Supreme Court declared a set of specific rights for criminal defendants.. In many states, statements made by criminal defendants who were in custody and under interrogation by law enforc
Trang 1meeting or official proceeding; a record kept by courts and corporations for future reference
MIRANDA V ARIZONA
Miranda v Arizona, 384 U.S 436, 86 S Ct
1602, 16 L Ed 2d 694 (1966), was a landmark decision in the field of CRIMINAL PROCEDURE In Miranda, the U.S Supreme Court declared a set
of specific rights for criminal defendants The Miranda warning, named after Ernesto
Miran-da, one of the petitioners in the case, is a list of rights that a law enforcement officer must read
to anyone arrested for a criminal act
Before the U.S Supreme Court’s decision in Miranda, the law governing custodial interro-gation of criminal suspects varied from state to state In many states, statements made by criminal defendants who were in custody and under interrogation by law enforcement offi-cials were admissible at trial, even though the defendants had not been advised of their legal rights If the totality of the circumstances surrounding the statements indicated that the suspect had made the statements voluntarily, it did not matter that officers had not apprised the suspect of his legal rights
The totality of the circumstances rule was effective even if a DEFENDANT was in custody
Generally a defendant was considered to be in custody if the person was not free to leave the presence of law enforcement officers The basic legal rights for criminal defendants subjected to
CUSTODIAL INTERROGATION included the FIFTH AMENDMENT right againstSELF-INCRIMINATIONand the RIGHT TO COUNSEL This latter right was established by the court two years earlier in Escobedo v Illinois, 378 U.S 478, 84 S Ct 1758,
12 L Ed 2d 977 (1964)
The Miranda case involved four criminal defendants Each of the defendants was appeal-ing a conviction based in part on the failure of law enforcement officers to advise him, prior to custodial interrogation, of his right to an attorney or his right to remain silent
Ernesto Miranda, the first defendant listed
in the case, was arrested on March 18, 1963, at his home in Arizona and taken to a Phoenix police station At the station, witnesses identi-fied Miranda as a rapist Police then took Miranda to an interrogation room, where he was questioned by two police officers
The officers did not tell Miranda that he had a right to an attorney, and Miranda confessed to the crime in two hours Miranda wrote a confession on a piece of paper and signed it At the top of the paper was a typed statement saying that Miranda had made the confession
voluntari-ly and with full knowledge of his legal rights Miranda was convicted in an Arizona state court
of RAPE and KIDNAPPING The circumstances involving the other three defendants were similar, all three confessing after a period of custodial interrogation without the assistance of legal counsel
The U.S Supreme Court agreed to hear appeals from all four defendants, joining the appeals into a single review A divided court affirmed the California Supreme Court’s decision against one of the defendants and reversed the guilty verdicts against Miranda and the other two The majority opinion, written by Chief Justice EARL WARREN, began with a review of police interrogation activities and a detailed formulation of new rules for law enforcement personnel
The opening of the Miranda majority opinion set a grave tone:
The cases before us raise questions which go
to the roots of American criminal JURISPRU-DENCE : the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime More specifically, we deal with the admissibility
of statements obtained from an individual who is subjected to custodial police interro-gation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.
The court described in detail the unfairness and coercion used by some law enforcement officers engaged in interrogation The majority also took note of deceptive practices in interro-gation For example, officers would put a suspect in a lineup and tell the person that he
or she had been identified as a suspect in the crime as well as other crimes, even though no such identifications had taken place The suspect would confess to the crime to avoid being prosecuted for the fictitious crimes The majority noted that these examples were exceptions, but it also stated that they were sufficiently widespread
to warrant concern
The court then outlined the now-familiar procedures that law enforcement officers would
88 MIRANDA V ARIZONA
Trang 2have to follow thereafter They would have to
tell persons in custody that they have the right
to remain silent, that they have the right to an
attorney, that if they cannot afford an attorney
the court will appoint an attorney, and that
anything they say can be used against them in a
criminal prosecution
Ultimately, the Court held that statements
made by a criminal suspect in custody would
not be admissible at trial unless the suspect had
made a knowing and intelligent waiver of his
legal rights after being apprised of the various
legal rights and after being given an opportunity
to exercise them The majority assured the law
enforcement community that it did not intend
to hamper criminal investigations and
prosecu-tions The court pointed out that interrogations
were still a perfectly legitimate investigative tool,
that questioning a suspect without advising the
suspect of legal rights before taking the suspect
into custody was still legitimate, and that
volun-teered statements were likewise legitimate
Justice TOM CLARK dissented to the decisions
with respect to all defendants except the one
whose conviction was upheld According to
Clark, the court should have continued to accept
the totality of the circumstances test for
deter-mining whether a defendant’s statements or
confession were made voluntarily Clark
con-cluded that only the defendant whose conviction
was upheld gave a confession that was not
voluntary
JusticesJOHN M.HARLAN,POTTER STEWART, and
BYRON R.WHITEdissented in all the cases In an
opinion authored by Harlan, theDISSENTargued
that the majority had exaggerated the evils of
normal police questioning According to
Har-lan,“Society has always paid a stiff price for law
and order, and peaceful interrogation is not one
of the dark moments of the law.”
