Licenses Ordinarily, a license is required to operate an asylum or institutional care facility in order to ensure that minimal health and safety requirements imposed by law are observed.
Trang 1issuance of the proposed regulations As of September 2009, the case was still pending a final decision
FURTHER READINGS
“Documents and Information on Rody Alvarado’s Claim for Asylum in the U.S ” Center for Gender & Refugee Studies Available online at http://cgrs.uchastings.edu/
campaigns/Alvarado.php website home page: http://
cgrs.uchastings.edu (accessed September 27, 2009).
Kimmel, Barbara Brooks, and Alan M Lubiner 2000.
Immigration Made Simple: An Easy-to-Read Guide to the U.S Immigration Process Chester, N.J.: Next Decade.
Nicholson, Frances, and Patrick Twomey, eds 1999 Refugee Rights and Realities: Evolving International Concepts and Regimes Cambridge: Cambridge Univ Press.
CROSS REFERENCES Aggravation; Aliens; Homeland Security Department;
Felony; Refugees
ASYLUMS Establishments that exist for the aid and protec-tion of individuals in need of assistance due to disability, such as insane persons, those who are physically handicapped, or persons who are unable to properly care for themselves, such as orphans
The term asylum has been used, in consti-tutional and legislative provisions, to encompass all institutions that are established and sup-ported by the general public
An insane asylum is one in which custody and care is provided for people with mental problems An orphanage is an asylum set up as a shelter or refuge for infants and children who
do not have parents or guardians
Establishment and Maintenance
In the absence of constitutional restrictions, the state is permitted to fulfill itsOBLIGATIONto aid or support individuals in need of care by contribu-tions to care facilities established or maintained
by political subdivisions and private charity In addition, the state may inaugurate a state asylum, delegating the management responsibility thereof
to a private corporation Some authorities view contributions to asylums of religious organiza-tions or private enterprises as violative of constitutional prohibitions of government aid
to parochial institutions or individuals Express exceptions can be made by state statute or constitution for the payment of funds for designated purposes to specific types of asylums
In situations that are embraced by such
exceptions, the contribution that the state makes
to the maintenance of the asylum is not regarded
as a charity but as part of the state’s duty to aid its citizens who cannot do so themselves
Public Asylums Ownership and Status
An asylum founded and supported by the state has the status of a public institution The state has the true ownership of the property that a state asylum occupies, and the character of the state’s interest in such property is dependent upon the terms of the deed or contract under which it is held for the institution
When a county conveys property to a board
of directors of an insane asylum acting as trustees, title is not vested in the state to the extent that the power to reconvey the land to the county is restricted In a situation in which property has been conveyed for a particular purpose connected to the operation of the asylum, it has been held that the trustees are permitted to reconvey the property to the county for the establishment of a general hospital Location and Support When no
constitution-al provision prescribing the location of public institutions exists, the state may designate a location or arrange for a place to be found by a specially appointed committee or commission
A state asylum may be funded either by general stateTAXATIONor through an allocation
of a portion or all of the costs among political subdivisions or to the inmates of the asylum Regulation Under the POLICE POWER of the state, the establishment and regulation of private asylums are subject to the state legisla-tive authority Such powers may be delegated to political subdivisions and administrative agen-cies If legislative authority is delegated in such situations, guidelines and standards for regula-tory enforcement must be present
In order for a regulation to be valid, it must
be reasonable, applied uniformly, and it must not infringe upon constitutional rights A state
