Members of Congress challenged the law as an unconsti-tutional surrender of Article I congressional power that jeopardized the SEPARATION OF POWERS, but the SUPREME COURT refused to hear
Trang 1forces into hostilities Nevertheless, the practical effect of the statute is somewhat limited because it recognizes the power of the president
to unilaterally deploy military forces when necessary
As the head of the executive branch, the president executes the law but does not legislate, although he submits budgets and may propose bills to Congress The president’s legislative power is limited to approving or disapproving bills passed by Congress If the president approves a measure, it becomes law If he vetoes the bill, or refuses to approve it, it goes back to either the HOUSE OF REPRESENTATIVES or theSENATE(wherever the bill first originated) If both bodies then pass the bill again by a two-thirds margin, the VETO has been overridden, and the president must sign it into law
In 1996 Congress sought to give the president more control over the budget by passing a line-item veto law (2 U.S.C.A § 691 [1996]) Under the law, the president could veto portions of an APPROPRIATION bill while leaving the remainder of the legislation intact Members
of Congress challenged the law as an unconsti-tutional surrender of Article I congressional power that jeopardized the SEPARATION OF POWERS, but the SUPREME COURT refused to hear the case until the veto was actually used After President Clinton used the line-time veto, several entities that lost federal funds because
of the veto filed a federal lawsuit The Supreme Court, in Clinton v City of New York, 524 U.S
417, 118 S Ct 2091, 141 L Ed 2d 393 (1998), struck down the law The law allowed the
president to effectively amend or repeal acts of Congress, but this action was not authorized by the Constitution The only way for the president
to obtain this power would be through the passage of aCONSTITUTIONAL AMENDMENT The president’s executive powers also in-clude the authority to issue proclamations and executive orders A proclamation is a general announcement of policy, whereas anEXECUTIVE ORDERhas the force and effect of law by carrying out a provision of the Constitution, a federal statute, or a treaty For instance, duringWORLD WAR II, PresidentFRANKLIN D.ROOSEVELTissued an executive order confining Japanese American citizens to camps following the bombing of Pearl Harbor
The president has the exclusive authority to represent the United States in its relationships with governments of other countries Through the SECRETARY OF STATE and other officials, the president communicates with other nations, recognizes foreign governments, and makes agreements, including the negotiation of trea-ties Treaties, however, must be approved by two-thirds of the Senate before taking effect Executive agreements with other nations do not require Senate approval but still carry the force
of law For instance, the United States, through the president, has frequently entered into executive agreements to supply economic aid
to other nations
The administration of President GEORGE W
BUSHadhered in part to a theory known as the
“unitary executive.” This theory was advocated
by John Yoo, a law professor and former official
in theDEPARTMENT OF JUSTICE Under this theory, the president has the authority to fire certain executive branch officials, including INDEPEN-DENT COUNSEL In a broader form, the unitary executive theory would allow the president to exercise broad authority during wartime with-out checks from the other two branches of government
In domestic matters, the president is advised
by the cabinet, which consists of more than a dozen executive departments covering a wide range of areas, including commerce, housing, labor, and the treasury Each department is headed by a secretary, who is responsible for its overall administration and for reporting to the president
Should the president be unable to serve
a full term, Article II and the TWENTY-FIFTH
The official seal of the
office of the President
of the United States.
AP IMAGES
Trang 2AMENDMENT to the Constitution provide for a
line of succession If the president dies, resigns,
or is removed from office through the
IMPEACH-MENT process, the vice president becomes the
acting president This transfer of power also
occurs if the president informs both houses of
Congress that he is temporarily unable to
discharge the duties of president The House
of Representatives can IMPEACH a president or
indict him for TREASON, BRIBERY, or other HIGH
CRIMES AND MISDEMEANORS If the House votes to
impeach, the president is not automatically
removed from office; impeachment is instead a
formal charge accusing the president of a crime
The articles, or charges, of impeachment are
submitted to the Senate, where the president is
tried, with the chief justice of the U.S Supreme
Court presiding over the proceeding A
two-thirds vote in the Senate is needed for a
conviction and the removal of the president
from office ANDREW JOHNSONwas impeached in
1868 and then was acquitted by only one vote
In 1974 the House Judiciary Committee voted
to impeach RICHARD M NIXON, but he resigned
from office before the entire House could vote
on the matter The House of Representatives
passed a bill of impeachment against President
BILL CLINTON, but the Senate acquitted him of the
charges in 1999
The Supreme Court has ruled that the
president has absolute IMMUNITY from civil
lawsuits seeking damages for presidential
actions However, the Court ruled in Clinton
v Jones, 520 U.S 681, 117 S Ct 1636, 137 L
Ed 2d 945 (1997), that a sitting president does
not have presidential immunity from suit over
conduct unrelated to his official duties The
holding came in a civil suit brought by Paula
Corbin Jones against President Clinton Jones’s
suit was based on conduct alleged to have
occurred while Clinton was governor of
Arkansas Clinton had sought to postpone the
lawsuit until after he left office
The Court stated that it had never suggested
that the president or any other public official
has an immunity that “extends beyond the
scope of any action taken in an official
capacity.” It has based its immunity doctrine
on a functional approach, extending immunity
only to “acts in performance of particular
functions of his office.” It also rejected Clinton’s
claim that the courts would violate the
separa-tion of powers between the executive and
judicial branches if a court heard the suit
Finally, the Court rejected the president’s contention that defending the lawsuit would impose unacceptable burdens on the president’s time and energy It seemed unlikely to the Court that President Clinton would have to be occupied with the Jones lawsuit for any substantial amount of time The Court also expressed skepticism that denying immunity to the president would generate a “deluge of such litigation.” In the history of the presidency, only three other presidents had been subject to civil damage suits for actions taken prior to holding office
FURTHER READINGS Brinkley, Alan, and Davis Dyer, eds 2004 The American Presidency Boston: Houghton Mifflin.
