DEMONSTRATIVE EVIDENCE Evidence other than testimony that is presented during the course of a civil or criminal trial.. In addition to actual evidence that is introduced at trial like th
Trang 1allowing the government to be shut down for a long period rather than give in to Republican spending cuts
The IMPEACHMENT trial of Clinton in 1999 furthered the partisan divide in the country Led
by a Republican Congress, the impeachment process was backed by a majority of Repub-licans and opposed by a majority of Democrats
Despite the embarrassment to Clinton, theLEGAL PROCEEDINGSdid not seem to hurt the Democrats
in the same way WATERGATE hurt the Repub-licans The Democrats actually picked up seats
in the House and the Senate in both the 1998 and 2000 elections
Just how evenly the country was split between the Republicans and Democrats was illustrated by the 2000 election Democratic presidential candidateAL GOREwon the popular vote by over 500,000 votes; however, the Electoral College was another story A disputed ballot count in Florida kept the election from being officially decided for more than a month after election day When it was over,GEORGE W
BUSHhad becomePRESIDENT OF THE UNITED STATES
by a mere 537 votes, according to the Florida statewide official tally Bush beat Al Gore in the Electoral College 271 to 266, one of the closest results in U.S history
Ironically, considering that they won the popular vote for president and picked up seats
in both the House and Senate, the 2000 election paradoxically left the Democrats in their weakest position since the Eisenhower admin-istration In addition to the presidency, the Republicans controlled the House and the Senate by slim majorities In the Senate, that majority consisted of one seat
However, the decision by Senator Jim Jeffords (R-Vt.) to become an independent in
2001 gave the Senate majority to the Democrats for the first time since 1994 Using their majority, the Democrats were able to frustrate President Bush on some of his proposed policies, though they were too weak to pass legislation on their own The Republicans strengthened their posi-tion after the 2002 elecposi-tion, regaining control of the Senate and increasing the number of seats they controlled in the House But they still did not have enough votes to stop a Democratic
FILIBUSTERin the Senate, thus giving the Demo-crats a measure of power
Some party activists felt at the end of the
2002 campaign that the Democratic Party had
lost its way with the centrist policies advocated
by former president Clinton and others; they saw the way back to power to take the party in
a more liberal direction and to delineate more strongly their differences with Republicans Others saw this as political suicide, pointing out that Clinton was the only successful Democratic candidate in the past quarter century
The Democratic nominee in the 2004 presidential election was Senator John Kerry (D-Mass.) He ran against George W Bush, who sought a second term in the Oval Office Bush was re-elected as president, winning in the Electoral College 286 to 251 and earning nearly
51 percent of the popular vote Democrats critical of Kerry lamented about what they had perceived as a slow-moving and unfocused campaign by a stiff candidate In the wake of the election, Democrats with centrist positions urged against the party swinging more to the left
as an answer to the political defeat
The 2006 mid-term elections began a period
of positive change for the Democratic Party Amid scandals tainting several Republican can-didates seeking re-election and an increasingly unpopular war in Iraq, Democratic candidates won control of both houses of Congress, and a majority of governorships and state legislatures The shift in power to Democrats was made historically significant by giving rise to the first woman Speaker of the House of Representa-tives, Nancy Pelosi
BARACK OBAMA was the Democratic nominee
in the 2008 presidential election Obama was considered a relative newcomer in Washington, D.C., and a mainstream Democrat on nearly all issues Obama first began serving in the Senate
in 2005 and officially launched his campaign for president in 2007 His campaign focused on bringing change to the United States by ending the unpopular war in Iraq, conserving energy and reforming the healthcare system He defeated Republican nomineeJOHN MCCAIN365 to 173 in the Electoral College and earned 53 percent of the popular vote He is the first African American and biracial president in the history
of the United States
FURTHER READINGS Judis, John B., and Ruy Teixeira 2002 The Emerging Democratic Majority New York: Scribner.
Miller, Senator Zell 2003 A National Party No More: The Conscience of a Conservative Democrat Macon, Ga.: Stroud & Hall Publishers.
418 DEMOCRATIC PARTY
Trang 2Stanley, Timothy 2010 Kennedy vs Carter: the 1980 Battle
for the Democratic Party’s Soul Lawrence: University of
Kansas Press.
Wagner, Heather Lehr 2007 The History of the Democratic
Party New York: Chelsea House Publications.
Wilson, James Q., and John J Dilulio Jr., and Meena Bose.
2010 American Government: Institutions and Policies.
12th ed Boston: Cengage Learning.
CROSS REFERENCES
Elections; Republican Party.
