A writ that a superior appellate court issues in its discretion to an inferior court, ordering it to produce a certified record of a particular case it has tried, in order to determine w
Trang 1A written document that is official verification that a condition or requirement has, or has not, been met
A written assurance issued from a court that is notification to another officer, judge, or court of procedures practiced therein
A document (such as a birth certificate) prepared by an official during the course of his
or her regular duties, and which may be used as evidence for certain purposes
A document certifying that one has fulfilled certain requirements and may practice in a field
A stock certificate is a paper representing a share of stock in a corporation that has been purchased by its holder
A certificate of acknowledgment is the written statement by aNOTARY PUBLIC,JUSTICE OF THE PEACE,
or other authorized officer that sets forth that a person or persons appeared before him or her on
a particular date and declared an instrument to
be theirVOLUNTARY ACTand deed
A certificate of deposit is prepared by a bank
as a receipt for money deposited by a customer that the bank promises to repay to the depositor after certain conditions have been fulfilled
CERTIFICATE OF DEPOSIT
A written recognition by a bank of a deposit, coupled with a pledge to pay the deposited amount plus interest, if any, to the depositor or to his or her order, or to another individual or to his or her order
A sample certificate
of deposit
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
1 YEAR CERTIFICATE OF DEPOSIT
Rate information
The interest rate for your account is 5.20 % with an annual percentage yield of 5.34 % You will be paid this rate until the maturity date of the certificate Your certificate will mature on September 30, 2012 The annual percentage yield assumes interest remains on deposit until maturity A withdrawal will reduce earnings.
Interest for your account will be compounded daily and credited to your account on the last day of each month.
Interest begins to accrue on the business day you deposit any noncash item (for example, checks).
Minimum balance requirements
You must deposit $1,000 to open this account.
You must maintain a minimum balance of $1,000 in your account every day to obtain the annual percentage yield listed above.
Balance computation method
We use the daily balance method to calculate the interest on your account This method applies a daily periodic rate to the principal in the account each day.
Transaction limitations
After the account is opened, you may not make deposits into or withdrawals from the account until the maturity date.
Early withdrawal penalty
If you withdraw any principal before the maturity date, a penalty equal to three months interest will be charged to your account.
Renewal policy
This account will be automatically renewed at maturity You have a grace period of ten (10) calendar days after the maturity date to withdraw the funds without being charged a penalty.
Certificate of Deposit
318 CERTIFICATE
Trang 2A form of commercial paper that serves as
documentary evidence that a savings account
exists
CERTIFICATE OF OCCUPANCY
A document issued by a local building or zoning
authority to the owner of premises attesting that
the premises have been built and maintained
according to the provisions of building or zoning
ordinances, such as those that govern the number
of fire exits or the safety of electrical wiring
A certificate of occupancy is evidence that
the building complies substantially with the
plans and specifications that have been
submit-ted to, and approved by, the local authority It
complements a building permit—a document
that must be filed by the applicant with the local
authority before construction to indicate that
the proposed construction will adhere to zoning
laws
In legal practice, the requirement that a
certificate of occupancy be presented on the day
of closing is usually attached as a RIDER to a
contract for the sale of a house or building If
the seller is unable to present the certificate of
occupancy the buyer may refuse to complete
the sale
Some cities require that a landlord file a
certificate of occupancy for apartments to be
leased This requirement is designed to prevent
a building’s deterioration to such an extent
that it could expose its tenants to risks to their
health and lives Each time an apartment is
vacated, an inspector from an appropriate
government agency—such as the housing
authority—inspects the apartment to make sure
that it meets minimum standards of habitability
If the apartment does not, the inspector
may issue a warning to the landlord to correct
the violation within a certain period of time or
the landlord will be prevented from leasing the
apartment
CERTIFICATION PROCEEDING
An administrative hearing before the National
Labor Relations Board (NLRB), pursuant to the
federal Wagner Act (29 U.S.C.A § 151 et seq
[1935]) to determine whether a group of
employ-ees is an appropriate bargaining unit, and if so, to
decide whether a particular union should be
declared its bargaining agent
Employers and employees frequently
nego-tiate and agree upon the terms and conditions
of employment through COLLECTIVE BARGAINING,
in which a representative of a particular group
of employees presents the employees’ demands
to the employer so that a mutually advanta-geous accord can be reached Before such bargaining can occur, it must be decided what group of employees will be served by the representative who will legally bind the group
