Vatterott OKC Paralegal Studies

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

Archive for the tag “criminal law”

Girl receives felony charge over science project

Girl receives felony charge over science project

Read the link above.

She mixed toilet bowl cleaner and aluminum foil in a plastic bottle.  It exploded.  No one was injured.  She alleges it was for a science fair project.  The school expels her.  She’s arrested for possession / discharge of a weapon.  She is now facing a felony.  She’s 15.

Do you think this is a fair charge if you consider the wording of the Florida statute?  What do you think would be mitigating facts (if any)?  What about an affirmative defense?

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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.

 

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.

 

Blood draws: DUI

Blood draws: DUI

“Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances…“the practical problems of obtaining a warrant within a time frame that still preserves the opportunity to obtain reliable evidence.” Justice Sotomayor

“A police officer reading this court’s opinion would have no idea — no idea — what the Fourth Amendment requires of him…“when a drunk driving suspect fails field sobriety tests and refuses a breathalyzer, whether a warrant is required for a blood draw should come down to whether there is time to secure one.” Chief Justice John Roberts

“Nothing in the Fourth Amendment requires officers to allow evidence essential to enforcement of drunk-driving laws to be destroyed while they wait for a warrant to issue…” Justice Thomas

Thirty states have the electronic means to secure a warrant.  In some states, police officers can call judges directly according to the article.

Procedural Due Process

Procedural Due Process

What is procedural due process? In simple terms, it is the process designed to make sure all of the steps of due process are fundamentally fair. The Fifth and Fourteenth Amendments give us our right to due process.

The attached image is a flow chart depicting the test of balance.

Domestic strangulation?

Domestic strangulation?

He’s 34 and the nephew is 28.  When you first see the article, it appears a little misleading.  When we see a headline such as this one, the natural presumption is that a child was involved.  As it is shown from this title, word choice is important and it can have a huge effect on what we think or feel even before we read the article.

Also, domestic strangulation?  That’s a new one for me!

Indiana man calls to report himself while driving drunk

Indiana man calls to report himself while driving drunk

He is 24 and was just over the legal limit.  He called the police stating he was driving drunk and needed to be removed from the road.  He lost control of his car and ended up in the grass.  He, obviously, gets charged with DUI.

Think about this in terms of his eventual date with a judge.  If you were on his defense team, what would you do about his admission?

Welcome, new students!

In just a few short days you will begin on an amazing educational journey.  In just a couple of short years you will be in an amazing career as a legal professional.  We at Vatterott are dedicated to your success as a student and a professional.

We understand the delicate balance of education and family life.  We understand that some of you will continue to work during your college experience.  Vatterott OKC is a beautiful and amazing facility that is designed to assist you to become the best person possible during your experience and thereafter.

Here are just a few things you should know ahead of time:

  • Your syllabus is your friend.  While it is mostly a loose guide telling you what will be covered during the term, the assignments are listed in it.  It has your weekly reading assignments and your written assignments.
  • eCampus is your friend.  I use it to keep up with grades, disseminate information, and share helpful websites.  Please do give me a little time to get everything assembled for you.
  • Please come to class prepared.  We will develop a list of classroom expectations together.  Preparation means you have finished your reading, you have something to take notes on (and to do pop quizzes that WILL be graded), ink pen, and being attentive.  Please do NOT turn in assignments written on spiral bound notebook paper.  If you write your assignments because you do not have access to a computer, please use clean tear or loose leaf paper.
  • I am on campus four days per week.  Two of those days I will be on campus until at least one in the afternoon.  On day one, I will provide you with my email and cell phone.
  • Speaking of email, please check it on a regular basis.  I will use your personal email instead of your student email.
  • If you are struggling in ANY of your coursework, please come to me.  I can’t help you if you don’t tell me you’re having a problem.  I am also your student adviser.
  • Be on time.

I look forward to week one (and the following nine weeks).  I assure you that I will respect your time and your investment in to your future.  I will help you all that I can, but I can’t do it for you.

Week Ten

Congratulations to all you of for completing a successful term.  This week marks your final examinations and essays for your courses.

It has been a pleasure working with all of you this term.  You’ve grown by leaps and bounds.  You’ve taught me quite a bit as well.  I am very pleased to be associated with Vatterott College.

This coming phase I will be on the campus four days per week.  I will be teaching the following courses:

  • Introduction to Law
  • Introduction to Values and Ethics (PA-214)
  • Criminal Law
  • Law of Corporations

I will also be directing the externship program.  I hope to also have the tutoring.

For my seniors – you two have grown so much over the last ten weeks.  I am incredibly proud of you both.  Remember that just because your time with Vatterott is coming to a close doesn’t mean you are totally on your own.  You both have my cell and my email.  I am merely a message or call away.  You both have so much potential.  Never stop working to improve your professional skills.  Also remember that with life, it truly is just what you make of it.  If you desire a different outcome in your life, you must make different decisions.  If you ever need a sounding board, I am here for you both.

For my students that have chosen to leave – you will be missed.  You are both incredibly bright.  I make you the same offer as my two seniors.  I am just an email or phone call away should you need anything during your educational preparation.  Of course, I wish you weren’t leaving our program.

For my students that I will see next phase – hang on to your proverbial hats!  All of these courses have quite a bit planned.  I’ve also found a lot of different examples you will find useful during the next phase and for your academic journey with Vatterott.  I am also the student adviser.  Please make an appointment to meet with me this term.  It is never too early to start your planning.  Trust me.  When I finished my Bachelor’s degree, I felt like I had been kicked out of the nest and left to be devoured by the wolves.  Don’t be that guy.

For my new students – greetings and namaste.  I am excited to be part of your journey.  Your decision to come to Vatterott for your Associate’s is one I know you will not regret.  I aim to teach you many things aside from what you need to know about the different areas of law; you also need to know how to balance life and work, juggle multiple deadlines, and how to think on a critical basis.  You will hear me say it over and over again – I will not teach you WHAT to think, but I will teach you HOW to think.  Be prepared for discussion, debate, and to be challenged even if I agree with you.  I am always a phone call, text, or email away.  If you need help and can’t attend tutoring, please contact me.  We will work something out.  I want you to be successful.  Bookmark or subscribe to this blog for future reference.

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