Fiction Blog 3

Ellie investigates the rumors about Rob Westerfield. Rob, his father, and the Westerfield lawyer happen to come upon Ellie as she is eating lunch at a restaurant. Rob proposes that they make amends and work together to find the real killer of Ellie's sister. Ellie brushes his offer off saying that she knew who killed her sister and it was just a matter of putting him back behind bars. Later on someone tries to kill her during her investigations. They burn down the home that Ellie is staying in. Ellie manages to escape with a few blisters and minor smoke inhalation. The sheriff of the county theorized that some of the inmates that shared a cell with Rob Westerfield might think badly of Ellie when she goes looking for dirt on Westerfield. There were no field identifications made since Ellie did not see who started the fire. It can be argued that the criminal who set the fire could be charged with first degree arson. First degree arson is defined as the burning of an occupied structure. It is apparent to me that the person was trying to murder Ellie in the process.

Ch. 7 Vocabulary

Civil law: the area of common law regulating the conduct of private parties and their relationships.

• Tort law: the body of civil law associated with harm caused to plaintiffs by the action or inaction of defendants
• Property law: a form of civil law that focuses on the ownership and acquisition of property through conveyances and inheritances.
• Contract law: a form of civil law governing the conduct of business, which deals with the enforceability of private agreements between individuals and between organizations.
• Family law: the set of laws involving marriage, child custody, and other issues arising in personal relationships
  
• Juvenile law: laws regulating the behavior of minors

Plaintiff: person alleging that the defendant has harmed him or her in some way, and who seeks damages for the injury
Specific performance: in civil law, when a court orders someone to do (or not do) something
Preponderance of the evidence: the standard of proof in civil cases
Clear and convincing: a standard of proof in civil law that falls between the usual preponderance of evidence and criminal law's beyond a reasonable doubt
Punitive damages: monetary awards beyond compensation that are designed to punish the defendant and to deter others
Involuntary commitment: the use of legal means to commit someone to a mental institution against his or her will
Res judicata: "thing decided" civil law analogue of the prohibition against double jeopardy. Once a case has been through all possible appeals it is decided forever
Negligence: a failure to act with the appropriate level of care
Ordinary care: the level of care required to avoid committing a negligent act and being civilly liable in tort law.
Contributory negligence: a legal rule now mostly out of favor that states that if an injured party was in anyway partially responsible for his or her injuries he or she was barred from collecting from the tortfeasor
Comparative negligence: a legal doctrine that attempts to apportion the responsibility for negligent conduct among the parties involved
Consent: a defense to some crimes in which a person granting consent is harmed. A claim of consent must demonstrate that it was voluntary, knowing, and intelligent
Immunity: in law, the concept that some people (judges for actions that fall within the purview of judicial duties) or entities (sovereign states) are immune from legal prosecution for their actions
Property: the right of ownership or possession of an item, which may be real, personal, or intangible
Freehold estate: one wherein a person owns a piece of property as distinguished from only a right to use property (as in a rental agreement)
Fee simple estate: an interest in real property that ends when the person dies-at which time the interest reverts to the original owner of the property
Fee simple absolute estate: one in which the property interest does not revert to the original owner
Tenancy in common: exists when multiple parties share equally in the ownership or possession of real property
Easement: a limited right to use another's real property for a specific purpose and time period
Adverse possession: legal doctrine that allows someone to take the real property of another, if they have used it openly and continuously for a period of time
Bailment: the temporary transfer of possession of personal property to another, for a particular purpose
Contract: a legally enforceable document
Uniform Commercial Code: a code of law concerning contracts designed to standardize trade and contract practices among merchants and businesses
Defense of Marriage Act (DOMA): a 1996 federal act defining marriage as a contract that only people of the opposite sexes can enter into
No-fault divorce: divorce granted without assigning fault for the breakup of the marriage.
Annulment: a legal determination that a vaild marriage never existed between the parties
Dual-property: a family law model for dividing property after a divorce; states using this model divide equally all property held jointly that was acquired during the marriage
All-property: a family law model for dividing property after a divorce; states using this model divide equally all property held jointly regardless of when it was acquired
Administrative law: a body of law (also known as regulatory law) created by administrative agencies by the powers granted to them by Congress
Administrative Procedure Act (APA): this 1946 act established the procedural standards federal agencies must follow when adjudicating violations of administrative law
Chevron deference: the principle enunciated by the Supreme Court that courts must defer to agency interpretations of their own laws
Sarbanes-Oxley Act (SOA): act passed by Congress in 2002 designed to crack down on white-collar crime
White-Collar Crimes Penalty Enhancement Act: act passed in conjunction with the Sarbanes-Oxley Act. It enhanced penalties for white-collar crimes and relaxed evidentiary rules for prosecuting them