by his or her acceptance or rejection of the employer’s terms Once the group—the bar-gaining unit—is established the identity of its representative must be determined Employers often willingly recognize a cohesive, homoge-neous group of employees as a bargaining unit, thus acknowledging a particular union that claims to be its representative or BARGAINING AGENT Disputes occasionally arise, however, over (1) the control of the union by the employer, thereby conflicting with the union’s position as a representative of the employees;
(2) the failure of a majority of the unit to select the union; (3) the wrongful action of a union that has usurped the rightful status of another union as the bargaining agent of the unit; and (4) situations in which the employer refuses to recognize the unit or its union
A certification proceeding is the statutorily prescribed method of resolving such difficul-ties The NLRB investigates a petition filed by the employees concerning a union acting in behalf of the employees, which the employer refuses to recognize or a petition by an employer who has received a claim of repre-sentation by the union The NLRB holds a nonadversarial fact-finding hearing to deter-mine whether a valid question concerning representation exists The hearing officer forwards the transcript containing evidence to the regional director of the NLRB The regional director can dismiss the petition or decide to hold a secret ballot election for the bargaining agent and certify the result Prior to the election, the director determines which employees are within the unit for purposes of voter eligibility The NLRB will review a regional director’s decision only if a statutorily determined, compelling reason exists, for instance, if his or her decision on a substantial issue of fact is clearly erroneous and adversely affects the rights of one party An NLRB certification proceeding decision is subject to
JUDICIAL REVIEWonly if there is evidence ofABUSE
OF DISCRETION The court of appeals, as a rule, defers to the NLRB because of its presumed expertise in the labor area An aggrieved employer dissatisfied with a certification
CERTIFICATION PROCEEDING 319
Trang 3proceeding can obtain review by refusing to bargain with the agent, thereby committing an
UNFAIR LABOR PRACTICE Such a practice would probably result in an unfair labor practice proceeding and the final order that is made by the NLRB in such an action is reviewable by the court of appeals
CROSS REFERENCES Labor Law; Labor Union.
CERTIFIED CHECK
A written order made by a depositor to a bank to pay a certain sum to the person designated—
the payee—which is marked by the bank as
“accepted” or “certified,” thereby unconditionally promising that the bank will pay the order upon its presentation by the payee
A certified check is considered the equiva-lent of cash since the bank, by its certification, guarantees it to be cashable No bank is under
a duty to its depositors or anyone else to certify checks since it involves the assumption of
a new obligation for which it is primarily responsible It is a commonplace practice, however, and there is usually a small fee for this service A certified check is often required
by a payee who does not want to rely only upon the credit of the drawer, the person who wrote the check A sample of a check certification is shown below
A payee who requires a drawer’s check to be certified ensures his or her right to payment
Not only can the payee seek payment from the certified bank, but if for some reason the bank refuses to pay, the payee retains the right to enforce payment from the drawer In this situation the bank is primarily liable while the drawer is secondarily liable
Occasionally the payee or subsequent holder
of the check—a person who has been legally given possession and the right to payment—
will present the check to the drawer’s bank for certification Although the bank is obligated
to cash the check, it need not certify the check because only it, not the drawer or any subsequent endorsers, would be liable for its payment Some banks will certify a check in such instances only with the approval of the drawer
If a bank refuses to pay a check that it has certified, its drawer or holder may sue the bank for its wrongful conduct, called dishonor A certified check, a type of COMMERCIAL PAPER or
NEGOTIABLE INSTRUMENT, is governed by Article 3
of theUNIFORM COMMERCIAL CODE
CERTIFIED COPY
A photocopy of a document, judgment, or record that is signed and attested to as an accurate and a complete reproduction of the original document by
a public official in whose custody the original has been placed for safekeeping
A certified copy is admissible as evidence in
a lawsuit when the original document cannot be produced because it has been lost or destroyed This rule, which considers a certified copy to be
SECONDARY EVIDENCEunless circumstances of loss
or destructionWARRANTits treatment asPRIMARY EVIDENCE, is known as the BEST EVIDENCE rule State andFEDERAL RULES OF EVIDENCE govern the use of a certified copy in their respective judicial proceedings
CERTIFIED PUBLIC ACCOUNTANT SeeACCOUNTANT
CERTIORARI [Latin, To be informed of.] AtCOMMON LAW, an original writ or order issued by the Chancery or King’s Bench, commanding officers of inferior courts to submit the record of a cause pending before them to give the party more certain and speedy justice