Another dissent by Justice White argued
that the majority had gone too far in imposing
such procedural requirements on the law
enforcement community White predicted that
the new procedures would prevent the early
release of the truly innocent because they
discourage statements that would quickly explain
a situation According to White, the procedures
were“a deliberate calculus to prevent
interroga-tions, to reduce the incidence of confessions and
pleas of guilty and to increase the number of
trials.” “I have no desire whatsoever,” wrote
White,“to share the responsibility for any such impact on the present criminal process.” The Miranda case was remarkable in at least two ways The opinion mandated important procedural changes that had to be followed by every law enforcement official across the country In addition, the majority opinion’s survey of interrogation tactics sent a rare notice
to the law enforcement community–that the court was aware of, and would not tolerate, abuse in interrogation
Two years after the decision in Miranda, congressional anger at the decision led to the passage of 18 U.S.C.A § 3501, which restored voluntariness as a test for admitting confessions
in federal court The U.S.DEPARTMENT OF JUSTICE, however, under attorneys general of both major political parties, refused to enforce the provi-sion, believing the law to be unconstitutional
The law lay dormant for several decades until the U.S Court of Appeals for the Fourth Circuit ruled in 1999 that Congress had the constitu-tional authority to pass the law United States v
Dickerson, 166 F.3d 667 (4th Cir 1999)
The U.S Supreme Court disagreed with the Fourth Circuit In a 7-2 decision, the court ruled that because Miranda had been based on the Fifth and Fourteenth Amendments, Con-gress did not have the constitutional authority
to OVERRULE the decision through legislation
Dickerson v United States, 530 U.S 428, 120 S
Ct 2326, 147 L Ed 2d 405 (2000) In addition, the Court refused to overrule Miranda Chief Justice WILLIAM H REHNQUIST, who has been a frequent critic of the decision, wrote the majority opinion that upheld the decision
The 1966 decision of the Supreme Court in Miranda v Arizona set forth specific rights for criminal defendants Ernesto Miranda (right), one
of the petitioners, with his attorney, John J Flynn BETTMANN/CORBIS MIRANDA V ARIZONA 89
Trang 3According to Rehnquist, the ruling had become
“part of our national culture” with respect to law enforcement
The U.S Supreme Court has pared down the Miranda holding In 1985 it held that if a defendant makes an incriminating statement without the Miranda warning and then later receives the Miranda warning and confesses, the confession should not be excluded from trial (Oregon v Elstad, 470 U.S 298, 105 S Ct 1285,
84 L Ed 2d 222[1985])
In Illinois v Perkins, 496 U.S 292, 110 S Ct
2394, 110 L Ed 2d 243 (1990), the court held that the Miranda warning is not required when
a suspect who is unaware that he or she is speaking to a law enforcement officer gives a voluntary statement In Withrow v Williams,
507 U.S 680, 113 S Ct 1745, 123 L Ed 2d 407 (1993), the Court held that a prisoner cannot base a HABEAS CORPUS petition on the failure of law enforcement to give Miranda rights before interrogation
In Moran v Burbine, 475 U.S 412, 106 S
Ct 1135, 89 L Ed 2d 410 (1986), however, the Court appeared to return to the totality-of-the-circumstances test In Moran, a lawyer repre-senting a criminal suspect, Brian Burbine, called the police station while Burbine was in custody
The lawyer was told that Burbine would not be questioned until the next day In fact, Burbine was questioned that day, and he confessed, without requesting the lawyer and after being read his Miranda rights According to the Court, the conduct of the police fell “short of the kind of misbehavior that so shocks the sensibilities of civilized society as to warrant a federal intrusion into the criminal processes of the States.” Although law enforcement had not given Burbine a full opportunity to exercise his right to an attorney, a 6-3 majority concluded that, on the facts of the case, the incriminating statements had been made voluntarily and that excluding them was therefore not required
Despite the narrowing of Miranda over the years, the Court’s 1999 holding in Dickerson continued to be cited for the proposition that the Miranda rule was not only alive and well, but had been elevated to the status of a
“constitutional” rule, and not just a “prophy-lactic” rule If Miranda were a constitutional rule, then a violation of Miranda would be a constitutional violation giving rise to a possible
SECTION1983 action for aCIVIL RIGHTS violation
It would also trigger the“fruits of the poisonous tree” doctrine and result in the suppression of any evidence obtained as a result of an un-Mirandized confession If Miranda were just a
“prophylactic” rule, then a violation of Miranda would not necessarily render inadmissible any evidence obtained as a result of an un-Miran-dized confession and might not even render the confession itself inadmissible, depending on the circumstances
The Court began to clarify this ambiguity in Chavez v Martinez, 538 U.S 760, 123 S Ct