DEMONSTRATIVE EVIDENCE
Evidence other than testimony that is presented
during the course of a civil or criminal trial
Demonstrative evidence includes actual evidence
(e.g., a set of bloody gloves from a murder scene) and
illustrative evidence (e.g., photographs and charts)
Many trial attorneys view the presentation
of evidence to the jury as analogous to the
presentation of information by a teacher to
students As in the classroom, the involvement
of more than one of a juror’s senses in the
courtroom increases the amount of information
retained by that juror For example, combining
verbal testimony fromWITNESSESwith before and
after X rays, or introducing a defective machine
part that jurors can hold in their hands for
inspection, makes for compelling courtroom
activity In a modern, “show-me” society, the
ability of a trial lawyer to use demonstrative
evidence effectively can make the difference
between winning and losing a case
One common and effective example of
demonstrative evidence is the still photograph
Photographs of a plaintiff’s bruises taken
imme-diately after an accident can help a jury
under-stand those injuries in a trial that occurs months
or even years after the accident, when the
injuries may have healed Aerial photographs of
the scene of a vehicular accident can show how
a particular intersection is laid out, and can
make more clear an ambiguous description of
a blind intersection given by a witness
X rays and medical models and illustrations
can be very helpful to a jury in physical injury
cases These examples of demonstrative
evi-dence help the jury “see inside” the victim to
understand the nature and extent of the injuries
X rays can show not only fractures but also
permanent metal pins and plates Accurate
models of a plaintiff’s head and neck can show
the interaction between the cervical area of the
spine and the surrounding muscle and tissues in
a soft-tissue injury case Sometimes, partial or full skeletons are brought into courtrooms to demonstrate losses or restrictions of movement due to injuries Modern computer-generated illustrations can show the exact injury to a specificPLAINTIFF, as opposed to the generic injury represented in a stock medical illustration
Graphs and charts are perhaps the most useful forms of demonstrative evidence These tools can vividly illustrate a loss of earnings, a decrease in life expectancy, and past and future medical bills Clear and concise charts can help
a jury to arrange a complex set of events in a chronological fashion These time lines can be crucial in organizing evidence, whether in a criminal trial or in a complex securities litigation
Often, maps and other geographic charts are used to show water flow, elevation, and other physical characteristics of real property (land)
Graphs and charts can be presented to a jury
in a variety of ways In addition to offering the standard large prepared poster board on an easel, some attorneys prefer to create charts as they speak to the jury, using large blank pieces
of poster board and colored marker pens
Other attorneys like the dramatic effect of dimming the courtroom lights and using an overhead projector or computer screen to focus visual attention on their illuminated charts and graphs Whatever the style of presentation, well-constructed charts and graphs that make good use of color and are clear and easy to understand are appreciated by jurors and can have a big effect during deliberations
Articles and objects are also forms of demon-strative evidence In addition to actual evidence that is introduced at trial (like the knife from a
MURDERscene), other physical articles and objects
A common and effective type of demonstrative evidence is the still photograph In this example, a police technician points to
an area on an interior photograph of a defendant’s home where fiber evidence (actual evidence) submitted in a San Diego, California, murder trial was discovered.
AP IMAGES
DEMONSTRATIVE EVIDENCE 419
Trang 3can be used to help the jury understand the testimony For example, in a PRODUCT LIABILITY
action based on a defective artificial hip, giving the jury models of ball-and-socket joints to manipulate and examine with their own hands can clarify testimony regarding the replacement joint that is still inside the plaintiff Three-dimensional models and mock-ups of roadways, accident sites, or proposed buildings can simulate the outside world inside the courtroom to give proportion and scale to a witness’s testimony
With the permission of the judge, attorneys may be allowed to take the jurors to the scene of the crime or accident Here, all of a juror’s senses are at work, and testimony presented in court can be compared to and contrasted with the physical scene A list prepared by both attorneys of items to “notice” may be read by theBAILIFF at the scene Many juries appreciate not only the chance to get outside the courtroom but also the opportunity to see for themselves the place where it all happened
With the advent of low-cost videocassette players and recorders, it has become more and more common to see videotape in the court-room A “day in the life of …” video can graphically demonstrate the activities of a plaintiff living with debilitating injuries For example, a plaintiff witness may say,“I can’t pick
