As a general rule, however, any offense involving the possibility of incarceration as a sanction is entitled to the benefit of a jury trial. This same standard is applicable, as well, to the right of every defendant to be represented by counsel. In all cases, regardless of the seriousness of the offense, the rules of criminal procedure grant the defendant the right to confront any and all witnesses involved in the formation of the charges against him. This right includes the right to cross-examine all such witnesses and to require their attendance at trial through the use of a subpoena.
The distinguishing factor that separates criminal trials from civil ones is the burden of proof. Criminal Procedure in all U.S. jurisdictions requires that guilt in the criminal court is based on a finding that is beyond a reasonable doubt. This means that all jury verdicts must be unanimous.
Criminal Procedure also sets forth the requirements of punishment in the American legal system. This area is governed by the dictates of the Eight Amendment's ban against the use of cruel and unusual punishment and most of the case law in this area has centered over the use and application of capital punishment. This remains an acrimonious issue in the American courts and is ever changing area. Criminal Procedure also addresses the issue of pleas and their effects. In general form, there are three basic forms of pleas: not guilty, guilty, and no contest. In some jurisdictions, and in the federal system, there is fourth hybrid plea known as a Alford plea that, stated simplistically, combines elements of a no contest plea with that of a guilty plea. Once a pleas is entered or rendered in a criminal case there remain procedures set forth relative to sentencing and post-conviction relief that are governed by the rules of criminal procedure and the corresponding common law. These provisions govern sentencing requirements, appeals, and post-conviction relief such as habeas corpus requests. These provisions tend to be specific to each particular jurisdiction but are still governed by the dictates of the Fourteenth Amendment and its Due Process requirements.
Torts
The law of torts governs the area of the law that involves the civil wrongs committed by individuals against fellow member of society. Distinguished from criminal wrongs, most torts are not defined by statute and do not involve any level of criminal culpability. Instead, torts are divided into two specific types of civil offenses: intentional and negligent torts.
Intentional torts involve acts that are done with knowledge that a wrong is being done. Intentional torts may be a wrong being perfected against another person individually or against another person's property. Examples of intentional torts against a person include battery, assault, false imprisonment, and intentional infliction of emotional distress. Intentional torts against property include trespass and conversion. In order to establish that an intentional tort has been committed and that the person is liable for the tort it must be shown that the individual intended the action and that arising from such action an injury occurred and that such injury caused damages. In certain circumstances there are defenses available to intentional torts. The available defenses include consent, self-defense, the defense of others or land, the privilege of arrest in the case of law enforcement officials, and the right of discipline in the case of parents and guardians. These defenses are all affirmative defenses and must be proven by the person or institution asserting them. Once the presence of the defense is established the burden shifts back to the person arguing that a tort has been committed to demonstrate that the defense does not apply. The burden of proof in intentional tort actions varies from jurisdiction but is usually by the preponderance.
The other area of tort law is negligence. This is the area that most individuals who find themselves involved in this area of the law are most familiar. It involves accidental occurrences where the wrongdoer, the tortfeasor, has allowed his behavior to fall below a certain standard and, in the process, violated a duty of care toward the injured person. Simply stated, a negligent tort involves the breach of duty that causes injury and resulting damages. This area has seen a large increase in litigation in modern times due to the circumstances of everyday life where more machinery, improved means of transportation, and commercial products are being utilized. The increased use of insurance...
This essay provides a brief overview of several of the key factors in conflict of laws, including the areas where choice of law is likely to be at issue. Domicile Domicile is one of the key factors in choice of law. Domicile is not the same as location. Instead, domicile is a legal fiction connecting a person to a location for a specific purpose. Domicile impacts jurisdiction and choice of law.
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