1994, 155 L Ed 2d 984 (2003) The case involved the question of whether police officers are required to read criminal suspects theMir-anda warnings even if the suspects are never brought to trial In 1997, Oliverio Martinez, a farm worker, was shot and injured by police officers during a struggle A police sergeant, Ben Chavez, questioned Martinez for 45 minutes while the latter lay in a hospital bed Chavez never read Martinez the Miranda warnings, and Martinez insisted that he did not want to answer the questions Martinez filed a 1983 action to vindicate what he claimed was a violation of his constitutional right to be Mirandized before an interrogation commenced
The Supreme Court ruled that the police officer’s failure to read Martinez Miranda warnings did not violate Martinez’s constitu-tional rights and could not be used as a basis for recovery under 42 U.S.C.A § 1983 In a badly splintered 5-4 decision, JusticeCLARENCE THOMAS, writing for the Court, said that while theMir-anda warnings offer protection against viola-tions of constitutional rights, the failure to provide these warnings is not necessarily a constitutional violation by itself In this case, Martinez was never required to be a witness against himself in a criminal trial Instead, it was Martinez who was seeking to introduce the un-Mirandized interrogation on his own behalf during a civil trial he had brought to vindicate
an alleged civil rights violation Thus, the Court concluded that the Self-Incrimination Clause was not directly implicated, and the fact that the officer asked coercive questions did not violate Martinez’s Fifth Amendment right against self-incrimination
A year later, the Court further undermined the claim that Dickerson had made Miranda an inviolable constitutional rule In United States v Patane, 542 U.S 630, 124 S Ct 2620, 159 L Ed
90 MIRANDA V ARIZONA
Trang 42d 667 (2004), the Court reviewed a case
involving a defendant charged with being a
felon in possession of a weapon During an
interrogation in which the defendant had not
been Mirandized, the defendant told police
where the weapon was located but did not
expressly confess to the crime The Court held
that Miranda is just a “prophylactic” rule
designed to enforce the protection of the
Self-Incrimination Clause against coerced,
in-voluntary statements Because the defendant
voluntarily disclosed the location of the weapon,
and the prosecution was not seeking to admit
into evidence a confession of any sort, the Court
reasoned, no Fifth Amendment violation had
occurred Nor could the“fruit of the poisonous
tree doctrine” be applied to exclude the
introduction of the weapon at trial The
Self-Incrimination Clause only protects witnesses
from testifying against themselves, the Court
said, and the weapon was non-testimonial
physical evidence
On the same day that Patane was decided,
the Court handed down its opinion in Missouri
v Seibert, 542 U.S 600, 124 S Ct 2601, 159 L
Ed 2d 643 (2004) The case involved the use of
a police tactic whereby the police would
interrogate a suspect in two phases During
the initial phase, the police would aggressively
question the suspect without first reading the
Miranda warnings If the suspect confessed to a
crime, the police would then take a break, leave
the room, and come back a short time later to
resume questioning However, before the
sec-ond phase of the interrogation started, the police
would read the suspect the Miranda warnings
Because the suspect had already confessed
during phase one, the police would persuade
the suspect that there was no reason not to
confess again The prosecution would then seek
to introduce the second, Mirandized confession,
at trial
In the case at hand, the defendant had been
charged with neglecting her own child, who had
died under suspicious circumstances The
defendant was brought in for an initial phase
of questioning by the police and confessed to
knowledge of a plan to conceal the
circum-stances of her son’s death by burning down the
family’s mobile home She also admitted that
during the fire, she had allowed an unrelated
mentally retarded 18-year-old, who had been
living with her family in the mobile home, to
die in the fire With confession in hand, the police left the interrogation room for approxi-mately 30 minutes, returned, and persuaded the defendant to sign a second confession retelling the same story, but only after first reading her the Miranda warnings
In another 5-4 decision, JusticeDAVID SOUTER, writing for the Court, said the that facts of this case “by any objective measure reveal a police strategy adapted to undermine the Miranda warnings.” He declared that the police had created a situation for the defendant “in which
it would have been unnatural to refuse to repeat
at the second stage what had been said before.” Justice ANTHONY KENNEDY provided a fifth vote concurring with the judgment of the Court, but
in a separate opinion, Kennedy articulated a test
by which to determine the constitutionality of any two-step interrogation process, a test that no one else on the Court adopted
FURTHER READINGS Floralynn Einesman 1999 “Confessions and Culture: the Interaction of Miranda and Diversity ” Journal of Criminal Law and Criminology 90 (fall).