A writ that a superior appellate court issues in its discretion to an inferior court, ordering it to produce a certified record of a particular case it has tried, in order to determine whether any irregular-ities or errors occurred that justify review of the case
A device by which the Supreme Court of the United States exercises its discretion in selecting the cases it will review
Certiorari is an extraordinary PREROGATIVE WRITgranted in cases that otherwise would not
be entitled to review A petition for certiorari is made to a superior appellate court, which may exercise its discretion in accepting a case for review, while an appeal of a case from a lower court to an intermediate appellate court, or from
an intermediate appellate court to a superior appellate court, is regulated by statute Appellate review of a case that is granted by the issuance
of certiorari is sometimes called an appeal, although such review is at the discretion of the appellate court
320 CERTIFIED CHECK
Trang 4Writ of Certiorari
QUESTIONS PRESENTED
PARTIES TO THE PROCEEDING
CONCLUSION
Whether the court of appeals erred in striking down the Federal Communications Commission’s determination that the broadcast of
vulgar expletives may violate federal restrictions on the broadcast of “any obscene, indecent, or profane language,” 18 U.S.C 1464; see 47
C.F.R 73.3999, when the expletives are not repeated
Petitioners are the Federal Communications Commission and the United States of America.
Respondents who were petitioners in the court of appeals below are Fox Television Stations, Inc.; CBS Broadcasting Inc.; WLS
Television, Inc.; KTRK Television, Inc.; KMBC Hearst-Argyle Television, Inc.; and ABC Inc.
Respondents who were intervenors in the court of appeals below are NBC Universal, Inc.; NBC Telemundo License Co.; NBC Television
Affiliates; FBC Television Affiliates Association; CBS Television Network Affiliates; Center for the Creative Community, Inc., doing business
as Center for Creative Voices in Media, Inc.; and ABC Television Affiliates Association.
The judgment of the court of appeals should be reversed, and the case should be remanded for further proceedings.
Respectfully submitted.
Matthew B Berry
General Counsel
Joseph R Palmore
Deputy General Counsel
Jacob M Lewis
Associate General Counsel
Nandan M Joshi
Counsel Federal Communications Commission Washington, D.C 20554
Paul D Clement
Solicitor General Counsel of Record
Gregory G Katsas
Acting Assistant Attorney General
Gregory G Garre
Deputy Solicitor General
Eric D Miller
Assistant to the Solicitor General
Thomas M Bondy Anne Murphy
Attorneys Department of Justice Washington, D.C 20530-0001 (202) 514-2217
No 07-582
In the Supreme Court of the United States
Federal Communications Commission, et al.,
Petitioners
v.
Fox Television Stations, Inc., et al.
On Writ of Certiorari
to the United States Court of Appeals for the Second Circuit
BRIEF FOR THE PETITIONERS
A sample writ
of certiorari ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,
A PART OF CENGAGE LEARNING.
CERTIORARI 321
Trang 5A party, the petitioner, files a petition for certiorari with the appellate court after a judgment has been rendered against him in theINFERIOR COURT The petition must
specifical-ly state why the relief sought is unavailable in any other court or through any other appellate process, along with information clearly identi-fying the case and the questions to be reviewed, the relevant provisions of law to be applied, a concise statement of facts relating to the issues, and any other materials required by statute The rules of practice of the appellate court to which the petitioner has applied for relief govern the procedure to be observed For example, a petition for statutory certiorari made to the
prefaced by a motion for leave, or permission,
to file such a petition If a common-lawWRITis sought, however, the petitioner need only file a petition for certiorari
After evaluating the petition, the appellate court will decide whether to grant or deny certiorari Certiorari is issued, designated as
“cert granted,” when the case presents an issue that is appropriate for resolution by the court and it is in thePUBLIC INTERESTto do so, such as when the issue has been decided differently by
a variety of lower courts, thereby creating confusion and necessitating a uniform inter-pretation of the law Certiorari is denied when the appellate court decides that the case does not present an appropriate matter for its consideration In the practice of the Supreme Court, if a petition has been granted certiorari
as a result of a mistake, such as where the petitioner misrepresents the case or the case has become moot, the Court will dismiss the petition as “having been improvidently
granted,” which has the same effect as an initial denial of the petition Practically speak-ing, this rarely occurs
Some states have abolished writs of certio-rari under their rules of appellate practice FURTHER READINGS
Brenner, Saul 2000 “Granting Certiorari by the United States Supreme Court: An Overview of the Social Science Studies ” Law Library Journal 92, no 2 (spring) Available online at http://www.aallnet.org/products/ pub_llj_v92n02/2000-17.pdf; website home page: http://www.aallnet.org (accessed July 11, 2009) Garmisa, Steven P 2003 “Supreme Court Reviews Com-mon Law on Certiorari, Old Appellate Cases ” Trial Notebook: The Courts, Attorneys and the Law Available online at http://www.felahfd.com/HFDLaw/notebook/ 173.htm; website home page: http://www.felahfd.com (accessed July 11, 2009).
