by a person who is aware that he is dying (or at least believes he is).

The need for the admission of such statements is based on the fact that in many cases, the only one who could provide the information is now deceased.

The peculiar reliability is based on the fact that, as a general rule, a person who believes he is dying is not likely to lie.

Virginia approach: very narrow. Virginia only allows such statements in homicide cases, made by the victim of the homicide about the circumstances of the event.

Other jurisdictions allow such statements in any kind of case, and even if the person does not in fact die, as long as he believes he is dying when the statement is made.

46. Res gestae

Also described as spontaneous utterance -- the event speaks through the declarant.

This occurs when an unexpected and exciting event occurs, prompting a person to make a statement in response to that event. The words spoken are considered reliable because of the sheer spontaneity of the words...made before reflection.

This also includes the idea that statements which are admitted merely to prove that they were said (not for the truth of those words).

For example, if you are describing a fight that occurred at a bar, your description would probably include words that were passed between the people involved in the fight......and these words would not be mentioned for the purpose of proving that the words were true..just that they were made (so the words would be part of the event itself).

Res gestae therefore also has been described as Athe things done.@

47. Declaration against interest

Includes confessions. Based on the idea that people would not normally say something that might be embarrassing or otherwise detrimental to them.

48. Corpus delicti rule

A confession cannot be admitted as evidence of guilt in a criminal case before the elements of the crime have already been independently established.

A person cannot be convicted on his uncorroborated confession.

49. Impeachment

To attack the believability of a witness. This can be done in various ways.

You don=t have to suggest that the witness is lying, just that he is not to be believed for some reason.

50. Prior inconsistent statements

The witness has said something different earlier. The earlier statement does not necessarily have to have been made at a legal hearing or trial...it may have just been a statement overheard by someone else.

Ringo case.

51. Conviction of a crime

Felonies or misdemeanors involving moral turpitude. Most jurisdictions require that they have occurred within the last 10 years.

These are used to show that the witness is not credible...they can only be used against the defendant if he elects to testify in his own behalf in a criminal case.

They must have been the subject of a conviction.

Compare: in a criminal case, whether the defendant testifies or not, any prior bad acts (not necessarily the subject of a conviction) may be used as evidence of his guilt, if such acts tend to show some element of the crime with which he is charged. Such elements include identify, lack of mistake or accident, common scheme, motive, etc.

52. Impeachment by showing physical incapacity

This could be due to weariness, intoxication, poor eyesight, physical obstacles, etc.

53. Miranda v. Arizona

Requires the police to warn an arrested suspect of his basic rights before they interrogate him.

But a Miranda-violation confession (even though it cannot be used as evidence of guilt because of the violation) can still be used to show that the defendant is lying if he takes the stand and testifies in a manner inconsistent with his earlier confession.

This effectively keeps him from testifying.

CIVIL PROCEDURE

54. Law and equity cases in Virginia

Civil actions in Virginia are divided into law cases and equity cases.

Law cases are cases in which a money judgment is sought.

Equity cases are cases in which some sort of judicial relief is sought (such as a divorce).

They have different, although similar, procedures.

They also have different procedural names:

A plaintiff in a law case is a complainant in an equity case.

A defendant in a law case is a respondent in an equity case.

The Motion for Judgment (initial pleading) in a law case is called the Bill of Complaint in an equity case.

A judgment in a law case is called a Decree in an equity case.

The judge in a law case is called the chancellor in an equity case.

Contract actions can be either law (when you seek damages for breach) or equity (when you seek specific performance of the contract).

Divorce and annulment cases are equity cases.

Tort cases are law cases.

55. Issue out of chancery

Equity cases are also called chancery cases. A jury trial on a factual issue growing out of an equity case is called an issue out of chancery. But the judge still makes the final decision as to the relief that is sought.

56. Laches

This is an equitable version of a statute of limitations. It acts as a defense when a plaintiff has waited too long to bring a case, so that the defendant is harmed (prejudiced) by the delay. There is no specific time period when laches occurs. It is up to the judge to determine that prejudice has occurred.

A statute of limitations has a specific time period in which a case must be brought.

57. Clean hands doctrine

Based on fairness. The complainant in an equity case must be free from fault in order to ask for judicial relief. Also known as the dirty hands doctrine.

