In criminal cases where the death penalty may be imposed, the Supreme Court has held that, under the Eighth and Fourteenth Amend-ments, juries must be instructed that they may consider m
Trang 1If a mistake of fact in a criminal case does not negate mens rea, it may reduce it For example, if a person honestly and reasonably, but mistakenly, believes that DEADLY FORCE is necessary to preserve her own life, she may not
be found guilty of murder if a death results from the deadly force The mistake reduced the mens rea necessary to be convicted of murder
That is, the person did not have the SPECIFIC INTENTto kill without justification or excuse She may be found guilty ofMANSLAUGHTER, aHOMICIDE
less serious than murder, if her actions were unreasonable She may even be found not guilty
of any homicide if the judge or jury finds that she was not reckless or negligent in the killing This
is a QUESTION OF FACT to be determined by the judge or jury sitting on the case
In some criminal and civil cases, no mens rea
is required for liability Such cases involveSTRICT LIABILITYcrimes.STATUTORY RAPEis an example of a strict liability crime It does not matter whether the defendant knew that the victim was too young to have sexual relations or whether the defendant intended to have sex with a minor In such a case, a mistake of fact is no defense Strict liability crimes are generally those that endanger the publicWELFARE, such as toxic waste dumping and the sale of alcohol to minors
FURTHER READINGS
“Contracts.” 1994 SMH Bar Review.
Cox, Archibald S 1988 The Court and the Constitution.
Boston, MA: Houghton Mifflin.
“Criminal Law and Procedure.” 1994 SMH Bar Review.
Hedges, Andrew 1999 “Defendant Entitled to Mistake-of-Fact Instruction ” Res Gestae 43 (November).
Kionka, Edward J 2005 Torts Eagan, MN: West.
O ’Neill, Patricia A 2001 “Criminal Law: Jury Instruc-tions —Mistake of Fact in Rape Cases.” Massachusetts Law Review 86 (fall) Available online at http://www.
massbar.org/for-attorneys/publications/massachusetts-law-review/2001/v87-n3/criminal-law-jury-instructions — mistake; website home page: http://www.massbar.org (accessed August 17, 2009).
Porsdam, Helle 1999 Legally Speaking: Contemporary American Culture and the Law Amherst: Univ of Massachusetts.
CROSS REFERENCE Mens Rea.
MISTAKE OF LAW
A misconception that occurs when a person with complete knowledge of the facts reaches an erroneous conclusion as to their legal effect; an incorrect opinion or inference, arising from a flawed evaluation of the facts
Generally, a mistaken belief about a law is
no defense to a violation of that law All persons are presumed to know and understand the law, except minors, persons who lack mental capacity
to contract with others, and, in criminal cases, persons who are insane There are, however, a few other rare exceptions to this general rule
A mistake of law may be helpful to criminal defendants facing prosecution for a specific-intent crime A specific-specific-intent crime requires that a defendant act with a criminal intent beyond the general intent required to commit the act Murder, for example, is a specific-intent crime The prosecution must show that the defendant specifically intended to kill the victim without justification.MANSLAUGHTER, conversely, requires only a showing that the defendant intended to do those actions that caused the death If a defendant is charged with a specific-intent crime, the defendant’s reasonable mis-taken belief about the law may reduce the defendant’s criminal liability
For example, assume that a defendant is accused of robbing another person Assume further that the defendant was actually trying to retrieve money that the alleged victim owed to the defendant A court may hold that the defendant mistakenly believed that the law allowsSELF-HELP
in such situations and that the mistaken belief about the law negated theSPECIFIC INTENTrequired for the crime That is, the defendant did not have the specific intent to gain control over the property of another person Generally, a mistake
of law is helpful to criminal defendants only in specific-intent cases For general-intent andSTRICT LIABILITYcrimes, a mistake of law is no defense There are other exceptions to the general rule that ignorance of the law is no excuse If
a defendant relied on a statute that permitted
a certain act and the act is later made illegal, the defendant cannot be prosecuted This applies
to general-intent and strict liability crimes as well
as specific-intent crimes If a defendant reason-ably relies on a judicial decision, an opinion, or
a judgment that is later reversed, the reversal does not retroactively make a related act illegal Similarly, if a defendant acts with reasonable reliance on an official statement of law in an administrative order or from an official interpre-tation by a public officer or government agency, the defendant may use the mistake-of-law defense Mistaken advice from an attorney, however, does not create a mistake-of-law defense
98 MISTAKE OF LAW
Trang 2FURTHER READINGS
Basu, Hari Gopal 1965 Basu’s Fraud and Mistake in Law:
Civil and Criminal Allahabud: Law Book Co.
