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Introduction To Law & Ethics For Paralegals

Introduction To Law & Ethics For Paralegals. Criminal Litigation. Arraignment to Appeal. HOW DO WE GET A CASE?. Something must go wrong. A wrongful act or omission must occur. A WRONGFUL ACT OR OMISSION MUST OCCUR. A person kisses someone else without their permission.

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Introduction To Law & Ethics For Paralegals

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  1. Introduction To Law & Ethics For Paralegals Criminal Litigation Arraignment to Appeal

  2. HOW DO WE GET A CASE? • Something must go wrong. • A wrongful act or omission must occur.

  3. A WRONGFUL ACT OR OMISSION MUST OCCUR • A person kisses someone else without their permission. • A person refuses to give someone a job because of the applicant’s race. • Protesters are refused a permit to march by mayor. • A father refuses to pay child support. • A pilot is suspended from flying because a near miss.

  4. A WRONGFUL ACT OR OMISSION MUST OCCUR • The wrongful act or omission must be a legally recognized wrong

  5. LEGALLY RECOGNIZED WRONG • Constitution • Statute • Administrative Law (Rules and Regulations) • Case Law (Common Law)

  6. A WRONGFUL ACT OR OMISSION MUST OCCUR • ACT: A person refuses to give someone a job because of the applicant’s race. • LAW: This might be a violation of a person’s civil rights • SOURCE: • Constitution • Statute • Regulation

  7. A WRONGFUL … EXAMPLE 1 • ACT: Protesters are refused a permit to march by mayor. • LAW: This is a possible violation of the protester’s right to assemble • SOURCE: Constitution

  8. A WRONGFUL … EXAMPLE 2 • ACT: A father refuses to pay child support. • LAW: This could be a violation of: • A statute • A court order in a divorce case

  9. A WRONGFUL … EXAMPLE 3 • ACT: A pilot is suspended from flying because a near miss. • LAW: Administrative Law (FAA regulation)

  10. HOW DO WE GET A CASE? • Something must go wrong. • A wrongful act or omission must occur. • If the law states that the wrongful act or omission is a criminal act, then the person may be charged with a crime. • If the law does not make that act a crime, no matter how wrongful, no matter how great the harm is, the person cannot be charged with a crime.

  11. CRIMINAL WRONGS • There must be a criminal statute • The legislature and the governor (executive)must define the wrongful act as a criminal act • The executive prosecutes (DA) • The courts interpret that criminal statute

  12. CRIMINAL ACT? • Intentional killing? (Murder) • Sex outside the marriage? (Adultery) • Non-Consensual Sex? (Rape) • Can a husband rape his wife? Yes, because of statute • A woman wearing a see-through shirt in public? (Exposure of a person) • Disrupting a church service? • Sexual harassment — is it a crime?

  13. WHAT IS A CRIME? • It is a wrongful act against the State.

  14. WHO ARE THE PARTIES? • PLAINTIFF: • DEFENDANT: • VICTIM?

  15. WHO ARE THE PARTIES? • PLAINTIFF: The State (The People of the State of New York) • DEFENDANT: The person the state accuses of doing the criminal wrongful act • WHAT ABOUT THE VICTIM? • The victim is a witness (not in the case of homicide)

  16. WHY NOT CIVIL? • You will learn ALL about the path of a civil case in Civil Litigation I, a required course.

  17. DIFFERENCE BETWEEN CRIMINAL AND CIVIL? • Origin of Law • Liberty

  18. DIFFERENCE BETWEEN CRIMINAL AND CIVIL? • Origin of Law • Statutory • Common Law • Liberty • Prison

  19. Who are the Parties in a Criminal Action? The People of the State of New York v [Defendant’s Name]

  20. Jurisdiction Need Jurisdiction

  21. The Basics The start and the end • Every action must have a way it starts and a way it ends Start (Commencement of Action) Ends (Termination of Action)

  22. The Basics The start and the end • Every action must have a way it starts and a way it ends • We look at the Statute: • Criminal Procedure Law § 1.20 (16).