Hartnett, Edward A 2000 “Questioning Certiorari: Some Reflections Seventy-Five Years after the Judges ’ Bill.” Columbia Law Review 100 (November) Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 250925; website home page: http://papers.ssrn.com (accessed July 11, 2009).
CESSION The act of relinquishing one’s right
A surrender, relinquishment, or assignment of territory by one state or government to another The territory of a foreign government gained
by the transfer of sovereignty
CESTUI QUE [French, He or she who.] The person for whom a benefit exists
A cestui que trust is a person for whose benefit a trust is created; aBENEFICIARY Although
LEGAL TITLEof the trust is vested in the trustee,
A sample certified
check
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
Certification Note
Certified Check
This certified check, on behalf of Developer/Owner Name, assures the approval and faithful payment of Amount Determined by County Staff
to the Board of Commissioners of Lee County, Georgia in the event that Developer/Owner defaults on fulfilling their agreement to complete all site work on approved plan of Lot #, Street address, City, State The work shall be completed by Date Agreed Upon This certified check will be refunded upon issuance of Certificate of Occupancy.
Date:
_
Owner
322 CESSION
Trang 6the cestui que trust is the beneficiary who is
entitled to all benefits from a trust
A cestui que use is an archaic term of
BENEFICIAL INTERESTin land held by someone else
Title and possession as well as the duty to
defend the land is held by another, but the cestui
que use has the right to rents, profits, and other
benefits from the land
A cestui que vie is the person whose life
is used to measure various things, such as
the duration of a trust, a gift, or an insurance
contract It can also be used to mean the person
upon whose life a policy of life insurance is
drawn
CF
An abbreviation for the Latin word confer,
meaning “compare.”
The use of this abbreviation indicates that
another section of a particular work or another
case or volume contains contrasting,
compara-ble, or explanatory opinions and text
C.F.&I
An abbreviation for cost, freight, and insurance
that is used in a sales contract to indicate that the
purchase price quoted for the goods by the seller
includes the expense incurred by the seller for
shipment of such goods and for insurance of the
goods against loss or destruction until their arrival
at the destination named by the buyer
The abbreviation C.F.&I is synonymous
with the abbreviation C.I.F commonly found in
contracts for foreign shipments A seller who
has entered a sales contract with a C.F.&I
provision agrees to accept the expense of
placing the goods into the custody of a carrier for shipment from their port of origin to their designated location and to obtain a negotiable
BILL OF LADING, which will be endorsed by the buyer upon receipt of payment for the goods
The seller has the responsibility of loading the cargo and obtaining a receipt from the carrier, which might be incorporated into the bill of lading to show that freight has been paid by him
or her The seller must also purchase insurance against the loss, damage, or destruction of such goods and have the buyer designated as the
BENEFICIARY The seller prepares an invoice of the goods to be shipped and sends the necessary documents to both the shipper and the buyer so that the buyer can take delivery of the goods upon arrival at their destination
CROSS REFERENCE Shipping Law.
vCHAFEE, ZECHARIAH , JR
As a leading U.S legal scholar and educator,
ZECHARIAH CHAFEEJr did more than anyone else
in the early twentieth century to shape the debate surrounding FREEDOM OF SPEECHand the Constitution’s FIRST AMENDMENT In his most influential book, Freedom of Speech (1920), Chafee argued for the importance of protecting free speech even in wartime His ideas later guided the Supreme Court in liberalizing its approach to free speech
Chafee was born on December 7, 1885, in Providence, Rhode Island, to a wealthy family
He attended Brown University, graduating with
a bachelor’s degree in 1907 He helped manage his family’s iron foundry for three years and then left to attend Harvard Law School in 1910
Zechariah Chafee Jr 1885–1957
1885 Born,
Providence, R.I.
