The opening statement, although not mandatory, is seldom waived because it offers a valuable opportunity to provide an overview of the case to the jury and to explain the anticipated pro
Trang 1Act of 2009, H.R 1708) Neither bill passed in the House of Representatives during 2009
FURTHER READINGS Altman, Nancy J 2009 “Social Security and Intergenera-tional Justice ” George Washington Law Review 77 (September).
Matheny, Ken 2003 “Social Security Disability and the Older Worker: A Proposal for Reform ” Georgetown Journal on Poverty Law & Policy 10 (winter).
Nickles, Don 1999 “Retiring in America: Why the United States Needs a New Kind of Social Security for the New Millennium.” Harvard Journal on Legislation 36 (winter).
Social Security Advisory Board 2001 Social Security Disability: The Basics Mechanicsburg: Pennsylvania Bar Institute.
Social Security and SSI Disability 1999 New York: Practising Law Institute.
CROSS REFERENCES Disability Discrimination; Elder Law; Health Insurance;
Senior Citizens; Social Security.
OLMSTEAD V UNITED STATES
Olmstead v United States, 277 U.S 438, 48 S Ct
564, 72 L Ed 944 (1928), was the first case concerning the issue of whether messages passing over telephone wires are within the constitutional protection against unreasonable searches and seizures
In Olmstead, several individuals were con-victed of a conspiracy to violate the National Prohibition Act (41 Stat 305) by illegally possessing, transporting, and importing intoxi-cating liquors, maintaining nuisances, and selling intoxicating liquors The information leading to the discovery of the conspiracy was, for the most part, obtained through the interception of messages on the telephones of the conspirators by four federal prohibition officers Wires were placed along the ordinary telephone wires from the homes of four of the defendants and along the wires that led to their main office of operation The insertion of the wires was made without any trespass having been committed on any of the defendants’ property, because it was done in the basement
of the large office building and in the streets near the residences
The SUPREME COURT held that messages passing over telephone wires were not within the protection against unreasonable searches and seizures The eavesdropper needed to have physically trespassed in order for evidence procured byWIRETAPPING to have been obtained
unconstitutionally The Court reasoned that, since there was no entry of the homes or offices
of the defendants, there was no physicalTRESPASS
In addition, in spite of the fact that the evidence leading to the conviction was obtained in violation of a state statute that made it a misde-meanor to intercept telegraphic or telephonic messages, the Court indicated that the statute did not declare that evidence obtained in such manner would be inadmissible, and it was not inadmissible underCOMMON LAW
Subsequently the Olmstead case was over-ruled in the case of Katz v U.S., 389 U.S 347,
88 S.Ct 507, 19 L.Ed.2d 576 (1967), and the physical trespass doctrine abandoned The holding in Olmstead is thus no longer the law Under current law, in order for ELECTRONIC SURVEILLANCE to be constitutionally permissible,
it must be done pursuant to the prior authorization by a court In addition, since Katz, the existence of a privacy interest within the Fourth Amendment’s protective ambit has been understood to depend upon whether the individual asserting the interest has demon-strated a subjective expectation of privacy and whether society would accept that expectation
as reasonable
In the late nineteenth century, the Massachusetts-born attorney Richard Olney exerted a powerful influence over domestic and international affairs From 1893 to 1895, Olney served as U.S attorney general under President GROVER CLEVELANDand, from 1895 to 1897, asSECRETARY
OF STATE A nationalist with a forceful personal-ity who took a broad view of federal power, Olney is remembered for two important actions during his public career that had long-lasting implications for U.S law First, as attorney general, he used the office in 1894 to break a strike by railway workers that hampered the delivery of mail nationwide The outcome affected the rights of workers for more than a quarter of a century, thrust Olney into the national spotlight, and earned him the enmity
of LABOR UNIONS Second, after becoming secre-tary of state, he resolved a conflict between Venezuela and England that shaped U.S foreign policy well into the twentieth century
Born in Oxford, Massachusetts, on September
15, 1835, Olney was educated at Brown Univer-sity and Harvard Law School Admitted to the
348 OLMSTEAD V UNITED STATES
Trang 2Boston bar in 1859, he established a successful