  23. STATUTE: Criminal Procedure Law § 1.20 (16) “Criminal action.” Commencement; Pre-Trial and Trial; and Termination.

  24. Criminal Action • COMMENCEMENT: Commences with filing of accusatory instrumentagainst a defendant in a criminal court • ARRAIGNMENT: Personal Jurisdiction • PRE-TRIAL: Includes all proceedings, orders and motions • TRIAL: Guilty of Not Guilty • TERMINATES with • The sentence or • Some other final disposition

  25. Step-By-Step COMMENCEMENT ARRAIGNMENT PRE-TRIAL TRIAL POST-TRIAL and/or APPEAL

  26. Commencement • The People [usually the District Attorney’s Office] talk to the arresting officer and get enough facts to: • Determine what criminal charges will be brought (based on facts and law) • What type of accusatory instrument will be filed (based on level of criminal offense) • The People file an Accusatory Instrument [AI] in the local criminal court

  27. Arraignment • WHAT IS IT: • There is a new Accusatory Instrument • Defendant appears before the court

  28. Arraignment • PURPOSE: To inform the defendant of: • CHARGES: The charges against him/her • RIGHTS: The rights he or she has as the accused

  29. Pre-Trial THREE STAGES Obtaining Trial Jurisdiction. Disclosure Pre-Trial Motions

  30. Pre-Trial THREE STAGES • Obtaining Trial Jurisdiction. Conversion to a trial-ready Accusatory Instrument • Disclosure: • Bill of Particulars • Discovery • Pre-Trial Motions

  31. Disclosure BILL OF PARTICULARS & DISCOVERY • BILL OF PARTICULARS: • What in particular did the defendant do? • DISCOVERY: • People show defense attorney • test results, • statements, • exculpatory evidence.

  32. Pre-Trial Motions • WHAT IS A MOTION? • A request for a court order • Anything a court can order, the party can move for that relief • EXAMPLES: • Motion to Dismiss • Motion to Suppress Evidence

  33. Motion Procedure Defendant's Motion People’s Answer Hearing (only if there is a factual dispute) Court Decision (grant or Deny)

  34. Motion Procedure Defendant’s Motion The People’s Answer If no factual dispute If factual dispute Court Decision GRANT OR DENY Hearing

  35. Trial • Voir Dire • Openings (P, Δ) • Evidence (P, Δ) • Closing (Δ, P) • Verdict

  36. Jury Selection Voir Dire is the Process by which a jury is chosen from a panel 12 Jurors for a Felony trial 6 Jurors for a Misdemeanor trial

  37. Voir Dire QUESTIONING OF POTENTIAL WITNESSES • Challenging Potential Jurors • Challenging for Cause • Peremptory Challenges

  38. Peremptory Challenges FOR MISDEMEANORS • PEREMPTORY CHALLENGES FOR MISDEMEANORS • Each side gets three (3) peremptory challenges for selection of jury

  39. PEREMPTORY CHALLENGES FOR FELONIES • Class A Felony: 20 peremptory challenges • Class B Felony: 15 peremptory challenges • Class C Felony: 15 peremptory challenges • Class D Felony: 10 peremptory challenges • Class E Felony: 10 peremptory challenges

  40. Trial Order AND NOW THE EXCITING TRIAL…

  41. Trial Order AND NOW THE EXCITING TRIAL… • … PARALEGALS DO NOTHING DURING TRIALS

  42. Verdict • MUST BE UNANIMOUS • Guilty • Not Guilty

  43. Post-Trial & Appeal

  44. Post-Trial • NOT GUILTY: double jeopardy attaches and the case is over (no appeal) • GUILTY: • Sentence • Post-Trial Motions • Appeals

  45. What if there is no Verdict? • If the jury cannot come to a unanimous verdict, it is a “hung jury” and a mistrial • People then have to decide whether to try the case again.

  46. MISDEMEANOR SENTENCE • If MISDEMEANOR • Class A: Up to 1 year • Class B: up to 90 days

  47. FELONY SENTENCE • FELONY: Depends on • What level (Class A1, A2, B, C, D, E) • If classified as a violent felony • If first, second or third felony conviction

  48. Post-Trial Motions • Defendant can move to set aside the judgment (verdict + sentence) • GROUNDS: • Grounds not appearing on the record • Newly discovered evidence (e.g., DNA)

  49. Appeal What Is Being Appealed? • The lower court’s decision. • Appeals in New York can be based on: • Questions of Law • Questions of Fact

  50. Appeal Decision • Appeals Court can either • Affirm • Reverse • Modify • Send back for more proceedings

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