up my children,” whereas a video can actually show the plaintiff’s young children milling about with the plaintiff able only to sit by and watch them Videotapes can also show the traffic volume
at a busy intersection or provide a driver’s-eye view of a road sign obstructed by brush and leaves If a jury is unable to leave the courtroom
to visit the scene of a fire, a video camera can provide a tour through the burned-out remains
of the family’s residence Some attorneys have begun hiring stuntpersons to re-create vehicular accidents, driving comparable vehicles at the speeds they were going when the accidents occurred, and filming the results Unlike a controlled dramatic re-creation, this kind of actual re-creation, with its inherent danger yet accurate representation of accident conditions, can be an effective tool at trial
Though waning in popularity owing to the greater availability and lower cost of computers, slide projectors and human-created animation are still used by some attorneys By taking two slide projectors, superimposing their projec-tions, and connecting them with a sophisticated
mechanical device, an attorney can make a before picture fade into an after picture with dramatic results As with a presentation using an overhead projector, the dark courtroom and brightly-lit screen of a slide presentation focus the jury’s visual attention Animated cartoon shorts, hand inked by artists, are eye-catching and can portray exactly what the attorney wants to emphasize
to the jury: For example, a cutaway“operating” engine might show how a defective part can cause the engine to break down
Computers and computer-generated dis-plays are at the cutting edge of demonstrative evidence Computer-enhanced graphics can demonstrate anything from the speed of a vehicle
to the loss of range of motion on an injured portion of the body Computers also provide high storage capacity One CD-ROM disc can store thousands of still photos, graphs, charts, digitized video clips, and even three-dimensional computer animations An attorney who uses a computer to coordinate a presentation can com-bine many different forms of demonstrative evidence into a cohesive and dramatic whole Still photos of an injury might be followed
by a digitized video showing limited physical abilities after the injury X-ray images can fade into graphs showing a loss of earning capacity All these exhibits can be stored in a laptop computer and presented with minimal setup and distraction to the jurors And the attorney making the presentation can instantly return
to a particular demonstrative exhibit when mak-ing a point durmak-ing closmak-ing arguments
Another significant development in court-room technology is the use of bar codes This technology is helpful in organizing evidence in cases with numerous exhibits Bar codes function
in court much as they do in the department or grocery store Exhibits, be they photographs or documents, are stored on CD-ROM according to bar code By entering or scanning the number, the item is immediately retrieved and can be displayed on the computer screen
Many newer courtrooms are equipped with individual computer terminals, so that jurors may view computer displays by attorneys on individual screens in the jury box A future development may be the use of virtual reality— where individuals see and hear computer-generated images and sounds, and through body sensors“see” their hands and body within the simulation
420 DEMONSTRATIVE EVIDENCE
Trang 4No matter the technology, demonstrative
evidence must still conform to standard
eviden-tiary rules The trial court may disallow any item
of demonstrative evidence that is inaccurate or
incomplete Courts can also strike evidence if
it is unnecessarily cumulative: For example, 30
photographs of one bruise that can be seen
clearly in one or two photographs constitute
evidence that is unnecessarily cumulative
An attorney must keep in mind that
demon-strative evidence is notREAL EVIDENCE: It merely
illustrates the points being argued to the jury
and court Computer-generated animation
may only portray evidence that has been
pro-perly presented to the jury through testimony or
as physical evidence A chart or graph may only
present numbers and amounts that have been
properly calculated and proved No matter how
exciting the“show,” the attorney must
remem-ber that items of demonstrative evidence are
merely props, and that the witnesses and their
testimony are still the primary method of
presenting evidence to a jury
FURTHER READINGS
Brain, Robert D., and Daniel J Broderick 1992 “The
Derivative Relevance of Demonstrative Evidence:
Charting Its Proper Evidentiary Status ” Univ of
California at Davis Law Review 25.
Branson, Frank L 1986 Demonstrative Evidence New York:
McGraw-Hill.
Heffernan, Thomas A 1987 “Effective Use of
Demonstra-tive Evidence—‘Seeing Is Believing.’” American Journal
of Trial Advocacy 5.
Lilly, Graham C 1996 An Introduction to the Law of Evidence.
3d ed Eagan, Minn.: West.
Mauet, Thomas A., and Warren D Wolfson 2009 Trial
Evidence 4th ed Frederick, Md.: Wolters Kluwer Law &
Business.
O ’Callaghan, Richard M 1988 “Introduction and Use of
Demonstrative Evidence ” Practising Law Institute/
Litigation 360 (October 1).
Reuben, Richard 1995 “Stuntpersons Add Drama to
Cases ” American Bar Association Journal (November).
Taub, Theodore C “Demonstrative Evidence.” American Law
Institute-American Bar Association C432 (August 14).
