Sources of Law Constitutions Federal State Statutes Federal

Sources of Law �Constitutions: Federal & State �Statutes: Federal, State, & Local �Common Law: Federal & State �Administrative Law: Promulgated by Executive Branch agencies (Federal & State) 1

Sources of Law: Constitutions �Protect citizens from unreasonable government action. �USC is supreme Law of the land. � 1 st 10 Amendments to USC are known as the Bill of Rights. �USC applied to the states through a process of Incorporation through the 14 th Amendment. 2

Sources of law: Constitutions �USC provides minimum personal protection. �There is no conflict when a state constitution provides greater personal protection from government action than the USC. 3

Sources of Law: Statutes �Federal: Passed by Congress. �State: Passed by the General Assembly. �Local: Passed by city or county councils. 4

Sources of Law: Common Law �Appellate Court decisions. �Force in their jurisdiction only. �Stare decisis = adhere to precedent. 5

Sources of Law: Common Law �US Supreme Court. �Federal District Courts of Appeal – 7 th Circuit covers Indiana. �Indiana Supreme Court. �Indiana Court of Appeals. 6

Sources of Law: Common Law �The US Supreme Court, the Indiana Supreme Court, the 7 th Circuit Court of Appeals, and the Indiana Court of Appeals are courts of special limited jurisdiction. �The trial courts are courts of general jurisdiction. 7

Sources of Law: Administrative � 1. 2. 3. � Three branches of government: Legislative – create and pass laws. Executive – enforce and administer laws. Judicial – interpret laws. Separations of Powers – checks and balances. 8

Sources of Law: Administrative �Legislative delegates authority to Executive Branch agencies to promulgate rules that have the effect of law by passing enabling statutes. �Rules must be narrowly designed in scope pursuant to the express mission of the administrative agency. 9

Trial Process �Suites begin with the filing of a Complaint. �The person who files is the Plaintiff. �The person to whom the complaint is filed against is the Defendant. �The defendant is notified by a Summons. �After being notified the defendant will file an Answer. 10

Trial Process �Suites begin with the filing of a Complaint. �The person who files is the Plaintiff. �The person to whom the complaint is filed against is the Defendant. �The defendant is notified by a Summons. �After being notified the defendant will file an Answer. 11

Trial Process: Jurisdiction The plaintiff's lawyer must decide where to file the case. A court has no authority to decide a case unless it has jurisdiction over the person or property involved. To have jurisdiction, a court must have authority over the subject matter of the case and the court must be able to exercise control over the defendant, or the property involved must be located in the area under the court's control. 12

Trial Process: Jurisdiction � Subject matter jurisdiction. The authority of a court to hear a particular dispute. � Personal jurisdiction. The authority of a court to hear a dispute involving the particular parties. � Original jurisdiction. The authority of a court decide the dispute in the first instance. � Appellate Jurisdiction. The authority of a court to review a prior decision by a previous court. 13

Trial Process: Jurisdiction �Courts of Limited jurisdiction are generally specialized courts and courts of appeals. The Supreme Court is a court of special limited jurisdiction. �Courts of General jurisdiction are commonly the trial courts such as Circuit or Superior courts. 14

Trial Process: Federal Jurisdiction � � 1. 2. Federal Question arises if a case involves an alleged violation of the USC, federal regulation, or treaty. Diversity Jurisdiction arises if: Amount in controversy exceeds $75 K Lawsuit is between people of different states or a state and a foreign country. 15

The Trial Process: Venue refers to the county or district within a state or the U. S. where the lawsuit is to be tried. The venue of a lawsuit is set by statute, but it can sometimes be changed to another county or district. For example, if a case has received widespread pre-trial publicity, one of the parties may make a motion (request to the judge) for change of venue in an effort to secure jurors who haven’t already formed an opinion about the case. Venue also may be changed for the convenience of witnesses. 16