Kionka, Edward J 2005 Torts Eagan, MN: West.
MISTRIAL
A courtroom trial that has been terminated prior
to its normal conclusion A mistrial has no legal
effect and is considered an invalid or nugatory trial
It differs from a “new trial,” which recognizes that
a trial was completed but was set aside so that the
issues could be tried again
A judge may declare a mistrial for several
reasons, including lack of jurisdiction, incorrect
jury selection, or a deadlocked, or hung, jury
A deadlocked jury—where the jurors cannot
agree over the defendant’s guilt or innocence—is
a common reason for declaring a mistrial
Extraordinary circumstances, such as death or
illness of a necessary juror or an attorney, may also
result in a mistrial A mistrial may also result from
a fundamental error so prejudicial to the
defen-dant that it cannot be cured by appropriate
instructions to the jury, such as improper remarks
made during the prosecution’s summation
In determining whether to declare a mistrial,
the court must decide whether the error is so
prejudicial and fundamental that expenditure
of further time and expense would be wasteful, if
not futile Although the judge has the power to
declare a mistrial and discharge a jury, this power
should be“exercised with great care and only in
cases of absolute necessity” (Salvatore v State of
Florida, 366 So 2d 745 [Fla 1978], cert denied, 444
U.S 885, 100 S Ct 177, 62 L Ed 2d 115[1979])
For example, in Ferguson v State, 417 So 2d
639 (Fla 1982), the defendant moved for a
mistrial because of an allegedly improper com-ment made by the prosecution during closing argument The prosecution stated that not only was defense counsel asking the jury to find a scapegoat for the defendant’s guilt, he was also putting the blame on someone who had already been found guilty The appellate court found that the lower court had properly denied the motion for a mistrial because the prosecutor’s comment fell within the bounds of“fair reply.”
A mistrial in a criminal prosecution may prevent retrial under the DOUBLE JEOPARDY provi-sion of theFIFTH AMENDMENT, which prohibits an individual from being tried twice for the same offense, unless required by the interests of justice and depending on which party moved for the mistrial Typically, there is no bar to a retrial if the defendant requests or consents to a mistrial
A retrial may be barred if the court grants a mistrial without the defendant’s consent, or over his objection If the mistrial results from judicial
or prosecutorial misconduct, a retrial will be barred In United States v Jorn, 400 U.S 470, 91
S Ct 547, 27 L Ed 2d 543 (1971), the Supreme Court held that reprosecuting the defendant would constitute double jeopardy because the judge had abused his discretion in declaring a mistrial On his own motion, the judge had declared a mistrial to enable government wit-nesses to consult with their own attorneys
CROSS REFERENCES Criminal Procedure; Harmless Error; Hung Jury.
vMITCHELL, JOHN NEWTON
John Newton Mitchell served as U.S attorney general from 1969 to 1972 A key political adviser to President RICHARD M.NIXON, Mitchell
❖
1913 Born, Detroit, Mich.
◆
1938 Admitted
to N.Y bar
1988 Died, Washington, D.C.
1974 Acquitted of 1973 charges; indicted for role in Watergate break-in and cover-up
1977–78 Served time
in federal prison for Watergate charges
1914–18 World War I
1961–73 Vietnam War 1939–45
World War II
1950–53 Korean War
❖
1960 Richard Nixon lost presidential race to Kennedy 1943–46 Served
in U.S Navy
1967 Nixon's and Mitchell's New York law firms merged
◆
1968 Served as Nixon's campaign manager
1975 Convicted of Watergate-related charges, which led to disbarment
1972 Headed Nixon's reelection committee until Watergate break-in
1973 Indicted for perjury and obstruction of justice 1969–72 Served as U.S attorney general
◆◆ ◆ ◆
Trang 3was later convicted of crimes associated with the
WATERGATE scandal, becoming the first attorney general to serve time in a federal prison
Mitchell was born September 5, 1913, in Detroit He worked his way through Fordham University and Fordham Law School playing semiprofessional hockey After graduating from law school in 1938, he was admitted to the New York bar and began work in a New York City law firm He was made a partner in 1942
DuringWORLD WAR IIhe served as a torpedo boat commander in the U.S Navy
Mitchell became rich and prominent as a municipal bond lawyer, devising new ways for states and municipalities to finance construc-tion projects He met Richard M Nixon in
1962, when Nixon joined a prominent New York law firm At that time Nixon appeared to have no political future; he had lost the 1960 presidential election and the 1962 California gubernatorial election In 1967 Mitchell’s firm merged with Nixon’s and the pair became confidants
Mitchell served as Nixon’s campaign man-ager for the presidency in 1968 He forged a conservative coalition of southern and western
states that helped carry Nixon to victory over Vice PresidentHUBERT H.HUMPHREY During the campaign Mitchell claimed he would never accept a cabinet position if Nixon was elected Despite these statements Mitchell accepted the post of attorney general in 1969
As attorney general, Mitchell led theJUSTICE DEPARTMENT in a sweeping law-and-order drive that many critics believed went too far He increased the number of telephone wiretaps on private citizens and generally clamped down on political dissenters, especially those who op-posed U.S involvement in the VIETNAM WAR A number of these Justice Department initiatives were later ruled illegal by the courts For example, in Ellsberg v Mitchell, 353 F Supp
