THE STRUCTURE OF THE US LEGAL SYSTEM

MAZE

MAZE

DIFFERENCES BETWEEN CRIMINAL AND CIVIL LAW

CRIMINAL LAW

• Felonies
• Misdemeanors
• State v. Individual
• Presumption of Innocence
• Government Has Burden of Proof
• Higher Standard of Proof (Beyond a Reasonable Doubt)
• Imprisonment or Fine

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CIVIL LAW

• Dispute Between Individuals (contract, tort)
• Plaintiff has burden of proof
• No presumption
• Standard is more likely than not (51%)
• Monetary or Injunctive Relief

CRIMINAL AND CIVIL

ASSAULT (CRIME) – FINE AND/OR PRISON

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N/A

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DRUG POSSESSION (CRIME)

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NEGLIGENCE (CRIME, E.G. MANSLAUGHTER)

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N/A

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ASSAULT (TORT) – PAY MONEY TO VICTIM

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INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (TORT)

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N/A

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NEGLIGENCE (TORT)

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ABSOLUTE LIABILITY

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FEDERAL COURTS�(EVERYTHING ELSE GOES TO STATE COURT)�

THE SUPREME COURT

THE SUPREME COURT CAN HEAR APPEALS FROM THE FEDERAL APPEALS COURTS AND STATE SUPREME COURTS.

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IT CAN ALSO HEAR OTHER KINDS OF CASES THAT ONLY MATTER IF YOU ARE TAKING A BAR EXAM.

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LOCATION, LOCATION, LOCATION

• THE LAW THAT APPLIES TO YOU DEPENDS ON WHERE YOU ARE, WHAT YOU’RE ACCUSED OF

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• OR MAYBE FEDERAL

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• BECAUSE YOU VIOLATED A FEDERAL STATUTE IN YOUR STATE

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• OR MAYBE STATE LAW IN A FEDERAL COURT BECAUSE SOMEONE FROM ANOTHER STATE IS SUING YOU FOR A LOT OF MONEY

• MAYBE STATE LAW

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• BECAUSE YOU LIVE THERE

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• BECAUSE YOU ARE ACCUSED OF COMMITTING A TRANSGRESSION THERE

LOCATION, LOCATION, LOCATION

• THE LAW THAT APPLIES TO YOU DEPENDS ON WHERE YOU ARE

• The Sentencing Commission Guidelines for Compassionate Release still apply in the 11^th Circuit but not in the 4^th Circuit. A conviction in the District of South Carolina could mean freedom whereas a conviction in the Northern District of �Georgia means incarceration, although the difference between the two jurisdictions could be less than a mile.

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OR MAYBE BOTH!

• YES, YOU CAN BE CHARGED FEDERALLY AND UNDER STATE LAW FOR THE SAME TRANSGRESSION.
• NO, THE DOUBLE JEOPARDY CLAUSE DOES NOT APPLY

TWO SOVEREIGNS

• In Gamble v. United States, the Court explained that where there are two sovereigns, there are two laws, and two ‘offences.’
• So, if your transgression violates federal and state law (think drug crime), you can do two prison terms for the same action.

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NOTE ON RETROACTIVITY

• Laws are not retroactive unless Congress or the state legislature include a provision in the law or the Supreme Court says the law is retroactive, which it never does.
• A change in the law will affect a pending case (including appeal) but if the case is done, a change in the law is just an equitable argument

SO. IF THE STATES AND FEDS ARE SEPARATE SOVEREIGNS, THEN THEIR COURT SYSTEMS ARE SEPARATE, RIGHT?

• Kinda; blame federalism
• The Constitution is the supreme law of the land so federal courts can interfere if a state violates basic rights (Habeas; ℥ 1983)
• Based on complicated factors, the feds can apply state law or one state can apply the law of another

Do I Want to Be in State or Federal Court?

• Where Can You Go?
• State Courts can adjudicate constitutional questions under their own or the federal Constitutions
• Federal Courts can adjudicate state law issues along with federal issues coming out of a “common nucleus of operative fact”

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LET’S GO FORUM SHOPPING: WHERE WILL YOU GET THE BETTER DEAL?

WHY THIS MATTERS

Clemons v. Waffle House

WHY DIDN’T THE JURY HEAR ABOUT MELISSA LUCIO’S LIFETIME OF TRAUMA OR HER COERCIVE INTERROGATION??�

RULES OF EVIDENCE (401)

• ONLY RELEVANT EVIDENCE IS ADMISSIBLE:

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• Evidence is relevant if:
• (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
• (b) the fact is of consequence in determining the action.

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RULES OF EVIDENCE (403)

• RELEVANT EVIDENCE CAN BE EXCLUDED IF “its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

RULES OF EVIDENCE (801)

HEARSAY IS INADMISSIBLE …..

(c) Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

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RULES OF EVIDENCE (803)

Who Decides?

HERE’S THE GAME

ANDREA TOLD ME THAT THE NATIONAL COUNCIL JUST GOT A GRANT FOR A BILLION DOLLARS

• INADMISSIBLE TO PROVE THAT THE NATIONAL COUNCIL JUST RECEIVED A TON OF MONEY
• ADMISSIBLE TO PROVE THAT ANDREA IS EXECUTIVE DIRECTOR OF TNC BECAUSE SHE KNOWS ABOUT THE FINANCES

WHY DIDN’T THE JURY HEAR ABOUT MELISSA LUCIO’S LIFETIME OF TRAUMA OR HER COERCIVE INTERROGATION??

• JUDGE DECIDED IT WAS NOT RELEVANT AND/OR WOULD MISLEAD THE JURY
• DEFENSE LAWYER WAS BAD AT THE GAME OF EVIDENCE
• MELISSA COULD NOT COMMUNICATE EFFECTIVELY WITH HER LAWYER

HOW TO TALK TO A LAWYER

• What remedy do you want?
• Injunctive relief (Shut this prison down!)
• Money (lifelong medical care due to injury)
• When do you want it?
• Emergency/temporary
• I can wait
• When hell freezes over is fine

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HOW TO TALK TO A LAWYER

• Who, Where, What, When, and Why
• Start at the beginning
• Provide relevant details (names, dates)
• Statute of Limitations
• Answer questions honestly

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WHO PAYS

• Pro Bono
• You are a test bunny
• Law firm controls the case
• If interests align, a good deal
• Contingency
• Better for injunction
• Lawyer will push to settle
• Follow the money

WHO PAYS

• Pay-as-you-go
• Hourly (6 min intervals)
• Flat fee
• Be prepared to monitor bills/push back
• Financial brakes
• Reassess expenditures

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RED FLAGS

• The lawyer guarantees a favorable outcome;
• The lawyer is not transparent about fees;
• The lawyer does not return calls/keep appointments;
• The lawyer is not respectful;
• The lawyer does one thing (DUI) or everything

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