law practice and earned recognition for his work
with railroads A brief political career followed
with his election to the Massachusetts state
legislature, where he served one term between
1873 and 1874 In 1893 he was appointed U.S
attorney general at the start of the second and
deeply troubled administration of President
Cleveland The president became mired in public
controversies, and his new attorney general
would be at the heart of one of the worst
When Olney assumed his duties in the
DEPARTMENT OF JUSTICE, the nation was suffering
from an economic depression The Pullman
Company, a Chicago-based railroad, cut its
workers’ pay to near-starvation wages but went
on paying dividends to its shareholders In 1894
the company’s laborers staged a strike that
spread nationwide under the auspices of the
nascent American Railway Union: everywhere,
railroad workers refused to handle Pullman
train cars Tensions escalated when railroad
owners began firing the workers, and violence
was threatened The General Managers
Associa-tion, a trade organization representing railroads,
appealed to the Cleveland administration for
federal intervention
Because the strike had prevented the
deliv-ery of U.S mails, Cleveland and Olney had to
intervene Olney had little sympathy for the
workers His first idea was to use the U.S Army
to crush them Instead he sent 5000 special
deputies to restore order When riots followed,
Olney arrested and prosecuted union leaders on
grounds of conspiracy, and he won a sweeping
federal court INJUNCTION to prevent workers
from interfering with the railroads’ operation
Appealing to the U.S Supreme Court in 1895,
union presidentEUGENE V.DEBSlost his case, and
the strike was broken (In re Debs, 158 U.S 564,
15 S Ct 900, 39 L Ed 1092) The Court’s sanction of the injunction was a great boon to U.S corporations, which thereafter sought court injunctions to break strikes until the practice was restrained during the 1930s
Nonetheless, Olney and Cleveland paid a high political price in the polls for their widely unpopular actions
In 1895, toward the end of the Cleveland administration, the president appointed Olney secretary of state At once Olney faced a foreign
❖
1835 Born, Oxford, Mass.
1917 Died, Boston, Mass.
1914–18 World War I
◆
1859 Admitted to Boston bar
1861–65 U.S Civil War
1873–74 Served
in Mass state legislature
❖
1893–95 Served
as U.S attorney general
1894 Authorized special deputies
to break Pullman workers strike
1898 Spanish-American War resulted in Spain ceding Puerto Rico, the Philippines, and Guam to U.S and
independence for Cuba
1895 Ordered Britain to enter arbitration to settle boundary dispute between Venezuela and British Guiana (settled in 1899) 1895–97 Served as
secretary of state
◆◆
1903 Panama Canal treaty signed, construction of Panama Canal begun
1914 Panama Canal opened for traffic
Richard Olney GETTY IMAGES
T ODAY THE U NITED
S TATES IS PRACTICALLY SOVEREIGN ON THIS CONTINENT AND ITS FIAT IS LAW UPON THE SUBJECTS TO WHICH IT CONFINES ITS INTERPOSITION
—R ICHARD O LNEY
OLNEY, RICHARD 349
Trang 3policy crisis: the conflict between Venezuela and Great Britain over the Venezuela-British Guiana boundary As much a believer in U.S suprem-acy as he was in federal power at home, Olney ordered Britain to enter ARBITRATION with Venezuela His order relied on a broad reading
of the MONROE DOCTRINE As the basis of U.S
foreign policy in the nineteenth century, the Monroe Doctrine essentially preserved U.S
independence in the Western Hemisphere
Although the doctrine prohibited foreign inter-vention in Latin American nations, Olney believed it permitted U.S intervention to stop European interference with Latin American affairs Britain ultimately resolved its conflict with Venezuela through arbitration in 1899 But the broader impact of Olney’s views came later
His interpretation came to be known as the Olney Corollary to the Monroe Doctrine and was influential in the foreign policy of President
THEODORE ROOSEVELT Olney left office in 1897 at the end of the unpopular Cleveland administration Returning
to private practice, he was touted as a possible presidential candidate in 1904, but he did not run He died in Boston on April 8, 1917
FURTHER READINGS Brodsky, Alyn 2000 Grover Cleveland: A Study in Character.
New York: Truman Talley.
Eggert, Gerald G 1974 Richard Olney: Evolution of a Statesman State College, PA: Pennsylvania State Univ.
Press.
James, Henry 2005 Richard Olney and His Public Service.
Whitefish, MT: Kessinger.
Jeffers, H Paul 2000 An Honest President: The Life and Presidencies of Grover Cleveland New York: Morrow/
Avon.
CROSS REFERENCES Cleveland, Stephen Grover; Debs, Eugene Victor; Labor Union; Monroe Doctrine.