515 (D.D.C 1973), the department sought to prosecute Daniel Ellsberg for leaking secret documents to the press regarding military involvement in Vietnam The release of the Pentagon Papers infuriated the Nixon White House The case was dismissed after Ellsberg’s attorneys informed the court that a secret White House security group (the “plumbers”) had illegally broken into the office of Ellsberg’s psychiatrist in search of damaging evidence The dismissal was also based on the Justice Depart-ment’s refusal to produce wiretap records pertaining to Ellsberg
Mitchell resigned as attorney general in February 1972 to head President Nixon’s reelection committee On June 17, 1972, five men were arrested after breaking into Demo-cratic National Committee headquarters at the Watergate building complex in Washington, D.C They and two other men associated with the White House and the reelection committee were charged with BURGLARY and WIRETAPPING Mitchell denied playing any part in the Water-gate incident but resigned from the reelection committee post in July
In May 1973 he was indicted in New York City for perjury andOBSTRUCTION OF JUSTICEin an alleged scheme to secretly contribute cash to the Nixon reelection campaign He was acquitted of the charge in 1974 In that same year, however,
he was indicted for conspiracy, obstruction of justice, giving false testimony to a GRAND JURY, and perjury, for his role in the Watergate
break-in and cover-up He was convicted of these charges in 1975 and sentenced to two-and-a-half to eight years in prison After exhausting his criminal appeals, he entered federal prison in
John N Mitchell.
AP IMAGES
Y OU WILL BE BETTER
ADVISED TO WATCH
WHAT WE DO
INSTEAD OF WHAT
WE SAY
—J OHN M ITCHELL
100 MITCHELL, JOHN NEWTON
Trang 4June 1977 His sentence was later reduced to
one to four years after he made a statement of
contrition He was paroled in January 1978
His criminal convictions led to his
dis-barment in 1975 Following his release he served
as an international business consultant He died
on November 9, 1988, in Washington, D.C
FURTHER READINGS
Justice Department 1985 Attorneys General of the United
States, 1789–1985 Washington, D.C.: GPO Available
online at http://www.usdoj.gov/ag/attygeneraldate.html;
website home page: http://www.usdoj.gov (accessed
July 8, 2009).
Olson, James S 1999 Historical Dictionary of the 1970s.
Westport, CT: Greenwood.
Rosen, James 2008 The Strong Man: John Mitchell and the
Secrets of Watergate New York: Doubleday.
vMITCHELL, WILLIAM DE WITT
William de Witt Mitchell was a distinguished
lawyer who became the 54th attorney general of
the United States
Mitchell was born on September 9, 1874,
in Winona, Minnesota He was the son of
William Mitchell, a distinguished justice of the
Minnesota Supreme Court for whom the
William Mitchell College of Law in St Paul is
named The younger Mitchell left Minnesota at
the age of fourteen to attend preparatory school
in New Jersey He then entered Yale University
to study electrical engineering, but during
vacations back in Minnesota, he pursued his
interest in the law, spending time discussing
legal issues with his father and with other judges
and attorneys who were family friends As a
result, after two years at Yale, he transferred to
the University of Minnesota for pre-law studies
After receiving his bachelor of arts degree in
1895 and his bachelor of laws degree in 1896, he
was admitted to the bar and took a position as a law clerk with Stringer and Seymour, a St Paul law firm
When theSPANISH-AMERICAN WARbroke out in
1898, Mitchell enlisted in the Fifteenth Minne-sota Volunteer Infantry, where he became a second lieutenant and served as aJUDGE ADVOCATE
for the Second U.S Army Corp When the war ended, he returned to St Paul and Stringer and Seymour After his father lost his seat on the state supreme court in an election, Mitchell and the elder Mitchell established a law partnership with two other lawyers Though his father died
in 1900, Mitchell continued to practice law until another war—WORLD WAR I—intervened Mitchell again returned to military service as an infantry officer until 1919, when he rejoined his law firm, becoming a senior partner in 1922
In 1925, through an influential friend in Washington, Mitchell’s name was brought to the attention of PresidentCALVIN COOLIDGE, who was seeking to fill the position of SOLICITOR GENERAL Coolidge, a Republican, offered Mitch-ell, a Democrat, the job, passing over several better-known Republican candidates As solici-tor general, under the direction of the U.S
attorney general, Mitchell was primarily respon-sible for representing the government of the United States before the U.S Supreme Court in cases in which the United States had an interest
Mitchell, though he had intended to hold the position for only two years and then return to private practice, was solicitor general until 1929, appearing before the Court in 34 cases
That year, upon the recommendation of several justices on the Supreme Court, newly elected President HERBERT HOOVER appointed Mitchell to be U.S attorney general Though his new role involved a wide and daunting range
William De Witt Mitchell 1874–1955
❖
1874 Born,
Winona, Minn.
