This phrase is used to characterize an officer, a government, a past action, or a state 372 DAYS OF GRACE... DEADLY FORCE An amount of force that is likely to cause either serious bodily
Trang 1admitted to the bar, and opened a law firm in Pekin In 1836 he purchased a law practice in Bloomington, Illinois, where he remained a resident the rest of his life
He was soon drawn into politics After losing a bid for a seat in the Illinois Senate in
1840, he was elected to the Illinois House of Representatives in 1844 He participated in the Illinois Constitutional Convention, which con-vened in 1847 A force for judicial reform, Davis was elected to Illinois’s Eighth Judicial Circuit, where he served as presiding judge until 1862
During his years as a practicing attorney and judge, Davis became a close friend and adviser
concept of judicial neutrality concerning poli-tics, Davis acted as Lincoln’s campaign manager during the 1860 election His actions have been credited with securing the Republican party nomination for Lincoln
In 1862 Lincoln rewarded his friend with
an appointment to the U.S Supreme Court Davis’s tenure encompassed both the Civil War and Reconstruction He is best remembered for his 1866 majority opinion in Ex parte Milligan,
71 U.S 2, 18 L Ed 281 In 1864 Lamdin Milligan was arrested and tried for treason by
a military commission established by order of President Lincoln He was convicted and sentenced to death, but the sentence was not carried out
In his majority opinion, Davis noted that the civilian courts were open and operating in Indiana when Milligan was arrested and tried
by the military In ordering Milligan’s release, Davis condemned Lincoln’s directive establish-ing military jurisdiction over civilians outside of the immediate war area He strongly affirmed theFUNDAMENTAL RIGHTof a civilian to be tried in
a regular court of law, with all the required procedural safeguards
In 1872 Davis was nominated for president
by the National Labor REFORM PARTY, but he turned down the opportunity However, politi-cal ambition led him to resign from the Supreme Court in 1877 and run for the Senate, representing Illinois He was elected as an independent and served one six-year term From 1881 to 1883, he served as president pro tempore of the Senate Davis died June 26, 1886,
in Bloomington, Illinois
David Davis 1815–1886
1815 Born, Sassafras Neck, Md.
◆
1835 Moved to Illinois, admitted to Illinois bar
1886 Died, Bloomington, Ill
1862–77 Served as associate justice
of the U.S Supreme Court
1848–62 Served as presiding judge on the Eighth Judicial Circuit
1844 Elected to Ill House of Representatives
1877–83 Served in the U.S Senate
1866 Wrote the majority
opinion in Ex Parte Milligan
◆
1872 Turned down National Labor Reform Party's nomination for U.S president
1860 Directed Lincoln's presidential campaign
◆
◆
David Davis.
THE LIBRARY OF
CONGRESS
368 DAVIS, DAVID
Trang 2DAVIS, GEORGE
vDAVIS, JOHN CHANDLER
BANCROFT
John Chandler Bancroft Davis enjoyed a long
and prolific career as a diplomat, jurist, and
legal historian
The son of JOHN DAVIS, a Massachusetts
governor and U.S senator, Davis was born
December 29, 1822, in Worcester, Massachusetts
He entered Harvard College in 1840, but was
suspended (unjustly, by some accounts) during
his senior year He then studied law and was
admitted to the Massachusetts bar in 1844 Three
years later, he received his law degree from
Harvard
Davis practiced law in New York City until
August 1849, when he was appointed secretary
of the U.S legation in Great Britain He was also
acting chargé d’affaires of the embassy for a
brief time Davis left his diplomatic post in
November 1852 to resume his law practice and
to become U.S correspondent for the London
Times Illness forced him to give up his law
practice, and in 1862 he and his wife settled on
a farm in rural New York State
Six years later, after regaining his health,
Davis was elected to the New York State
Assembly In 1869 he left the legislature to
accept an appointment as assistant secretary of
state under President ULYSSES S GRANT As the
assistant secretary, Davis arbitrated a dispute
between Portugal and Great Britain over their
African possessions In 1871 a joint high
commission was created to settle a dispute
between the United States and Great Britain
over damages sustained by Confederate vessels during the Civil War Davis resigned his position with the STATE DEPARTMENT to become U.S secretary to the commission He prepared the case for the United States and wrote a 500-page book, The Case of the United States, in which the government demanded compensa-tion for losses sustained by Confederate cruisers and for injuries to commerce The Tribunal of Arbitration at Geneva later awarded the United States over $15 million in gold for damages
Davis was reappointed assistant secretary of state in January 1873 but resigned in July 1874