OLOGRAPH
SeeHOLOGRAPH
OMBUDSPERSON
A public official who acts as an impartial intermediary between the public and government
or bureaucracy, or an employee of an organization who mediates disputes between employees and management
The Swedish legislature first created the position of ombudsperson in the early 1800s;
the literal translation of ombudsperson is “an
investigator of citizen complaints.” This official was considered to be a person of “known legal ability and outstanding integrity” and was chosen
by the Swedish parliament to serve a four-year term
In modern times, an ombudsperson addresses concerns (such as administrative abuse
or maladministration) that citizens or groups have about organizations or bureaucracies In these situations, the ombudsperson acts as an impartial mediator between the two parties, providing a less threatening type of dispute resolution For the ombudsperson to help reduce friction between citizens and the government, he
or she must be viewed as trustworthy and neutral; the process will not work if one party believes that the ombudsperson is taking the side of the other party Ombudspersons are bound by the oath of the Ombudsman’s Association, which requires neutrality and confidentiality, requirements that are necessary to create trust between the persons involved in a dispute and the ombudsperson The power of the ombudsperson lies in his or her ability to investigate complaints of wrongdo-ing and then notify the public or the relevant government agencies, or both, of the findings However, an ombudsperson cannot change or make laws, enforce any recommendations, or change administrative actions or decisions
At the government level, the ombudsperson
is appointed by the legislature of the state or county in which he or she serves The ombudsperson typically has some law training, although a law degree is not required, and the ombudsperson must be free of any political loyalties The goal of the ombudsperson is to facilitate the communication between the public and the government and help create solutions to problems that arise between the two parties, rather than punishing the wrongdoer These solutions are aimed at reducing the possibility
of similar problems arising in the future Friction between the public and the govern-ment often can be attributed to the ways in which laws or legislative policies are enforced In these cases, the ombudsperson can try to reduce the friction by finding a more satisfactory method of carrying out the law For example, even though police officers may legally enter a workplace to arrest an employee on criminal charges, this practice can embarrass the employee and threaten his or her job, even if charges are later dropped In this situation, the ombudsperson would most
350 OLOGRAPH
Trang 4likely confer with the police department to see
whether arrests for non-felonies could be made
safely outside the workplace
The ombudsperson’s role in state and federal
governments is not always well defined One
exception is the ombudsperson for the
DEPART-MENT OF HOMELAND SECURITY Citizenship and
IMMIGRATION Services (CIS Ombudsperson)
Established under section 452 of the Homeland
Security Act of 2002, the CIS Ombudsman
reports directly to the Deputy Secretary of the
Department of Homeland Security (DHS) The
primary objectives of the CIS Ombudsman are to:
(1) assist individuals and employers in resolving
problems with the United States Citizenship and
Immigration Services (USCIS); (2) identify areas
in which individuals and employers have
pro-blems in dealing with the USCIS; and (3) propose
changes in the administrative practices of the
USCIS in an effort to mitigate problems
Guided by these objectives, the CIS
Om-budsman operates in a unique role, advocating
on behalf of the public for efficient and
responsive immigration services while
support-ing White House efforts to serve the public
effectively The CIS Ombudsman functions as
both a public advocate and a public servant In
fulfilling these responsibilities, the CIS
Om-budsman seeks to provide recommendations to
resolve problems encountered by individuals
and employers that: (1) ensure national security
and the integrity of the legal immigration
system; (2) increase efficiencies in administering
citizenship and immigration services; and (3)
improve customer service in rendering
citizen-ship and immigration services
Although most ombudspersons in the
United States work for federal, state, and local
governments, companies also employ a
signifi-cant number of ombudspersons Corporate
ombudspersons serve as the point of contact
for dispute resolution between employer and
employee and between fellow employees The
corporate ombudsperson, who is typically a
senior official within the company, helps
employees work through a variety of
work-related conflicts, such as dissatisfaction with
salary, unethical behavior such as theft orFRAUD,
terminations,DISCRIMINATION, andSEXUAL
HARASS-MENT In recent years, issues such as government
contract compliance and WHISTLEBLOWING have
also been handled by corporate ombudspersons
The corporate ombudsperson’s position
arose from corporations’ desire to increase the
job satisfaction of their employees, improve the communication between employees and man-agement, and avoid LITIGATION More than 200 private corporations employ more than 1,000 individuals as ombudspersons On average, a corporate ombudsperson will handle 200 to 300 cases per year and deal with 2 to 8 percent of the corporate workforce