◆
1896 Earned LL B from
University of Minnesota; joined Stringer and Seymour
1914–18 World War I
1955 Died, Syosset, N.Y.
1939–45 World War II
1950–53 Korean War
1961–73 Vietnam War
1900
❖
◆
1929 Argued the Pocket Veto case, in which Supreme Court
upheld president's power to veto a bill by failing to act on it
1945 Appointed counsel for the Joint Congressional Committee on the Investigation of the Pearl Harbor Attack
◆
1898 Served in U.S Army during Spanish-American War
1917–19 Served
as infantry officer
in U.S Army
1925–29 Served as solicitor general under Coolidge
1929–33 Served as U.S.
attorney general under Hoover
◆
W E ARE GOING TO HAVE AN OUTBURST AGAINST THIS DISCOVERY BUSINESS UNLESS WE CAN HEDGE IT WITH SOME APPEARANCE OF SAFETY AGAINST FISHING EXPEDITIONS
—W ILLIAM M ITCHELL
Trang 5of responsibilities (including acting as a mem-ber of the president’s cabinet), Mitchell contin-ued to occasionally argue important cases himself before the High Court One significant case was Okanogan, Methow, San Poelis, Nespe-lem, Colville, and Lake Indian Tribes or Bands of State of Washington v United States, 279 U.S
655, 49 S Ct 463, 73 L Ed 894 (1929), better known as the Pocket Veto case In that decision the Supreme Court upheld the president’s power to VETO a bill by failing to return it to Congress when Congress was in recess
At the end of the Hoover administration, Mitchell returned to private practice, joining a New York law firm Twelve years later, in 1945, Mitchell was appointed counsel for the Joint Congressional Committee on the Investigation
of the Pearl Harbor Attack Though he was selected unanimously and had virtually unfet-tered access to all departments, records, and personnel involved in the incident, Mitchell was unhappy with the slow pace of the committee’s inquiry and left the position after less than three months to again return to private practice in New York While practicing he served on several important commissions and was chair-man of the Committee on Federal Rules of Civil Procedure, which was charged with redrafting rules governing practice in the federal courts
He died on August 24, 1955, in Syosset, New York, at the age of 81
MITIGATING CIRCUMSTANCES
Circumstances that may be considered by a court
in determining culpability of a defendant or the extent of damages to be awarded to a plaintiff
Mitigating circumstances do not justify or excuse
an offense but may reduce the severity of a charge
Similarly, a recognition of mitigating circum-stances to reduce a damage award does not imply that the damages were not suffered but that they have been partially ameliorated
In criminal cases where the death penalty may be imposed, the Supreme Court has held that, under the Eighth and Fourteenth Amend-ments, juries must be instructed that they may consider mitigating circumstances such as the defendant’s youth, mental capacity, or child-hood abuse so that they may reach a reasoned and moral sentencing decision (See Penry v
Lynaugh, 492 U.S 302, 109 S Ct 2934, 106 L
Ed 2d 256 [1989].) Mitigating circumstances may be used to reduce a charge against a
defendant In People v Morrin, 31 Mich App
301, 187 N.W.2d 434 (1971), the Michigan Court
of Appeals reversed and remanded Morrin’s conviction on first-degree murder charges be-cause he committed the murder in the heat of passion caused by adequate legal provocation The court found that because of these mitigating circumstances, the evidence was insufficient to support a first-degree murder conviction, which requires malice aforethought
In civil actions mitigating circumstances may be considered to reduce damage awards or the extent of the defendant’s liability In Cerretti
v Flint Hills Rural Electric Cooperative Ass’n, 251 Kan 347, 837 P.2d 330 (1992), the Supreme Court of Kansas held that a court, in reviewing a damage award, may consider any mitigating circumstances that affected the intent of the defendant, the financial worth of the defendant,
or the plaintiff’s expenses
Many states allow defendants inDEFAMATION
actions to prove mitigating circumstances by showing that they acted in GOOD FAITH, with honesty of purpose, and without malice in speaking or publishing the defamatory words
If the court is convinced that legitimate mitigating circumstances existed, it may reduce the amount of damages the defendant is required to pay In Roemer v Retail Credit Co.,
44 Cal App 3d 926, 119 Cal Rptr 82 (1975), the defendant claimed that the plaintiff defaced the wall of his office, thereby mitigating the defendant’s liability for defamatory statements However, the court did not allow the defendant
to introduce this evidence because he could not prove that the plaintiff was responsible for the defacement
CROSS REFERENCES Capital Punishment; Criminal Law.