◆
◆
1907 Joined his father's iron business
1913 Graduated from Harvard Law School
1936 Drafted the Federal Interpleader Act
1938–47 Served on the ABA's Bill of Rights Committee
1914–18 World War I
1941–45 World War II
1950 Taught course on fundamental human rights at Harvard
1950-53 Korean War
1956 Retired from teaching at Harvard
1957 Died, Cambridge, Mass.
1961–73 Vietnam War
◆
1916 Began teaching at Harvard Law School
1920 Freedom of Speech published
1921 Charged with radicalism and impropriety, successfully defended himself before Harvard's Board of Overseers
CHAFEE, ZECHARIAH, JR 323
Trang 7He remained on the family firm’s board of directors for the rest of his life He married Bess Frank Searle in 1912 and they had four children
While at Harvard he was influenced by the theories of sociological jurisprudence presented
also met Harold J Laski, a political scientist and later a leader of England’s Labour party, who became a lifelong friend Chafee graduated from law school with a bachelor of laws degree
in 1913 and practiced law for three years in Providence In 1916 he began teaching at Harvard Law School as an assistant professor
of law He accepted a full professorship three years later and remained at Harvard for the rest
of his life
Chafee was a professor at Harvard Law School for nearly forty years His writings and public service influenced many different areas
of civil liberties, from conditions for mine workers to international HUMAN RIGHTS to the system for apportioning U.S House seats among the states His other books include America Now (1938), Freedom of Speech in the United States (1941), Government and Mass Communications (1947), Documents on Funda-mental Human Rights (1951), Freedom of Speech and Press (1955), and Blessings of Liberty (1956)
JusticeFELIX FRANKFURTERwrote of Chafee,“The extent to which … he influenced the thought and temper of public opinion and action in that pervasive aspect of national life known asCIVIL RIGHTShas no match in the legal professoriate.”
Chafee’s goal in his legal writings was to
“master the law and reduce it to reason.” In the area of free speech, this meant replacing intuition with reason and producing a rational interpretation of the First Amendment, which states that “Congress shall make no law … abridging the freedom of speech, or of the press.” The notion of balance was a crucial element in his legal philosophy According to Chafee, most legal problems could be solved by balancing competing interests In the case of free speech, that meant balancing society’s competing interests in the benefits of security and in the benefits of unlimited discussion
Chafee’s interest in free speech and civil liberties began while he was teaching a course
on equity at Harvard Law School duringWORLD
of libel law and free speech, particularly as judges across the United States began making arbitrary and often conflicting decisions regard-ing SEDITION (the act of urging others to rebel
against authority) and free speech during wartime In many cases, people who spoke out
or demonstrated against the wartime policies
of the U.S government were imprisoned for their views Such cases often involved two laws passed by Congress, the ESPIONAGE ACT OF
1917 (ch 30, 40 Stat 217) and the Sedition Act of 1918 (ch 75, 40 Stat 553) Looking closely at the judicial decisions regarding such cases, Chafee began to see that laws regarding freedom of speech were in great need of modernization
Between 1918 and 1920 Chafee published two articles—“Freedom of Speech” in the New Republic (Nov 16, 1918) and “Freedom of Speech in Wartime” in the Harvard LAW REVIEW
(747 [June 1919])—and the book Freedom of Speech (1920), which caused great controversy and also made his reputation, associating him for the rest of his career with free speech issues
In these writings Chafee took aim against contemporary interpretations of the First Amendment “Nearly every free speech deci-sion,” Chafee wrote in his law review article,
“appears to have been decided largely by intuition.” Chafee sought to replace that intui-tion with more informed legal reasoning
In his articles and book, Chafee set forth his views regarding the need to balance the competing interests involved in speech issues
In the following passage from Freedom of Speech, which he described as the key passage
of the book, he defined the meaning of freedom
of speech:
The true meaning of freedom of speech seems to be this One of the most important purposes of society and government is the discovery and spread of truth on subjects of general concern This is possible only through absolutely unlimited discussion, for … once force is thrown into the argument, it becomes a matter of chance whether it is thrown on the false side or the true, and truth loses all its natural advantage
in the contest Nevertheless, there are other purposes of government, such as order, the training of the young, protection against external aggression Unlimited discussion sometimes interferes with these purposes, which must then be balanced against free-dom of speech, but freefree-dom of speech ought
to weigh very heavily in the scale The First Amendment gives binding force to this principle of political wisdom
Chafee gave an indication of just how
“heavily” freedom of speech weighed in the scale by arguing in his law review article that