58. Jurisdiction

The power of the court to render a binding decision.

It is based on the type of case and geographical location of the incident.

59. Venue

The location of the particular court in a court system which will hear an individual case.

There are venue rules created mostly for convenience and to prevent judge-shopping.

So a personal injury action occurring in Fairfax may properly be brought in Fairfax (or where the defendant lives).

60. In rem and in personam jurisdiction

In rem: power over the thing (meaning the subject matter of the case). Can include a physical object, such as land whose ownership is in dispute, or a status, such as a marriage in a divorce action.

With this type of jurisdiction (which is limited), the court can only deal with the object or the status....cannot grant a judgment that is considered >personal= in that the defendant might be asked to satisfy such judgment personally out of his own pocket. So the judge might grant a divorce but could not order the respondent to pay alimony.

In personam: power over the person of the defendant or respondent (so that any judgment is binding on him personally and will therefore have to be satisfied by him personally from whatever source he has to pay it).

The type of jurisdiction that is obtained is determined by the type of service of process that is achieved.

61. Service of process

The method used to notify the defendant of the case being brought against him.

62. Process

A copy of the initial pleading and a notice from the clerk=s office, describing the time and place required for an answer to be filed. It basically tells the defendant that he is being sued and needs to respond within 21 days or risk being held in default.

This notice is called a Notice of Motion for Judgment in a law case and a Subpoena in chancery in an equity case.

63. Methods of service of process

a) personal service (handing it the defendant)

b) substituted personal service (has the same effect as personal service)

ie.) leaving it at the home of the defendant with a family member, who actually lives there, who is at least 16 years old, and explaining the importance of the document to that person.

ii) taping it to the door of the home

The first type of substituted personal service must be attempted before the second type.

Personal (or substituted) service of process, if accomplished in Virginia, gives a Virginia court personal jurisdiction over the defendant (so that any judgment is personally binding on him).

Personal service of process outside Virginia only gives a court in rem jurisdiction.

64. Longarm statute

A statute which gives a state court personal jurisdiction over an out-of-state defendant.

This is based on situations in which out-of-state defendants commit torts or enter into contracts with someone in Virginia.

So if you drive into Maryland and negligently injure someone there in an auto accident, they could sue you in Maryland by obtaining personal service of process in Virginia.

64A. Service by publication

Publication in a newspaper once a week for four successive weeks (in the legal notices section). This gives the court in rem jurisdiction.

65. The initial pleading

Pleadings are legal documents, binding on the parties, filed with the court.

The initial pleading includes:

a) jurisdiction and venue elements

b) factual background

c) the legal principle that is violated

d) allegation as to damages incurred because of the violation

e) demand for relief (called the ad damnum clause)

This pleading contains only allegations, not underlying proof.

65A. Return of service

Service of process can be accomplished by the sheriff or anyone, at least 18 years old and not a party to the case.

Once it is done, a return of service is filed with the court. This is a legal document that describes exactly how and when service was made. The date of this document triggers the running of the time in which the defendant has to respond.

66. Once the initial pleading has been served

Once served, the defendant has 21 days to answer or risk being in default (which means that he admits liability). In such a case, damages must still be established by the plaintiff in a hearing known as ex parte proof.

67. The answer

Must deny each allegation in the initial pleading or the allegation is deemed to be admitted.

Normally, each allegation is either admitted or denied or a demand for strict proof is made. A blanket denial of everything is not permitted. If an allegation is not admitted, which should have been, the court can order the defendant to pay for the costs of proving it.

68. Grounds of defense

Includes technical defenses that cannot naturally be raised as part of the answer. A denial that the defendant was negligent will be made in the responsive part of the answer when an allegation is made.

But if the defense is that the plaintiff is in violation of the statute of limitations, there is no place to bring this up in the responsive part since the plaintiff does not have to allege that his is in compliance with the statute. So it can be raised in a section of the answer called Grounds of Defense.

These grounds include what are called affirmative defenses. They are defenses which the defendant must bring up in order to have heard and which the defendant himself must prove in order to succeed. If he does not raise the violation of the statute of limitations, for example, it is considered waived.

Other affirmative defenses include contributory negligence, assumption of risk, insanity and self- defense.

69. Counterclaim

An answer can also include a counterclaim (which is an action for damages by the defendant against the plaintiff).