MITIGATION OF DAMAGES
The use of reasonable care and diligence in an effort to minimize or avoid injury
Under the mitigation of damages doctrine, a person who has suffered an injury or loss should take reasonable action, where possible, to avoid additional injury or loss The failure of a plaintiff to take protective steps after suffering
an injury or loss can reduce the amount of the plaintiff’s recovery The mitigation of damages doctrine is sometimes called
102 MITIGATING CIRCUMSTANCES
Trang 6minimization of damages or the doctrine of
AVOIDABLE CONSEQUENCES
In contract law the non-breaching party
should mitigate damages or risk a reduction in
recovery for the breach For example, assume
that a property owner and home builder
contract for the construction of a home in
exchange for payment of $50,000 Assume
further that the builder begins constructing
the home but that the owner wrongfully cancels
the contract before the builder has finished
construction If the builder must sue the owner
to recover the unpaid portion of the contract
price, a court may reduce the amount of money
that the builder recovers if the builder does
not try to avoid additional loss For example,
the builder could sell the materials already
purchased for the job or use the materials in
another job The savings that the builder realizes
will be deducted from the loss incurred on the
contract in computing the builder’s net recovery
in court
InTORT LAWmitigation of damages refers to
conduct by the plaintiff that, although not
constituting a civil wrong itself, may reduce
the plaintiff’s recovery For example, if the
victim of an assault used provocative words
prior to the assault, the words may mitigate the
plaintiff’s damages Most states limit mitigation
of damages for provocative words to a possible
reduction in PUNITIVE DAMAGES, as opposed to
COMPENSATORY DAMAGES
A tort victim also should act to mitigate
damages subsequent to the wrongful acts of
another For instance, assume that the victim in
the assault example suffers a broken leg If the
victim refuses to get medical treatment and
the leg eventually must be amputated, the
defendant may be liable only for the reasonable
medical expenses to repair a broken leg Because
a reasonable person would seek medical
atten-tion after suffering a broken leg, a court could
find it unreasonable to make the defendant pay
for additional damage that the victim could
have prevented with minimal effort
If it is unreasonable to expect the victim to
mitigate damages following the injury, the
defendant may be held liable for subsequent
injury to the victim that stems from the
wrongful act For example, if the assault victim
lives alone in a rural area without a source of
transportation, and if the leg requires
amputa-tion because the victim could not get to a
hospital, the defendant may be held liable not only for a broken leg but for the medical expenses, pain and suffering, and lost wages associated with the amputation
FURTHER READINGS Kionka, Edward J 2005 Torts Eagan, MN: West.
Knapp, Charles L., Nathan M Crystal, and Harry G Prince.
1987 Problems in Contract Law: Cases and Materials.
6th ed Frederick, MD: Wolters Kluwer Law & Business.
“Torts.” 1994 SMH Bar Review.