Milkis, Sidney M 2003 The American Presidency: Origins and Development, 1776–2002 4th ed Washington, D.C.: CQ Press.
Nelson, Michael, ed 2003 The Presidency A to Z 3d ed.
Washington, D.C.: CQ Press.
Schroeder, Christopher H., and Curtis A Bradley, eds 2009.
Presidential Power Stories New York: Foundation Press.
Will, George F., and George R Stephanopoulos 2001 “The Power of the Presidency ” Northern Kentucky Law Review 28 (summer).
CROSS REFERENCES Constitution of the United States; Electoral College;
Executive Privilege; Impeachment; Presidential Powers;
Separation of Powers; Watergate.
PRESIDENTIAL POWERS The executive authority given to the president of the United States by Article II of the Constitution
to carry out the duties of the office
Article II, Section 1, of the Constitution provides that the “executive power shall be vested in a President of the United States,”
making the president the head of the executive branch of the federal government Sections 2 and 3 enumerate specific powers granted to the president, which include the authority to appoint judges, ambassadors, and other high-ranking government officials; VETO legislation;
call Congress into special session; grant par-dons; issue proclamations and orders; adminis-ter the law; and serve as commander in chief of the armed forces
Article II gives the president the authority to recommend measures for congressional consid-eration Pursuant to this authority, presidents submit budgets, propose bills, and recommend other action to be taken by Congress
Trang 3Breadth of Presidential Power
Courts have long established that the breath of the president’s power depends to some degree
on congressional authorization or delegation of authority In Youngstown Sheet & Tube Co v
Sawyer, 343 U.S 579, 72 S Ct 863, 96 L Ed
1153 (1952), theSUPREME COURTidentified three principles related to the president’s power First,
“[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate .” Second, “[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which
he and Congress may have concurrent author-ity, or in which its distribution is uncertain.” In such a circumstance, the president can derive authority from Congress’ lack of action And third, “when the President takes measures incompatible with the expressed or implied will
of Congress, his power is at its lowest ebb,” and the Court can sustain his actions “only by disabling the Congress from acting upon the subject.”
Veto Power
Under Article I, Section 7, of the Constitution,
“every bill” and “every order, resolution or vote
to which the concurrence of the SENATE and
HOUSE OF REPRESENTATIVES may be necessary”
must be presented to the president for approval
This“presentment” requirement does not apply
to constitutional amendments, procedural rules
of each house, and several other types of legislative action
Under the Constitution, the president has ten days (not counting Sundays) in which to consider legislation presented for approval The president has three options: sign the bill, making it law; veto the bill; or take no action
on the bill during the ten-day period If the president vetoes the bill, it can be overridden by
a two-thirds majority of both houses of Congress If the president takes no action, the bill automatically becomes law after ten days However, if Congress adjourns before the ten days have expired, and the president has not signed the bill, it is said to have been subjected
to the pocket veto, which differs from a regular veto in that the pocket veto cannot be overridden by Congress
In 1996, Congress gave the president the authority to select particular items from
APPROPRIATION bills and individually veto them The federal line-item veto authority (2 U.S.C.A §§ 691 & 692) gave the president the ability to impose cuts on the federal budget without vetoing a bill in its entirety The line-item veto, like a regular veto, could be overrid-den by a two-thirds majority vote of both houses
Five members of Congress immediately challenged this law as a violation ofSEPARATION
OF POWERS They argued that the line-item veto disrupted the historic balance of powers between the legislative and executive branches and that it violated Article I, Section 7 The Supreme Court, in Raines v Byrd, 521 U.S
811, 122 S.Ct 1700, 152 L.Ed.2d 771 (1997), refused to hear the case and dismissed it for lack of jurisdiction The Court held that the legislators lacked legal standing to bring the lawsuit because they could show no PERSONAL INJURYfrom the new power
The constitutionality of the line-item veto act was finally adjudicated in Clinton v City of New York, 524 U.S 417, 118 S.Ct 2091, 141 L.Ed.2d 393 (1998) The Supreme Court ruled that the law was unconstitutional because it violated the Constitution’s Presentment Clause Under the Presentment Clause (Article I, Section 7), after a bill has passed both Houses, but “before it become[s] a Law,” it must be presented to the president, who“shall sign it” if
he approves it, but“return it,”(“veto” it) if he does not Nothing in this clause authorized the president to amend or repeal a bill
President Barack
Obama executes his
presidential powers in
signing an executive
order forming the
Economic Recovery
Advisory Board.