Ch. 6 Criminal Procedure

Most times an officer needs a warrant to search and/or seize items, places, and people. There are a few exceptions or instances when this policy does not come into play. One instance of when an officer does not need a warrant, a written document permitting the officer to search or seize something, is when contraband in is plain sight of the officer. The Plain Sight (plain view) doctrine is restricted to items that the police officer can see from their vantage point. The officer must also have probable cause to suspect that the item or items are illegal, contraband. There also used to be a restriction that required the observations to be inadvertent or accidentally seen not purposefully seen. That restriction was overturned in the case Horton v. California.

There is an interesting case where there was Plain Sight Negligence. It is the illinoisinjury link. It details the events that lead to a stolen vehicle and the subsequent injury that was resulted from the stealing of the vehicle. Two friends allowed an acquaintance to spend the night at their house. This acquaintance stole the keys to their car and went on a joy ride. The joy ride ended in the injury of an innocent bystander. The plaintiff claims that the two friends are liable for the damages done by the acquaintance since it was reasonably foreseeable that the acquaintance would steal the car. The friends knew that their acquaintance had no permanent place of residence and was a crack cocaine addict. The plaintiff argues that the knowledge of the behavior of the acquaintance should have been a signal to the friends that something like the stealing of the car could happen. The friends oppose this view. The friends counter this view saying that it was not foreseeable that the acquaintance would steal the car because they did not leave the keys to the car in plain sight. The keys were hidden in a lunch box that was not left out in the open. In the end the court affirmed the lower court's ruling that the friends are liable.

I remember when I was in high school and they would have us practice our lock down drill. We would lock the doors and put strips of paper over the windows in the doors so no one could see into the classrooms. Every time they had practice lock down drills I could hear the administrators checking lockers with drug sniffing dogs. I think they used the drills as a way to keep the students from interfering or observing the search for drugs in the lockers. I suppose the students don't have any reasonable expectation of privacy because the lockers belong to the school and not the students. The school doesn't need warrants to search the lockers because it is an exception to the warrant clause. This particular incidence would fall under the Needs of Law Enforcement exception. The public school is an agent of the state and must act in the best interests of the students under the law. I have never thought of my teachers as state agents but it makes sense in the whole scheme of things.

http://www.illinoisinjurylawyerblog.com/2009/03/case_law_update_plain_sight_ne.html
There are some notes on the plain view doctrine in this link below.
http://caselaw.lp.findlaw.com/data/constitution/amendment04/04.html

Ch. 6 Vocabulary

Particularity: means that the warrant must make clear on its face who or what is to be searched or seized, so as to limit the discretion of the police officer.
Seizure: involves the exercise of dominion or control by the police over a person or item.
Detention: when a reasonable person, viewing the particular police conduct as a whole and within the setting of all the surrounding circumstances, would have concluded that the police in some way had restrained his/her liberty so that the person was not free to leave.
Effects: include papers, cars, and other like items. Items sought may include contraband, fruits of the crime, instruments of the crime such as weapons, burglar's tools, or the getaway car, or evidence of the crime.
Curtilage: the land and buildings immediately surrounding, and intimately associated with a dwelling.
Open Fields: refers to everything that is not defined as being within the curtilage.
De Minimis: "the least," or negligible, intrusion on individual liberty.
Miranda Warnings: warning given by police to arrested suspects, informing them of both the privilege against self-incrimination and the right to counsel. Evidence obtained by the police during a custodial interrogation of a suspect could not be used at trial unless the suspect first was informed of these rights.
Ex Parte Evidence: hearsay statements made outside of the courtroom.