Trial Process: Standing � � 1. 2. 3. Standing to sue. An individual or entity must have a sufficient stake in the controversy before he or she may bring a suit. Factors include: Real controversy not hypothetical. Whether the person was injured. Whether the person might be injured. 17

Trial Process: Pleadings A lawsuit begins when the person bringing the suit files a complaint. This first step begins what is known as the pleadings stage of the suit. Pleadings are certain formal documents filed with the court that state the parties' basic positions. Common pre-trial pleadings include: 18

Trial Process: Pleadings � � Complaint (or petition or bill). Probably the most important pleading in a civil case, since by setting out the plaintiff's version of the facts and specifying the damages, it frames the issues of the case. It includes various counts - that is, distinct statements of the plaintiff’s cause of action - highlighting the factual and legal basis of the suit. Answer. This statement by the defendant usually explains why the plaintiff should not prevail. It may also offer additional facts, or plead an excuse. Reply. Any party in the case may have to file a reply, which is an answer to new allegations raised in pleadings. Counterclaim. The defendant may file a counterclaim, which asserts that the plaintiff has injured the defendant in some way, and should pay damages. ("You're suing me? Well then, I'm suing you. ") It may be filed separately or as part of the answer. If a counterclaim is filed, the plaintiff must be given the opportunity to respond by filing a reply. 19

Trial Process: Motions are not pleadings but are requests for the judge to make a legal ruling. Some of the most common pretrial motions include: � Motion to Discover. A motion by which one party seeks to gain information from the adverse party. � Motion to Dismiss. This motion asks the court to dismiss the suit because the suit doesn’t have a legally sound basis, even if all the facts alleged are proven true. � Motion for Summary Judgment (sometimes called motion for summary disposition). This motion asks the court for a judgment on the merits of the case before the trial. It is properly made where there is no dispute about the facts and only a question of law needs to be decided. � 20

Trial Process: Discovery � To begin preparing for trial, both sides engage in discovery. This is the formal process of exchanging information between the parties about the witnesses and evidence they’ll present at trial. � Discovery enables the parties to know before the trial begins what evidence may be presented. It’s designed to prevent "trial by ambush, " where one side doesn’t learn of the other side’s evidence or witnesses until the trial, when there’s no time to obtain answering evidence. 21

Trial Process: Depositions One of the most common methods of discovery is to take depositions. A deposition is an out-ofcourt statement given under oath by any person involved in the case. It is to be used at trial or in preparation for trial. It may be in the form of a written transcript, a videotape, or both. In most states, either of the parties may take the deposition of the other party, or of any other witness. Both sides have the right to be present during oral depositions. 22

Trial Process: Interrogatories In addition to taking depositions, either party may submit written questions, called interrogatories, to the other party and require that they be answered in writing under oath. If one party chooses to use an interrogatory, written questions are sent to the lawyer representing the other side, and that party has a period of time in which to answer. 23

Trial Process: Production & Inspection Other methods of discovery include: � subpoenaing or requiring the other side to produce books, records or other documents for inspection (a subpoena is a written order issued by a court compelling a person to testify or produce certain physical evidence such as records); � having the other side submit to a physical examination; or � asking that a document be submitted for examination to determine if it is genuine. 24

Trial Process: Pre-Trial Conference Judges use pre-trial conferences with lawyers for many purposes. One type of conference gaining popularity is the status conference (sometimes called the early conference). This conference—held after all initial pleadings have been filed—helps the judge manage the case. Judges use it to establish a time frame for concluding all pre-trial activities and may set a tentative trial date at this time. 25

Trial Process: Jury Juries of six to twelve persons are selected from the jury pool. The size of jury varies from state to state and depends to some extent on the type of case at trial. � In civil cases, especially in courts of limited jurisdiction, the standard size in many jurisdictions is becoming six, which can be increased by stipulation of both parties. � In misdemeanor cases there are sometimes fewer than twelve jurors, though in serious criminal cases twelve jurors are generally required. � The old requirement that juries be unanimous is also changing. In misdemeanor and civil cases particularly, states often provide for verdicts based on the agreement of three-fourths or five-sixths of the jurors. � 26