or political subdivision cannot proscribe the lawful operation of an asylum or care facility or create or enforce unreasonable or arbitrary requirements regarding its construction or physical location Similarly, it cannot make capricious requirements relating to the classifi-cation and nature of individuals to be admitted Regulations and practices must comply with constitutional and statutory provisions
408 ASYLUMS
Trang 2The governing board of an asylum or
institutional care facility is empowered to create
all necessary rules and bylaws and is responsible
for its policies and general administration The
courts will neither prescribe rules nor alter
those created by the authorities, unless they are
unreasonable or inappropriate
Investigation and Inspection The legislature
has the exclusive power to order an
investiga-tion of the management of an asylum or care
facility Private individuals may not conduct an
investigation When an investigation is initiated,
the institution’s governing board has the power
to set forth regulations regarding relations with
employees and patients and access to the
records A nursing home operator must make
records kept pursuant to a public health statute
available for inspection by authorized public
officials In addition, a private facility can be
required to turn over annual fiscal reports to a
regulatory agency
Statutory requirements for the safety of
individuals in institutions are imposed and
must be observed Similarly, standards
concern-ing the type of personnel needed to care for the
patients are usually set forth, but they must not
be unreasonable
Licenses Ordinarily, a license is required to
operate an asylum or institutional care facility in
order to ensure that minimal health and safety
requirements imposed by law are observed
When a license is necessary, operation of a
facility without one may be enjoined and, under
certain statutes, a contract made by an
unli-censed person is void, which would bar recovery
for necessaries provided for individuals The
procedure for procuring a license is governed by
statute, and the state licensing authorities have
the discretion concerning whether it should be
granted When there is a final decision,
determinations in licensing proceedings may
be subject to JUDICIAL REVIEW The proceedings
on judicial review are generally regulated by
statutory provisions that limit the proceedings
to those initiated by aggrieved individuals
Under some statutes, before an institutional
care facility can be built, a certificate of need,
which establishes approval of its construction by
a public agency, is required
Officers and Employees
The rules that generally apply to public service
employees govern the status of officers and
employees of institutions Statutory provisions may provide for the termination of such officers and employees
Inmates, Patients, and Residents
Statutory provisions, administrative regulations, and discretion of its administrator govern the admission of inmates or patients to a public institution When a public asylum is founded for the reception of a specific class of indivi-duals, anyone in the designated class may be admitted
A constitutional provision that requires the advancement and support of certain specified institutions does not mandate that the state incur the total cost of maintaining institution-alized individuals The expedience of soliciting repayment from responsible people for the expense of care, support, and maintenance of
a patient cannot be based exclusively upon whether the commitment is voluntary or involuntary In addition, recovery might be permitted for services actually rendered
The individual in charge of an asylum that stands IN LOCO PARENTIS to infants upon their admission has custody of the children who are committed to its care Unless otherwise
State and county mental hospitals Private psychiatric hospitals Non-federal general hospital psychiatric services a Residential treatment centers for emotionally disturbed children Other b
Asylums
Number of facilities
0 400 800 1200 1600
1,230
237
264
702 458
a Data excludes mental health care provided in nonpsychiatric units of hospitals, such as general medical units.
b Includes freestanding psychiatric outpatient clinics, partial care organizations, and multiservice mental health organizations.
SOURCE: U.S Department of Health and Human Services, Centers for Disease
Control and Prevention, National Center for Health Statistics, Health, United
States, 2008.
NUMBER OF MENTAL HEALTH FACILITIES IN 2004
ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,
A PART OF CENGAGE LEARNING.