AP IMAGES
Trang 4The veto gives the president enormous
power to influence the writing of legislation
By threatening a veto before legislation is
passed, the president can force Congress to
compromise and pass amendments it would
otherwise find unacceptable
Executive Orders
The president’s executive powers also include
the authority to issue proclamations and
executive orders A proclamation is the
pre-sident’s official announcement that the
presi-dent is taking a particular action Such an
announcement is not the same as an EXECUTIVE
ORDER, which has the force and effect of law by
carrying out a provision of the Constitution, a
federal statute, or a treaty The Constitution
does not expressly give the president the power
to promulgate executive orders Instead, this
power has been inferred from the president’s
obligation to faithfully execute the laws
Pro-clamations and executive orders are published
in the Federal Register to notify the country of
presidential actions
Powers of Appointment
The president has the power to appoint
ambassadors, cabinet officers, and federal
judges, subject to confirmation by a majority
vote of the Senate Upper-level executive branch
officials are appointed solely at the discretion of
the president or department head without
Senate review The power to appoint federal
judges gives a president the opportunity to place
on the federal bench for lifelong terms persons
who agree with the president’s views on law and
the role of the judicial system A president is
limited to serving two elected terms in office
A federal judge may serve for decades
Pardon Power
The president is given the power under the
Constitution to“grant reprieves and pardons for
offenses against the United States, except in cases
of impeachment.” The president may grant a full
pardon to a person accused or convicted of a
federal crime, thus releasing the person from any
punishment and restoring her or hisCIVIL RIGHTS
The president may also issue conditional pardons
that forgive the convicted person in part, reduce
a penalty by a specified number of years, or
modify a penalty with conditions
A pardon is generally a private transaction
bet-ween the president and an individual However,
in 1977, President JIMMY CARTER granted an
AMNESTY that was, in effect, a blanket pardon to those who were either deserters or draft evaders during theVIETNAM WAR
Power of Impoundment
Presidential IMPOUNDMENT is the refusal of the chief executive to expend funds appropriated by Congress THOMAS JEFFERSON was the first presi-dent to impound funds, and many other presidents have followed suit Congress has granted the president the authority not to spend funds if it has appropriated more funds than necessary to reach its goals However, the president does not have a limitless impound-ment power The U.S Supreme Court, in Train v
City of New York, 420 U.S 35, 95 S Ct 839, 43 L
Ed 2d 1 (1975), ruled that PresidentRICHARD M
NIXON could not order the impoundment of substantial amounts of environmental protection funds for a program he vetoed, which had been overridden by Congress The president cannot frustrate the will of Congress by killing a program through impoundment
Foreign Policy Powers
The president or his designated representative, such as the SECRETARY OF STATE, has the exclusive authority to communicate with other nations, recognize foreign governments, re-ceive ambassadors, and make executive agree-ments Throughout U.S history, Congress and the courts have granted the president great deference in conducting foreign policy This deference is based, in part, on the need for one person, rather than 535 members of Congress, to represent and speak for a national constituency
These powers were illustrated in the after-math of the SEPTEMBER 11, 2001, TERRORIST ATTACKS on New York City and Washington, D.C President GEORGE W BUSH warned the Taliban government of Afghanistan to surren-der Osama bin Laden and other terrorists or face the possibility of war In the months leading up to the March 2003 invasion of Iraq, President Bush, Secretary of State Colin Powell, and other representatives lobbied the UNITED NATIONSfor support of the U.S position on Iraq
Although Congress never formally declared war,
it authorized the military engagement in Iraq
In addition to the authority to recognize foreign governments, the president is empow-ered by Article II to make treaties with foreign
Trang 5nations, subject to the consent of the Senate A treaty is an agreement between two or more nations containing promises to behave in specified ways
Executive agreements are international compacts that the president makes with foreign nations without the approval of the Senate
They do not have the same legal status as treaties unless they are subsequently ratified by the Senate The Constitution does not expressly give the president the power to make executive agreements However, this power has been inferred from the president’s general constitu-tional authority over foreign affairs At one time, executive agreements involved minor matters, such as postal relations and the use
of radio frequencies Since the 1930s, however, presidents have negotiated important foreign policy issues through these agreements rather than through treaties The Supreme Court has recognized that an executive agreement is legally equivalent to a treaty and therefore the supreme law of the land Executive agreements enable the president to achieve results while avoiding the uncertainty of treatyRATIFICATION
Presidential War Powers
An integral part of the president’s foreign policy role is the enormous power of the U.S armed forces, over which the Constitution makes the president commander in chief The president may threaten a foreign nation with force or actually conduct military actions to protect U.S