MITTIMUS
A court order directing a sheriff or other police officer to escort a convict to a prison
A mittimus is a written document It can command a jailer to safely keep a felon until
he or she can be transferred to a prison A mittimus also refers to the transcript of the conviction and sentencing stages, which is duly certified by a clerk of court
MIXED ACTIONS
Lawsuits having two purposes: to recover real property and to obtain monetary damages
Mixed actions take their character from real actions and personal actions Originally the common-law courts in England concentrated
on rights involving the possession of land The relief granted was an order to give over possession of the real property in dispute These were the real actions Only later were FORMS
OF ACTION developed to permit a lawsuit for monetary damages in a personal or mixed action Then the sheriff might be ordered to collect a fine and later damages, out of the loser’s profits, which were the rents and income from land, and out of any PERSONAL PROPERTY Special procedures existed for mixed actions that concerned the sort of relief sought in both real and personal actions
M’NAGHTEN RULE
A test applied to determine whether a person accused of a crime was sane at the time of its commission and, therefore, criminally responsible for the wrongdoing
The M’Naghten rule is a test for criminal insanity Under the M’Naghten rule, a criminal defendant is not guilty by reason of insanity if,
at the time of the alleged criminal act, the defendant was so deranged that she did not know the nature or quality of her actions or, if
M’NAGHTEN RULE 103
Trang 7she knew the nature and quality of her actions, she was so deranged that she did not know that what she was doing was wrong
The M’Naghten rule on criminal insanity is named for Daniel M’Naghten, who, in 1843, tried to kill England’s prime minister Sir Robert Peel M’Naghten thought Peel wanted to kill him, so he tried to shoot Peel but instead shot and killed Peel’s secretary, Edward Drummond
Medical experts testified that M’Naghten was psychotic, and M’Naghten was found not guilty
by reason of insanity
The public chafed at the verdict, and the House of Lords in Parliament ordered the Lords
of Justice of the Queen’s Bench to fashion a strict definition of criminal insanity The Lords
of Justice complied and declared that insanity was a defense to criminal charges only if
at the time of the committing of the act, the party accused was labouring under such a defect of reason, from a disease of the mind,
as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.
(Queen v M’Naghten, 8 Eng Rep 718 [1843]) The aim of the M’Naghten rule was to limit theINSANITY DEFENSEto cognitive insanity, a basic inability to distinguish right from wrong Other tests formulated by legislatures and courts since M’Naghten have supplemented the M’Naghten rule with another form of insanity called volitional insanity Volitional insanity is experi-enced by mentally healthy persons who, al-though they know what they are doing is wrong, are so mentally unbalanced at the time of the criminal act that they are unable to conform their actions to the law
The M’Naghten rule was adopted in most jurisdictions in the United States, but legisla-tures and courts eventually modified and expanded the definition The definition of criminal insanity now varies from jurisdiction
to jurisdiction, but most of them have been influenced by the M’Naghten rule
Many jurisdictions reject volitional insanity but retain cognitive insanity with a minor variation on the M’Naghten definition Under the M’Naghten rule, a person was legally insane
if she was so deranged that she did not know what she was doing Under many current statutes, a person is legally insane if she is so deranged that she lacks substantial capacity to appreciate the criminality of her conduct
The difference between the two definitions
is largely theoretical In theory, the latter definition is more lenient because it requires only that a person lack substantial capacity to appreciate her conduct
FURTHER READINGS Kaplan, John, Robert Weisberg, and Guyora Binder 2008 Criminal Law: Cases and Materials 6th ed Frederick, MD: Wolters Kluwer Law & Business.
Menninger, Karl 2007 The Crime of Punishment Bloo-mington, IN: AuthorHouse.
Regoli, Robert M., and John D Hewitt 2009 Exploring Criminal Justice: The Essentials Boston: Jones & Bartlett.
CROSS REFERENCES Durham Rule; Insanity Defense.
MOCK TRIAL
A simulated trial-level proceeding conducted by students to understand trial rules and processes Usually tried before a mock jury, these proceedings are different fromMOOT COURTproceedings, which simulate appellate arguments
Mock trials are sometimes used as an
ALTERNATIVE DISPUTE RESOLUTION tool, in which parties that are not inclined to negotiate may see how the merits of their respective cases stand when argued before neutral evaluators
MODEL ACTS
Statutes and court rules drafted by the American Law Institute (ALI), theAMERICAN BAR ASSOCIATION
(ABA), the COMMISSIONERS ON UNIFORM LAWS, and other organizations State legislatures may adopt model acts in whole or in part, or they may modify them to fit their needs Model acts differ from
UNIFORM ACTS, which are usually adopted by the states in virtually the same form proposed by the American Law Institute and other organizations The ALI was founded in 1923 by a group of American judges, lawyers, and law professors Its goal was to resolve uncertainty and com-plexity in American law by promoting clarifica-tion and simplicity in the law Since its founding, the organization has worked with other scholarly organizations to draft model and uniform statutes that may be adopted by the various state legislatures
One of the most successful of ALI’s model acts is the MODEL PENAL CODE First adopted in
1962, it has had a major influence on the way that states draft penal codes In fact, the
104 MOCK TRIAL
Trang 8majority of states revised their penal codes
based upon the provisions of the Model Penal
Code The code attempts to, among other
things, create uniformity in such controversial
areas as the authority of the courts in sentencing
and how to define specific crimes, including
criminal HOMICIDE and KIDNAPPING In 2002 the
ALI announced that it was launching a
reexamination and revision of the sentencing
provision of the code
The ABA also approves drafts of model laws
and rules The Model Business Corporation Act
(MBCA) is an example of a model act approved
by the ABA that was implemented successfully
The MBCA was first adopted in 1950 and
revised substantially in 1969, 1971, and 1983 It
addresses all aspects of corporate legal structure,
from bylaws to shareholder rights to fiduciary
responsibilities At least 18 states have adopted
the act in its entirety Many other states have
adopted significant portions of the act
Other model acts adopted in whole or in part
by the states include the Model Rules of
Professional Conduct, the Model Probate Code,
the Model Class Actions Act, the Model Juvenile
Court Act, and the Model Survival and Death Act
FURTHER READINGS
Goldstein, Elliott 1985 “Revision of the Model Business
Corporation Act ” Texas Law Review 63.