The methods that a corporate ombudsper-son may use include responsive listening, investigation, mediation, direct resolution, and upward feedback to management The ombuds-person allows an employee to voice concerns and advises or counsels the employee on the best way to deal with the situation If necessary, the ombudsperson can investigate the situation further, as is often the case in allegations of sexual harassment However, because of the variety of situations a corporate ombudsperson deals with, and because corporate cultures vary from one company to another, there is no standard job description or authority level for corporate ombudspersons
Other organizations that employ ombud-spersons are hospitals, school districts, and universities More than 100 colleges and univer-sities employ an ombudsperson, and more than 4,000 hospitals offer ombudsperson services for patients Many small businesses also have an office that handles client or citizen complaints and functions as an ombudsperson’s office
Confidentiality is critical to the success of an ombudsperson, regardless of whether the om-budsperson serves a governmental entity or a non-governmental entity If either party to a dispute believes that their concerns are not being heard in confidence, communication with the ombudsperson will decline, and the possi-bility of resolving a problem will also decline
However, ombudspersons are not required to maintain confidentiality regarding criminal behavior or conduct that threatens employee safety or company assets
The question of whether an ombudsperson’s communications with a party to a dispute are privileged (that is, whether they may be protected from disclosure in court) is determined by courts
on a case-by-case basis Several cases have recognized an ombudsperson’s privilege, includ-ing Shabazz v Scurr, 662 F Supp 90 (S.D Iowa 1987), which involved communications to a prison ombudsperson, and Kientzy v McDonnell Douglas Corp., 133 F.R.D 570 (E.D Mo 1991), which involved a corporate ombudsperson
OMBUDSPERSON 351
Trang 5FURTHER READINGS Green, Mark T., and Laurel W Eisner 1998 “The Public Advocate for New York City: An Analysis of the Country’s Only Elected Ombudsman.” New York Law School Law Review 42 (summer-fall).
Gregory, Roy, and Philip Giddings, eds 2000 Righting Wrongs: The Ombudsman in Six Continents Washing-ton, D.C.: IOS Press.
Hidén, Mikael 1973 The Ombudsman in Finland: The First Fifty Years Trans by Aaron Bell Berkeley, Calif.:
Institute of Governmental Studies.
Rowat, Donald C., ed 1965 The Ombudsman: Citizen’s Defender London: George Allen and Unwin.
Thompson, Brenda V 1992 “Corporate Ombudsmen and Privileged Communications: Should Employee Com-munications to Corporate Ombudsmen Be Entitled to Privilege? ” Univ of Cincinnati Law Review 61 (fall).
Wibbenmeyer, Kevin L 1991 “Privileged Communication Extended to the Corporate Ombudsman-Employee Relationship via Federal Rule of Evidence 501 ” Journal
of Dispute Resolution (fall).
Zagoria, Sam 1988 The Ombudsman: How Good Govern-ments Handle Citizens’ Grievances Cabin John, Md.:
Seven Locks.
CROSS REFERENCES Administrative Law and Procedure; Alternative Dispute Resolution.
OMNIBUS
[Latin, For all; containing two or more independent matters.] A term frequently used
in reference to a legislative bill composed of two or more general subjects that is designed to compel the executive to approve provisions that he or she would otherwise reject but that he or she signs into law to prevent the defeat of the entire bill
Laws governing the FEDERAL BUDGET are typically omnibus bills; for example, the Omni-bus Consolidated Rescissions and Appropria-tions Act of 1996 (110 Stat 1321)
ON DEMAND
Payable immediately on request
A note that is payable on demand is one that
is to be paid the moment payment is requested
by the individual who has legal possession thereof Also termed“on call.”
CROSS REFERENCE Commercial Paper.
ON OR ABOUT
Near; approximately; without significant variance from an agreed date
The phrase on or about is used to avoid being bound to a more precise statement than is
required by law For example, when an individual seeks to purchase a home, the date when the transaction is closed and the legal title and possession are transferred from seller to buyer is ordinarily scheduled on or about a particular date The phrase is used to indicate that the parties recognize the fact that, although the exact date might not be convenient for both
of them, the transaction should be completed as close to that date as is practicable
ON POINT
Directly applicable or dispositive of the matter under consideration Relevant to the matter at hand
A statute or case is“on point” if it has direct application to the facts of a case currently before
a tribunal for determination Also called “in point” or apposite
ONE PERSON, ONE VOTE
The principle that all citizens, regardless of where they reside in a state, are entitled to equal legislative representation
This principle was enunciated by the Supreme Court in Reynolds v Sims, 377 U.S
533, 84 S Ct 1362, 12 L Ed 2d 506 (1964) The Court ruled that a state’s apportionment plan for seats in both houses of a BICAMERAL state legislature must allocate seats on a population basis so that the voting power of each voter be
as equal as possible to that of any other voter More recently, in 2004, the Court affirmed a Georgia district court’s judgment that a state legislative reapportionment scheme violated the one-person, one-vote principal enshrined in the
EQUAL PROTECTION Clause, citing the lower court’s finding of “a deliberate and systematic policy of favoring rural and inner-city interests
at the expense of suburban areas north, east, and west of Atlanta” as well as “an intentional effort to allow INCUMBENT Democrats to main-tain or increase their delegation, primarily by systematically underpopulating the districts held by incumbent Democrats, by overpopulat-ing those of Republicans, and by deliberately pairing numerous Republican incumbents against one another.” Cox v Larios 542 U.S
947, 124 S.Ct 2806 (2004)
CROSS REFERENCE Baker v Carr.