NOTHING ADDS
MORE TO MEN’S
HATRED FOR
GOVERNMENT THAN
ITS REFUSAL TO LET
THEM TALK,
ESPECIALLY IF THEY
ARE THE TYPE OF
PERSON ANARCHISTS
ARE,TO WHOM
TALKING A LITTLE
WILDLY IS THE
GREATEST JOY
OF LIFE
—Z ECHARIAH
C HAFEE J R
324 CHAFEE, ZECHARIAH, JR.
Trang 8free speech should be tightly protected even in
wartime:
Even after war has been declared there is
bound to be a confused mixture of good and
bad arguments in its support, and a wide
difference of opinion as to its objects Truth
can be sifted out from falsehood only if the
government is vigorously and constantly
cross-examined… LEGAL PROCEEDINGS prove
that an opponent makes the best
cross-examiner Consequently it is a disastrous
mistake to limit criticism to those who favor
the war
Chafee put his case more succinctly when he
wrote,“In wartime, speech should be free, unless
it is clearly liable to cause direct and dangerous
interference with the conduct of the war.”
Chafee’s views influenced the Supreme
Court in significant ways In particular, Justices
Oliver Wendell Holmes Jr., andLOUIS D.BRANDEIS
closely studied Chafee’s ideas and gradually
liberalized their views on free speech For
example, Chafee found fault with Holmes’s
opinion inSCHENCK V.UNITED STATES, 249 U.S 47,
39 S Ct 247, 63 L Ed 470 (1919), upholding
the conviction of Charles T Schenck, a secretary
of the SOCIALIST PARTY who had distributed
leaflets urging men to disobey the draft
Schenck had been convicted under the
wrote that Congress may restrict freedom of
speech when there is a “clear and present
danger” that such speech will bring about
“substantive evils that Congress has a right to
prevent.” Chafee argued that Schenck’s actions
had not presented a direct danger and that
Holmes had not adequately defined what
exactly were the “substantive evils” society had
to be protected from Chafee maintained that
only sedition that came dangerously close to
succeeding might be punished and that a better
test of free speech was whether it could gain
acceptance in the marketplace of free ideas
Holmes later used Chafee’s ideas in his
dissent toABRAMS V.UNITED STATES, 250 U.S 616,
40 S Ct 17, 63 L Ed 1173 (1919), in which the
Court upheld the conviction of Jacob Abrams,
who had been sentenced to twenty years in
prison for distributing leaflets opposing U.S
involvement in Russia Chafee’s ideas also
influenced other Holmes and Brandeis dissents,
including those inGITLOW V.NEW YORK, 268 U.S
652, 45 S Ct 625, 69 L Ed 1138 (1925)
The majority in Gitlow determined that the
Constitution did not bar the conviction under New York’s criminal anarchy statute (Laws
1909, c 88; Consol Laws 1909, c 40) of a socialist who distributed a paper advocating that the government be overthrown, even though no effect whatsoever resulted from circulation of the manifesto And in another influential case,NEAR
V.MINNESOTA, 283 U.S 697, 51 S Ct 625, 75 L
Ed 1357 (1931), Chief Justice Charles E Hughes used Chafee’s ideas in an opinion that voided a Minnesota law (Minn St 1927, § 10123–1) calling for the suppression of “malicious, scan-dalous, and defamatory” publications
Chafee’s views were not popular ones at the time and he nearly lost his job because of them
In 1921 he was brought before the Board of Overseers of Harvard University on a charge of radicalism for his questioning of the sentence handed down in Abrams Chafee defended himself eloquently in a speech before a special committee in the Boston Harvard Club and he was allowed to remain at Harvard
Chafee viewed himself as a reformer rather than an activist Although he often embraced causes considered radical, he also was skeptical
of big government and described himself as a
“conservative … Rhode Islander steeped in the Roger Williams tradition.” Speaking in the early 1920s of his interest in civil liberties, Chafee commented;