LexisNexis Info Pro 2009 Zimmerman’s Research Guide:
Model Acts Available online at http://www.lexisnexis.
com/infopro/zimmerman/disp.aspx?z=1699; website
home page: http://www.lexisnexis.com (accessed
September 7, 2009).
“Uniform Laws and Model Acts.” 2009 Harvard Law School
Library Research Guides Available online at http://www.
law.harvard.edu/library/research/guides/united_states/
uniform-laws-and-model-acts.html; website home page:
http://www.law.harvard.edu (accessed September 7,
2009).
MODEL PENAL CODE
The Model Penal Code (MPC) is one of the
most important developments in American law,
and perhaps the most important influence on
American CRIMINAL LAW since it was completed
in 1962 Conceived as a way to standardize and
organize the often-fragmentary criminal codes
enacted by the states, the MPC has influenced a
large majority of states to change their laws
Although some provisions of the MPC are now
considered outdated, and the code fails to
address many important recent criminal law
issues, its impact could still be felt as the country entered the twenty-first century
Members of the American Law Institute (ALI), a group of judges, lawyers, and legal scholars whose purpose is to clarify and improve the law, began working on the Model Penal Code in 1952 The group had abandoned two previous attempts to create a model criminal code The third attempt took ten years, and the ALI produced numerous drafts, reports, and revisions
Herbert Wechsler, a Columbia Law School professor, served as the chief reporter, or principal drafter From 1953 to 1962, ALI council members examined, considered, and debated the work of Wechsler, his staff, and his advisors in a total of 31 drafts Finally in 1962 the MPC was completed and published
The impact of the MPC was immediate For many states, the notion of codifying their cri-minal code was a foreign one—their criminal statutes were often poorly organized and did not define their crimes The MPC arranged matters differently, organizing itself into four parts: (1) general provisions containing defini-tional functions and presumptive rules; (2) defi-nitions of specific offenses; (3) provisions governing treatment and correction; and (4) provisions governing the organization of corrections departments and divisions such as the divisions responsible forPAROLEorPROBATION Several elements of the MPC have changed the way criminal law is administered in the United States A good example of this is in the issue of mens rea, meaning state of mind or guilty mind Previous state criminal statutes took a scattershot approach to mens rea, requiring it for some crimes and not for others, and using multiple terms to measure culpabi-lity The MPC stated simply that a person is not guilty of an offense unless he or she acted purposely, knowingly, recklessly, or negligently,
as the law may require, with respect to each material element of the offense It then proceeded to define what these terms meant
in a criminal law context, and what types of conduct would satisfy these terms The clarity and simplicity of this approach made it desirable for many states to replace their codes with MPC-influenced codes Following the introduction of the MPC, 36 states adopted new criminal codes, all of them influenced by the MPC and some of them using the exact
MODEL PENAL CODE 105
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In addition, the MPC’s influence is felt in the courts, where judges often rely on the code when handling substantive criminal law deci-sions It has also become an important teaching tool in law schools, where the commentaries accompanying the code are read, as well as the code itself, in an attempt to gain insight into criminal law Although the MPC has come under some criticism since the 1990s, with some critics suggesting that it may be time for revision, it remains firmly ensconced as an influence in the criminal laws of more than two-thirds of the states
FURTHER READINGS Dubber, Markus Dirk 2001 “Penal Panopticon: The Idea of
a Modern Model Penal Code ” Buffalo Criminal Law Review 4 Available online at http://wings.buffalo.edu/
law/bclc/bclrarticles/4(1)/dubberpdf.pdf; website home page: http://wings.buffalo.edu (accessed August 17, 2009).
Lynch, Gerard E 1998 “Towards a Model Penal Code, Second (Federal?): The Challenge of the Special Part ” Buffalo Criminal Law Review 2.