In the federal system, counterclaims are mandatory if they arise out of the same incident.

Such a claim cannot later be brought as a separate case.

In Virginia, a counterclaim may include any claim that the defendant has against the plaintiff, even if it does not arise out of the same incident. Counterclaims are not mandatory in Virginia.

70. Cross-claim

An answer can also include a cross-claim, which is an action by the defendant against a third party, who the defendant alleges is ultimately responsible for the plaintiff=s damages.

This is known as third party practice.

71. Demurrer

This can be filed in lieu of an answer. It is a motion to dismiss the initial pleading for failure to state a cause of action for which relief can be granted.

It basically is a motion to dismiss the initial pleading because it is legally insufficient...or legally faulty for some reason.

If denied, the defendant will be given time to file an answer. If granted, the case is dismissed.

72. Discovery

Procedures which give each side a clear picture of the other=s position. It helps to clarify the real issues and to encourage settlement. Discovery procedures include:

a) interrogatories (written questions from one party to the other)

b) depositions (pretrial testimony of any witness or party)

c) requests for admissions (to reduce what each party must prove at trial)

d) requests for physical and mental examinations (of a party)

e) requests for inspection of documents and to view the scene of the incident (if under the control of the other party)

CRIMINAL LAW

73. Felony/misdemeanor

A felony is a crime which carries as its maximum penalty more than a year to be served in a prison or penitentiary.

A misdemeanor is a crime which carries as its maximum penalty no more than a year to be served in a local jail.

74. Malum in se - malum prohibitum

Malum in se: these are crimes which are inherently evil in themselves.

Malum prohibitum: these are crimes which make otherwise innocent acts illegal. For example, picking April 15^th as the date to file your income taxes; or requiring someone to register for the draft upon reaching his eighteenth birthday.

75. Mens rea

Criminal state of mind. Evil intent.

Includes a general intent, which simply means that the act was on purpose, that it was not accidental. Some crimes only require that you mean to do what you did....for example, assault does not include an element that you intend to hurt or injure, just that you intend to do what is prohibited (which is to attempt a battery or place another in apprehension of a battery).

It also includes a specific intent, which is a goal that is required by some crimes. For example, assault with intent to kill, or burglary (which is to break and enter the dwelling of another at night with intent to commit a felony or larceny inside. When a crime includes a goal as well as an act, it is called a specific intent crime. Otherwise, it is called a general intent crime.

76. Actus rea

The criminal act. It must result from the criminal intent, and not merely be close in time.

It is normally a positive act which is prohibited. In some instances, however, a person=s failure to act may be a crime, when the law imposes a duty to act:

a) when you are in a special relationship with another (such as a parent to care for his or her child)

b) when employment or a contract requires you to act (so a lifeguard must assist a drowning swimmer)

c) when you create the situation of danger that demands assistance

d) when you begin to assist a person in need

76A. Homicide

The killing of a human by a human.

77. Murder

The malicious killing of a human by a human. All degrees of murder contain malice.

78. Murder-I

The malicious, premeditated killing of another.

Premeditation does necessarily take a long period of time. It can occur in seconds. It really means reflection.

79. Capital murder

Murder-I in certain situations. For example, contract killing, mass murder, murder of a police officer, etc.

It gives the jury the option of imposing the death penalty or giving a sentence of 20-life.

Consent of the victim is irrelevant.

85. Carnal knowledge

In Virginia, this is voluntary sexual intercourse with a child between the ages of 13 and 15. It is considered less serious than rape.

The penalties vary with the age of the wrongdoer.

If the wrongdoer is a minor within 3 years the age of the victim, the crime is only fornication (which is sexual intercourse between consenting unmarried persons). A minor misdemeanor.

If the wrongdoer is a minor more than 3 years older than the victim, it is a Class 6 felony

(1-5 years).

If the wrongdoer is an adult, it is a Class 4 felony (2-10 years).

86. Marital rape

This is a form of rape, not a lesser crime. It occurs when the spouses either are separated or if there is serious injury.

87. Marital sexual assault

This has been changed. Today, it is rape for a person to force his or her spouse to have sexual intercourse. The old rule called it marital sexual assault if the parties were living together and there was no injury.

88. Larceny

To take and carry away the property of another with intent to permanently deprive the owner thereof.