Jury - Indiana Criminal IC 35 -37 -1 -1 If a defendant is charged with: (1) murder, a Class A felony, a Class B felony or a Class C felony, the jury shall consist of twelve (12) qualified jurors unless the defendant and prosecuting attorney agree to a lesser number; or (2) any other crime, the jury shall consist of six (6) qualified jurors. 27

Indiana Challenges - Criminal In prosecutions for murder where the death penalty is sought, the attorneys may challenge, peremptorily, 20 jurors. In prosecutions for murder, where the death penalty is not sought, and Class A, Class B, or Class C felonies, the defendant may challenge, peremptorily, 10 jurors. In prosecutions for all other crimes, the defendant may challenge, peremptorily, 5 jurors. When several defendants are tried together, they must join in their challenges. Good causes for challenge; opinion on guilt or innocence. 28

Indiana Juries - Civil IC 34 -36 -3 -1 Number of jurors; stipulations Sec. 1. (a) In a civil case, the jury consists of six (6) members. (b) At any time before the verdict is announced, the parties may stipulate that a verdict or finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury. 29

Rule 47. Jurors and Peremptory Challenges In all civil cases, the jury shall consist of 6 members. Alternate Jurors. The Court may direct that no more than 3 jurors in addition to the regular jury be called. Peremptory Challenges. Each side shall have 3 peremptory challenges. In addition, each side is entitled to: 1 peremptory challenge if the court directs that 1 or 2 alternate jurors are to be impaneled; or 2 peremptory challenges if the court directs that 3 alternate jurors are to be impaneled. The additional peremptory challenges may be used only against alternate jurors. . Examination of jurors. The court shall permit the parties or their attorneys to conduct the examination of prospective jurors, and may conduct examination itself. 30

Trial Process: Juries � � 1. 2. 3. 4. You will not automatically get a jury trial, you must timely ask for one. Not all trials can be heard in front of a jury: Divorce cases. Bankruptcy. Tax court. Probate court. 31

Trial Process: Jury Selection �Voir Dire. �Strike for Cause. �Preemptory Challenge. 32

Trial Process: Opening Statements The purpose of opening statements by each side is to tell jurors something about the case they will be hearing. The opening statements must be confined to facts that will be proved by the evidence, and cannot be argumentative. 33

Trial Process: Evidence The heart of the case is the presentation of evidence. There are two types of evidence -direct and circumstantial. � Direct evidence usually is that which speaks for itself: eyewitness accounts, a confession, or a weapon. � Circumstantial evidence usually is that which suggests a fact by implication or inference: the appearance of the scene of a crime, testimony that suggests a connection or link with a crime, physical evidence that suggests criminal activity. 34

Trial Process: Direct Examination Lawyers for the plaintiff or the government begin the presentation of evidence by calling witnesses. The questions they ask of the witnesses are direct examination. Direct examination may elicit both direct and circumstantial evidence. Witnesses may testify to matters of fact, and in some instances provide opinions. They also may be called to identify documents, pictures or other items introduced into evidence. 35

Trial Process: Cross Examination When the lawyer for the plaintiff or the government has finished questioning a witness, the lawyer for the defendant may then cross-examine the witness. Cross-examination is generally limited to questioning only on matters that were raised during direct examination. Leading questions may be asked during cross-examination, since the purpose of cross-examination is to test the credibility of statements made during direct examination. 36

Trial Process: Directed Verdict At the conclusion of the plaintiff's or government's evidence, the lawyer will announce that the plaintiff or government rests. Then, when the jury leaves the courtroom, the defendant's lawyer in a civil case has the option of making a motion for a directed verdict, arguing that his or her client's liability has not been proven by a preponderance of the evidence. In a criminal trial, the defendant's lawyer can ask for a motion to dismiss the charges, arguing that the government has failed to prove its case. 37