I see no reason why I should be out mountain climbing and enjoying life while some other chap who started life with less money and gets a little angrier and a little more extreme should be shut up in a prison for five or ten years… When I am loafing around on my boat, or taking an inordinately large number of strokes on the golf course, I occasionally think of these poor devils who won’t be out for five or ten years and want to
do a bit to make the weight of society less heavy on them
Chafee never became an active member of
organization’s National Advisory Committee
Nor did he appear often in court He did harbor ambitions to become a Supreme Court justice but was never nominated for the position
Chafee wrote on many aspects of the law besides free speech In 1936 he drafted what he considered to be his foremost professional accomplishment, the Federal INTERPLEADER Act (May 8, 1926, ch 273, 44 Stat 416) This was a highly specialized law designed to resolve
CHAFEE, ZECHARIAH, JR 325
Trang 9multiple claims for the same debt against insurance companies, banks, and other busi-nesses Chafee also became an authority on the mathematical methods for reapportioning among the states the seats in the U.S House
of Representatives His advocacy of the equal proportions method for allotting House seats eventually led to changes in federal law regard-ingAPPORTIONMENTafter the 1940 census
During his career Chafee served on a number
of committees that made important reforms in U.S law and society Beginning in 1923 he was chairman of the Committee of Inquiry on Coal and Civil Liberties This group produced a report criticizing mine operators, their private police, and their company towns, taking a position that, like Chafee’s views on free speech, outraged some influential Harvard law alumni From 1928
to 1932 Chafee was president of the Massachu-setts Council for the Abolition of the Death Penalty Between 1929 and 1931 he worked for the National Commission on Law Enforcement and Observance, also called the WICKERSHAM COMMISSION, which looked into police misconduct during the era ofPROHIBITION
Some of Chafee’s more important work occurred through his membership on the American Bar Association’sBILL OF RIGHTS Com-mittee from 1938 to 1947 In this capacity he submitted advisory briefs in several Supreme Court cases In a case involving the refusal of Jehovah’s Witnesses to have their children salute the flag in school (West Virginia State Board of Education v Barnette, 319 U.S 624, 63 S Ct
1178, 87 L Ed 1628[1943]), Chafee wrote a brief hoping to persuade the Court to reverse an earlier decision upholding a state law requiring a flag salute In his brief he made an eloquent case for freedom of religion and freedom of expression
Chafee became an advocate for international human rights later in his career through his work as a representative on theUNITED NATIONS
Subcommission on Freedom of Information and the Press in 1947 In 1950, when Chafee’s prestige and seniority at Harvard enabled him
to teach whatever course he wished, he chose to offer a course called “Fundamental Human Rights.” He hoped to have students realize “how dearly these rights were bought and … what they meant to the men who put them forever into our fundamental law.”
Chafee received honorary doctor of law degrees from St John’s University, New York,
in 1936, Brown University in 1937, and the University of Chicago in 1953 He also received
an honorary doctor of CIVIL LAW degree from Boston University in 1941 and a doctor of letters degree from Colby College in 1944 He died February 8, 1957, in Cambridge, Massa-chusetts
FURTHER READINGS
Re, Edward D., ed 1981 Freedom’s Prophet: Selected Writings
of Zechariah Chafee, Jr., Univ Professor, Harvard Law School New York: Oceana.
Smith, Donald L 1986 Zechariah Chafee, Jr.: Defender of Liberty and Law Cambridge, MA: Harvard Univ Press Wertheimer, John 1994 “Freedom of Speech: Zecharia Chafee and Free –Speech History.” Reviews in American History 22.
CROSS REFERENCE Interpleader.