to succeed his uncle, George Bancroft, as minister to Germany
1822 Born, Worcester, Mass.
◆
1861–65 U.S Civil War
1844 Admitted
to Mass bar
1907 Died, Washington, D.C.
1871 Prepared U.S case for Joint High Commission to settle U.S.-Great Britain dispute over damage sustained by Confederate vessels during Civil War
1868 Elected to New York state assembly
1854–61 Wrote for the London Times
1874–77 Served as U.S minister to Germany
1914–18 World War I
1849–52 Served as secretary of the U.S legation in Great Britain
1869 Appointed assistant secretary of state under President Grant
1878 Appointed to judgeship
on the U.S Court of Claims
1883–1902 Served as reporter for the U.S Supreme Court
John C Davis DAVIS, JOHN CHANDLER BANCROFT 369
Trang 3After three years in Berlin, Davis gave up his diplomatic career to become a judge on the U.S
years and then served for nearly 20 years as reporter of decisions for the U.S Supreme Court As reporter for the Court, he edited more than 75 volumes of the United States Reports, the official publication of the Court’s opinions Davis also classified important histor-ical data on the federal judiciary At the time of his death in 1907, at age 85, he had authored significant works on diplomacy, RELIGION, and history, including The Massachusetts Justice (1847), Mr Fish and the Alabama Claims (1893), and Origin of the Book of Common Prayer of the Protestant Episcopal Church in the United States of America (1897)
vDAVIS, JOHN WILLIAM John William Davis was born April 13, 1873, in Clarksburg, West Virginia Davis earned a bachelor of arts degree from Washington and Lee University in 1892, a bachelor of laws degree in 1895, and a doctor of laws degree in
1915 He also received doctor of laws degrees from numerous other institutions, including the University of Birmingham, England, 1919; Yale, 1921; Dartmouth, 1923; Princeton, 1924; and Oberlin College, 1947 Three doctor ofCIVIL LAW
degrees were bestowed upon Davis, by Oxford University in England, 1950; Columbia, 1953;
and Hofstra College, 1953
After hisADMISSION TO THE BARin 1895, Davis returned to his alma mater, Washington and Lee University, as an assistant professor of law, teaching from 1896 to 1897 In the latter year,
he established his law practice in Clarksburg, West Virginia, serving as counselor until 1913
Davis entered politics in 1899 by participat-ing in the West Virginia House of Delegates He was a member of the Democratic National Conventions from 1904 to 1932
In 1911 he served the federal government
as a congressman, representing West Virginia for two years Davis left this post to perform the duties of SOLICITOR GENERAL from 1913 to 1918
The next phase of Davis’s career encom-passed foreign service He was appointed ambassador to Great Britain in 1918 and acted
in this capacity until 1921 Also in 1918, Davis was chosen as an American delegate to Berne, Switzerland, to the conference with Germany regarding prisoners of war captured during
WORLD WAR I
In 1924 Davis was the Democratic candidate
defeated byCALVIN COOLIDGE Davis died March
24, 1955, in Charleston, South Carolina
DAY CERTAIN
A specified date A term used in the rules of civil and criminal procedure to designate a particular time by which all motions for a new trial must be submitted to the court
DAY IN COURT The opportunity afforded an individual to have a claim litigated in a judicial setting
A person is said to have his or her day in court when he or she is given notice to appear and has the opportunity to defend his or her rights, seek relief, or set forth his or her claims When someone has had his or her day in court with reference to a particular matter, that