interests, aid U.S allies, and maintain national security
Although the president is commander in chief, Article I of the Constitution gives Congress the power to declare war Despite this apparent constitutional impediment, presidents since Thomas Jefferson have dispatched troops to combat situations without the prior approval of Congress The Supreme Court held in the Prize cases, 67 U.S 635, 17 L Ed 459; 70 U.S 451, 18
L Ed 197; 70 U.S 514, 18 L Ed 200; 70 U.S
559, 18 L Ed 220 (1863), that the president has the authority to resist force without the need for special legislative action
In times of crisis, the president has the power to commit U.S forces, but the Vietnam War led Congress to place limits on the presidential war power The War Powers Resolution of 1973 (50 U.S.C.A §§ 1541 et seq.) restricts the president’s power to mobilize the
military during undeclared war It requires the president to make a full report to Congress when sending troops into foreign areas, limits the duration of troop commitment without congres-sional authorization, and provides a veto mecha-nism that allows Congress to force a recall of troops at any time
Following the September 11 terrorist attacks
on the United States, Congress passed a resolution authorizing the president to use force
to fight a WAR ON TERRORISM President George
W Bush issued military orders in October and November 2001 that mobilizedNATIONAL GUARD
and Army Reserve units and directed the detention of enemy combatants by the military
In a controversial move, President Bush autho-rized military tribunals to try suspected terror-ists After the U.S invasion of Afghanistan, many suspected terrorists were captured and moved to military prisons for indefinite terms
of detention The invasion of Iraq by U.S forces
in March 2003 was authorized by Congress in the fall of 2002, again giving the president as commander in chief broad authority to conduct
a military campaign As theIRAQ WARcontinued, Congress continued to have a role by approving appropriations requests related to the U.S military presence in Iraq
The president also has broad powers over domestic policy during wartime President
ABRAHAM LINCOLN issued an order to military commanders suspending HABEAS CORPUS during the Civil War, which allowed the military to arrest and detain persons without trial for an indefinite time Congress later passed a law suspending habeas corpus, but after the Civil War, the Supreme Court, in Ex Parte Milligan,
71 U.S 2, 18 L Ed 281 (1866), condemned Lincoln’s directive establishing military jurisdic-tion over civilians outside the immediate war zone
During the early days of U.S involvement in
WORLD WAR II, President FRANKLIN D ROOSEVELT
issued orders authorizing the establishment of
“military areas” from which dangerous persons could be expelled or excluded This order was used to designate the West Coast as a military area and to remove and imprison 120,000 Japanese Americans in“relocation centers” for the duration of the war The Supreme Court upheld the relocation order in Korematsu v United States, 323 U.S 214, 65 S Ct 193, 89 L
Ed 194 (1944), finding that the government
Trang 6had a compelling national security interest
during a time of war to take such extreme
measures
Following the September 11 attacks on
the United States, Congress passed the USA
PATRIOT ACT, which gives the president increased
powers to wiretap suspected terrorists without
judicial supervision as well as the power to
indefinitely detainALIENSwho are suspected of
TERRORISM U.S citizens who have been held as
enemy combatants in military prisons without
the right to consult with an attorney or have a
criminal trial have challenged the president’s
authority
The Bush administration’s decisions
regard-ing detainees at Guantanamo Bay, Cuba was
controversial both during and after Bush’s
terms in office Bush signed an executive order
in 2001 allowing the military to detain any
non-U.S citizen believed to be involved in terrorist
activities As early as 2002, prisoners captured in
Afghanistan were moved to the Guantanamo
Bay detention camp In Hamdi v Rumsfeld, 316
F.3d 450 (4th Cir 2003), the U.S Court of
Appeals for the Fourth Circuit held that the
courts must defer to the president when
conaidering issues of national security
The Supreme Court, however, limited the
president’s prerogative regarding these
deten-tions In Hamdi v Rumsfeld, 542 U.S 507, 124
S Ct 2633, 159 L Ed 2d 578 (2004), the Court
reversed the Fourth Circuit, holding that a U.S
citizen being held as an ENEMY COMBATANTwas
entitled to contest the factual basis for his
detention Later, in Hamdan v Rumsfeld, 548
U.S 557, 126 S Ct 2749, 165 L Ed 2d 723
(2006), the Court ruled that the administration
lacked the authority to establish military
commissions to try the detainees The
adminis-tration did not have congressional
authoriza-tion, and the Court concluded that the
commissions failed to comply either with the
UNIFORM CODE OF MILITARY JUSTICE or the Geneva
Convention
Bush also sought broader authority to fight
terrorism within the United States Beginning in
about 2002, he authorized the National Security
Agency to conduct warrantless WIRETAPPING to
listen to the private communications of U.S
citizens The New York Times ran a story about
the program, leading to criticism Bush
defended the action as being consistent with
inherent powers found in Article II Congress
formally approved the wiretapping practice
by enacting the Protect America Act of 2007, Pub L No 110-55, 121 Stat 552
FURTHER READINGS Neustadt, Richard E 1990 Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan New York: Free Press.