DEMONSTRATIVE LEGACY
A gift by will of money or other personal property
that is to be paid to an heir from a fund designated
in the provisions of the will but, in any event, is to
be paid if there are sufficient available assets in
the estate
A demonstrative legacy differs from aSPECIFIC
LEGACY, a gift of particularPERSONAL PROPERTY by
will A demonstrative legacy is payable from the
general assets of the estate that have not been
specifically devised or bequeathed if its desig-nated source has been adeemed or no longer exists or if it is inadequate to satisfy the gift In the case of a specific legacy the ademption of property revokes the gift completely so that the heir receives nothing However, if the value of the gift has only been reduced, the heir receives the decreased value
Courts often interpret provisions of a will that appear to grant specific legacies of money
or shares of stock as demonstrative legacies to avoid the consequences of ademption where it
is clear that the TESTATOR intended the gift to
be made in any event
DEMUR
To dispute a legal pleading or a statement of the facts being alleged through the use of a demurrer
DEMURRAGE
A separate freight charge, in addition to ordinary shipping costs, which is imposed according to the terms of a carriage contract upon the person responsible for unreasonable delays in loading or unloading cargo In maritime law, demurrage is the amount identified in a charter contract as damages payable to a shipowner as compensation for the detention of a ship beyond the time specified
by a charter party for loading and unloading or for sailing
Demurrage is intended to serve the PUBLIC INTEREST by facilitating the flow of commerce through the prompt loading and unloading of cargo In general, the person liable for demur-rage is the one who assumed the duty to unload
or load the cargo but failed to fulfill it A consignee who agrees to unload a shipment but unreasonably delays in doing so is liable for the charge
Payment of demurrage is excused only if the delay was unavoidable, such as a delay caused
by a natural disaster or the fault of the carrier
Reciprocal demurrage may be imposed upon a carrier who unreasonably delays in providing transportation to customers The practical effect
of reciprocal demurrage is a reduction in the customer’s shipping charges unless the contrac-tual amount exceeds that figure If a person against whom demurrage is imposed fails to pay, the carrier might have a right to keep the goods until payment is made This is known as
DEMURRAGE 421
Trang 5demurrage lien, enforceable only if authorized
by statute, contract, or custom
CROSS REFERENCE Shipping Law.
DEMURRER
An assertion by the defendant that although the facts alleged by the plaintiff in the complaint may
be true, they do not entitle the plaintiff to prevail
in the lawsuit
The pleadings of the parties to a lawsuit describe the dispute to be resolved ThePLAINTIFF
sets out the facts that support the claim made
in the complaint, and the DEFENDANT then has
an opportunity to respond in an answer
A demurrer is a type of answer used in systems ofCODE PLEADING, established by statute
to replace the earlier common-law FORMS OF ACTION Whereas a demurrer admits the truth of the plaintiff’s set of facts, it contends that those facts are insufficient to grant the complaint in favor of the plaintiff A demurrer may further contend that the complaint does not set forth enough facts to justify legal relief or it may introduce additional facts that defeat the legal effectiveness of the plaintiff’s complaint A demurrer asserts that, even if the plaintiff’s facts are correct, the defendant should not have
to answer them or proceed with the case
Under the modern rules of pleading estab-lished by the rules of federalCIVIL PROCEDUREand followed in a number of states, the demurrer has been abolished as a formal type of answer
The same argument against the plaintiff’sCAUSE
OF ACTIONcan be, however, made by motion to dismiss the plaintiff’s action on the ground that
he or she has failed to state a claim on which relief can be granted Even where the formal demurrer is no longer used, lawyers and judges often use the old term for an argument of the same type
DENY
To refuse to acknowledge something; to disclaim connection with or responsibility for an action or statement To deny someone of a legal right is to deprive him or her of that right
A denial is a part of a legal pleading that refutes the facts set forth by the opposing side
A general denial takes exception to all the material elements of the complaint or petition,
and a specific denial addresses a particularalle-gation in issue
DEPARTMENT OF…
See specific department; e.g.,EDUCATION DEPART-MENT
DEPENDENT
A person whose support and maintenance is con-tingent upon the aid of another Conditional
A dependent is someone who is sustained
by another person, such as a child supported by his or her parents
In an insurance policy, the term legal de-pendent generally includes all of those people whom the insured person is under a legal duty to support, such as a spouse and minor children A lawful dependent includes someone whom an insured person is permitted, but not required, to support
That which is dependent is conditional upon the occurrence of another event A depen-dent contract is an agreement between two parties that is conditional upon another agreement For example, one person agrees to deliver goods