1873 Born, Clarksburg, W Va.
◆
1899 Elected to W Va.
House of Delegates
1955 Died, Charleston, S.C.
1921 Returned to private law practice
1918 Served on Berne peace commission; appointed U.S ambassador to Great Britain
1913 Appointed solicitor general of the United States
1924 Ran for president against Coolidge
1911–13 Represented W Va in the House
1934 Helped organize American Liberty League,
an anti-New Deal organization
◆
1954 Argued South Carolina's case before U.S Supreme Court in
Brown v Board of Education
◆
◆
RESENT MORE THAN
THE IDEA THAT A
LAWYER SELLS
HIMSELF BODY AND
D AVIS
370 DAVIS, JOHN WILLIAM
Trang 4individual will generally be prevented from
relitigating the claim in a subsequent action
unless grounds exist that warrant an appeal of
the matter
vDAY, WILLIAM RUFUS
William Rufus Day served as an associate justice
of the U.S Supreme Court from 1903 to 1922
Day served on a Court dominated by Justice
Oliver Wendell Holmes Jr., yet Day played a key
role during a period when the federal
govern-ment began to extend its police and regulatory
powers
Day was born April 17, 1849, in Ravenna,
Ohio He graduated from the University of
Michigan in 1870 and attended its law school
for one year He was admitted to the Ohio bar
in 1872 and entered practice in Canton, Ohio
Ohio was a hotbed of REPUBLICAN PARTY
politics in the late nineteenth century Day
became active in the party and, more important,
became a trusted friend and adviser toWILLIAM
McKinley appointed Day secretary of state in
April 1898 Five months later Day was chosen
to head the U.S Peace Commission to
negoti-ate an end to the SPANISH-AMERICAN WAR with
Spain He left his cabinet post to fulfill this duty
McKinley rewarded Day for his friendship,
political counsel, and service as secretary of
state with an appointment in 1899 to the U.S
SixthCIRCUIT COURTof Appeals With McKinley’s
Roosevelt appointed Day to the Supreme Court,
in part because Roosevelt needed to strengthen
his ties with Ohio Republicans
Day held a centrist position on the Supreme Court More liberal justices such as Holmes and
government involvement in the national econ-omy Conservative justices continued to restrict government regulation of business and the growth of federal power Day took a middle course, though some commentators believe he tilted more to supporting states’ rights
His most famous opinion, HAMMER V
Ed 1101 (1918), illustrates his more conserva-tive tendencies In the early 1900s, Congress sought to regulate the use of child labor, passing
a child labor act in 1916 (39 Stat 675, c 432, formally known as the Keating-Owen Act) The
William R Day.
LIBRARY OF CONGRESS
1849 Born, Ravenna, Ohio
◆ ◆
1886–90 Served as Court of Common Pleas judge
1898 Appointed U.S secretary of state; left post to head U.S Peace Commission to negotiate end to the Spanish-American War
1923 Died, Mackinac Island, Mich.
1861–65 U.S Civil War
1914 Wrote majority
opinion in Weeks v.
United States
1872 Admitted to the Ohio bar
1914–18 World War I
1922 Retired from the Court
1899 Nominated to U.S Sixth Circuit Court
of Appeals by President McKinley
1903 Nominated to U.S Supreme Court by President Roosevelt
1918 Wrote majority
opinion in Hammer v.
Dagenhart
THAN THE MERE THING WHICH A
ELEMENTARY THAT IT INCLUDES THE RIGHT
PROTECTS THESE ESSENTIAL ATTRIBUTES OF
DAY, WILLIAM RUFUS 371
Trang 5act prohibited the movement in interstate commerce of goods that were made by children
In Hammer, a manufacturer was charged with violating the act Under the Constitution’s
regulate interstate commerce Day gave the clause a restrictive reading, ruling that com-merce did not include manufactured goods that were themselves harmless In addition, he said, Congress had intruded into an area of regula-tion that was reserved to the states To allow Congress to regulate industry would destroy
in the Constitution
Despite this hostility to the Child Labor Act, Day upheld the federal government’s power to regulate interstate commerce in other cases that involved the shipment of impure food, drugs, and liquor He was also supportive of federal antitrust prosecutions that involved RESTRAINT
OF TRADE However, Day’s opposition to federal regu-lation of the workplace did not carry over to state regulation of industry This is revealed in his dissent inLOCHNER V.NEW YORK, 198 U.S 45,
25 S Ct 539, 49 L Ed 937 (1905) In Lochner the Court, on a 5–4 vote, struck down a New York state law that specified a maximum sixty-hour week for bakery employees The Court ruled that the law was a“meddlesome interfer-ence” with business, concluding that the regula-tion of work hours was an unjustified infringe-ment on“the right to labor, and with the right of free contract on the part of the individual, either
as employer or employee.” Although Holmes’s dissent has received more attention, Day’s made clear that the state had the right to promote public welfare, even if it came in conflict with the concept of liberty of contract
Finally, Day authored the opinion in Weeks
v United States, 232 U.S 383, 34 S Ct 341, 58
L Ed 652 (1914), which established the federal
in violation of the FOURTH AMENDMENT Day’s opinion suggested that exclusion of tainted evidence was implicit in the requirement of the Fourth Amendment If illegally seized evidence could be admitted in a criminal trial, he said,
“the protection of the 4th Amendment … is
of no value … and might as well be stricken from the Constitution.”