ASYLUMS 409
Trang 3prohibited by statute, qualified people may examine the records of children in private institutions when so authorized by its admin-istrators When a statute exists that guarantees the adult residents of proprietary adult homes the right to manage their own financial affairs, their handling of such matters cannot be subject
to judicial challenge An institution may be mandated to meet the individual needs of its patients under rules that monitor the operation
of private care facilities for the purpose of the
MEDICAIDprogram
Appropriate regulations may govern the
VISITATION RIGHTS of individuals in an asylum
An individual may be dismissed from the institution for conduct proscribed by the bylaws under penalty of expulsion, provided the person
is first afforded notice and an opportunity to be heard
Contracts for Care and Occupancy
The admission of an individual to a public institution for care can be the subject of a contract between the patient and the institution concerning the transfer of property to the institution Even without an express agreement, however, the circumstances may bring about a
QUASI CONTRACTto provide for services rendered
An individual may not rescind an occupancy agreement and regain an admission fee without proof of a breach of contract by the institution
Management
The management of public institutions is usually entrusted to specific governing bodies
or officers The appropriate body can hire employees to operate the asylum but cannot relinquish its management responsibilities
Physicians who wish to visit patients in private nursing homes can be excluded If an institution does not provide reasons at the time of the exclusion, it does not preclude the institution from excluding the physician, provided that valid reasons exist and are communicated upon request
Generally, the governing body of an asylum has the power to decide how funds appropriated for its support shall be spent, in the absence of contrary legislative provision Funds appropri-ated by a legislature for specific purposes cannot, however, be diverted, and the governing body of the asylum does not have the power to compel the state to provide funding for services
other than those for which the money was appropriated Similarly, they are not empow-ered to borrow money or incur debts beyond allotments made for the support of institutions
It is proper procedure to make a provision that an asylum may only accept as many inmates for admission as the facilities can adequately accommodate An institution may not initiate a visitation plan that limits a patient’s right to allocate his or her visiting time among particular people, unless such limitation bears a rational relationship to the patient’s treatment or security
Liabilities
An asylum or institutional care facility has the obligation to exercise reasonable care toward patients and can be held liable for a breach of this duty of care The care taken toward inmates should be in the light of their mental and physical condition
Recovery for injuries precipitated by an institution’sNEGLIGENCEcan be barred or limited
by the contributory negligence of the injured party The defense of contributory negligence cannot, however, be used when an individual is physically or mentally incapable of self-care
FURTHER READINGS Goffman, Erving 2007 Asylums: Essays on the Social Situation of Mental Patients and Other Inmates New Brunswick, NJ: Aldine Transaction.
Jones, Kathleen 1993 Asylums and After: Revised History of the Mental Health Services from the Early 18th Century to the 1990s London: Athlone.
Rothman, David J 2002 The Discovery of the Asylum: Social Order and Disorder in the New Republic New York: Aldine de Gruyter.
CROSS REFERENCES Disability Discrimination; Establishment Clause; Health Care Law; Patients ’ Rights.
AT ISSUE
A phrase that describes the status of parties in a lawsuit when they make contradictory statements about a point specified in their pleadings
AT LARGE Not limited to any place, person, or topic; for example, a representative at large is elected by the voters of the state as a whole rather than voters of
a particular district Free from control or restraint, such as a criminal at large
410 AT ISSUE
Trang 4AT LAW
According to law; by, for, or in the law, as in the
professional title attorney at law Within or
arising from the traditions of the common law
as opposed to equity, the system of law that
developed alongside the common law and
empha-sized fairness and justice rather than enforcement
of technical rules
ATKINS V VIRGINIA
In a landmark 6–3 ruling, the U.S Supreme
Court barred the execution of mentally retarded
people, ruling that it constituted “cruel and
unusual punishment” prohibited by theEIGHTH
AMENDMENT However, the Court left to the
states to determine the definition of mental
retardation The decision affected as many as
300 mentally retarded death row inmates in
20 states
The case involved Daryl Renard Atkins, who
was convicted of capital MURDERand sentenced
to death for abducting, robbing, and killing
21-year-old airman Eric Michael Nesbitt The
evidence introduced at trial showed that at
approximately midnight on August 16, 1996,
Atkins and William Jones, both armed with
semiautomatic WEAPONS, abducted Nesbitt,