to another person only after that person con-tracts to purchase such goods from the first person only for a certain designated period
DEPENDENT RELATIVE REVOCATION The doctrine that regards as mutually interrelated the acts of a testator destroying a will and executing
a second will In such cases, if the second will is either never made or improperly executed, there is
a rebuttable presumption that the testator would have preferred the former will to no will at all, which allows the possibility of probate of the destroyed will
Some jurisdictions decline to apply the doctrine of DEPENDENT RELATIVE REVOCATION to cases to eliminate a written revocation of a will, but apply it to declare the ineffectiveness of
a physical act of revocation The justification for the distinction is that the physical act is inherently equivocal The court has the power
to interpret the ambiguous act to ascertain what theTESTATORdid but not to disregard an express statement of the testator and substitute its own conception of what the testator should have done The doctrine of dependent relative revoca-tion contravenes the strict interpretarevoca-tion of and
422 DEMURRER
Trang 6demand for rigid adherence to the specific
language of the statutes concerning the
execu-tion and revocaexecu-tion of wills and the theory of
thePAROL EVIDENCErule In deciding whether to
apply the doctrine, the court considers the
TESTAMENTARYpattern of the decedent, the terms
of the prior wills, the respective identities and
shares of the beneficiaries under the previous
will and the new will in question, the nature of
the defect that prevents the new will from taking
effect, the trustworthiness of the proof of the
reasons for the testator’s desire to make the
desired objective to the former testamentary
plans as contrasted to the application of the laws
ofDESCENT AND DISTRIBUTION The court will not
execute a new will, but it will eradicate
revoca-tions to infuse new life into a prior will that
achieves the same objective
DEPENDENT STATES
States can be classified into two general
catego-ries: dependent and independent A dependent
state does not exercise the full range of power
over external affairs that an independent state
possesses underINTERNATIONAL LAW The
control-ling or protecting state may also regulate some of
the internal affairs of the dependent state Formal
treaties and the conditions under which the status
of dependency has been recognized by other
states govern the balance of sovereign powers
exercised by the protecting state and the
depen-dent state Various terms have been used to
describe different types ofDEPENDENT STATES, such
as condominium, mandate, PROTECTORATE, and
vassal state Since 1945 there has been strong
international pressure to eliminate forms of
dependency associated with colonialism
DEPLETION ALLOWANCE
A tax deduction authorized by federal law for the
exhaustion of oil and gas wells, mines, timber, mineral
deposits or reserves, and other natural deposits
Frequently, the ownership of such resources
is split so that the depletion deduction is allotted
among the various owners Rights to royalty
payments, leases, and subleases are not the
same as ownership but the holders of such rights
may be entitled to depletion deductions under
the theory of“economic interest” formulated by
the courts to ascertain the right to depletion
allowances Such economic interest, which
signifies an investment interest in the minerals
that furnish the sole resource for recouping the
investment, is usually determined by the parties according to the provisions of their contract
The cost method and the percentage, or statutory, method represent the two ways of calculating theDEPLETION ALLOWANCE
Cost depletion, like depreciation, bases the allowance on the original cost of the income-generating property For example, a taxpayer who purchases rights to extricate oil for $2 million should be permitted to regain the capital tax-free when he or she extracts and markets the oil The earnings from the deplet-able property should be viewed as encompass-ing a return of the taxpayer’s capital investment
A proportionate segment of such receipts each year should be exempt from TAXATION as income When oil is viewed as a“wasting asset,”
cost depletion permits yearly deductions for the receipt of $2 million tax-free over the duration of the pumping operations The tax law permits the taxpayer to divide the cost of the investment by the estimated total of recoverable units in the natural deposit This cost per unit is subsequently multiplied by the number of units sold annually, which results in the depletion deduction permitted for that year
The percentage, or statutory, method does not employ recovery of cost in the computa-tion of the deduccomputa-tion A percentage of annual income, rather than cost, is deductible each year, even if the owner has recovered all cost or discovery value of the depletable asset The federal tax laws vary from year to year in regard
to the percentage depletion allowable for oil and some other deposits, and the categories of producers entitled to such allowances
Federal law allows the owners of mining operations, such as this copper mine in southeastern Arizonia, to claim a tax deduction upon the depletion of the mine’s natural deposits.