CROSS REFERENCES Child Labor Laws; Labor Law.
DAYS OF GRACE
An extension of the time originally scheduled for the performance of an act, such as payment for a debt, granted merely as a gratuitous favor by the person to whom the performance is owed
In old English practice, days of grace allowed a person an extra three days beyond the date specified in a writ summoning him
or her before a court in which to make an appearance without being subject to punish-ment for failure to appear This allowance of time was granted in consideration of the far distances that had to be traveled to court The laws and customs that regulate the commercial affairs of merchants have recog-nized days of grace as a means of facilitating various transactions Three days of grace were originally allowed to give a maker or acceptor
of a note, bill, or draft, in which the person
is ordered to make payment according to its terms, a longer time to pay than specified by the date in the document This practice was begun merely as a favor to those who regularly engaged
in business with each other, but it soon became
a custom between merchants Eventually, the courts recognized this right, often as a result of statute; in some cases, it has become a right that must be demanded
The phrase days of grace is sometimes used interchangeably withGRACE PERIOD, a term used
in insurance law to denote an extension of time within which to pay a premium due on a policy, but the terms do not have identical meanings
DE BONIS NON ADMINISTRATIS [Latin, Of the goods not administered.] When
an administrator is appointed to succeed another who has left the estate partially unsettled, the administrator is said to be granted “administra-tion de bonis non,” that is, of the goods not already administered
DE FACTO [Latin, In fact.] In fact, in deed, actually This phrase is used to characterize an officer, a government, a past action, or a state
372 DAYS OF GRACE
Trang 6office, position, or status existing under a claim
or color of right, such as a de facto corporation
In this sense it is the contrary of de jure, which
means rightful, legitimate, just, or
constitution-al Thus, an officer, king, or government de facto
is one that is in actual possession of the office
or supreme power, but by USURPATION, or
without lawful title; while an officer, king, or
governor de jure is one who has just claim and
rightful title to the office or power, but has
never had plenary possession of it, or is not
in actual possession A wife de facto is one
whose marriage is voidable by decree, as
distinguished from a wife de jure, or lawful
wife But the term is also frequently used
independently of any distinction from de jure;
thus a blockade de facto is a blockade that is
actually maintained, as distinguished from a
mere paper blockade
A de facto corporation is one that has been
given legal status despite the fact that it has
not complied with all the statutory formalities
required for corporate existence Only the state
may challenge the validity of the existence of a
de facto corporation
De facto SEGREGATION is the separation of
members of different races by various social and
economic factors, not by virtue of any
govern-ment action or statute
DE JURE
[Latin, In law.] Legitimate; lawful, as a matter of
law Having complied with all the requirements
imposed by law
De jure is commonly paired with DE FACTO,
which means“in fact.” In the course of ordinary
events, the term de jure is superfluous For
example, in everyday discourse, when one speaks
of a corporation or a government, the
under-stood meaning is a de jure corporation or a de
jure government
A de jure corporation is one that has
completely fulfilled the statutory formalities
imposed by state corporation law in order to
be granted corporate existence In comparison,
a de facto corporation is one that has acted in
corpora-tion but for failure to comply with some
technical requirements
A de jure government is the legal, legitimate
government of a state and is so recognized by
other states In contrast, a de facto government
is in actual possession of authority and control
of the state For example, a government that has been overthrown and has moved to another state will attain de jure status if other nations refuse to accept the legitimacy of the revolu-tionary government
De jure SEGREGATION refers to intentional actions by the state to enforce racial segregation
endured until the 1960s, are examples of de jure segregation In contrast, de facto racial segregation, which occurred in other states, was accomplished by factors apart from conscious government activity
DE MINIMIS
An abbreviated form of the Latin maxim de minimis non curat lex,“the law cares not for small things.” A legal doctrine by which a court refuses
to consider trifling matters
In a lawsuit, a court applies the de minimis doctrine to avoid the resolution of trivial matters that are not worthy of judicial scrutiny
Its application sometimes results in the
dismiss-al of an action, particularly when the only
dollar Appellate courts also use the de minimis doctrine when appropriate
DE NOVO [Latin, Anew.] A second time; afresh A trial or a hearing that is ordered by an appellate court that has reviewed the record of a hearing in a lower court and sent the matter back to the original court for a new trial, as if it had not been previously heard nor decided
DEA