George C Thomas III 2000 “The End of the Road for Miranda v Arizona? On the History and Future of Rules for Police Interrogation ” American Criminal Law Review 37 (winter).
Klein, Susan R 2001 “Miranda’s Exceptions in a Post-Dickerson World ” Journal of Criminal Law and Criminology (spring): 567–96.
Lane, Charles 2002 “Justices Ponder the Reach of Miranda Rights Ruling ” Washington Post.
Rybnicek, Jan Martin 2009 “Damned If You Do, Damned
If You Don't: The Absence of a Constitutional Protection Prohibiting the Admission of a Post-Arrest, Pre-Miranda Silence ” George Mason University Civil Rights Law Journal 19 (Spring).
Strauss, Marcy 2009 “The Sounds of Silence: Reconsidering the Invocation of the Right to Remain Silent under Miranda ” William and Mary Bill of Rights Journal 17 (March).
“Will Miranda survive? Dickerson v United States: the right
to remain silent, the Supreme Court, and Congress ”
2000 American Criminal Law Review 37 (summer).
CROSS REFERENCES Coercion; Criminal Procedure; Criminal Law; Due Process
of Law; Exclusionary Rule; Fifth Amendment; Fruit of the Poisonous Tree.
MISCARRIAGE OF JUSTICE
A legal proceeding resulting in a prejudicial outcome
A miscarriage of justice arises when the decision of a court is inconsistent with the substantive rights of a party
MISCARRIAGE OF JUSTICE 91
Trang 5Mixture of races A term formerly applied to marriage between persons of different races
Statutes prohibiting marriage between persons of different races have been held to be invalid as contrary to the EQUAL PROTECTION CLAUSE of the Constitution
MISCHIEF
A specific injury or damage caused by another person’s action or inaction InCIVIL LAW, a person who suffered physical injury due to theNEGLIGENCE
of another person could allege mischief in a lawsuit in TORT For example, if a baseball is hit through a person’s window by accident, and the resident within is injured, mischief can be claimed
It is distinct from malicious mischief, which is a criminal act usually involving reckless or inten-tional behavior such asVANDALISM
MISDEMEANOR
Offenses lower than felonies and generally those punishable by fine, penalty,FORFEITURE, or impris-onment other than in a penitentiary Under federal law, and most state laws, any offense other than a felony is classified as a misdemeanor Certain states also have various classes of misdemeanors (e.g., Class A, B, etc.)
MISFEASANCE
A term used inTORT LAWto describe an act that is legal but performed improperly
Generally, a civil defendant will be liable for misfeasance if the defendant owed a duty of care toward the plaintiff, the defendant breached that duty of care by improperly performing a legal act, and the improper performance resulted in harm
to the plaintiff
For example, assume that a janitor is cleaning a restroom in a restaurant If he leaves the floor wet, he or his employer could be liable for any injuries resulting from the wet floor
This is because the janitor owed a duty of care toward users of the restroom, and he breached that duty by leaving the floor wet
In theory, misfeasance is distinct from
NONFEASANCE Nonfeasance is a term that describes
a failure to act that results in harm to another party Misfeasance, by contrast, describes some affirmative act that, though legal, causes harm
In practice, the distinction is confusing and
uninstructive Courts often have difficulty deter-mining whether harm resulted from a failure
to act or from an act that was improperly performed
To illustrate, consider the example of the wet bathroom floor One court could call a resulting injury the product of misfeasance by focusing on the wetness of the floor The washing of the floor was legal, but the act of leaving the floor wet was improper Another court could call a resulting injury the product of nonfeasance by focusing on the janitor’s failure to post a warning sign FURTHER READINGS
Glannon, Joseph W 2005 The Law of Torts Frederick, MD: Aspen.
Johnson, Jack D., and John M Douglas, eds 1977 Official Deviance: Readings in Malfeasance, Misfeasance, and Other Forms of Corruption New York: J.B Lippincott Kionka, Edward J 2005 Torts Eagan, MN: West CROSS REFERENCE
Malfeasance.