AP IMAGES
DEPLETION ALLOWANCE 423
Trang 7Percentage depletion, which applies to other mineral deposits or energy sources such as geothermal steam, provides an extremely profit-able allowance as an alternative to cost depletion
The taxpayer calculates a fixed percentage of his
or her gross income and deducts that amount from gross income annually for as long as the property generates income, even after he or she has completely recovered the actual cost Some taxpayers employ cost depletion at the outset of operations, when a large number of units of the deposit are extracted and sold, and then convert
to percentage depletion uponRECOUPMENTof cost
in other circumstances—when percentage deple-tion yields a more sizable deducdeple-tion
Percentage depletion furnishes an additional tax subsidy to detection, development, and dissi-pation of qualified reserves The subsidy approach began duringWORLD WAR Ito induce exploration for minerals Cost depletion had been expanded to permit discovery value rather than cost to serve as the gauge of tax-exempt recovery A problem in estimating the quantity of depletable units prior to extraction existed, however, and percentage deple-tion was enacted in 1924 as the soludeple-tion This method was sub-sequently extended to include additional minerals and other deposits and to raise rates of depletion in some instances It was eventually diminished due to excessive profits and tax benefits obtained by some companies Only depletion, rather than percentage depletion, may
be used for gas, water, soil, timber, and oil
For percentage depletion, gross income must
be restricted to income from extracting and selling the deposit, not from refining, processing, or manufacturing it
The option to deduct present exploration and development expenditures rather than capitalizing them represents an additional tax advantage for the industries entitled to depletion allowances A more substantial tax benefit ensues if such expenses are deducted immediately, since they would never
be recovered through the application of percentage depletion, which is based on gross income and not the cost of the capital invested in the enterprise
CROSS REFERENCES Income Tax; Mine and Mineral Law.
DEPONENT
An individual who, under oath or affirmation, gives out-of-court testimony in a deposition A deponent is someone who gives evidence or acts as
a witness The testimony of a deponent is written and carries the deponent’s signature
DEPORTATION Banishment to a foreign country, attended with confiscation of property and deprivation of CIVIL RIGHTS
The transfer of an alien, by exclusion or expulsion, from the United States to a foreign country The removal or sending back of an alien
to the country from which he or she came because his or her presence is deemed inconsistent with the public welfare, and without any punishment being imposed or contemplated The grounds for depor-tation are set forth at 8 U.S.C.A § 1251, and the procedures are provided for in §§ 1252–1254
To further clarify deportation, the U.S Su-preme Court, in Zadvydas v Davis, 533 U.S 678,
121 S.Ct.2491, 150 L.Ed.2d 653 (2001), ruled that
ALIENSwho are under investigation cannot be held indefinitely This would be in violation of the Due Process Clause of the FIFTH AMENDMENT of the federal Constitution Moreover, the Court estab-lished a maximum six-month detention period At that point the alien must provide information as to why removal to the country of origin is not likely
in the foreseeable future For example, in this case, Kestutis Zadvydas was born to Lithuanian parents who were held in a German displaced persons camp; both Lithuania and Germany refused to accept him into their countries because he was not a citizen If the government cannotREBUTthis information, the alien must be released from confinement Finally, the Court declared that the federal courts are the proper place to review issues
of deportation, rejecting the government’s claim that IMMIGRATION is strictly the province of the executive branch
Following the September 11, 2001, terrorist attacks on the United States, Congress created the USA PATRIOT Act, Pub.L No 107-56, 115 Stat 272 (2001) The law deals with various means of combating TERRORISM and includes provisions that authorize the deportation of individuals who provide lawful assistance to any group that provides assistance to terrorists Accused persons must convince the government that they did not know their contributions were being used for terrorist activities
FURTHER READINGS Cole, David, and Jack X Dempsey 2006 Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security New York: New Press.
424 DEPONENT
Trang 8“Deportation from the United States.” 2009 U.S
Immigra-tion Support Web site Available online at http://www.
usimmigrationsupport.org/deportation.html; website
home page: http://www.usimmigrationsupport.org
(ac-cessed September 1, 2009).
Ngai, Mae M 2003 “The Strange Career of the Illegal Alien:
Immigration Restriction and Deportation Policy in the
United States, 1921–1965.” Law and History Review 21, no.
1 (spring) Available online at
http://www.historycoopera-tive.org/journals/lhr/21.1/ngai.html (accessedJuly19,2009).
DEPOSE
To make a deposition; to give evidence in the
shape of a deposition; to make statements that are
written down and sworn to; to give testimony that
is reduced to writing by a duly qualified officer
and sworn to by the deponent
To deprive an individual of a public
employ-ment or office against his or her will The term is
usually applied to the deprivation of all authority
of a sovereign
In ancient usage, to testify as a witness; to give
evidence under oath
DEPOSITION
The testimony of a party or witness in a civil or
criminal proceeding taken before trial, usually in
an attorney’s office
Deposition testimony is taken orally, with an
attorney asking questions and theDEPONENT (the
individual being questioned) answering while a
COURT REPORTER or tape recorder (or sometimes
both) records the testimony Deposition testimony
is generally taken under oath, and the court reporter
and the deponent often sign affidavits attesting to
the accuracy of the subsequent printedTRANSCRIPT
Depositions are a discovery tool (Discovery
is the process of assembling the testimonial
andDOCUMENTARY EVIDENCEin a case before trial.)