DEAD MAN’S STATUTES State rules of evidence that make the oral statements of a decedent inadmissible in a civil lawsuit against the executor or administrator of the decedent’s estate when presented by persons
to bolster their claims against the estate
Dead man’s statutes are designed to protect the estate of a deceased person from fraudulent claims made by a person who had engaged in transactions with the DECEDENT These laws do not permit the claimant totestify as to what
DEAD MAN’S STATUTES 373
Trang 7terms a decedent verbally accepted, since the decedent is unable to testify and give his or her version of the transaction
Such statutes are derived from common-law principles that disqualified witnesses from testifying in an action if they would be affected
by the outcome of the case Many states admit such testimony as evidence under specific statutory conditions, such as if the decedent’s statements can be corroborated by the
testimo-ny of other disinterested witnesses
of oral statements made by decedents in federal cases
DEADLY FORCE
An amount of force that is likely to cause either serious bodily injury or death to another person
Police officers may use deadly force in specific circumstances when they are trying to enforce the law Private citizens may use deadly force in certain circumstances in SELF-DEFENSE The rules governing the use of deadly force for police officers are different from those for citizens
needed it to capture aFELONYsuspect, regardless
of the circumstances At that time, felonies were not as common as they are now and were usually punishable by death Also, law officers had a more difficult time capturing suspects because they did not have the technology and weaponry that are present in today’s world
In modern times, the courts have restricted the use of deadly force to certain, dangerous situations
In police jargon, deadly force is also referred
to as shoot to kill The Supreme Court has ruled that, depending on the circumstances, if an offender resists arrest, police officers may use
as much force as is reasonably required to overcome the resistance Whether the force is reasonable is determined by the judgment of
a reasonable officer at the scene, rather than
by hindsight Because police officers can find themselves in dangerous or rapidly changing situations where split second decisions are necessary, the judgment of someone at the scene is vital when looking back at the actions
of a police officer
The Supreme Court has defined the “objec-tive reasonableness” standard as a balance between the rights of the person being arrested and the government interests that allow the use
of force The FOURTH AMENDMENT protects U.S citizens from unreasonable searches and sei-zures, the category into which an arrest falls The Supreme Court has said that aSEARCH AND
the rights and privacy of the individual This standard does not question a police officer’s intent or motivation for using deadly force during an arrest; it only looks at the situation as
it has happened
For deadly force to be constitutional when
an arrest is taking place, it must be the reasonable choice under all the circumstances
at the time Therefore, deadly force should be looked at as an option that is used when it is believed that no other action will succeed The
states, restricts police action regarding deadly force According to the code, officers should not use deadly force unless the action will not endanger innocent bystanders, the suspect used deadly force in committing the crime, or the
In specific
circumstances, police
officers may use
deadly force when
attempting to enforce
the law These SWAT
team members
resorted to the use of
deadly force after
attempting to arrest a
suspect in a
November 1995
hijacking in Miami,
Florida.
AP IMAGES
374 DEADLY FORCE
Trang 8Circumstances that are taken into
consider-ation are the severity of the offense, how much
of a threat the suspect poses, and the suspect’s
attempts to resist or flee the police officer
When arresting someone for aMISDEMEANOR, the
police have the right to shoot the alleged
offender only in self-defense If an officer shoots
a suspect accused of a misdemeanor for a reason
other than self-defense, the officer can be held
liable for criminal charges and damages for
injuries to the suspect This standard was
demonstrated in the Iowa case of Klinkel v
Saddler, 211 Iowa 368, 233 N.W 538 (1930),
where a sheriff faced aWRONGFUL DEATHlawsuit
because he had killed a misdemeanor suspect
during an arrest The sheriff said he had used
deadly force to defend himself, and the court
ruled in his favor
When police officers are arresting someone
for a felony, the courts have given them a little
more leeway The police may use all the force
that is necessary to overcome resistance, even if
that means killing the person they are trying to
arrest However, if it is proved that an officer
used more force than was necessary, the officer
can be held criminally and civilly liable In
Tennessee v Garner, 471 U.S 1, 105 S Ct 1694,
85 L Ed 2d 1 (1985), the Supreme Court ruled
that it is a violation of the Fourth Amendment
for police officers to use deadly force to stop
fleeing felony suspects who are nonviolent and
unarmed The decision, with an opinion written
by Justice BYRON R WHITE, said, in part, “We
conclude that such force may not be used unless
it is necessary to prevent the escape and the
officer has probable cause to believe that the
suspect poses a significant threat of death or
serious physical injury to the officer or others.”
