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 it is 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 sides case. If a criminal case goes to trial, the prosecution has the burden of proving the defendant guilty beyond a reasonable doubt. In a civil case, the burden is on the plaintiff to prove his or her case by a preponderance of the evidence (greater weight of evidence). The standard of proof is more difficult 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 in questioning witnesses and controlling the court process, including the gathering 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 evidence presented. The adversary process is often criticized. Critics say that it is not the best method for discovering the truth with respect to the facts of a specific case. They compare the adversary process to a battle in which lawyers act as enemies, making every effort not to present all the evidence. In this view, the goal of trial is victory, not truth or justice. On the other hand, the adversary process is the cornerstone of the American legal system. Most attorneys believe that approaching the same set of facts from totally different perspectives will uncover more truth than other methods.

Crime GENERAL CONSIDERATIONS Every crime is made up of certain elements. Elements are the conditions that make an act a crime. A crime cannot be committed unless all its elements are fulfilled. For example, robbery is defined as the unlawful taking 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)

the use of force or intimidation, and (3) the lack of consent of the person from 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 or intimidation one of the elements of robbery. However, the person could be convicted of larceny, because the elements of larceny do not include the use of force or violence. Almost all crimes require an act and an intent. Criminal intent means that the person intended or meant to commit a crime. Criminal intent usually involves knowing and willful action. If a person acts because of a mistake or 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 crime regardless of the knowledge of the person committing the act. For example, the law makes it illegal to sell alcoholic beverages to minors. This is true regardless 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 kills someone (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 charges against Paul for arson. Floyd may also brings separate civil action against Paul to recover for the damage to his store. STATE AND FEDERAL CRIMES There are both state and federal criminal laws. Some acts, such as simple assault, disorderly conduct, drunk driving, and shoplifting, can be prosecuted only in a state court unless they occur on federal property, such as a national park. Other acts, such as failure to pay federal taxes, mail fraud, espionage, and international smuggling, can be prosecuted only in a federal court. Certain crimes, such as illegal possession of dangerous drugs and bank robbery, can violate both state and federal law and can be prosecuted in either state or federal court. CLASSES OF CRIMES

Crimes as classified as either felonies or misdemeanors. A felony is a crime for which the penalty is imprisonment for more than one year. Felonies are usually the more serious crimes. A misdemeanor is any crime for which the penalty is imprisonment for one year or less. Minor traffic violations 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, the person who fires the gun in a murder is the principal. Accomplice is someone 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 as the principal. A person who orders a crime or who helps the principal commit the crime but who is not present (for example the underworld leader who hires a professional killer) is known as accessory before the fact. This person can usually be charged with the same crime, and can receive the same punishment, as the principal. An accessory after the fact is a person who, knowing a crime has been committed, helps the principal or an accomplice avoid capture or escape. This person is not charged with the original crime but may be charged with harboring a fugitive, aiding the escape, or obstructing justice.

Crimes against the person include homicide, assault, battery and rape. All of those crimes are serious offences. A defendant found guilty of one of them may receive a harsh sentence. However, the law also protects the defendant by defining various levels of these crimes and by considering the circumstances of each offense. HOMICIDE

Homicide- the killing of one human being by another is the most serious of all acts. Homicides may be either noncriminal or criminal. Noncriminal Homicide- is the a killing that is justifiable or excusable and for which the killer is deemed faultless. Examples of noncriminal homicide include the killing of an enemy soldier in wartime, the killing of a condemned 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 death or serious harm, and a killing performed in self-defense or in defense of another. Criminal Homicide Murder, the most serious form of criminal homicide, is a killing that is done with malice. Malice means having the intent to kill or seriously harm. At one time, there were no degrees of murder. Any homicide done with malice was considered to be murder and was punishable by death. To reduce the punishment for less grievous homicides, most states now have statutes that classify murder according to the killers state of mind or the circumstances surrounding the crime. First-degree murder is a killing that is premeditated (thought about beforehand), deliberate, and done with malice (with intent to kill) Second degree-murder is a killing that is done with malice but without premeditation. That is, the intent to kill did not exist until just before the murder took place. Felony murder is a killing that takes place during the commission of certain felonies, such as arson, rape, robbery or burglary. It is not necessary to prove intent to kill; felony murder includes most killing committed during a felony, even if the killing is accidental. Most states consider felony murder to be first-degree murder. Voluntary manslaughter is an intentional killing committed under circumstances that mitigate(lessen), but do not justify or excuse, the killing. Manslaughter is based on the idea that even the reasonable person may lose self-control and act rashly if sufficiently provoked. Involuntary manslaughter is 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 be loaded. Negligent homicide is the causing of death through criminal negligence. Negligence is the failure to exercise a reasonable or ordinary amount of care in a situation that causes harm to someone. Some states classify death by gross, or extreme, negligence as involuntary manslaughter. The most

common form of negligent homicide is vehicular, or automobile homicide. This is a killing that results from operating a motor vehicle in a reckless and grossly negligent manner. Any death that results from careless driving may lead to a civil suit for damages, but it is usually not considered a crime unless the death results from gross negligence. ASSAULT AND BATTERY Assault is any attempt or threat to carry out a physical attack upon another person. An assault occurs when the threatened person reasonably believes that he or she is in real danger. For example, suppose John points an unloaded gun at Maggie. This is an assault if Maggie reasonably believes the 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 the words assault and battery.