MISPRISION
The failure to perform a public duty
Misprision is a versatile word that can denote
a number of offenses It can refer to the improper performance of an official duty In Arkansas, for example, rule 60 of the Arkansas Rules of Civil Procedure provides that a judgment, decree, or order may be vacated or modified “for misprisions of the clerk.” In this sense misprision refers to neglect, mistake, or subterfuge on the part of the court clerk who performed the paperwork for the judgment, decree, or order
Misprision also can refer to seditious or rebellious conduct against the government or the courts This is an archaic usage of the word Organized rebellion against the government
is now uniformly referred to as SEDITION or insurrection
The most familiar and popular use of the term misprision describes the failure to report a crime In England, beginning in the thirteenth century, the failure to report a crime became itself a crime According to tradition, it was a citizen’s duty to “raise the hue and cry” by reporting crimes, especially felonies, to law enforcement authorities (Branzburg v Hayes,
408 U.S 665, 92 S Ct 2646, 33 L Ed 2d 626 [1972], quotingWILLIAM BLACKSTONE)
92 MISCEGENATION
Trang 6The crime of misprision still exists in
England, but it has never been fully embraced
in the United States The first Congress passed a
misprision of felony statute in 1789 The statute
holds, “Whoever, having knowledge of the
actual commission of a felony conceals and
does not as soon as possible make known the
same to some judge or other person in civil or
military authority under the United States” is
guilty of misprision of felony and can be
punished with up to three years in prison
Under the federal statute, the prosecution
must prove the following elements to obtain a
misprision of felony conviction: (1) another
person actually committed a felony; (2) the
defendant knew that the felony was committed;
(3) the defendant did not notify any law
enforcement or judicial officer; and (4) the
defendant took affirmative steps to conceal the
felony Precisely what constitutes active
con-cealment is aQUESTION OF FACTthat depends on
the circumstances of the case Lying to a police
officer satisfies the requirement, but beyond
that generally accepted rule, little is certain
about the definition of active concealment
Almost every state has rejected the crime of
misprision of felony Thus, persons are under
no duty to report a crime One policy reason for
rejecting misprision is that the crime is vague
and difficult to apply to real situations Another
reason is that the crime is seen as an
unaccept-able encroachment on civil freedom In 1822
the U.S Supreme Court cautioned against
misuse of the misprision of felony statute,
stating, “It may be the duty of a citizen
to proclaim every offense which comes to
his knowledge; but the law which would punish
him in every case, for not performing this duty,
is too harsh” (Marbury v Brooks, 20 U.S
[7 Wheat.] 556, 5 L Ed 522)
The Supreme Court has not completely
abandoned the duty to report criminal activity
In Roberts v United States, 445 U.S 552, 100 S
Ct 1358, 63 L Ed 2d 622 (1980), the High
Court held that a court can increase a criminal
defendant’s sentence if the defendant refuses to
cooperate with government officials
investigat-ing a related crime Also, a journalist who has
knowledge of a crime may be compelled to
reveal the source of that knowledge (Branzburg
v Hayes)
The federal misprision of felony statute
remains on the books, but the crime rarely has
been prosecuted On the state level, most states have either abolished or refused to enact misprision of felony laws South Carolina is the only state that has prosecuted the misprision
of a felony
In State v Carson, 262 S.E.2d 918, 274 S.C
316 (1980), Isaac E Carson, theEYEWITNESSto a murder, refused to give law enforcement authorities information regarding the murder because he feared for his life if he cooperated with authorities Carson was prosecuted and convicted of misprision of felony and sentenced
to three years in prison
The prosecution of Carson was based on the
COMMON LAW South Carolina did not have a misprision of felony statute Instead the prose-cution relied on title 14, chapter 1, section 50, of the Code of Laws of South Carolina Under this statute the common law of England continues
in effect in South Carolina On appeal by Carson, the Supreme Court of South Carolina affirmed the conviction According to the court, the prosecution was valid because misprision of felony was a crime at common law in England and because the South Carolina legislature had not taken steps to repeal the common-law crime of misprision of felony
The crime of misprision of felony is similar
to the crime of acting as an ACCESSORYafter the fact because both crimes involve some affirma-tive act to conceal a crime Two basic dif-ferences are that the crime of misprision is committed even if the defendant does not give aid to the criminal and misprision is committed only if the underlying crime is completed
FURTHER READINGS Gould, Keri A 1993 “Turning Rat and Doing Time for Uncharged, Dismissed, or Acquitted Crimes: Do the Federal Sentencing Guidelines Promote Respect for the Law? ” New York Law School Journal of Human Rights 10.
Guerra, Sandra 1996 “Family Values?: The Family as an Innocent Victim of Civil Drug Asset Forfeiture ” Cornell Law Review 81.