Parmet, Herbert S 2002 Presidential Power from the New Deal to the New Right Malabar, Fla.: Krieger.
Rozell, Mark J., ed 2002 Executive Privilege: Presidential Power, Secrecy, and Accountability 2d ed Lawrence:
Univ Press of Kansas.
Schroeder, Christopher H and Curtis A Bradley, eds 2009.
Presidential Power Stories New York: Foundation Press.
Shapiro, Robert Y., Martha Joynt Kumar, and Lawrence R.
Jacobs, eds 2000 Presidential Power New York:
Columbia Univ Press.
CROSS REFERENCES Congress of the United States; Constitution of the United States; Executive Privilege; Japanese American Evacuation Cases; President of the United States; Separation of Powers
PRESS, FREEDOM OF See FREEDOM OF THE PRESS
PRESUMPTION
A conclusion made as to the existence or nonexistence of a fact that must be drawn from other evidence that is admitted and proven to be true ARULE OF LAW
If certain facts are established, a judge or jury must assume another fact that the law recognizes as a logical conclusion from the proof that has been introduced A presumption differs from an inference, which is a conclusion that a judge or jury may draw from the proof of certain facts if such facts would lead a reason-able person of average intelligence to reach the same conclusion
A conclusive presumption is one in which the proof of certain facts makes the existence of the assumed fact beyond dispute The pre-sumption cannot be rebutted or contradicted
by evidence to the contrary For example, a child younger than seven is presumed to be incapable of committing a felony There are very few conclusive presumptions because they are considered to be a substantive rule of law,
as opposed to a rule of evidence
A rebuttable presumption is one that can be disproved by evidence to the contrary The
FEDERAL RULES OF EVIDENCE and most state rules
Trang 7are concerned only with rebuttable presump-tions, not conclusive presumptions
PRESUMPTION OF INNOCENCE Presumption of innocence is a principle that requires the government to prove the guilt of a criminal defendant and relieves the defendant of any burden to prove his or her innocence
The presumption of innocence, an old tenet
of CRIMINAL LAW, is actually a misnomer
According to the U.S SUPREME COURT, the presumption of the innocence of a criminal
DEFENDANTis best described as an assumption of innocence that is indulged in the absence of contrary evidence (Taylor v Kentucky, 436 U.S
478, 98 S Ct 1930, 56 L Ed 2d 468[1978]) It
is not considered evidence of the defendant’s innocence, and it does not require that a mandatory inference favorable to the defendant
be drawn from any facts in evidence
In practice, the presumption of innocence
is animated by the requirement that the government prove the charges against the defendant BEYOND A REASONABLE DOUBT This
DUE PROCESS requirement, a fundamental tenet
of criminal law, is contained in statutes and judicial opinions The requirement that a person suspected of a crime be presumed innocent also is mandated in statutes and court opinions The two principles go together, but they can be separated
The Supreme Court has ruled that, under some circumstances, a court should issue jury instructions on the presumption of innocence
in addition to instructions on the requirement
of proof beyond a REASONABLE DOUBT (Taylor v
Kentucky 436 U S 478 [1978]) A presumption
of innocence instruction may be required if the jury is in danger of convicting the defendant on the basis of extraneous considerations rather than the facts of the case
The presumption of innocence principle supports the practice of releasing criminal defendants from jail prior to trial However, the government may detain some criminal defendants without bail through the end of trial The EIGHTH AMENDMENT to the U.S
Constitution states that excessive bail shall not
be required, but it is widely accepted that governments have the right to detain through trial a defendant of a serious crime who is
