...The "adversary system" is the fundamental concept behind American jurisprudence. It is assumed by our system that when you have 2 people on opposite sides who are trying to win, the party that has the truth on its side will ultimately prevail. Of course, as we all know, it doesn't always work that way; but that's our system. Many Continental European systems use the "civil law" method. Under that system, all the lawyers in the case are responsible to help in the "search for the truth." If one lawyer has information that would help the other side or comes to agree with the other side's view, he or she has the right and/or duty to say so. Which system do you think is more effective and why? Also, do you see any constitutional problems with applying the civil law system to the U.S.? For this assignment, in addition to answering the above questions, I would like you to find at least one case (which can be done most easily from Lexis) in which the limits of the adversary system were discussed or tested. The subject matter of the case itself can be anything, but the focus should be whether an attorney or firm's responsibility to a client or court outweighs some other "greater" or "moral" responsibility. For this case, please briefly discuss the ethical issue and how the court resolved it. Which system do you think is more effective and why? U.S. system. The adversarial system emphasizes the debate between the two parties and the judge only directs the jury and guarantees...
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...the following laws in which they were originated. Civilizations throughout time have found it necessary to establish a set of laws dependent on their society's religious beliefs, social structure, setting, and other variables. Magna Carta (Latin for Great Charter, literally "Great Paper"), also called Magna Carta Libertatum (Great Charter of Freedoms), is an English legal charter, originally issued in the year 1215. It was written in Latin. Magna Carta required King John of England to proclaim certain rights (pertaining to nobles and barons), respect certain legal procedures, and accept that his will could be bound by the law. It explicitly protected certain rights of the King's subjects, whether free or fettered most notably the writ of habeas corpus, allowing appeal against unlawful imprisonment that led to the rule of constitutional law today in the English speaking world. The earliest legal system known in its entirety is the Code of Hammurabi which was established in ancient Babylonia nearly 4000 years ago. The Code of Hammurabi was compiled by King Hammurabi himself. Hammurabi was the most notable ruler of the first Babylonian dynasty, and unified Mesopotamia under one central government. Hammurabi's life is unknown, it is predicted that he established his reign around 1792-1750 B.C., thus dating the Code to approximately this period. Draco was a legislator in Athens who was authorized by the Alcmaeonidae to write the law codes around 621 B.C. It marked the first time the...
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...MADDOX V. MONTGOMERY United States Courts of Appeals, Eleventh Circuit 718 F.2d 1033 (11th Cir. 1983) Facts: Jimmy Maddox was convicted of rape in a Georgia state court and sentenced to life imprisonment. Having unsuccessfully pursued his direct appeal and the state post-conviction remedy, Maddox filed a federal habeas corpus petition alleging prosecutorial suppression of exculpatory evidence in violation of the doctrine of Brady v. Maryland. There are four types of situations in which the Brady doctrine applies; the prosecutor did not disclosed information despite the defense attorneys request, the prosecutor also did not disclosed information the general defenses request for all exculpatory information or without their request at all, the prosecutor knew or should have known that the conviction is based on false evidence which he or she failed to disclose. Surely impeaching evidence was not concerning a substantive issue, in the absence of the defense request. In United States V. Anderson it requires proof that the accused believed that some particular "official proceeding" was likely to occur in the near future, and was incorrectly instructed that an...
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...The Jurisdiction of Rights Allotted to Prisoner of War Shane Smith Abstract The jurisdiction and control of prisoners of war have historically been left solely to the military forces that held them captive; the application of rights and treatment being guided and controlled by various treaties and conventions signed by governments. This straightforward, conventional process was, and is, undisputable and logical in its application when it is applied in a conventional ‘civilized’ war; there is room for improvement, but it works. On the contrary, when fighting an unconventional war, with non-state sponsored combatants, the policies need to be reassessed. The Jurisdiction of Rights Allotted to Prisoner of War Our history shows a pattern of war making that is clearly defined, easy to follow, and reasonably undisputable: declaration of war, combat, surrender, treaties and or rebuilding. During the combat phase enemy combatant prisoners are taken, either by force or surrender, and both sides can agree that this is a better alternative to killing. With the exception of prisoner exchanges, these prisoners are held until the conflict is completed. At that time the general prisoners are released and those accused of war crimes are tried. Note that this is not policy, just a general pattern, but it works for a conventional war, a war where the losing side surrenders and both sides announce a cease fire. The problems arise when fighting an unconventional war, such as...
