Vatterott OKC Paralegal Studies

We don't teach you what to think. We teach you HOW to think.

Archive for the month “April, 2013”

Constitutional Defenses

The purpose behind a Constitutional defense is to make sure that the defendant is treated in a fair manner.

Where do we get Constitutional defenses?  We get them from four places.

  1. The US Constitution (hence the name)
  2. Bill of Rights
  3. State constitutions (again, hence the name)
  4. Federal and state laws

So, let’s take a look at a few of them.  Remember – you need to check your state constitution and your local laws during your research process for any criminal case or criminal law class assignment.  If you are taking criminal law, check with your instructor to determine if you should use the statutes the book lists OR if you should look up the statutes in your jurisdiction.

Freedom of Religion

This can occur when the goals of religion conflict with specific criminal laws.  The court has the responsibility of balancing religious rights with the right of the state (health, safety, and welfare of society).  Remember that our government is comprised of all three types of political theories.  One of those theories is the sociological theory which looks at the good of society as a whole first and foremost.  That doesn’t mean that religious rights may be trampled on; it does mean that if someone believes they possess the religious right to kill people that they aren’t allowed to do it.  It is a detriment to society.  Oh, and it’s murder.

Freedom of Expression

This is one of our basic rights.  We all have the right to express ourselves.  Any law that interferes is thoroughly examined by the courts.  The state must show a compelling state interest in order to justify that law.

Freedom of Assembly

We have the right to peaceful assembly and demonstration under the First Amendment.  The government may limit these rights if there is a clear and present danger.  The state may use time, place, and manner laws in prosecution.  However, they may not be used to defeat the purpose of the assembly.

Double jeopardy

A person may not be tried or punished twice for the same crime.  That seems easy, right?  It’s not.  It’s a little more complicated.  Let’s look a little closer.

  • DJ begins once the jury is impaneled and sworn or when the first witness is sworn in a non-jury trial.
  • DJ ends when the formal judgment is entered.
  • DJ applies when a person has been tried and subsequent charges covers the same conduct, victim, or elements as the previous charge(s).
  • DJ applies to lesser included offenses and to attempt offenses that merge with the completed crime.
  • DJ doesn’t apply to civil cases where elements are similar (keyword) to criminal charges.
  • DJ does apply to juvenile matters.
  • DJ does not apply to convictions overturned on appeal OR due to a mistrial requested by the defendant.
  • Acquittal or conviction on a lesser included offense forecloses on the greater offense with some exceptions.
  • Conviction or acquittal on the greater offense prevents prosecution of the less included charge.
  • DJ does NOT prevent the dual sovereignty doctrine.
  • Prevents a defense against multiple punishments when two statutes have been violated by the same conduct.

Whew – that wore me out.  Is your head spinning?  There is a lot involved with DJ.  It isn’t JUST being tried twice for the same offense.

Substantive Due Process

Guaranteed to us by the Fifth and Fourteenth Amendments…good old due process.  So – what’s substantive due process?

It prohibits laws that are:

  • Too vague
  • Overbroad
  • Unreasonable
  • Arbitrary
  • Capricious

Remember, though, laws are written in broad language for a reason.  It needs to cover most circumstances.  Congress makes the laws and the judiciary applies them to specific circumstances.

Ex Post Facto laws are barred by the Constitution as a violation of due process.

 

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Affirmative Defenses

Commonly referred to as the “Yes, but…” defense.  The defendant claims that circumstances justify or excuse the behavior.

Allegation: Defendant shot the plaintiff.

Affirmative defense: Yes, but the plaintiff had attacked the defendant.  Yes, but that was because the defendant was in fear for life.

The burden of production:

  • Introducing the defense
  • Introducing credible evidence.

 

Motions

This is just a summary of the motions we discussed today in Intro to Law.  If you are in the Oklahoma City area and you are interested in becoming a paralegal, please give our Admissions office a call.  They know that if you come to visit while I am teaching that I would be happy to meet with you!  I am on campus four days per week.