a flight risk or poses a danger to the public
In such cases the presumption of innocence is largely theoretical
Aside from the related requirement of proof beyond a reasonable doubt, the presumption
of innocence is largely symbolic The reality is that no defendant would face trial unless somebody—the crime victim, thePROSECUTOR, a police officer—believed that the defendant was guilty of a crime After the government has presented enough evidence to constitutePROBABLE CAUSEto believe that the defendant has commit-ted a crime, the accused need not be treacommit-ted as if
he or she was innocent of a crime, and the defendant may be jailed with the approval of the court
Nevertheless, the presumption of innocence
is essential to the criminal process The mere mention of the phrase presumed innocent keeps judges and juries focused on the ultimate issue at hand in a criminal case: whether the prosecution has proven beyond a reasonable doubt that the defendant committed the alleged acts The people of the United States have rejected the alternative to a presumption of innocence—a presumption of guilt—as being inquisitorial and contrary to the principles of a free society
In 48 states, a jury must unanimously agree about a defendant’s guilt in a felony trial However, two states follow different rules In Louisiana, a jury of 10 out of 12 jurors can reach
a verdict in a non-capital case Likewise, a jury
in Oregon can reach a verdict in a non-capital case with 10 votes In a non-capitalMURDERcase
in Oregon, 11 of the 12 jurors must agree
FURTHER READINGS LaFave, Wayne R 2003 Criminal Law 4th ed St Paul, Minn.: Thomson West.
Low, Peter W 2007 Criminal Law 3d ed St Paul, Minn.: Thomson West.
CROSS REFERENCES Criminal Procedure; Criminal Law; Inquisitorial System.
PRETERMITTED HEIR
A child or other descendent omitted from the will
of a testator
Modern laws concerning the inheritance of property attempt to protect the rightful heirs
A pretermitted heir is a child or descendant of the testator—the maker of a will—who has unintentionally been omitted from the will
Trang 8States have enacted “pretermitted heir statutes”
that protect these heirs
The presumption of these statutes is that the
testator must expressly disinherit a child or
descendant in his or her will This presumption
dates back to earlyROMAN LAW If the will does
not specify intention to disinherit, the law will
presume that the omission of the child or
descendant was unintentional These statutes
authorize the child or descendant to take the
same share of the estate that he or she would
have taken if the testator had died intestate,
without a will All states have fixed, objective
rules for dividing property when a person dies
without a will, which apply to the division of an
estate for pretermitted heirs
A pretermitted heir must be a child or
descendant either living at the date of the
execution of the will or born thereafter For
example, if John executes a will and his son Bob
is born a week later, Bob will be considered a
pretermitted heir unless John changes his will to
expressly disinherit Bob If Bob has a child and
dies before John, at John’s death the grandchild
will share in John’s estate, because he or she will
take Bob’s share
Some states have specific laws that deal with
a child born after the making of a will These
after-born heir statutes are similar to
pretermit-ted heir provisions The presumption is that an
AFTER-BORN CHILDdoes not revoke a will but has
the effect of modifying it
Louisiana and Puerto Rico protect children
and descendants in a different way These
jurisdictions, which come from a civil-law rather
than a common-law tradition, grant heirs an
indefeasible share This share is a certain portion
of the estate, usually expressed in a fixed dollar
amount, and a percentage of the decedent’s
estate
CROSS REFERENCE
Descent and Distribution.