robbed him, drove him to an automated teller
machine, forced him to withdraw additional
cash, and then took him to an isolated location
where they shot him eight times at close range
Initially, both Jones and Atkins were
indicted for capital murder The prosecution
ultimately permitted Jones to plead guilty to
first-degree murder in exchange for his
TESTIMO-NYagainst Atkins As a result of thePLEA, Jones
became ineligible to receive the death penalty
Jones and Atkins both testified in the guilt
phase of Atkins’s trial Each confirmed most of
the details in the other’s account of the incident,
except that each blamed the other for killing
Nesbitt Jones’s testimony, which was both
more coherent and credible than Atkins’s
testimony, was apparently credited by the jury
in establishing Atkins’s guilt Highly damaging
to the credibility of Atkins’s testimony was its
substantial inconsistency with the statement he
gave to the police upon his arrest Jones, in
contrast, had declined to make an initial
statement to the authorities
At the penalty phase of the trial, the state
introduced victim impact evidence and proved
two aggravating circumstances: future danger-ousness and“vileness of the offense.” To prove future dangerousness, the state relied on Atkins’s prior felony convictions as well as the testimony of four victims of earlier robberies and assaults To prove the second aggravating circumstance, the prosecution relied upon pictures of the murdered man’s body and the autopsy report
The defense relied on one witness during the penalty phase, Dr Evan Nelson, a forensic psychologist who had evaluated Atkins before trial and concluded that he was“mildly mentally retarded.” His conclusion was based on inter-views with people who knew Atkins, a review of school and court records, and the administration
of a standard intelligence test, which indicated that Atkins had a full scale IQ of 59 Generally, IQs below 70 are considered in the retarded range The state presented Dr Stanton Samenow
as an expert rebuttal witness He testified that Atkins was not mentally retarded but rather was
of“average intelligence, at least,” and diagnosable
as having antisocial personality disorder A jury sentenced Atkins to death and the Virginia Supreme Court affirmed the sentence on appeal, saying it was “not willing to commute Atkins’s sentence of death to life imprisonment merely because of his IQ score.” Atkins v Common-wealth, 260 Va 375, 534 S.E.2d 312 (Va 2000)
When the case was appealed, most observers expected the U.S Supreme Court to affirm the sentence as well In 1989 the Supreme Court had upheld the execution of a mentally retarded death row inmate, notwithstanding objections that such executions violate the Eighth Amend-ment’s ban on CRUEL AND UNUSUAL PUNISHMENT Penry v Lynaugh, 492 U.S 302, 109 S Ct 2934,
106 L.Ed.2d 256 (1989) But Justice JOHN PAUL STEVENS, writing for the majority in Atkins, concluded that times had changed in the
13 years since the Penry decision was handed down
When Penry was decided, Stevens observed, only two of the 38 states allowing CAPITAL PUNISHMENTbarred execution of mentally retarded inmates However, at the time Atkins came before the Court, that number had risen to 18
Noting the “procession” of states in which executing the mentally retarded had been deemed illegal, Justice Stevens stated that it was not so much the number of states that was significant, but the consistency of the direction
ATKINS V VIRGINIA 411
Trang 5of change.“Given the well-known fact that anti-crime legislation is far more popular than legislation providing protections for persons guilty of violent crime,” he stated, “the large number of states prohibiting the execution of mentally retarded persons (and the complete absence of states passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal.” Thus, Stevens concluded that the Eighth Amendment now prohibited executing mentally retarded persons under the “evolving standards of decency” test by which punishments are evaluated to determine whether they are cruel and unusual
Chief Justice WILLIAM REHNQUISTand Justices
ANTONIN SCALIA and CLARENCE THOMAS dissented
Chief Justice Rehnquist criticized the majority for basing its decision on the fact that 18 states have laws barring execution of mentally
retard-ed defendants, because the laws of 20 states would have otherwise continued to leave the question of proper punishment to the individu-ated consideration ofSENTENCINGjudges or juries familiar with the particular offender and his or her crime Chief Justice Rehnquist agreed with Justice Scalia’s opinion that the majority’s assessment of the current legislative judgment more resembled a post hoc rationalization for the majority’s “subjectively preferred result”
than “any objective effort to ascertain the content of an evolving standard of decency.”
FURTHER READINGS Dowling, Alexis Krulish 2003 “Post-Atkins Problems with Enforcing the Supreme Court’s Ban on Executing the Mentally Retarded ” Seton Hall Law Review 33 (sum-mer).
Henshaw, Jaime L 2003 “Atkins v Virginia: The Court’s Failure to Recognize What Lies Beneath ” Univ of Richmond Law Review 37, vol 4 (May).
“Implementing Atkins.” 2003 Harvard Law Review 116 (June).