Robinson, Paul H., and Jane A Grall 1983 “Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond ” Stanford Law Review 35 (April) Available online at http://papers.ssrn.com/sol3/
papers.cfm?abstract_id=662025; website ome page:
http://papers.ssrn.com/ (accessed August 17, 2009).
MODEL RULES OF PROFESSIONAL CONDUCT
SeePROFESSIONAL RESPONSIBILITY
MODIFICATION
A change or alteration in existing materials
Modification generally has the same mean-ing in the law as it does in common parlance
The term has special significance in the law of contracts and the law of sales
The parties to a completed and binding contract are free to change the terms of the contract Changes to a preexisting contract are called contract modifications If the parties agree
to modify the contract, the modification will be enforceable in a court of law
A contract modification may be either written or oral, with some exceptions An oral modification is unenforceable if the contract specifies that modifications must be in writing
(United States ex rel Crane Co v Progressive Enterprises, Inc., 418 F Supp 662 [E.D Va
1976]) As a general rule, a modification should
be in writing if it increases or decreases the value of the contract by $500 or more
In contracts between parties who are not merchants, a modification should be supported
by some consideration, which is the exchange of value, or something to solidify an agreement Courts impose this requirement to prevent
FRAUD and deception in the modification of contracts Consideration operates as evidence that the parties have agreed to the modification Without the requirement of consideration, a party to a contract could declare that the contract should be modified or canceled whenever such a demand was advantageous
In contracts between merchants, a modifi-cation need not be supported by consideration Derived from article 2, section 209, of the
UNIFORM COMMERCIAL CODE, this rule is designed
to honor the intent of commercial parties without requiring the time-consuming techni-calities of consideration
Like any non-merchant, a merchant is free to reject a proposed modification, but a merchant may waive the right to reject a modification
by failing to object to the modification For example, if an electrician doing work as a subcontractor notifies the general contractor that the electrical work will be more expensive than anticipated, the general contractor may be obliged to pay for the extra expenses if she fails
to object before the electrician begins the work There must be a legitimate commercial reason for such a contract modification, and the modi-fication must be reasonable in light of the standards within the particular industry Courts are free to strike down contract modifications that are brought about by duress or bad faith
CROSS REFERENCE Sales Law.
MODUS OPERANDI
[Latin, Method of working.] A term used by law enforcement authorities to describe the particular manner in which a crime is committed
The term modus operandi is most com-monly used in criminal cases It is sometimes referred to by its initials, M.O The prosecution
in a criminal case does not have to prove modus operandi in any crime However, identifying
106 MODEL RULES OF PROFESSIONAL CONDUCT
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help the prosecution prove that it was the
defendant who committed the crime charged
Modus operandi evidence is helpful to the
prosecution if the prosecution has evidence of
crimes committed by the defendant that are
similar to the crime charged The crimes need
not be identical, but the prosecution must make
a strong and persuasive showing of similarity
between the crime charged and the other
crimes The prosecution may introduce
evi-dence from prior or subsequent crimes to prove
modus operandi only if the other crimes share
peculiar and distinctive features with the crime
charged The features must be uncommon and
rarely seen in other crimes, and they must be so
distinct that they can be recognized as the
handiwork of the same person
For example, assume that a defendant is on
trial for armed ROBBERY In the robbery the
defendant is alleged to have brandished a pistol
and ordered the victim to relinquish cash and
valuables Assume further that the defendant
has committed armed robbery in the past by
brandishing a pistol and demanding cash and
valuables A prosecutor might be able to in-troduce the evidence into trial to show the defendant’s motive, intent, or state of mind,
or to identify the weapon used in the crime
However, the prosecutor could not argue to the judge or jury that the robberies were so similar
as to demonstrate that it was the defendant who committed that particular robbery, because it is not unusual for a robber to brandish a pistol and demand cash and valuables in the course of
an armed robbery
Now assume that a defendant is charged with robbing a movie theater that was showing the movie Showgirls and that the defendant was wearing a glittering, flamboyant Las Vegas-style cabaret costume during the robbery Assume further that the prosecution has evidence that the defendant, while dressed as a Las Vegas dancer, has robbed other movie theaters showing the movie Showgirls The prosecution could introduce this evidence into trial to prove modus operandi and show that it was the defendant who committed the crime, because the method of armed robbery used in the crimes was both similar and distinctive
During the 1982 trial
of Angelo Buono, California’s notorious
“Hillside Strangler,” the prosecution relied
on modus operandi evidence to show similarities in the deaths of ten victims.
AP IMAGES MODUS OPERANDI 107