Today we discussed the lifespan of a lawsuit and some of the motions that may be filed during the span.

  • Motion to Dismiss – In some states, this is also known as a demurrer.  This is filed alleging that the complaint does not contain facts that warrants any type of lawsuit or that the complaint is improperly stated according to procedural rules.
  • Motion to Quash Service of Process – This challenges the service of process of the summons.  If someone isn’t properly served, that can cause problems with the lawsuit.
  • Motion to Compel – If procedural time limits are not honored, the party expecting information may request that court order immediate compliance.
  • Motion for Sanctions – This is used when one party is of the opinion that the other party is willfully disregarding the rules of procedure or orders of the court.
  • Motion for Summary Judgment – It basically states that the evidence is so overwhelmingly in favor of one party that no reasonable judge or jury could find in favor of the other party.  It asks that the case be determined without trial and in favor of the requesting party.
  • Motion in limine – This is an attempt to prevent certain evidence from being presented on the basis that it could interfere with an informed and fair decision by the jury.

 

Substantive & Procedural Law

Substantive law creates, defines, and regulates rights.

Procedural law gives methods of enforcing rights or shows individuals how to obtain redress for the invasion of rights.

Procedural law includes the following (this is not an all inclusive list):

  • The time limit for bringing a lawsuit
  • The manner in which it is started
  • The proper way to inform the defendant about the lawsuit
  • The types of information that must be released by each party to the opposing party
  • The procedure at trial
  • The evidence that can be introduced at trial
  • The method for appealing the decision

Novel Ideas [33]: One Year Down…

Novel Ideas [33]: One Year Down….

via Novel Ideas [33]: One Year Down….

A look at things this doctoral student has learned during this semester.  Things like…it’s okay to admit if you don’t know something.

http://www.usatodayeducate.com/staging/index.php/career/6-questions-not-to-ask-during-an-interview

http://www.usatodayeducate.com/staging/index.php/career/6-questions-not-to-ask-during-an-interview

A link to an article that has several questions you should NOT ask during your first interview.

Week Three – DONE!

Students –

I want to commend each of you.  You are all doing exceptionally well.

Remember that you can submit your assignments through the drop box of your eCampus account, email it to me, or you can just bring it in.  I am on campus four days per week.

Just a few reminders:

  • Do not turn in assignments on spiral bound paper unless it is clean tear.
  • When I make corrects on your paper, it is for your benefit.
  • When I ask you questions about your answer, it is to increase your critical thinking ability.
  • If you turn in your work early and it receives a lower grade than you expected, you may make corrections and turn it in for a higher grade.
  • Start thinking now about your future.  It’s okay if it is your first phase at Vatterott.  It’s never to early to come up with a base plan.
  • Participate and ask questions.  I totally understand if you are uncomfortable asking a question in front of your classmates.  You can come to me before class, after class, on break, email it, text it, or call me.  However, even those of you in your first phase should realize by now that I don’t think any question is stupid and I insist that everyone treat their peers with respect.

Don’t forget – you can check your grades in eCampus.  If you don’t have access, you can see Daniel Resendez in Career Services.

paralegalrookie.com

paralegalrookie.com

This is a great website for new paralegals.  You will find articles and contests.

Returning Engagement Gifts?

Returning Engagement Gifts?

What happens to an engagement ring if the wedding is called off?  What about any pending wedding gifts?  That is generally the decision left up to the court.  However, consider the fact that those “gifts” (including the ring!) were given with a condition…an impending marriage.  Thus, we are dealing with a conditional gift.

Possible Immigration Reform

Possible Immigration Reform

This is a flow chart of a proposed immigration reform bill to assist illegal immigrants in becoming US citizens.  This link details the following: a standard path (Registered Provisional Immigrant), Green Card + applying for citizenship, and a Blue Card.  Yes, there are exceptions to all requirements.  After all, don’t all rules have exceptions?  Aren’t all  broad statutes often applied to specific cases?

I just thought this would be beneficial for those of you that hold an interest in immigration law.

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