352 OMNIBUS
Trang 6vO'NEILL, THOMAS PHILLIP, JR.
In many ways, Democrat Tip O’Neill
epito-mized the cigar-smoking, deal-making
Ameri-can politician of a bygone era A tough,
gregarious leader, O’Neill was the formidable
Speaker of the U.S House of Representatives
from 1977 to 1986 He was a die-hard liberal
whose commitment to America’s poor and
working class remained undiminished
through-out his 35 years in Washington, D.C When
O’Neill died of cardiac arrest at age 81 on
January 5, 1994, President BILL CLINTON
eulo-gized him as one of the nation’s most
promi-nent and loyal champions of American workers
and as a man who genuinely loved politics and
people
Thomas Phillip “Tip” O’Neill Jr was born
December 9, 1912, in a working-class section of
Cambridge, Massachusetts His Irish Catholic
father, Thomas O’Neill Sr., was a bricklayer and
member of the Cambridge City Council His
mother, Rose Tolan O’Neill, died when O’Neill
was just one year old
At an early age, O’Neill developed a passion
for politics When he was 15 years old, he spent
hours working on Democrat Alfred E Smith’s
unsuccessful presidential campaign against
HERBERT HOOVER During his senior year at Boston
College, O’Neill ran for public office for the
first time He entered the race for the Cambridge
City Council and lost by a mere 150 votes
This early defeat taught the young candidate
a valuable lesson about politics Taking his local
support for granted, O’Neill had failed to
campaign in his own North Cambridge
neigh-borhood The voters from his district resented
his neglect and did not back him as strongly as expected O’Neill never repeated this tactical error After the city council loss, O’Neill’s father reportedly observed, “All politics is local.” For years, O’Neill quoted his father’s maxim and applied it to his work
In 1936, the year he graduated from college,
O’Neill enjoyed his first victory at the polls
Thomas “Tip” O’Neill.