Mosteller, Robert P 1992 “Child Abuse Reporting Laws and Attorney-Client Confidences: The Reality and the Specter of Lawyer as Informant ” Duke Law Journal
42 Available online at http://eprints.law.duke.edu/429/
1/42_Duke_L._J._203_(1992-1993).pdf; website home page:http://eprints.law.duke.edu(accessedAugust13,2009).
MISREPRESENTATION
An assertion or manifestation by words or conduct that is not in accord with the facts
MISREPRESENTATION 93
Trang 7Misrepresentation is aTORT, or a civil wrong.
This means that a misrepresentation can create civil liability if it results in a pecuniary loss For example, assume that a real estate speculator owns swampland but advertises it as valuable commercially zoned land This is a misrepre-sentation If someone buys the land relying on the speculator’s statement that it is commer-cially valuable, the buyer may sue the speculator for monetary losses resulting from the purchase
To create liability for the maker of the statement, a misrepresentation must be relied
on by the listener or reader Also, the speaker must know that the listener is relying on the factual correctness of the statement Finally, the listener’s reliance on the statement must have been reasonable and justified, and the misrep-resentation must have resulted in a pecuniary loss to the listener
A misrepresentation need not be intentionally false to create liability A statement made with conscious ignorance or a reckless disregard for the truth can create liability Nondisclosure of material or important facts by a fiduciary or an expert, such as a doctor, lawyer, or accountant, can result in liability If the speaker is engaged in the business of selling products, any statement, no matter how innocent, may create liability if the statement concerns the character or quality of a product and the statement is not true In such a case, the statement must be one of fact This does not include so-called puffing, or the glowing opinions of a seller in the course of a sales pitch (such statements as“you’ll love this car,” or “it’s a great deal”)
A misrepresentation in a contract can give a party the right to rescind the contract A
RESCISSION of a contract returns the parties to the positions they held before the contract was made A party can rescind a contract for misrepresentation only if the statement was material, or critical, to the agreement
A misrepresentation on the part of the insured in an insurance policy can give the insurer the right to cancel the policy or refuse a claim An insurer may do this only if the misrepresentation was material to the risk insured against and would have influenced the insurer in determining whether to issue a policy For example, if a person seeking auto insurance states that she has no major chronic illnesses, the insurer’s subsequent discovery that the applicant had an incurable disease at the
time she completed the insurance form proba-bly will not give the insurer the right to cancel the auto policy However, if the person was seeking HEALTH INSURANCE, such a misrepresen-tation may justify cancellation of the policy or a denial of coverage Generally, cancellation or denial of insurance coverage for a misrepresen-tation can occur only if the insurance applicant was aware of the inaccuracy of the statement FURTHER READINGS
Ewart, John Skirving 2009 An Exposition of the Principles of Estoppel by Misrepresentation—1900 Ithaca, NY: Cor-nell Univ Press.
Kionka, Edward J 2005 Torts Eagan, MN: West Sileo, Carmel 2009 “Nonclient Can Sue Lawyer for Misrepre-sentation, Colorado Court Rules ” Trial (May 1) CROSS REFERENCES
Consumer Protection; Product Liability; Sales Law; Tort Law.
MISSOURI COMPROMISE OF 1820
The Missouri Compromise of 1820 was a congressional agreement that regulated the extension of SLAVERY in the United States for the next 30 years Under the agreement the territory of Missouri was admitted as a slave state, the territory of Maine was admitted as a free state, and the boundaries of slavery were limited to the same latitude as the southern boundary of Missouri: 36 30' north latitude The issue of slavery had been troublesome since the drafting of the Constitution Slave-holding states, concerned that they would
be outvoted in Congress because their white population was much smaller than that of the free states, extracted concessions Under the Constitution, representation of the U.S House of Representatives was based on the total white population and three-fifths of the black population The Constitution apportioned two senators for each state
By 1820, however, the rapid growth in population in the North left Southern states, for the first time, with less than 45 percent of the seats in the House The Senate was evenly balanced between eleven slave and eleven free states Therefore, Missouri’s 1818 application for statehood, if approved, would give slave-holding seats a majority in the Senate and reduce the Northern majority in the House After a bill was introduced in the House in
1818 to approve Missouri’s application for
94 MISSOURI COMPROMISE OF 1820
Trang 8statehood, Representative James Tallmadge of
New York introduced an amendment that
prohibited the further introduction of slavery
in Missouri and required that any slave born
there be emancipated at age 25 The bill passed
the House but was defeated in the Senate, where
Southern strength was greater
In 1819 the free territory of Maine applied
for statehood Speaker of the HouseHENRY CLAY
of Kentucky saw this event as an opportunity to
maintain the balance of free and slave states He made it clear to Northern congressmen that Maine would not be admitted without an agreement to admit Missouri Clay was success-ful, getting the Northern congressmen to drop their amendment restricting slavery while winning Southern congressmen over to the idea
of limiting slavery to the 3630' north latitude
This provision, in effect, left unsettled portions
of the LOUISIANA PURCHASE north and west of
Missouri
Miss Ala Georgia
Fla.