Is the felony of grand larceny if the value of what is taken is $200 or more.

Includes what is known as larceny from the person (a pickpocket); this is considered grand larceny if the value of what is taken in $5.00 or more.

NOTE: some jurisdictions would call a pickpocket a robber. Virginia does not.

89. Burlgary

To break and enter the dwelling of another at night with intent to commit a larceny or felony inside.

Has many statutory variations, to cover other buildings...including boats, railroad cars...and when the crime is committed during the day or without breaking.

Breaking does not mean damaging; it means to open a door or window to gain entrance.

Constructive breaking could be described as virtual breaking. It would occur when a person does not himself open a door, but tricks someone else into doing it...or if he sneaks up behind someone else who is gaining access with a key to an apartment house......it is as though he in fact opened the door. This could also include a person who stays in a store until after it closes..he is deemed to have opened a door to gain access since that is what he would have had to do to get inside after closing.

Entry includes any part of the body.

Constructive entry: could be described as virtual entry. Using a stick to get something from outside a room; or sending a trained animal into the house to take something. It is as though the person was actually inside the building.

90. Robbery

Taking person property from the person of another by force or threat of force.

Any value will suffice.

CRIMINAL PROCEDURE

91. Ex post facto law

A law which makes an act a crime after its commission.

A law which increases the penalty for a crime after its commission.

A law which makes a crime more serious after its commission.

A law which makes it easier to convict after its commission.

Such laws are in violation of the federal constitution.

92. Fifth Amendment

Requires the federal government to charge felonies (infamous crimes) by grand jury indictment.

About half the states (including Virginia) also follow this procedure, although it is not constitutionally required for the states to do so.

The Fifth Amendment also includes the right to be free from compulsory self-incrimination.

It also includes the due process clause.

93. Double jeopardy

A person cannot be tried twice for the same offense.

Jeopardy attaches (meaning the person is deemed to have been deemed to have been tried once) in a jury trial, when the jury is first selected and sworn, and in a non-jury trial, when the first witness is sworn in.

This requires the prosecutor to be sure that his case is ready to go to completion before beginning the trial.

94. Exceptions to the double jeopardy rule

Retrial after an appeal and a new trial ordered on remand

Retrial after a Ahung@ jury

Retrial Ain the interests of justice@

Trial by two different jurisdictions (as in the same act being both a federal and state crime).

95. The Sixth Amendment

The right to a speedy and public trial, impartial jury, confrontation and cross-examination, notice of the charges, compulsory process for securing the presence of witnesses and effective assistance of counsel.

96. Eighth Amendment

Freedom from excessive bail and from the infliction of cruel and unusual punishment.

97. Fourth Amendment

The right to be free from unreasonable searches and seizures.

98. Exclusionary rule

Illegally-obtained evidence cannot be used as evidence of guilt. This was applied to the states in Mapp v. Ohio by the U.S. Supreme Court in 1961.

This is based on the principle that the government should be allowed to break the law while enforcing it.

99. Fruit of the poison tree doctrine

This extends the exclusionary rule to include the exclusion of evidence to which illegally-obtained evidence leads (unless it can be shown that the police would have discovered such evidence anyway in the normal course of their investigation).

100. Search and seizure

The underlying rule in all such cases requires the police to be doing what they have a legal right to be doing when they first discover the illegal evidence (also called contraband).

If there is an illegality in the police action, everything that follows that illegality will also be deemed to have been tainted.....so that if a confession follows an illegal arrest, the confession is considered tainted and the product of illegal police activity.

101. Arrest

A search can be based on a lawful custodial arrest (one in which the suspect is being taken into custody). The legality of the searh is therefore based on the legality of the arrest.

A lawful arrest requires that the police have either probable cause to believe that a felony has been committed or that a misdemeanor is being committed.

It can also be based on a lawful arrest warrant (which also requires probable cause).

Probable cause has been defined as that which would cause a reasonable, prudent police officer to believe...

102. Search incident to an arrest

Such a search includes not only the search of the suspect but also a search of the area immediately surrounding the suspect for weapons of contraband. This would include the desk at which you were sitting when arrested.

103. Stop and frisk

This allows the police to stop a person when there is only reasonable suspicion of criminal activity (not probable cause to arrest). The test is whether there is reasonable suspicion based on specific articulable facts (facts which can be clearly put into words) that criminal activity is afoot.