Other forms of discovery include
INTERROGATO-RIES (written questions that are provided to a
party and require written answers) and requests
for production of documents
Depositions are commonly used in civil
liti-gation (suits for money damages or equitable relief);
they are not commonly used in criminal
proceed-ings (actions by a government entity seeking fines
or imprisonment) A minority of states provide
for depositions in criminal matters under special
circumstances, such as to compel statements from
an uncooperative witness and a few provide for
depositions in criminal matters generally
Before a deposition takes place, the deponent
must be given adequate notice as to its time and
place Five days’ notice is usually sufficient, but local rules may vary Persons who are WITNESSES
but not parties to the lawsuit must also be served with a subpoena (a command to appear and give testimony, backed by the authority of the court)
Depositions commonly take place after the exchange of interrogatories and requests for production of documents, because the evidence obtained from the latter often provides founda-tion for the quesfounda-tions posed to the deponent Any documents, photographs, or other evidence referred to during the deposition is marked and numbered as exhibits for the deposition, and the court reporter attaches copies of these exhibits to the subsequent deposition transcript
Generally, at the outset of the deposition, the court reporter, who is often also aNOTARY PUBLIC, leads the deponent through an oath that the testimony that will be given will be true and correct
The examining attorney begins the deposi-tion and may ask the deponent a wide variety of questions Questions that could not be asked of
a witness in court because of doubts about their relevance or concerns about hearsay (statements
of a THIRD PARTY) are usually allowed in the deposition setting, because they might reason-ably lead to admissible statements or evidence
A party who refuses to answer a reasonable
Depositions, the pretrial testimonies
of parties or witnesses
in civil or criminal proceedings, are often recorded by a court reporter on a stenographic machine.
AP IMAGES
DEPOSITION 425
Trang 9question can be subject to a court order and sanctions However, a party may refuse to answer questions on the basis of privilege (aLEGAL RIGHT
not to testify) For example, statements made
to an attorney, psychiatrist, or physician by a client seeking professional services can remain confidential, and a client may assert a privil-ege against being required to disclose these statements
After the examining attorney’s questions are completed, the attorney representing the adverse party in the litigation is permitted to ask follow-up questions to clarify or emphasize the deponent’s testimony In litigation involving a number of represented parties, any other attor-ney present may also ask questions
The court reporter often records the proceed-ings in a deposition on a stenographic machine, which creates a phonetic and coded paper record as the parties speak Occasionally, an attorney or witness may ask the court reporter to read back a portion of previous testimony during the deposition
Most modern stenographic machines also write a text file directly to a computer diskette during the deposition In the past, arduous manual labor was required to turn the phonetic and coded paper copy into a complete hand-typed transcript This is now rarely necessary because sophisticated computer programs can create a transcript automatically from the text file on the diskette When the transcription is complete, copies are provided to the attorneys, and the deponent is given the opportunity to review the testimony and correct any typographic errors
The deposition, because it is taken with counsel present and under oath, becomes a significant evidentiary document Based upon the deposition testimony, motions for SUMMARY JUDGMENT or partial summary judgment as to some claims in the lawsuit may be brought
(Summary judgment allows a judge to find that one party to the lawsuit prevails without trial, if there are no disputed material facts and judgment must be rendered as a matter of law.)
If motions for summary judgment are denied and the case goes to trial, the deposition can
be used toIMPEACH(challenge) a party or witness who gives contradictory testimony on the
WITNESS STAND The advent of sophisticated and low-cost video technology has resulted in increased video recording of depositions Both sides must agree
to the video recording, through a signed agreement called a STIPULATION, and in some jurisdictions, the parties must also seek a court order
A video record of a deposition offers several advantages First, a video shows clearly the facial expressions and posture of the witnesses, which can clarify otherwise ambigu-ous statements Second, physical injuries such
as burns, scars, or limitations can easily be demonstrated Third, a video may have a greater effect on a jury if portions of the deposition are introduced at trial as evidence Finally, a video recording can serve as a more effective substi-tute for a party who cannot testify at trial, such
as an expert witness from another state or a witness who is too ill to be brought to the courtroom If a witness dies unexpectedly before trial, a videotaped deposition can be admitted
in lieu of live testimony because the deposi-tion was taken under oath and the opposing attorney had the opportunity to cross-examine the witness
Another advance in technology is the ability
to take depositions by telephone Telephonic depositions are allowed under the federal rules and are acceptable in most states The procedures for a telephonic deposition are the same as for a regular deposition, although it is preferable (and sometimes required) that the examining attorney state for the record that the deposition is being taken over the telephone A telephonic deposi-tion can occur with the attorneys and the deponent in three different sites; in any case, federal and state rules stipulate that the judicial district within which the deponent is located is the official site of the deposition
Another technology used for depositions is videoconferencing, where sound transmitters and receivers are combined with video cameras and monitors, allowing the attorneys and depo-nents to see each other as a deposition proceeds Videoconferencing makes the examination of exhibits easier and also helps reduce confusion among the participants that may result from ambiguous or unclear verbal responses
FURTHER READINGS Balabanian, David M 1987 “Medium v Tedium: Video Depositions Come of Age ” Litigation 7, no 1 (fall) Collins, Maureen B 2002 “Taking the Deposition (and Getting It Right) ” Illinois Bar Journal 90 (June) Malone, David M., and Peter T Hoffman 2001 The Effective Deposition: Techniques and Strategies That
426 DEPOSITION
Trang 10Work Notre Dame, IN: National Institute for Trial
Advocacy.