AP IMAGES
Thomas Phillip O’Neill Jr 1912–1994
❖
1912 Born, Cambridge, Mass.
1936 Graduated from Boston College
1914–18 World War I
1939–45 World War II
1936–52 Served in Mass House
1948–52 Served as speaker of Mass
House
1950–53 Korean War
1952–86 Served
in U.S House
1961–73 Vietnam War
1964 Voted “yes” on Gulf of Tonkin Resolution, which escalated U.S.
involvement in Vietnam
1972 Elected majority leader
of the House
1978 House ethics committee investigation
of influence peddling scandal
1977–86 Served as Speaker of the House
1987 Man of the House
memoirs published
1991 Awarded the Presidential Medal
of Freedom by President George H.W Bush
1994 Died, Boston, Mass.
O’NEILL, THOMAS PHILLIP, JR 353
Trang 7Using the political leverage of jobs and favors,
he won a seat in the Massachusetts House of Representatives, from the North Cambridge district O’Neill served in the state legislature for 16 years In 1952 he launched into national politics and was elected to the U.S House of Representatives, beginning a congressional ca-reer that included an appointment as majority whip in 1971 and election as majority leader in
1972 He reached the pinnacle of legislative power in 1976 when he rose to the House speakership
Outgoing and outspoken, O’Neill was known for his partisanship and for his skillful use of power He embodied the liberal politics
of theDEMOCRATIC PARTYduring the late twenti-eth century His support of federal social programs was unbending As the political right grew in power, O’Neill fought conservative proposals such as a balanced budget because they threatened the education, housing, and
WELFAREprograms he cherished
As Speaker of the House, O’Neill led Congress during the administrations of Pre-sidents JIMMY CARTER, a Democrat, and RONALD REAGAN, a Republican O’Neill did not respect Reagan’s intellectual capabilities or his conser-vative policies After clashing repeatedly with Reagan during his two terms in the White House, O’Neill called his fellow Irishman the least knowledgeable president he had ever worked with in 35 years in the nation’s capitol
The two were polar opposites on nearly every political issue, particularly the government’s role in American life
O’Neill’s legislative legacy includes a code of ethics for House members and a drive to impeach President RICHARD M NIXON O’Neill also was among the first Democrats to speak out against the VIETNAM WAR during the 1960s He once told an interviewer that the only vote in his congressional career that he regretted was his affirmative vote on the GULF OF TONKIN RESOLU-TIONin 1964 (The resolution increased Ameri-can troop involvement in Southeast Asia.) Partisan to a fault, O’Neill had voted for the measure because he felt duty bound to support the Democratic president,LYNDON B.JOHNSON While in office, O’Neill shared a bachelor apartment in Washington, D.C with Represen-tative Edward Boland of Massachusetts His wife, Mildred (“Millie”), and their five children stayed in the home district According to
Capitol Hill legend, the refrigerator in the men’s apartment was stocked mostly with diet soft drinks, beer, and cigars
O’Neill did not survive more than a quarter century in Washington, D.C., without some tarnish to his reputation In 1978 he was criticized for accepting favors from Tongsun Park, an influence-peddling rice merchant from South Korea An ethics committee investigation concluded that O’Neill had shown bad judgment
in allowing Park to throw parties for him The committee cleared O’Neill of any illegalities
O’Neill retired from Congress in 1987 He subsequently spent most of his time in Washington, D.C., or at Cape Cod with his wife O’Neill wrote a best-selling book about his experiences in Washington, entitled Man of the House, and starred in popular commercials for credit cards He died January 5, 1994, in Boston, Massachusetts
O’Neill was a throwback to an earlier era of backroom politics on Capitol Hill The colorful Massachusetts congressman was a master at pressuring representatives to pass or block key legislation O’Neill enjoyed a national reputation but remained loyal to the constituents back home He is remembered as an unapologetic liberal, proud of his role in assisting the poor, the unemployed, and the least privileged Americans
He was one of the last and most highly regarded
of the old-style American politicians
FURTHER READINGS Farrell, John Aloysius 2001 Tip O’Neill and the Democratic Century Boston: Back Bay.
O ’Neill, Thomas P 1987 Man of the House: The Life and Political Memoirs of Speaker Tip O’Neill with Novak New York: Random House.
O ’Neill, Tip, and Gary Hymel 1995 All Politics is Local and Other Rules of the Game Cincinnati: Adams Media.
ONUS PROBANDI
[Latin, The burden of proof.] In the strict sense, a term used to indicate that if no evidence is set forth
by the party who has the burden of proof–that is, the duty to establish the existence of facts in support
of a disputed issue–then the issue must be found against that party Often shortened to onus
OPEN
To make accessible, visible, or available; to submit
to review, examination, or inquiry through the elimination of restrictions or impediments
Y OU CAN TEACH AN
OLD DOG NEW
TRICKS — IF THE OLD
DOG WANTS TO
LEARN
—T HOMAS “T IP ”
O’N EILL
354 ONUS PROBANDI
Trang 8OPEN ACCOUNT
An unpaid or unsettled account, which can take
the form of ongoing charges by a seller and
payments by a buyer; an account with a balance
that has not been ascertained, that is kept open in
anticipation of future transactions A type of credit
extended by a seller to a buyer that permits the
buyer to make purchases without a note or
security and is based on an evaluation of the
buyer’s credit A contractual obligation that may
be modified by subsequent agreement of the
parties, either by expressed consent or by consent
implied from the conduct of the parties, provided
the agreement changing the contractual obligation
is based upon independent consideration
OPEN BID
An offer to perform a contract, generally of a
construction nature, in which the bidder reserves
the right to reduce his or her bid to compete with a
lower bid
OPEN COURT
Common law requires a trial in open court; “open
court” means a court to which the public has a
right to be admitted This term may mean either a
court that has been formally convened and
declared open for the transaction of its proper
judicial business or a court that is freely open to
spectators
In the interest of promoting access to
justice, many state constitutions contain“open
courts” provisions, whereby would-be litigants
can count on the state’s courts to be open and
available to them in matters of legal need
Article 1, Section 14 of the Missouri
Constitu-tion, for example, provides, that“every man, for
any injury done to him in his person or
property, ought to have remedy by the course
of the Law of the land, and ought to have justice
and right, freely without sale, fully without any
denial, and speedily without delay, according to
the Law of the land.”