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...Habeas Corpus: An Ancient Law Evolved POL 201: American National Government Habeas Corpus: An Ancient Law Evolved Habeas Corpus is a law that ensures that a person who is arrested or restrained is brought before a judge or court. Should there be a lack of evidence the prisoner will be released. Habeas Corpus can be sought by a prisoner or by the prisoner’s representation. Habeas Corpus has been said to be “the ultimate lawful and peaceable remedy for adjudicating the providence of liberty’s restraint.” (habeascorpus.net) Considering the fact that numerous people have suspended Habeas Corpus or have suspended it for certain individuals, is it still the “ultimate and peaceable remedy” that it used to be? Evolution of Habeas Corpus Habeas Corpus is an ancient common law which originates in England. The precise origin of Habeas Corpus in uncertain but it does appear to be mostly from an Anglo-Saxon origin. Habeas Corpus does date back to before the Magna Carta. (habeascorpus.net) The principle effect of Habeas Corpus was ultimately achieved in the Middle Ages. This was does by employing the use multiple writs. The sum of the writs essentially gave the same effect as the modern day Habeas Corpus. (habeascorpus.net) The Writ of Habeas Corpus was established to create a check of power for the state. It also preserved the rights of individuals from the arbitrary powers of the King, his Court, and his Counsel. (habeascorpus.net) Parliament enacted Habeas Corpus in 1679, codifying...
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...Omar Hazien Advanced Contracts 01/31/2011 Burch Case Brief Procedure Nevada Supreme Ct., 2002 James and Linda Burch, Petitioners, Home purchasers, Plaintiffs v. The Second Judicial Court of Nevada and Double Diamond Ranch, Seller, Defendant. James and Linda Burch sue Double Diamond Ranch for breach of express and implied warranties, negligence, and fraud and misrepresentation. Burches requested removing the insulation, professionally treating area with mildew, installing upgraded insulation, constructing proper water barrier underneath ground, and reimbursement of all fees. The Second Judicial District Court granted developers motion to compel arbitration. Home purchasers petition for writ of mandamus. Petition granted and sent to Supreme Court of Nevada. Facts In March 1997, James and Linda Burch purchase home and homebuyer warranty from Double Diamond. Approximately four months after closing (October 1997), Double Diamond gave Linda Burch a 31 page warranty booklet and made her sign an application form but she did not read the booklet. She signed a document that said by signing she acknowledges she has viewed the “Warranty Teamwork” video, read and received copy of warranty, and consent to all terms including Double Diamond Binding Arbitration Provision. Warranty covers free from material and workmanship defects the first year, electrical/ plumbing/ mechanical defects the second year, and free from structural damages for ten years. In January 1999, the Burches...
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...The Law of Habeas Corpus 1 The Law of Habeas Corpus Christina Hubbard AIU Online The Law of Habeas Corpus 2 Abstract This paper will provide what Habeas Corpus means and the reason why prisoners need this law to use as a defense against the crime in which they were prosecuted for. I will discuss the cause for Habeas Corpus and the effects it has on a prisoner’s freedom. I will also discuss the Habeas Corpus Act of 1867 and Death Penalty 1996 and why they are so important to court system. Prisoners must exhaust all direct appeals before they can use the Habeas Corpus. This essay also will tell discuss why the courts don’t very often grant and overturn a prisoner’s conviction. Under the Constitutional Law it is stated that anyone prisoned in the United States has the right to a Habeas Corpus and can petition a court to hear their case and if there’s enough evidence the case may be reopened and tried again. The Law of Habeas Corpus 3 Habeas Corpus also known as the “Great Writ,” is the most celebrated in the English Law that offers protection against illegal restraint or confinement to any person that is detained by the law. The law allows a person who is detained to legally request to go before a judge after all petitions has been exhausted to give evidence and have their case reopened if the judge thinks that it should be retried. The Habeas Corpus Act was formed in 1679 to protect a person from the abusive detention of a person...
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...Krystle Barrows Habeas Corpus Final Paper American National Government (GSI1326K) Instructor Kuffel July 29, 2013 Habeas Corpus is an important article written into the constitution of the United States and is considered be the “great writ of liberty”. It was not originally written for the constitution but was adopted by the framers from their original home in Great Britain. In my paper I will talk about the meaning and history of Habeas Corpus including how Habeas Corpus and our civil liberties are interpreted and treated in regards to our constitutional rights as well as when congress determines it is lawful to suspend. Habeas Corpus is a writ that was formed as Habeas Corpus Act of 1679 and is used to keep and individual from being unlawfully imprisoned. The earliest version of Habeas corpus appeared in British’s Magna Charta (a Latin phrase means “Great Charter”) in 1215. In the history of Habeas Corpus, in the United States, Presidents had used their war-time executive order power to suspend Habeas Corpus Act of 1679 and/or declared martial law in some of the cases researched. According to the article Habeas Corpus in the Columbia Electronic Encyclopedia 6th edition (2011)” the writ of habeas corpus is Latin for you should have the body”. There are two important factors that go along with its Latin meaning. First, a writ is a document in a courts name to a jailor for example, to act or not act in some way. This writ is an order by judge to see a prisoner in the...