Terr.
Ill.
Michigan Territory
Indiana
Ohio
Kentucky
Tennessee North Carolina
S.C.
Virginia W.Va.
Pennsylvania
New York
Maine
Vt
R.I
N.H Mass
Conn N.J Del
Md
La.
Oregon Country
New Spain
Missouri Compromise, 1820
Free States and Territories
Slave States
Closed to slavery by the Missouri Compromise Opened to slavery by the Missouri Compromise
The Missouri Compromise attempted to settle the most serious crisis of the Monroe administration From 1818 to 1820, Congress, the cabinet, and the public debated the admission of Missouri as a state and whether
or not slavery would be permitted in the new state The Missouri Compromise set the boundary for slavery at the 36E30' north parallel
But Missouri was admitted as a slave state, maintaining an equal number
of slave states and free states
Unorganized Territory
Arkansas Territory
Missouri Compromise (map showing boundaries of free and slave states) ILLUSTRATION BY ERIC WISNIEWSKI GALE GROUP.
MISSOURI COMPROMISE OF 1820 95
Trang 9Missouri free from slavery The only area remaining for further expansion of slavery was the future territory of Arkansas and Oklahoma
Clay managed to pass the compromise in the House by a three-vote margin Missouri and Maine were to be admitted to the Union simultaneously to preserve the sectional equality
in the Senate
In 1821 Missouri complicated matters, however, by inserting a provision into its state constitution that forbade any free blacks or mulattoes (people of mixed Caucasian and African-American heritage) to enter the state
Northern congressmen objected to this lan-guage and refused to give final approval for statehood until it was removed Clay then nego-tiated a second compromise, removing the con-tested language and substituting a provision that prohibited Missouri from discriminating against citizens from other states It left un-settled the question of who was a citizen With this change Missouri and Maine were admitted
to the Union
The Missouri Compromise of 1820 merely postponed the conflict over slavery As new territories were annexed to the Union, new compromises with slavery became necessary
The COMPROMISE OF 1850 redrew the territorial map of slavery and altered the 36 30' north latitude prescription of the Missouri Compro-mise California was admitted as a free state, and the Utah and New Mexico territories were open to slavery The KANSAS-NEBRASKA ACT of
1854 repealed the Missouri Compromise This new law provided for the organization of two new territories that allowed slavery, Kansas and Nebraska, both north of the 1820 Missouri Compromise line of 3630' north latitude The land open to slavery drove deep into the north and west
The constitutionality of the Missouri Com-promise itself was challenged in the landmark U.S Supreme Court case of DRED SCOTT V
SANDFORD, 60 U.S (19 How.) 393, 15 L Ed 69 (1857) Scott, a slave, had lived with his master
in the free state of Illinois and also in part of the Wisconsin territory, where slavery had been federally prohibited under the Missouri Com-promise After his master died, Scott sued in the Missouri courts for his freedom, on the grounds that he had lived in a free territory The Supreme Court ruled against Scott, with Chief Justice ROGER B TANEY holding that the FIFTH
AMENDMENTdenies Congress the right to deprive persons of their property withoutDUE PROCESS OF LAW Therefore, the Missouri Compromise prohibiting slavery north of 36 30' was un-constitutional The decision wiped away the Missouri Compromise but also raised the issue
of whether slavery could be regulated by any government anywhere in the Union
FURTHER READINGS Benton, Thomas Hart 2003 Historical and Legal Examina-tion of that Part of the Decision of the Supreme Court of the United States in the Dred Scott Case New York:
D Appleton Available online at http://www.archive org/details/historicalandle02bentgoog; website home page: http://www.archive.org (accessed August 13, 2009) Finkelman Paul 1997 Dred Scott v Sandford: A Brief History with Documents Boston: Bedford.
O ’Fallon, James M 1998 “Under Construction: The Constitution and the Missouri Controversy ” Oregon Law Review 77 (summer).
Whitman, Sylvia 2002 “Henry Clay & Daniel Webster: Two Pillars of the Union ” Cobblestone 23 (January).