Velasquez, Eli 2003 “The Shaping of an American Consensus against the Execution of Mentally Retarded Criminals ” Whittier Law Review 24 (summer).
CROSS REFERENCES Eighth Amendment; Felony; Forensic Science; Murder;
Plea; Rebut; Victims of Crime.
ATTACHMENT The legal process of seizing property to ensure satisfaction of a judgment
The document by which a court orders such
aSEIZUREmay be called aWRITof attachment or
an order of attachment
Originally, the main purpose of attachment was to coerce a DEFENDANT into appearing in court and answering the plaintiff’s claim The court’s order pressured the sheriff to take the defendant’s property into custody, depriving the individual of the right to use or sell it If the defendant obstinately refused to appear, the property could be sold by the court to pay off any monetary judgment entered against him or her In the early twenty-first century, the process
of attachment has two functions, as a jurisdic-tional predicate and as a provisional remedy Attachment of property within reach of the court’s jurisdiction gives the court authority over the defendant to the extent of that property’s value even if the court cannot reach the defendant personally For example, a court must have some connection with the defendant
in order to require that person to appear and defend himself or herself in an action before that court
A variety of different facts are sufficient to give the court jurisdiction over the defendant’s person; for example, the defendant’s residence within the state, the defendant’s commission of
a wrongful act within the state, or the defendant’s doing business within the state
If none of these kinds of facts exist to give the court jurisdiction over the defendant’s person, the court may nevertheless assert its authority over property that the defendant owns within the state In such a case, the PLAINTIFF
cannot recover a monetary judgment for an amount larger than the value of the property nor can the individual reach the defendant’s property outside the state, but this sort of jurisdiction, called jurisdiction in rem or quasi
in rem, may be the best the plaintiff can get Before the court can exercise jurisdiction over the property, the plaintiff must obtain a writ of attachment to bring it into custody of the court Attachment may also be a provisional remedy, that is, relief that temporarily offers the plaintiff some security while pursuing a final judgment in the lawsuit For example, a plaintiff who has good reason to believe that the person
he or she is suing is about to pack up and leave the state will want the court to prevent this until the plaintiff has a chance to win the action and collect on the judgment The plaintiff can apply
412 ATTACHMENT
Trang 6STATE OF NORTH CAROLINA
*Alias and Pluries Order The Order originally issued against you was returned not served.
Original-File Copy-Each Defendant (Over)
Copy-Attorney/Plaintiff
[continued]
County
VERSUS
G.S 1-440.12, 1-440.13
The above named plaintiff has applied for an attachment of the defendant’s property in this action and has executed and delivered to the
Court a satisfactory attachment bond It appears to the satisfaction of the Court that the allegations in the plaintiff’s affidavit are true.
You are commanded to attach and keep safely as much of the property of the defendant within your county which is subject to attachment,
as is sufficient to satisfy the amount sought in the Affidavit in Attachment Proceeding, the costs of the action and expenses You are further
commanded to make return of this Order to this Court within the time allowed by law The amount sufficient to satisfy the plaintiff’s demand
is shown below.
In The General Court Of Justice
File No.
Name Of Plaintiff
Name Of Defendant
County In Which Order To Be Served
Amount Sufficient To Satisfy Plaintiff’s Demand
Film No.
Date Last Order Issued
Date Issued
Signature
Assistant CSC District Court Judge
Clerk Of Superior Court Superior Court Judge
District Superior Court Division
*Disregard this section unless the block is checked.
$
AOC-CV-301, Rev 1/98
©1998 Administrative Office of the Courts
ORDER OF ATTACHMENT
To The Sheriff Of The County Named Below:
A sample order of attachment ATTACHMENT 413
Trang 7A sample order
of attachment
(continued)
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
RETURN OF SERVICE
NOTE TO SHERIFF:
$
AOC-CV-301, Side Two, Rev 1/98
©1998 Administrative Office of the Courts
I certify that pursuant to this Order I levied on the following described property of the defendant on the date set out below:
NOTE TO CLERK: If the return certifies that the sheriff levied on real property, note the levy on the judgment docket and index it
If you levy on real property and this Order Of Attachment was issued by a Clerk from a county other than your county, in addition to returning the order and return of service to the Clerk who issued it, you must give a copy of this order and return of service to the Clerk of Superior Court in your county G.S 1-440.17(a).