When deadly force is used by a private
citizen, the reasonableness rule does not apply
The citizen must be able to prove that a felony
occurred or was being attempted, and that the
felony threatened death or bodily harm Mere
suspicion of a felony is considered an
insuffi-cient ground for a private citizen to use deadly
force
This was demonstrated in the Michigan case
of People v Couch, 436 Mich 414, 461 N.W.2d
683 (1990), where theDEFENDANTshot and killed
a suspected felon who was fleeing the scene of
the crime The Michigan supreme court ruled
that Archie L Couch did not have the right
to use deadly force against the suspected felon
because the suspect did not pose a threat of injury or death to Couch
FURTHER READINGS Griffin, Thomas J 1971 “Private Person’s Authority, in Making Arrest for Felony, to Shoot or Kill Alleged Felon ” American Law Reports 3d 32:1078.
Hatch, David E., and Randy Dikson 2007 Officer-Involved Shootings and Use of Force: Practical Investigation Techniques New York: Taylor & Francis, Inc.
McGuinness, J Michael 2000 “Shootings by Police Officers Are Analyzed under Standards Based on Objective Reasonableness.” New York State Bar Association Journal
72 (September).
Owens, Michael Douglas 2001 “The Inherent Constitu-tionality of the Police Use of Deadly Force to Stop Dangerous Pursuits ” Mercer Law Review 52 (summer).
Pearson, James O., Jr 1978 “Modern Status: Right of Peace Officer to Use Deadly Force in Attempting to Arrest Fleeing Felon ” American Law Reports 3d 83:174.
——— 1978 “Peace Officer’s Civil Liability for Death or Personal Injuries Caused by Intentional Force in Arresting Misdemeanant ” American Law Reports 3d 83.
Sullivan, G Russell 1985 “Constitutional Law—Deadly Force and the Fourth Amendment: Tennessee v.
Garner ” Suffolk Univ Law Review 20.
DEATH AND DYING Death is the end of life Dying is the process of approaching death, including the choices and actions involved in that process
Death is a central concern of the law Legal issues related to death include laws that determine whether a death has actually oc-curred, as well as when and how it ococ-curred, and whether another individual will be charged for having caused it With the development of increasingly complex medical procedures and devices in the middle and late twentieth century, the U.S legal system has had to establish rules and standards governing the use and withdrawal of life-sustaining medical care, including, for example, withdrawing an artificial respirator or a feeding tube from a comatose person or withholding chemotherapy from a terminally ill cancer patient Such laws and judicial decisions involve the right of individuals
to refuse medical treatment—sometimes called the right to die—as well as the boundaries of that right, particularly in regard to the state’s interest in protecting life and the medical profession’s right to protect its standards The issues involved in death and dying have often pitted patients’ rights groups against physicians’
professional organizations as each vies for control over the decision of how and when people die
DEATH AND DYING 375
Trang 9Defining Death in the Law
The law recognizes different forms of death, not all of them referring to the end of physical life The term civil death is used in some states
to describe the circumstance of an individual who has been convicted of a serious crime or sentenced to life imprisonment Such an individ-ual forfeits his or herCIVIL RIGHTS, including the ability to marry, the capacity to own property, and the right to contract Legal death is a presumption by law that a person has died It arises following a prolonged absence, generally for a prescribed number of years, during which
no one has seen or heard from the person and there is no known reason for the person’s disappearance that would be incompatible with
a finding that the individual is dead (e.g., the individual had not planned to move to another place) Natural death is death by action of natural causes without the aid or inducement of any intervening instrumentality Violent death is death caused or accelerated by the application
cessation of all functions of the whole brain
willful or negligent act
In the eyes of the law, death is not a continuing event but something that takes place
at a precise moment in time The courts will not wield authority concerning a death The deter-mination of whether an individual has died, and the way in which this is proved by the person’s vital signs, is not a legal decision but rather a medical judgment The opinion of qualified medical personnel will be taken into consider-ation by judges when a controversy exists as to whether an individual is still alive or has died
Legal Death and Missing Persons
There is a legal presumption that an individual
is alive until proven to be dead In attempting
to determine whether a person has died after having been missing for a certain period of time, the law assumes that the person is alive until a reason exists to believe otherwise
Dr Jack Kevorkian
displays the machine
he designed to allow a
patient to
self-administer lethal
doses of poison.