OPEN-END CONTRACT
An agreement that allows a buyer to make
purchases over a period of time without a change
in the price or terms by the seller, such as when
exact quantities are not known in advance A
minimum and maximum number of units
available for purchase must be stated in the
contract
OPEN-END CREDIT
A type of revolving account that permits an individual to pay, on a monthly basis, only a portion of the total amount due A creditor may anticipate repeated purchases from this customer, and the creditor may also impose a periodic finance charge on the customer’s remaining balance The available amount of credit (set in advance by the creditor) may be used by the customer to the extent that their balance is paid
This type of CONSUMER CREDIT is frequently used in conjunction with bank and department store credit cards
OPEN-END MORTGAGE
A mortgage that allows the borrowing of addi-tional sums, often on the condition that a stated ratio of collateral value to the debt be maintained
A mortgage that provides for future advances on the mortgage and which so increases the amount
of the mortgage The most commonly known form
of an open-end mortgage is an equity line on a residence An open-end mortage takes precedence over subsequent grantees of the mortgaged property, even if fully paid off, as long as it is left open
OPEN LISTING
A type of real estate listing contract whereby any agent who has a right to participate in the open listing is entitled to a commission if he or she produces the sale
OPEN SHOP
A business in which union and nonunion workers are employed A business in which union membership is not a condition of securing or maintaining employment The laws under which such businesses operate are also known as “Right
to Work” laws
The term open shop is frequently used to imply that the operator of this type of shop is, in effect, exercising DISCRIMINATION against trade unions and hampering their advancement through the employment of nonunion employees
CROSS REFERENCE Labor Union.
OPENING STATEMENT
The opening statement is an introductory state-ment made by the attorneys for each side at the
OPENING STATEMENT 355
Trang 9start of a trial The opening statement, although not mandatory, is seldom waived because it offers
a valuable opportunity to provide an overview of the case to the jury and to explain the anticipated proof that will be presented during the course of the trial
The primary purpose of an opening state-ment is to apprise the trier of fact, whether jury
or court, of the issues in question and to summarize the evidence that the party intends
to offer during the trial TheSUPREME COURT has characterized an opening statement as “ordi-narily intended to do no more than to inform the jury in a general way of the nature of the action and defense so that they may better be prepared to understand the evidence” (Best v
District of Columbia, 291 U.S 411, 54 S Ct 487,
78 L Ed 882[1934])
Most practitioners and legal scholars agree that an effective opening statement is vital to the trial process The importance of an opening statement has been established by studies that showed that 80 percent of jurors’ ultimate conclusions with respect to the verdict corre-sponded with their tentative opinion after opening statements This is because an effective opening statement establishes the facts of the case and sets forth a legal theory and explana-tion for why the attorney’s client should prevail
An opening statement may be either a matter of right or a privilege depending on applicable state and local laws A party may waive its option of presenting an opening statement because opening statements are not mandatory
If a party chooses to give an opening statement, the party with the BURDEN OF PROOF
will usually present its opening statement first
In a civil case, this means that the plaintiff’s attorney presents an opening statement first In
a criminal case, the burden of proof rests on the prosecution Therefore, the prosecution will be first to present an opening statement
The defense may present its opening statement after thePLAINTIFFor prosecution has given its opening statement The defense also has the option of reserving the opening statement until after the plaintiff has presented its case Courts have discretion to direct a different order of presentation of opening statements if it finds good reasons for such change in order
Opening statements allow attorneys for each side to introduce themselves and to introduce the parties involved in the lawsuit Additionally, attorneys will usually outline the important facts
of the case during the opening statement to assist the jury in understanding the evidence that will be presented during the trial An opening statement generally contains a brief explanation of the applicable law and a request for verdict In a request for verdict, the attorney explains the verdict sought and explains the facts that will support the verdict A well-planned opening statement serves as a road map
of the trial
Opening statements are often informal and narrative in form The attorney tells the client’s story and explains to the jury what the evidence will show An opening statement, however, does not constitute evidence, and the jury cannot rely
on it in reaching a verdict The opening statement should be brief and general rather than long and detailed