Just as there are degrees of murder, there are also different classifications for assault and battery. Aggravated assault and battery is an assault with intent to murder, rob, rape, or do serious bodily harm. For example, if John knocks Maggie down while trying to snatch her purse, he is guilty of aggravated assault as well as the crime of attempted robbery. Many states impose 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 law enforcement officer. To deal with the growing problem of harassment, forty states now have anti-stalking laws. Stalking occurs when a person repeatedly follows or harasses another person and makes threats, causing the victim to fear death or 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 is the act of unlawful sexual intercourse committed by a man with a woman

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

Crimes against property

The category of crimes against property includes crimes in which property is destroyed (such as arson and vandalism) and crimes in which property is stolen or otherwise taken against the will of the owner (such as robbery and embezzlement). ARSON Arson is the willful and malicious burning of another persons property. In most states, it is a crime to burn any building or structure, even if the person who burns the structure owns it. Moreover, burning property with the 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 in damage each year. It includes such things as breaking windows, ripping down fences, flooding basements, and breaking off car aerials. Depending on the extent of the damage, vandalism can be either a felony or a misdemeanor. LARCENY Larceny is the unlawful taking and carrying away of the property of another with intent to steal it. In most states, larceny is divided into two classes, grand and petty, depending on the value of the stolen item. Grand larceny involves the theft of anything above a certain value (often $100 or

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 reasonable method exists for finding the owner. For example, if you find a wallet that contains the identification of its owner but nevertheless decide to keep it, you have committed larceny. Likewise, you may be guilty of larceny if you keep property delivered to you by mistake. Shoplifting is a form of larceny. It is the crime of taking items from a store without paying for them. Some states have a separate crime called concealment. This is the crime of attempted shoplifting. EMBEZZLEMENT Embezzlement is the unlawful taking of property by someone to whom it was entrusted. For example, the bank teller who takes money from the cash drawer or the stockbroker who takes money that should have been invested are both guilty of embezzlement. In recent years, a number of states have merged the crimes of embezzlement, larceny, and obtaining property by false pretenses (intentional misstatement of fact) into the statutory crime of theft. ROBBERY Robbery is the unlawful taking of property from a persons immediate possession by force or intimidation. Though included here as a crime against property, robbery, unlike other offences, involves two harms: theft of property and actual or potential physical harm to the victim. In most states, the element of force is the difference between robbery and larceny. So, a pickpocket who takes your wallet unnoticed is liable for the crime of larceny. A mugger who knocks you down and takes your wallet by force is guilty of the crime of robbery. Robbery is almost always a felony, but many states impose stricter penalties for armed robberies. EXTORSION Extortion, popularly called blackmail, is the use of threats to obtain the property of another. Extortion statutes generally cover threats to do future

physical harm, destroy property or injure someones character or reputation. BURGLARY Burglary was originally defines as breaking and entering the dwelling of another 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 or document 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 someone as 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 is stolen, you have committed the crime of receiving stolen property. Knowledge that the property is stolen may be implied by the circumstances. In most stated, receiving stolen property is a felony if the value of the property received is more than $100 and a misdemeanor if the value is less that $100. UNAUTHORIZED USE OF A VEHICLE Several crimes may occur when a person takes a motor vehicle without the owners consent. The crime of unauthorized use of a vehicle is committed if the person only intends to take the vehicle temporarily. This crime, which includes joyriding, is usually punished as a misdemeanor. However, if the person intends to take the car permanently, then the crime may be larceny or auto theft. The crime of carjacking occurs if a person uses force or

intimidation to steal a car from a driver. Carjacking is a federal crime and is 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 and American legal systems. Efforts to introduce trial by jury into the legal systems of other nations had some limited success in the 19th century. Beginning about 1850, however, juries were gradually abolished or used far 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, during World War II. In the second half of the 20th century, more than 90 percent of all jury trials took place in the United States. Most of the remainder occurred in England and other nations of the Commonwealth, especially Australia 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 of property and clear mental competence. Women were not allowed to serve. This has changed in the 20th century. The principle of random selection from among qualified voters has come to be common in the United States, England, Canada, and Australia. Some Canadian provinces still have property qualifications, and in Quebec women are still not allowed to serve as 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 by the judge and by lawyers for the defendant and the plaintiff. The law allows the lawyer to challenge jurors for cause, such as a specific bias in the 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 voir dire, meaning "to say the truth." It can become very complex and time-consuming, especially in a case that has received a great deal 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 may hear, according to complex and established rules of evidence. If the judge

decides the evidence presented leaves no matter of fact to be resolved, he may direct a verdict of acquittal. This effectively ends the proceedings. In a 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 is the responsibility of the jury. The judge, in most cases, also explains the legal aspects of the evidence and the duties of the jury. If the jury's verdict is 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 is final, and the persons cannot be tried again for the same crime. This is called the principle of double jeopardy. In many jurisdictions, if a verdict of guilty is rendered by a jury, the jury must also be present for a hearing on sentencing and may be asked to decide what the sentence should be. In civil cases, the jury is asked to decide on the damages to be awarded to the plaintiff. In some jurisdictions the awarding of damages or sentencing are part of the original trial. In other 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 is required 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 are drawn from such a wide range of the populace, they do not have the intelligence or sophistication to deal with the complexities of law. To counter this criticism, it is argued that a jury of nonexperts brings a good deal of common sense and openness to a trial. This results in cases being decided in the spirit of the law, rather than by the rigidity of individual statutes. A jury also may provide a useful counterweight to the biases (if any) of the judge and lawyers involved in a trial. Although juries are strictly confined by law to the finding of facts, their presence frequently injects a sense of justice into the proceedings, either on the side of the defendant or the plaintiff.