Trial Process: Defense Case The defense presents evidence in the same manner as the plaintiff or state, and the plaintiff or government in return has the right to cross-examine the defense's witnesses. Re-direct and re-cross examination also are permitted. 38

Trial Process: Rebuttal At the conclusion of the defendant's case, the plaintiff or government can present rebuttal witnesses or evidence to refute evidence presented by the defendant. This may include only evidence not presented in the case initially, or a new witness who contradicts the defendant's witnesses. 39

Trial Process: Closing Arguments The lawyers’ closing arguments or summations discuss the evidence and properly drawn inferences. The lawyers cannot talk about issues outside the case or about evidence that was not presented. � The judge usually indicates to the lawyers before closing arguments begin which instructions he or she intends to give the jury. In their closing arguments the lawyers can comment on the jury instructions and relate them to the evidence. � The lawyer for the plaintiff or government usually goes first. The lawyer sums up and comments on the evidence in the most favorable light for his or her side, showing how it proved what he or she had to prove to prevail in the case. � 40

Trial Process: Jury Instructions The judge will advise the jury that they are the sole judge of the facts and of the credibility (believability) of witnesses. He or she will note that the jurors are to base their conclusions on the evidence as presented in the trial, and that the opening and closing arguments of the lawyers are not evidence. Sometimes judges will explain what basic facts are in dispute, and what facts do not matter to the case. 41

Trial Process: Mistrials are trials that are not successfully completed. Mistrials can occur for many reasons: � death of a juror or attorney. � an impropriety in the drawing of the jury discovered during the trial. � a fundamental error prejudicial (unfair) to the defendant that cannot be cured by appropriate instructions to the jury (such as the inclusion of highly improper remarks in the prosecutor's summation). � juror misconduct the jury's inability to reach a verdict because it is hopelessly deadlocked. 42

Trial Process: Verdict After reaching a decision, the jury notifies the bailiff, who notifies the judge. All of the participants reconvene in the courtroom and the decision is announced. The announcement may be made by either the foreperson or the court clerk. 43

Trial Process: Appeals In a civil case, either party may appeal to a higher court. In a criminal case, only the defendant has a right to an appeal in most states. (Some states give the prosecution a limited right to appeal to determine certain points of law. These appeals usually occur before the actual trial begins. Appeals by the prosecution after a verdict are not normally allowed because of the prohibition in the U. S. Constitution against double jeopardy, or being tried twice for the same crime). 44

Trial Process: Appellate Review �Affirm. �Reverse and remand. �Reverse and render a new judgment. 45

Trial Process: Differences Between Criminal and Civil �Burden of Proof. �Complaint v. Information or Grand Jury. �Trial brought in the name of Plaintiff v. the name of the State. �Civil damages v. Criminal incarceration. �Double Jeopardy v. Res Judicata. �Some criminal convictions receive automatic appeal to Indiana Supreme Court. 46

Trial Process: Burden of Proof �Criminal: Beyond a reasonable doubt. �Commitment: Clear and convincing evidence. �Civil: Preponderance of the evidence. �Arrest: Probable Cause. �Civil Infraction Notice to appear: Good faith belief. �Investigatory detention: Articulatible suspicion. 47

Presumption of innocence � � 1. 2. Applies to criminal proceedings. One cannot be convicted of a crime unless: Pleads guilty-admitting the truth of the allegation. Convicted at trial (guilt proved beyond a reasonable doubt). 48

Presumption of innocence � � 1. 2. Bail is allowed so long as not excessive (8 th Amendment to USC). If presumed innocent, why bail required at all? Guarantee presence at trial. Public safety. 49

Presumption of innocence A private employer X has a “Public Conduct” clause in his employee contracts that state that behavior by employees that brings discredit to the employer or that is inappropriate as measured by community standards whether or not on-duty is cause for discipline up to and including dismissal. Employee X is arrested, but not convicted of cruelty to animals and promoting illegal dog fighting. Must employer X wait to see if employee X is convicted in order to discipline the employee? 50