CHAIN OF CUSTODY The movement and location of physical evidence from the time it is obtained until the time it is presented in court
Judges in bench trials and jurors in jury trials are obligated to decide cases on the evidence that is presented to them in court Neither judges nor jurors may conduct their own investigations into the underlying facts of a given case In fact, state and federal court rules prohibit judges and jurors from being swayed
by, or even taking into consideration, EXTRAJUDI-CIAL evidence—that is, evidence that is not properly admitted into the record pursuant to the rules of evidence—in rendering their decisions
Similarly, parties to civil and criminal
impartially weigh the evidence, and only the evidence, that is properly admitted into the record Every day, across the United States, litigants stake their reputations, livelihoods, bank accounts, homes, PERSONAL PROPERTY, and freedom on the premise that the outcome to their judicial proceedings will be one that is reached fairly and justly, according to the evidence
Court-rendered judgments and jury verdicts that are based on tainted, unreliable, or compromised evidence would undermine the integrity of the entire legal system if such outcomes became commonplace One way in which the law tries to ensure the integrity of
326 CHAIN OF CUSTODY
Trang 10evidence is by requiring proof of the chain of
custody by the party who is seeking to introduce
a particular piece of evidence
Proof of a chain of custody is required when
the evidence that is sought to be introduced at
trial is not unique or where the relevance of the
evidence depends on its analysis afterSEIZURE A
proper chain of custody requires three types of
TESTIMONY: (1) testimony that a piece of evidence
is what it purports to be (for example, a litigant’s
blood sample); (2) testimony of continuous
possession by each individual who has had
possession of the evidence from the time it is
seized until the time it is presented in court; and
(3) testimony by each person who has had
possession that the particular piece of evidence
remained in substantially the same condition
from the moment one person took possession
until the moment that person released the
evidence into the custody of another (for
example, testimony that the evidence was stored
in a secure location where no one but the person
in custody had access to it)
Proving chain of custody is necessary to“lay
a foundation” for the evidence in question, by
showing the absence of alteration, substitution,
or change of condition Specifically, foundation
testimony for tangible evidence requires that
exhibits be identified as being in substantially
the same condition as they were at the time the
evidence was seized, and that the exhibit has
remained in that condition through an
unbro-ken chain of custody For example, suppose that
in a prosecution for possession of illegal
narcotics, police sergeant A recovers drugs from
theDEFENDANT; A gives police officer B the drugs;
B then gives the drugs to police scientist C, who
conducts an analysis of the drugs; C gives the
drugs to police detective D, who brings the
drugs to court The testimony of A, B, C, and D
constitute a “chain of custody” for the drugs,
and the prosecution would need to offer
testimony by each person in the chain to
establish both the condition and identification
of the evidence, unless the defendant stipulated
as to the chain of custody in order to save time
Chain of custody need not be demonstrated
for every piece of tangible evidence that is
accepted into the trial court’s record Physical
evidence that is readily identifiable by the
witness might not need to be supported
by chain-of-custody proof For example, no
chain-of-custody foundation is required for
items that are imprinted with a serial number
or inscribed with initials by an officer who collected the evidence Similarly, items that are inherently distinctive or memorable (for exam-ple, a holdup note written in purple crayon) might be sufficiently unique and identifiable that they establish the integrity of the evidence
Whether the requisite foundation has been laid to establish chain of custody for an exhibit is a matter of discretion on the part of the trial judge Possibilities of misidentifica-tion and ADULTERATION must be eliminated, not absolutely, but as a matter of reasonable probability Where there is sufficient testimony that the evidence is what it purports to be, and that testimony is offered by each responsible person in the chain of custody, discrepancies as
to accuracy or reliability of testimony regarding the chain of custody go to the weight of the evidence and not to its admissibility, meaning that the evidence would be admitted into the record for the judge or jury to evaluate in light
of any conflicting testimony that the chain of custody somehow had been compromised
While the party who offers the evidence has the burden of demonstrating the chain of custody, the party against whom the evidence
is offered must timely object to the evidence when it is first introduced at trial, or the party will waive any objections as to its integrity based
on a compromised chain of custody
FURTHER READINGS Giannelli, Paul 1983 “Chain of Custody and the Handling
of Real Evidence ” American Criminal Law Review 20.
——— 1996 “Forensic Science: Chain of Custody.”
Criminal Law Bulletin 32.
U.S Environmental Protection Agency “Chain-of-Custody Procedures for Samples and Data ” Available online at http://www.epa.gov/apti/coc/; website home page:
http://www.epa.gov (accessed August 29, 2009).
CHAIN OF TITLE
A list of successive owners of a parcel of land, beginning from the government, or original owner,
to the person who currently owns the land
To show that a title to a piece of land is a
MARKETABLE TITLEand is free to transfer, a person must know who had ownership of the land at any point in time In addition, the seller should
be able to trace the way in which each person came into the chain of title AnABSTRACT OF TITLE
contains a condensed history of the title to a piece of land in addition to a summary of
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