PRETRIAL CONFERENCE
A meeting of the parties to an action and their
attorneys held before the court prior to the
commencement of actual courtroom proceedings
A pretrial conference is a meeting of the
parties to a case conducted prior to trial The
conference is held before the trial judge or a
magistrate, a judicial officer who possesses
fewer judicial powers than a judge A pretrial
conference may be held prior to trial in both civil and criminal cases A pretrial conference may be requested by a party to a case, or it may
be ordered by the court Generally, the term pretrial conference is used interchangeably with the term pretrial hearing
A pretrial conference may be conducted for several reasons: (1) expedite disposition of the case, (2) help the court establish managerial control over the case, (3) discourage wasteful pretrial activities, (4) improve the quality of the trial with thorough preparation, and (5) facili-tate a settlement of the case
Pretrial conferences are conducted in crimi-nal cases to decide matters that do not inquire into the defendant’s guilt or innocence Under rule 17.1 of the Federal Rules of Criminal Procedure, pretrial conferences for criminal cases may be conducted to promote a fair and expeditious trial In practice, federal and state courts use the pretrial conference in criminal cases to decide such preliminary matters as what evidence will be excluded from trial and what witnesses will be allowed to testify
In a civil pretrial conference, the judge or magistrate, with the help of the attorneys, may (1) formulate and simplify the issues in the case, (2) eliminate frivolous claims or defenses, (3) obtain admissions of fact and documents
to avoid unnecessary proof, (4) identify witnesses and documents, (5) make schedules for the submission of pretrial briefs and motions, (6) make rulings on motions submitted before the conference, (7) set dates for further con-ferences, (8) discuss the possibility of a settle-ment, and (9) discuss the consolidation or management of large, complex cases After the conference, the judge or magistrate issues an order reflecting the results of the conference, and the order controls the future course of the case
Generally, the substance of a pretrial confer-ence for a criminal case is the same as that for a civil case At the conference the judge or magistrate may make rulings on motions, elimi-nate repetitive evidence, and set schedules If a preliminary issue arises after the pretrial confer-ence, a party may request a special pretrial hearing with the court to address the issue (This special hearing marks the distinction between pretrial hearing and pretrial conference, when such a distinction is made.) In the alternative, the parties may address such an issue in court on the first day of trial, out of the presence of the jury
Trang 9All cases are guided by procedural rules that allow parties to obtain relevant evidence from other parties The process of turning over evidence is called discovery, and the rules that apply to obtaining evidence are called discovery rules In civil cases, discovery refers to the right
of either party to obtain evidence from the other, but in a criminal case, discovery generally refers to the right of the defendant’s attorney to have access to information necessary to prepare
a defense Discovery issues are a common topic
in pretrial conferences Discovery orders that were issued prior to a pretrial conference may be reviewed for compliance at a pretrial conference, and new discovery orders may be issued after a pretrial conference
Criminal defendants enjoy more procedural protections than do civil defendants, and the judge or magistrate must be careful to protect those rights Generally, no criminal defendant who has requested assistance of counsel may be required to attend a pretrial conference without
an attorney No admissions made by the defendant or the defendant’s lawyer during the conference may be used against the defendant
in a trial unless the admissions are written and signed by the defendant and the defendant’s attorney
The judge or magistrate assigned to the case can choose to hold a pretrial conference, but the denial of a pretrial conference may be an unconstitutional denial of DUE PROCESS rights
For example, in a criminal case, a defendant has
a due process right to a pretrial hearing when the defendant claims that a prosecutor has breached a plea agreement (United States v
Ataya, 864 F.2d 1324 [7th Cir 1988])
Criminal defendants must raise some issues before trial in a pretrial motion Pretrial motions are specific requests for favorable orders from the court on particular issues Under the Uniform Rules of Criminal Procedure, a set of model rules written by the American Law Institute and adopted by many jurisdictions, a defendant should lose the opportunity to raise the following issues if they are not raised prior to trial: defenses and objections based on defects in the indict-ment or formal charging instruindict-ment; requests regarding discovery, or disclosure of evidence;
requests to suppress or exclude from trial potential testimony or other evidence; requests for severing the trial in cases involving codefen-dants; requests for the dismissal of the case; and
requests for transfer of the case to another jurisdiction
Similar requirements are imposed on prosecutors The prosecution must tell the defendant prior to trial of its intention to use certain evidence, such as evidence obtained as a result of a search or seizure, wiretap, or other
ELECTRONIC SURVEILLANCE mechanism; evidence culled from a confession, admission, or state-ment made by the defendant; and evidence relating to a lineup, show-up, picture, or voice identification of the defendant (Uniform Rules
of Criminal Procedure 422(a)(1))
Pretrial proceedings vary from jurisdiction
to jurisdiction In some jurisdictions courts have bifurcated the pretrial conference into dispositional conferences and trial management conferences In St Paul, Minnesota, for exam-ple, the district court schedules a trial manage-ment conference to discuss administrative aspects of the case, such as scheduling The courts also schedule a dispositional conference
in which the parties may discuss the possibility
of a plea bargain or settlement If no agreement between the parties is forthcoming at the dispositional conference, the case proceeds to trial, and the court schedules no further meet-ings between the parties until trial The parties are, nonetheless, free to continue negotiating, and they also may request a special pretrial hearing if an issue arises after the conference but prior to trial
The first pretrial conference in the United States was held in Michigan in 1929 Over the years, as courts became more crowded, the pretrial conference became more important Pretrial conferences save valuable time for courts and jurors by narrowing the focus of the trial and resolving preliminary matters They also assist the court in the fair and impartial administration of justice by facilitating discovery and reducing the element of surprise
at trial Pretrial conferences are so important in civil cases that a court may order litigants to appear at a pretrial conference and impose fines
on them if they refuse to appear (G Heileman Brewing Co v Joseph Oat Corp., 871 F.2d 648 [7th Cir 1989])
FURTHER READINGS Carlson, Elaine A 1992 “Rule 166 Pretrial Conferences, Masters and Private Agreements: Revitalizing Old Tools to Meet Today ’s Needs.” South Texas Law Review 33.