This allows a temporary stop (not to exceed an hour) while the situation is clarified.

And if during the course of the stop, there is also reasonable suspicion, based on specific articulable facts, that the suspect is armed, then a limited pat-down of the outer clothing may be conducted. This is a search only for weapons, not suspected contraband.

104. Constitutionally-protected area

This is an area to which the Fourth Amendment applies, thereby requiring the police intrusion to be proper.

It includes any area in which a person has a reasonable expectation of privacy.

Thus, looking through an open window or into a car is not considered a search.

105. Plain view doctrine

Once a police officer has invaded a constitutionally-protected area, he must come upon the contraband inadvertently. This means he can=t pretend to be collecting for the policeman=s ball in order to get into the house so he might see contraband once inside.

TORTS

106. Definition

A tort is a civil wrong, other than a contract, resulting in injury or damage for which a money judgment can be awarded.

107. Intentional torts

Similar to crimes. Obviously, a wrong between persons which results in injury or damage is also going to be considered a crime.

But the procedural difference between a crime and an intentional tort is huge:

The burden of proof in a criminal case is proof beyond a reasonable doubt; in a tort it is by a preponderance of the evidence.

The decision to pursue the action is made by a prosecutor in a criminal case, and by the victim in a tort case.

Discovery is more extensive in tort cases than in criminal cases.

The relief sought is different. The victim seeks compensation in a tort case. That is not necessarily a goal in a criminal case.

108. Torts and contracts

In contract actions, the obligation arises by agreement, and damages are limited to that agreement, whereas in torts, the obligation arises by operation of law, and damages can be much more extensive.

109. Negligence

Can be described as culpable carelessness. It is the failure of the defendant to act appropriately under the circumstances, thereby causing damage or injury.

It requires that the wrongdoer owe a duty of care to the plaintiff.

110. General duty under negligence law

There is a general duty to act in such a way so as to not unreasonably endanger the lives or property of others. This duty covers literally every human activity. You must give an appropriate amount of attention to what you are doing.

111. Statutory duty under negligence law

If there is a statute covering a human activity, then there is no need to prove a violation of the general duty. The legislature has already said that what was done is improper.

This works only if the statute in question is a safety statute and if the person who was

injured or suffered damage was among the group of those the statute was designed to protect.

112. Failure to act

Can be considered negligence if there is a duty to act:

a) when the wrongdoer is responsible for the danger

b) when there is a contract which requires action

c) when the victim is in such a relationship with the wrongdoer so that he could reasonably expect action

d) when a person begins to come to the aid of the victim

113. Causation

So there must be a duty owed and a violation of that duty which causes damage.

114. Sine qua non

AThat without which@ -- an action is not considered an actual cause of an event if the event would have occurred anyway.

A doctor=s negligence is not considered a cause of the death of the patient if the patient was doomed anyway, no matter what the doctor did.

This is the doctrine of actual causation. But even if there is actual causation, there must also be what is known as legal causation. This requires that the damage or injury be reasonably foreseeable by the wrongdoer (so that he must have seen or should have seen the risk involved when he did what he did).

115. Eggshell rule

One will be liable for even unforeseeable consequences of his wrongdoing, as long as some consequences (just not the extent of the damage actually done) were foreseeable.

So if you are acting negligently because what you are doing might cause a person to black out temporarily.....but the person in fact goes into a coma......you are liable for the coma, even though that was unforeseeable...because you shouldn=t have been doing what was likely to make him black out.

AYou take your victim as you find him@ describes the eggshell rule.

Degrees of negligence

116. Simple negligence

Failure to act reasonably under the circumstances.

116A. Gross negligence

The injury or damage that you should have foreseen was substantial. Makes what you did more serious than simple negligence.

Both simple and gross negligence involve the wrongdoer=s failure to appreciate the dangerousness of his activity.

117. Willful and wanton negligence

Also called reckless conduct and criminal negligence. This differs from the above two in that the wrongdoer does see the risk...he understands it and just doesn=t care.

It shows an utter disregard for the safety of others.

118. Children

Can be negligent. But are judged as children unless they are engaged in activities that are normally performed by adults (such as flying an airplane).

119. Reasonable man test

Actions are judged by how a reasonable person in the same situation would have acted.