MISTAKE
An unintentional act, omission, or error
Mistakes are categorized as a MISTAKE OF FACT, MISTAKE OF LAW, or mutual mistake A mistake of fact occurs when a person believes that a condition or event exists when it does not A mistake of law is made by a person who has knowledge of the correct facts but is wrong about the legal consequences of an act or event
A mutual mistake arises when two or more parties have a shared intention that has been induced by a common misbelief
MISTAKE OF FACT
An error that is not caused by the neglect of a legal duty on the part of the person committing the error but rather consists of an unconscious ignorance of a past or present material event or circumstance or a belief in the present existence of
a material event that does not exist or a belief
in the past existence of a material event that did not exist
Mistake of fact can be a factor in reducing
or eliminating civil liability or criminal culpa-bility A mistake of fact is of little consequence unless it is born of unconscious ignorance or forgetfulness A person cannot escape civil or criminal liability for intentional mistakes
In contract law a mistake of fact may be raised as a defense by a party seeking to avoid
96 MISTAKE
Trang 10liability under the contract Also, a mistake of
fact can be used affirmatively to cancel, rescind,
or reform a contract A mistake of fact can affect
a contract only if the mistaken fact was material,
or important, to the agreement
For example, assume that a bookseller has
agreed to sell a copy of a Virginia Woolf novel
that was signed by the late author Assume
further that the buyer is only interested in
buying the book because it contains Woolf’s
signature The seller knows this, and with an
authentic signature the book fetches a very high
price If it is later discovered that the signature
was actually forged decades earlier and neither
the seller nor the buyer knew of the forgery, this
would be a mistake of fact material to the deal,
and the buyer would have the right to return the
book and get her money back This example
illustrates a mutual mistake, or a material fact
that is mistaken by both parties In such a case,
the party who is adversely affected by the mistake
has the right to cancel or rescind the contract
In the event of a unilateral mistake, only one
party to the agreement is mistaken about a
material fact In such a case, the party adversely
affected by the mistake will not be able to void
the contract unless the other party knew or
should have known of the mistake, or unless the
other party had a duty to disclose the mistaken
fact For example, assume that a person owns an
expensive sports car that is in perfect condition
Assume further that a neighbor asks the owner
if he will sell the car, and the owner responds,“I
will sell this car for thirty bills.” If the neighbor
returns with $30, no contract is formed because
the neighbor mistakenly thought that the owner
meant $30 when actually the owner was using
slang for $30,000 Further, the neighbor should
have known that an expensive sports car would
not be sold for $30
If a party to a contract assumes the risk that
a material fact may be different than expected,
that party will not be able to recover any losses
when the fact turns out to be different For
example, assume that a farmer sells a horse to a
buyer who wants to use the horse for polo
games Neither the farmer nor the buyer knows
whether the horse will be suitable for polo, and
the farmer makes no guarantees If the horse
proves unsuitable, the buyer will not be able
to rescind the deal because the farmer made no
warranties as to the horse’s suitability for polo
To avoid such a result, parties to a contract may
agree, as part of the deal, to cancel or rescind the contract if a certain fact related to the contract later proves unacceptable to one of the parties
If a contract can be reformed, a court may not allow a party to rescind a contract on account of mistake of fact The court reforms a contract to reflect the true intent of the parties
For example, assume that a footwear retailer offers to buy 100 mukluks from a mukluk manufacturer for $10 a pair Assume further that the retailer mistakenly orders 100 mukluks for $100 a pair If the mukluk manufacturer delivers 100 mukluks and later demands $100 for each pair, the retailer can ask a court to reform the contract to reflect a price of $10 a pair This action generally occurs when the mistake makes the agreement UNCONSCIONABLE
If, for example, the retailer had offered to pay
$101 a pair and the retailer later discovered that the standard price was $100, the retailer would likely be stuck with the contract
A mistake involving the use of force in the defense of property can give rise to civil liability
Generally, if a person has a privilege to enter onto property, a landowner or tenant has no right to use force to keep the intruder off the property If, however, the intruder causes a reasonable, mistaken belief that the property must be defended, a landowner or tenant may have the right to use force to repel the intruder
For example, if an electricity meter reader arrives to read a meter at night wearing dark clothing and a ski mask, a resident on the property may not be liable for a reasonable use
of force necessary to expel the intruder The meter reader can be considered to have caused the mistaken belief on the part of the resident that the property was being invaded by someone with no privilege to enter
In CRIMINAL LAW an honest and reasonable mistake of fact can eliminate the mens rea element of criminal responsibility Mens rea is Latin for“guilty mind,” and, along with an act,
a guilty mind, or a criminal intent, is required before a person can be held criminally respon-sible for most crimes For example, assume that
a person who buys stolen goods honestly and reasonably believed that the goods actually belonged to the seller This would negate the criminal intent necessary to be convicted of receiving stolen goods, and the buyer would not
be held criminally liable
MISTAKE OF FACT 97