Date Served
Date Returned
Name Of Sheriff
County
Deputy Sheriff Making Return By
No levy has been made within ten (10) days after the issuance of this Order Of Attachment for the following reasons:
Judgment Docket Book And Page No (If Real Property Attached)
STATE OF NORTH CAROLINA
414 ATTACHMENT
Trang 8for an order of attachment that brings the
property into the custody of the court and takes
away the defendant’s right to remove it or
dispose of it
Attachment is considered a very harsh
remedy because it substantially interferes with
the defendant’s property rights before final
resolution of the overall dispute For this reason,
there have been a number of challenges to the
attachment procedures in different states, and the
Supreme Court has established standards that are
the least that due process requires For example,
for centuries attachment of a defendant’s
proper-ty was granted ex parte, that is, without first
allowing the defendant to argue against it The
theory was that any defendant was likely to leave
the state if he or she knew beforehand that his or
her property was about to be attached This
collides with the individual’s right to be free of
interference with his or her rights unless the
individual is given notice and an opportunity to
be heard in the matter States, therefore, now
generally provide that notice must be given to the
defendant before the seizure of property
whenev-er practical, and the defendant must be given a
hearing promptly after the seizure Furthermore,
a court cannotSANCTION a seizure that is made
without a court order of attachment To obtain
the order, the plaintiff must swear to a set of facts
that justify such a drastic interference with the
defendant’s property
The process of attachment varies in detail
from state to state, but it is not overly
complicated The plaintiff submits an application
to the court describing theCAUSE OF ACTIONagainst
the defendant and the grounds for seeking an
attachment The plaintiff may have to include
documents or other evidence to support the
claim that he or she will probably win the lawsuit,
and the individual usually is required to make the
application under oath States generally require
that the plaintiff post a bond or undertaking in an
amount sufficient to secure payment of damages
to the defendant if it turns out that the plaintiff
was not in fact entitled to the attachment
The court issues a writ of attachment
directing the sheriff or other law enforcement
officer to serve a copy of the order on the
defendant and to seize property equal in value
to the sum specified in the writ This is called a
levy of attachment The defendant then has a
right to challenge the seizure or to post bond for
the release of the property, in effect substituting
the bond for the property in the court’s custody
The order of attachment is effective only for
a limited period, the time necessary toWIND UP
the lawsuit between plaintiff and defendant or
a specified period intended to permit resolution
of the controversy Provisions are usually made for special circumstances or extreme hardship
Not every kind of property owned by the defendant is subject to attachment The laws of
a state may provide exemptions for certain household items, clothing, tools, and other essentials The defendant’s salary may be subject
to attachment, but a certain amount is exempt
in order to allow for personal support or for family support Property belonging to the defendant but in the hands of someone else, such as salary owed or a debt not yet paid, may also be seized, but this procedure is usually called GARNISHMENTrather than attachment
Courts always have the discretion to exempt more property than that specified in a statute or
to deny the attachment altogether under the proper circumstances This may be done, for example, when the court believes that the property sought to be attached is worth much more than any judgment the plaintiff could hope
to win, or where the property is an ongoing business that would be destroyed by attachment
FURTHER READINGS Jasper, Margaret C 2000 The Law of Attachment and Garnishment Dobbs Ferry, NY: Oceana.
Lambert, Vicki 1999 Garnishment: A Practical Guide.
Chicago, IL: CCH.
Morganstern, Stanley 1971 Legal Protection in Garnishment and Attachment Dobbs Ferry, NY: Oceana
Siegel, Lee S., and Charlotte Biblow 2000 “Attachment in Aid of Arbitration ” Banking Law Journal 117, vol 5 (September-October).
CROSS REFERENCE Search and Seizure.