Trang 10Masciopinto, Tony J 1990 “G Heileman Brewing Co v.
Joseph Oat Corp.: Expanding Rule 16 ’s Scope to
Compel Represented Parties with Full Settlement
Authority to Attend Pretrial Conferences.” DePaul
Law Review 39.
Miller, Frank W., et al 2000 Prosecution and Adjudication.
5th ed New York: Foundation.
Parness, Jeffrey A., and Matthew R Walker 2002 “Thinking
Outside the Civil Case Box: Reformulating Pretrial
Conference Laws ” Univ of Kansas Law Review 50.
Richardson, Elizabeth C., and Milton Regan, Jr 1997 Civil
Litigation for Paralegals Clifton, NY: Delmar Cengage
Learning.
CROSS REFERENCES
Civil Procedure; Criminal Procedure; Due Process of Law;
Plea Bargaining; Right to Counsel.
PRETRIAL PUBLICITY
The right of a criminal defendant to receive a
fair trial is guaranteed by the SIXTH AMENDMENT
to the U.S Constitution The right of the press
(print and electronic media) to publish
infor-mation about the defendant and the alleged
criminal acts is guaranteed by the FIRST
AMEND-MENT These two constitutional safeguards come
into conflict when pretrial publicity threatens to
deprive the defendant of an impartial jury
The U.S Supreme Court has grappled with
the issue of pretrial publicity since the 1960s In
Irvin v Dowd, 366 U.S 717, 81 S Ct 1639, 6 L
Ed 2d 751 (1961), the defendant, Leslie Irvin,
was convicted of committing six murders in a
rural area of Indiana The crimes generated
extensive media coverage Irvin argued that the
pretrial publicity prevented him from receiving
a fair trial by an impartial jury The Court
agreed, noting that eight of the twelve jurors
who heard the case had decided that Irvin was
guilty before the trial began Despite these
admissions, the trial judge accepted as
conclu-sive the jurors’ statements that they would be
able to render an impartial verdict The Court
held that the substantial publicity surrounding
the case made the trial judge’s determination of
juror impartiality erroneous It set out a basic
rule that when pretrial publicity has been
substantial, a trial court should not necessarily
accept a juror’s assertion of impartiality In
these cases a presumption is raised that the
jurors are biased
The Supreme Court extended this concern
to the trial stage in Sheppard v Maxwell, 384
U.S 333, 86 S Ct 1507, 16 L Ed 2d 600
(1966) Local officials allowed Dr Samuel H
Sheppard’s 1954 murder trial to degenerate
into a media circus The Cleveland media heavily publicized the case before trial and disrupted the control of the court during the trial The jurors were exposed to intense media coverage of the case until the time they began their deliberations Following deliberations, Sheppard was convicted of murder Sheppard spent ten years in prison before the Supreme Court ruled that the publicity had deprived him of a fair trial Sheppard was acquitted at his second trial
The Sheppard case brought national atten-tion to the problem of pretrial publicity Trial judges attempted to address this problem by imposing gag orders on the press, preventing it from reporting pretrial information The press resisted this approach and was supported by the Supreme Court in Nebraska Press Associa-tion v Stuart, 427 U.S 539, 96 S Ct 2791, 49
L Ed 2d 683 (1976) The Court held that the trial judge’sGAG ORDERwas an unconstitutional
PRIOR RESTRAINTon the press
Trial courts then attempted to close crimi-nal trials to the public, including the press The Supreme Court, in Richmond Newspapers v
Virginia, 448 U.S 555, 100 S Ct 2814, 65 L Ed
2d 973 (1980), limited this approach, holding that the right of access to criminal trials is guaranteed by the First and Fourteenth Amend-ments Closure will only be permitted if there is
an overriding interest, such as ensuring a defendant’s right to a fair trial In this and subsequent cases, the Court has adopted a test that makes it very difficult to justify closure
A troublesome issue for defense attorneys is whether a jury pool is so “contaminated” by pretrial publicity that it will be extremely difficult to seat an impartial jury In Mu’min
v Virginia, 500 U.S 415, 111 S Ct 1899, 114 L
Ed 2d 493 (1991), the Supreme Court held that the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT does not mandate that prospective jurors be asked inVOIR DIREexaminations about specific information concerning the case that they have seen or heard in the media The Sixth Amendment’s impartial jury requirement will
be satisfied when jurors do not admit during voir dire that they have been prejudiced by pretrial publicity
Faced with court decisions that make it difficult to prevent the media from reporting pretrial information, courts have several ways
of overcoming prejudicial pretrial publicity