An attorney is limited in what he or she can say during an opening statement An attorney may not discuss inadmissible evidence This is especially true where the evidence was ruled inadmissible in a pretrial motion hearing The attorney must reasonably believe that the matters stated will be supported by the evidence In addition, statements that are purely argumentative are not proper during opening statements An attorney may not assert personal opinions, comment about the evidence, or comment about the credibility of a witness during an opening statement
Prosecutors are given latitude during open-ing statements to comment on the evidence they expect to be presented at trial and to employ oratorical flair in so doing (Common-wealth v Kennedy, 598 Pa 621, 959 A.2d 916 [2008]) However, a PROSECUTOR is prohibited from conveying his or her personal belief concerning critical issues at trial, including whether the prosecutor personally believes the
DEFENDANT is guilty or innocent Nor may a prosecutor comment on a defendant’s decision against answering questions during police interrogation before trial, as any such comment would undermine the right to remain silent guaranteed by the FIFTH AMENDMENT to the U.S Constitution (State v Mayo, 301 Wis.2d 642,
734 N.W.2d 115[2007]) Remarks made during
an opening statement that violate these rules
356 OPENING STATEMENT
Trang 10may result in aMISTRIAL if the trial court finds
that the defendant was irreparably prejudiced by
the remarks and that the jury cannot be
reasonably expected to disregard them In Evans
v Commonwealth, 2009 WL 1451935 (2009),
the Supreme Court of Kentucky ruled that a
defendant charged withMURDERwas not entitled
to a mistrial based on an opening statement
declaring that the defendant had escaped from
jail The mention of the escape was brief, the
trial court had instructed the jury not to
consider the statement about the escape for
any purpose, and there was no reason to believe
that the jury was unable to follow the
instruc-tion, the court found
Objections by opposing counsel during an
opening statement are appropriate where the
attorney presenting the opening statement
engages in improper conduct If the attorney
fails to object to the inappropriate conduct, the
objection is deemed waived, and the attorney
cannot complain of such misconduct later in
the trial
A court usually has the discretion to employ
one of several remedies for misconduct during
an opening statement The most common
remedy for misconduct during an opening
statement is jury admonition, where the judge
simply instructs the jury to disregard the
improper statement Where misconduct is more
serious, however, the following remedies may
be available: (1) counsel may be cited for
misconduct orCONTEMPT; (2) a mistrial may be
declared; (3) a new trial may be ordered; (4) an
appeal may be taken based on the misconduct
An attorney can make damaging statements
during the opening statement that legally bind
the client Such statements, known as
admis-sions, are not limited to the opening statement
but can occur throughout the LITIGATION
pro-cess Attorneys must use caution during the
opening statement to avoid making damaging
admissions
The court may decide the case after the
opening statement and before the jury ever has
the opportunity to hear the evidence A court
can properly take the case from the jury where
it is clear from the opening statement that
the plaintiff cannot succeed on the merits or
that the defendant has no valid defense This
resolution is usually accomplished by an
attor-ney bringing a motion for a DIRECTED VERDICT
Taking the case from the jury is an extreme
measure and exercised with great caution
Courts favor allowing a case to be tried on its merits and rarely grant a directed verdict after the opening statement
A strong opening statement will have a lasting impact on the trier of fact It is often the jury’s first introduction to the parties, the issues, and the trial procedure The opening statement begins the process of persuasion, the ultimate goal of which is a favorable verdict
FURTHER READINGS Association of Trial Lawyers of America 2001 “Opening Statement: Laying a Foundation ” Trial 37 (February).
Clarke, Mercer 2002 “Opening Statement from the Defense Perspective ” Trial Advocate Quarterly 21 (spring).
Holmes, Grace W., and Mary I Hiniker, eds 1987 Trial Techniques: Opening Statements and Closing Arguments.
Ann Arbor, Mich.: Institute of Continuing Legal Education.
OPERATION OF LAW
The manner in which an individual acquires certain rights or liabilities through no act or cooperation of his or her own, but merely by the application of the established legal rules to the particular transaction
For example, when an individual dies intestate, the laws of DESCENT AND DISTRIBUTION
provide for the inheritance of the estate by the heir The property of the decedent is said to be transferred by operation of law
OPINION
SeeCOURT OPINION
OPINION EVIDENCE
Evidence of what the witness thinks, believes, or infers in regard to facts in dispute (generally on matters regarding science, medicine, or another pertinent learned field of specialty), as distin-guished from personal knowledge of the facts themselves Non-federal rules of evidence vary from state to state
In federal matters, Rule 701 of theFEDERAL RULES OF EVIDENCE restricts the admissibility of opinions of lay (i.e., non-expert) witnesses to those that are both rationally based on percep-tions and helpful to a clear understanding of the testimony with regard to a fact at issue
Under Federal Rule 702, when this type of evidence is expressed by a qualified expert witness, it may be used only if scientific,
OPINION EVIDENCE 357