ATTAINDER
AtCOMMON LAW, that extinction ofCIVIL RIGHTSand capacities that took place whenever a person who had committed TREASON or a felony received a sentence of death for the crime
The effect of attainder upon a felon was, in general terms, that all estate, real and personal, was forfeited In common law, attainder resulted in three ways: by confession, by verdict, and by process
or outlawry The first case was where the prisoner pleaded guilty at the bar, or having fled, confessed
ATTAINDER 415
Trang 9guilt and abjured the realm to save his or her life.
The second was where the prisoner pleaded not guilty at the bar, and the jury brought in a verdict against him or her The third, when the person accused made his or her escape and was outlawed
In England, by statute 33 & 34 Vict c 23, attainder upon conviction, with consequent cor-ruption of blood, FORFEITURE, or ESCHEAT, was abolished In the United States, the doctrine of attainder is now scarcely known, although during and shortly after the Revolution acts of attainder were passed by several of the states The passage of such bills is expressly forbidden by the Constitu-tion (Art I, Sec 9)
Bills of attainder are special acts of the legislature that inflict capital punishments upon persons supposed to be guilty of high offenses, such
as treason and felony, without any conviction in the ordinary course of judicial proceedings If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties, but both are included in the prohibition in the Constitution (Art I, Sec 9)
The term attainder is derived from attincta, Latin for stained or blackened When attainder occurred, the condemned person was consid-ered to bear a mark of infamy that corrupted his
or her blood Attainder was eventually abolished
in England by statute
In the United States, attainder is scarcely known today, although several states enacted acts of attainder during the Revolutionary War period A few states consider the disqualification
of a person impeached and convicted to hold any government office to be a type of attainder
Attainder is akin to the concept of CIVIL DEATH, the forefeiture of certain rights and privileges upon conviction of a serious crime
ATTEMPT
An undertaking to do an act that entails more than mere preparation but does not result in the successful completion of the act
In CRIMINAL LAW, an attempt to commit a crime is an offense when an accused makes
a substantial but unsuccessful effort to commit
a crime The elements of attempt vary, although generally, there must be an intent to commit the crime, an OVERT ACTbeyond mere preparation, and an apparent ability to complete the crime
Generally attempts are punishable by impris-onment, with sentence lengths that vary in time,
depending upon the severity of the offense attempted
ATTENUATE
To reduce the force or severity; to lessen a relationship or connection between two objects
In CRIMINAL PROCEDURE, the relationship be-tween an illegal search and a confession may be sufficiently attenuated as to remove the confes-sion from the protection afforded by theFRUIT OF THE POISONOUS TREE doctrine, thereby making it admissible as evidence in a criminal prosecution depending upon the facts of the case
ATTEST
To solemnly declare verbally or in writing that a particular document or testimony about an event
is a true and accurate representation of the facts;
to bear witness to To formally certify by a signature that the signer has been present at the execution of a particular writing so as to rebut any potential challenges to its authenticity
ATTESTATION The act of attending the execution of a document and bearing witness to its authenticity, by signing one’s name to it to affirm that it is genuine The certification by a custodian of records that a copy of
an original document is a true copy that is demonstrated by his or her signature on a certificate
An attestation is a declaration by a witness that an instrument has been executed in his or her presence according to the formalities required by law It is not the same as an acknowledgment, a statement by the maker of a document that verifies its authenticity
An attestation clause is frequently found in legal documents that must be witnessed if they are to be valid, for example, a will or a deed It states that the instrument has been completed
in the manner required by law in the presence
of the witness who places his or her signature in the designated space
ATTICA PRISON RIOT SeePRISON“1971 Attica Prison Riot” (Sidebar)
ATTORN
To turn over money, rent, or goods to another To assign to a specific function or service
416 ATTEMPT
Trang 10ATTORNEY-CLIENT PRIVILEGE
In the law of evidence, a client’s privilege to refuse
to disclose, and to prevent any other person from
disclosing, confidential communications between