AP IMAGES
376 DEATH AND DYING
Trang 10a particular peril, he or she will be legally
presumed dead after seven years unless the
disappearance can be otherwise explained
The seven-year interval may be shortened if the
state decides to enact legislation to change it
Some states may permit the dissolution of a
marriage or the administration of an estate based
on a mysterious disappearance that endures for
less than seven years A majority of states will not
make the assumption that a missing person is
dead unless it is reasonable to assume that the
person would return if still alive
A special problem emerges in a situation
where a person disappears following a threat
made on his or her life Such an individual
would have a valid reason for voluntarily leaving
and concealing his or her identity Conversely,
however, the person would in fact be dead if
the plot succeeded A court would have to
examine carefully the facts of a particular case of
this nature
In some states, the court will not hold that
an individual has died without proof that an
earnest search was made for him or her During
such a search, public records must be consulted,
wherever the person might have resided, for
information regarding marriage, death,PAYMENT
of taxes, or application for government benefits
The investigation must also include questioning
of the missing person’s friends or relatives as
to his or her whereabouts
Death Certificates
The laws of each state require that the manner in
which an individual has died be determined and
recorded on a death certificate Coroners or
medical examiners must deal with issues
estab-lishing whether someone can be legally blamed
for causing the death Such issues are
subsequent-ly determined byCRIMINAL LAW in the event that
someone is charged withHOMICIDE and byTORT
LAWin the event of a civil suit for wrongful death
The Nature of Dying
Because of the many advances in modern
medicine, the nature of death and dying has
changed greatly in the past several centuries
A majority of people in industrial societies such
as the United States no longer perish, as they
once did, from infectious or parasitic diseases
Instead, life expectancies range above 70 years
and the major causes of mortality are illnesses
such as cancer and heart disease Medicine is
able to prolong life by many means, including
artificial circulatory and respiratory systems, intravenous feeding and hydration, chemother-apy, and antibiotics
The cultural circumstances of death have changed as well A study published by the American Lung Association in the late 1990s, indicated that 90 percent of patients who are in intensive care units of hospitals die as a result
of surrogates and physicians deciding together
to withhold life-sustaining medical care This rate doubled from earlier in the decade
Brain Death
In traditional western medical practice, death was defined as the cessation of the body’s circulatory and respiratory (blood pumping and breathing) functions With the invention
of machines that provide artificial circulation and respiration that definition has ceased to
be practical and has been modified to include another category of death called brain death
People can be kept alive using such machines even when their brains have effectively died and are no longer able to control their bodily functions Moreover, in certain medical proce-dures, such as open-heart surgery, individuals
do not breathe or pump blood on their own
Because it would be incorrect to declare as dead all persons whose circulatory or respiratory systems are temporarily maintained by artificial means (a category that includes many patients undergoing surgery), the medical community has determined that an individual may be declared dead if brain death has occurred—that
is, if the whole brain has ceased to function or has entered what is sometimes called a persistent vegetative state An individual whose brain stem (lower brain) has died is not able to maintain the vegetative functions of life, including respira-tion, circularespira-tion, and swallowing According to the Uniform Determination of Death Act (§ 1, U.L.A [1980]), from which most states have developed their brain death statutes, “An individual who has sustained either (1) irre-versible cessation of circulatory and respiratory function, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead.”
Brain death becomes a crucial issue in part because of the importance of organ transplants
A brain-dead person may have organs—a heart,
a liver, and lungs, for example—that could save other people’s lives For an individual to be an acceptable organ donor, he or she must be dead
DEATH AND DYING 377