Fiction Blog 2

Ellie has saved all the articles that came up in the paper that had to deal with the murder of her sister. She even has the trial transcript. While she is looking through the witness testimonies she comes across what she said during the trial. At the time of the trial Ellie was seven years old and the defense attorney was trying to pressure Ellie into testifying the way he wanted her to. Ellie claimed to have felt a locket that had been given to Andrea by Rob Westerfield when she stumbled upon the body of her sister, Andrea. The defense attorney tried to twist the meaning of the words that came out of Ellie's mouth. In frustration Ellie yelled at the defense attorney that she wasn't making up stories about the locket and she knew that Rob Westerfield had killed Andrea. The remark was stricken from the record because it would give unfair bias to the prosecution.

Ellie has started investigating the case on her own. She is trying to write a book that will convince everyone of Rob Westerfield's guilt. She is writing the book because Rob Westerfield has been released from jail. He served his full time in jail. She came back to her home town in order to find more information for her book research. While there she meets some of her mother's old friends. They talk about nothing in particular and offer to let Ellie stay in the guest apartment above the garage. Ellie takes them up on the offer. She decides that it would be good to research how well behaved Rob was in jail and why he was kicked out of so many private schools. Apparently prisons aren't allowed to talk to strangers about the conduct of the prisoners. She goes over to the prison and holds up a sign with her name, number, and reason for holding the sign. Ellie waves it around so people can see. She notices that a few people look interested. She comes back to the guest apartment to find that it has been burglarized. The mysterious person didn't take anything but had written all over her papers and transcript.

Ch. 5 Crime and Criminal Law Discussion

Homicide is the killing of another person. Murder is "the willful (non-negligent) killing of one human being by another" as defined by the the FBI. Murder is the most serious crime that is universally held by all cultures. Punishments for murder are the most severe. Some states argue that capital punishment or the death penalty is a fitting and just penalty for taking another person's life. There are many different forms of the death penalty. Electrocution and lethal injection are just a few methods. Shooting squad and hanging are still options although they are almost never used. There are some people who suggest that the death penalty is cruel and unusual and is therefore against the law. They also say that it is immoral. One of their arguments is "why should we stoop down to their level in order to get revenge." These people indicate that it is worse for them to be locked up for the rest of their lives than to be simply put to death. Either way the debate goes on and more people are put to death in the intervening time period.

There are also some that suggest that abortion is a form of murder. This depends on the definition of a human being. Is the fertilization of an egg a human or is when the egg implants into the wall of the uterus? Others imply that it is after the first trimester that you can call the fetus a human being or even a baby. This creates more controversy since some women say they have a right to their own bodies and would fight a law that would infringe upon their rights.

I would also like to point out that killing the enemies in war is also homicide. It is during wartime and the point of war is to defeat your enemies, usually by killing more of your enemy's forces than he does to yours. The more you kill, the more you can wear them down. Then you take them over thus winning the war and whatever you were fighting for. Some might say that it is justified to kill during wartime since if you did not kill your opponent he would kill you instead. I think that it is pointless homicide and can perhaps even be defined as murder.

I would like to pose a question to those who read this. Suppose that someone attacks you and you defend yourself because there are no other options that will allow you get away unharmed. If in defending yourself the attacker dies, is it still defined as murder? You killed that person and you probably meant to hurt them at the time you were being attacked.
http://www.deathpenaltyinfo.org/state_by_state