the client and his or her attorney Such privilege
protects communications between attorney and
client that are made for the purpose of furnishing
or obtaining professional legal advice or assistance
That privilege that permits an attorney to refuse to
testify as to communications from the client It
belongs to the client, not the attorney, and hence
only the client may waive it In federal courts,
state law is applied with respect to such privilege
The attorney-client privilege encourages
clients to disclose to their attorneys all pertinent
information in legal matters by protecting such
disclosures from discovery at trial The privileged
information, held strictly between theATTORNEY
and the client, may remain private as long as a
court does not force disclosure The privilege
does not apply to communications between an
attorney and a client that are made in
further-ance of aFRAUDor other crime The responsibility
for designating which information should
re-main confidential rests with the client In its
mostCOMMONuse, however, the attorney claims
the privilege on behalf of the client in refusing to
disclose to the court, or to any other party,
requested information about the client’s case
As a basic construction in the judicial
system, the privilege is an ancient device It
can be found even in Roman law—for example,
Marcus Tullius Cicero, while prosecuting the
governor of Sicily, could not call the governor’s
advocate as a witness, because if he were to have
done so, the governor would have lost
confi-dence in his own defender Over the years, the
close tie between attorney and client developed
further with reforms in EnglishCOMMON LAW
Because the attorney-client privilege often
balances competing interests, it defies a rigid
definition However, one often-cited
characteri-zation was set forth in United States v United
Shoe Machinery Corp., 89 F Supp 357 (D Mass
1950) The court articulated five requirements:
first, the person asserting the privilege must be a
client, or must have sought to become a client at
the time of disclosure; second, the person
connected to the communication must be
acting as a lawyer; third, the communication
must be between the lawyer and the client
exclusively—no non-clients may be included in
the communication; fourth, the communication
must have occurred for the purpose of securing
a legal opinion, legal services, or assistance in some legal proceeding, and not for the purpose
of committing a crime; fifth, the privilege may
be claimed or waived by the client only (usually,
as stated above, through counsel)
Sometimes, even when all five of the United Shoe requirements have been met, courts will compel disclosure of the information sought They base exceptions to the privilege on Rule 501 of the
FEDERAL RULES OF EVIDENCE, which states that “the recognition of a privilege based on a confidential relationship should be determined on a case-by-case basis.” Courts weigh the benefits to be gained by upholding the privilege (that is, preserv-ing the confidence between attorney and client) against the harms that might be caused if they deny
it (that is, the loss of information that would be valuable to the opposing party)
Courts have declared that the fact of an attorney-client relationship itself need not always remain privileged information (National Union Fire Insurance Co of Pittsburgh v Aetna Casualty
& Surety Co., 384 F.2d 316 [5th Cir 1967]); the privilege may be upheld, however, if the very existence of an attorney-client relationship could prove to be incriminating to the client (In re Michaelson, 511 F.2d 882 [9th Cir 1975], cert
denied, 421 U.S 978, 95 S Ct 1979, 44 L Ed 2d
469 [1975]) The attorney-client privilege does not always protect the client’s name or the amount paid to an attorney (Wirtz v Fowler, 372 F.2d 315[5th Cir 1966]) Further, the attorney’s perception of the client’s mental competency will not always be protected (United States v
Kendrick, 331 F.2d 110 [4th Cir 1964] [holding that attorney’sTESTIMONYthat client was respon-sive, and logical in conversation and reasoning, and that he understood that the proceedings, did not address confidential matters])
In general, exceptions to the attorney-client privilege can prove problematic to criminal defense attorneys, who try to keep a client’s potentially incriminating disclosures confidential
One exception, however, is intended to protect attorneys: Meyerhofer v Empire Fire & Marine Insurance Co., 497 F.2d 1190 (2d Cir 1974), cert
denied, 419 U.S 998, 95 S Ct 314, 42 L Ed 2d
272 (1974), held that an attorney may circumvent the privilege if revealing information would relieve him or her of accusations of wrongdoing
A client is not always a person; a corporation can be a client and can have a right to the
ATTORNEY-CLIENT PRIVILEGE 417