Martiniak, Chris 2002 How to Take and Defend Depositions.
3d ed Frederick, MD: Wolters Kluwer Law & Business.
McElhaney, James W 2003 “Deposition Goals: Develop a
Plan to Get What You ’re After from Witnesses in
Discovery.” ABA Journal 89 (August).
Montoya, Jean 1995 “A Theory of Compulsory Process
Clause Discovery Rights.” Indiana Law Journal 70.
Practising Law Institute 2009 Taking and Defending
Deposi-tions New York: Practising Law Institute/Litigation.
DEPOSITORY
The place where a deposit is placed and kept, e.g.,
a bank, savings and loan institution, credit union,
or trust company A place where something is
deposited or stored as for safekeeping or
conve-nience, e.g., a safety deposit box
This term should not be confused with
depositary, which is the person or institution
taking responsibility for the deposit, rather than
the place itself
U.S depositories are banks selected and
designated to receive deposits of the public funds
(e.g., taxes) of the United States
DEPOSITS IN COURT
The payments of funds or property to an officer
of the court as a precautionary measure during
the pendency of litigation
The amount placed with the court
consti-tutes the acknowledged liability of a person who
is uncertain as to whom he or she is liable The
ascertainment of the court as to who is entitled
to the property is binding
This term also encompasses payment into
court pursuant to court order
DEPRECIATION
The gradual decline in the financial value of
property used to produce income due to its
increasing age and eventual obsolescence, which
is measured by a formula that takes into account
these factors in addition to the cost of the property
and its estimated useful life
Depreciation is a concept used in
account-ing to measure the decline in an asset’s value
spread over the asset’s economic life
Deprecia-tion allows for future investment that is required
to replace used-up assets In addition, the U.S
INTERNAL REVENUE SERVICE allows a reasonable
deduction for depreciation as a business
ex-pense in determining taxable net income This
deduction is used only for property that generates income For example, a building used for rent income can be depreciated, but a building used
as a residence cannot be depreciated
Depreciation arises from a strong PUBLIC POLICYin favor of investment Income-producing assets such as machines, trucks, tools, and structures have a limited useful life—that is, they wear out and grow obsolete while generat-ing income In effect, a taxpayer usgenerat-ing such assets
in business is gradually selling those assets To encourage continued investment, part of the gross income should be seen as a return on a capital expenditure, and not as profit Accord-ingly, tax law has developed to separate the return of capital amounts from net income
Generally, depreciation covers deterioration from use, age, and exposure to the elements
An asset likely to become obsolete, such as a computer system, can also be depreciated An asset that is damaged or destroyed by fire, accident, or disaster cannot be depreciated An asset that is used in one year cannot be depre-ciated; instead, the loss on such an asset may be written off as a business expense
Several methods are used for depreciating income-producing business assets The most common and simplest is the straight-line method
STRAIGHT-LINE DEPRECIATION is figured by first taking the original cost of an asset and subtract-ing the estimated value of the asset at the end of its useful life, to arrive at the depreciable basis
Then, to determine the annual depreciation for the asset, the depreciable basis is divided by the estimated life span of the asset For example, if a manufacturing machine costs $1,200 and is expected to be worth $200 at the end of its useful life, its depreciable basis is $1,000 If the useful life span of the machine is 10 years, the depreciation each year is $100 ($1,000 divided by 10 years)
Thus, $100 can be deducted from the business’s taxable net income each year for 10 years
Accelerated depreciation provides a larger tax write-off for the early years of an asset
Various methods are used to accelerate depre-ciation One method, called declining-balance depreciation, is calculated by deducting a per-centage up to two times higher than that recognized by the straight-line method, and applying that percentage to the undepreciated balance at the start of each tax period For the manufacturing machine example, the business could deduct up to $200 (20 percent of $1,000)
DEPRECIATION 427