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...The Writ of Habeas Corpus Research Paper and Essay Charlie Potter American Government June 2, 2009 Mr. Potter PART 1 - HABEAS CORPUS RESEARCH PAPER “By this action we should call him King Lincoln I.” - Anti-war Democrats, 1863 INTRODUCTION English in origin, the concept of habeas corpus literally means “that you have the body,” meaning that the court can force the police to produce a prisoner before them for review of their case. While complex in its use, a writ of habeas corpus forms the foundation for the rights of the accused since it allows one branch of the government (the courts) to check and balance the actions of another (the police) in criminal proceedings. And yet, while habeas corpus has been maintained as a fundamental right of the imprisoned, this protection has been tampered with in our history, making habeas corpus sometimes a casualty of our desire for security during times of crisis. Constitutional Principles Several constitutional principal are expressed through habeas corpus, the foremost being checks and balances and that the accused are afforded due process. The framers of the Constitution knew that governments become abusive of the rights of citizens when there is no power to check that abuse and when the treatment of the accused is arbitrary. The use of habeas corpus is in fact one of the few constitutional rights enshrined in the main body of the Constitution instead of the amendments, and is established...
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...Is the Use of the Habeas Corpus Helping or Hurting the War on Terror Brandy Hudson POL201: American National Government Instructor: Spencer Walsh 08/04/2014 Habeas Corpus originated in English common law as a means to protect individuals from illegal detention. Modern day, habeas corpus is mainly used as a solution prior to conviction for state and federal prisoners who challenge the legality of the application of federal laws that were used in judicial proceedings that resulted in the detainment of the individual ( Kavarsky,2014). This essay will examine the evolution of habeas corpus in the United States, how it affects civil liberties, and its effects on the war on terror. The most famous habeas corpus case was that of slave Dred Scott, who attempted to sue for his freedom. Earlier another slave by the name of James Somersett ran away from his master while in England. He was later captured but supporters obtained a writ of habeas corpus that required his captors to produce Sommersett in court where he sued for his freedom. Almost a century later, Dred Scott petitioned the U.S Federal Courts for a writ of habeas corpus. It was granted and later upheld in a court of appeals in 1857, in one of the most controversial cases in American history. The Supreme Court ruled Scott Seven to Two. The court found that no slave or descendent of a slave could be an American citizen, and so Scott was not considered a “person” within the purview of the constitution. Therefore...
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...person can be determined innocent or guilty if either aren’t proven the detainee must be let free. This paper is going to attempt to analyze the historical evolution of Habeas Corpus; give examples from history of the suspension of Habeas Corpus, as well as analyzing it relevance. Habeas Corpus derived from English common law and first appeared in the Magna Carta of 1215 and is the oldest human right in history. Habeas Corpus translated means “you should have the body” habeas corpus is a legal action, or writ, by which those imprisoned unlawfully can seek relief from their imprisonment” (N.A, Habeas Corpus-The Rutherford Institute, 2015). Habeas Corpus was extremely important to the Framers of the Constitution from their personal experiences. When one was capture they were considered either an enemy combatant, imprisoned indefinitely and denied the opportunity to have a fair trial. It became increasing to the founders to protect the American people from such atrocities. March 4, 1801 President Jefferson in his first inaugural addressed the necessity of habeas corpus. President Jefferson belief was found the “freedom of person under the protection of the Habeas Corpus; and trial by juries impartially selected” (N.A, Habeas Corpus-The Rutherford Institute, 2015). There have been only two cases where habeas corpus was suspended in history. In the case of Ex Parte Merryman Lincoln declared martial law on Maryland because of John Merryman whom was a pro-confederate lieutenant...
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...used to commit Gault were legitimate under the Due Process Clause of the Fourteenth Amendment. This decision was made by Judge Mcghee and was later found to be wrongly decided. The Court found Gault’s case met none of the requirements of the Fourteenth Amendment. These requirements include notification of both the parents and the child the juveniles opportunity for confrontation and cross-examination during hearings, safeguard against self-incrimination, and adequate notice of charges. This situation is sort of a complicated one, even though Judge Mcghee processed Gault wrongly, there was a petition filed with the court on the hearing day. This petition was not served to the gaults, in fact none of the family saw the petition until the habeas corpus hearing about a month later. The petition did not make much...
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...In the case Ex parte Milligan, Justice David Davis’ opinion upheld the principles of the Constitution. In Article VI, section 9, clause 2: “The privilege of the writ of Habeas Corpus shall not be suspended, unless in Cases of Rebellion or Invasion the public safety may require it.” during the Civil War, President Lincoln tried to lessen the amount of sympathizers of the South in the Union. He did this by suspending habeas corpus and allowing military trials to take place. Civilian Lambden Milligan was charged with conspiracy against the U.S. government by assisting the Confederates and inciting rebellion. He was tried and convicted in a military tribunal and was sentenced to death. He filed for a writ of habeas corpus. Since he was charged in the state of Indiana, he believed that his case should be held in civil court instead of military court under martial law. The Supreme court agreed with Milligan with a 9-0 vote. Therefore Milligan should have been tried by a jury of his peers instead of a military court....
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...orphan. He graduated from Kenyon College in Gambier, Ohio in 1832 and further studied law in Massachusetts and Yale University, graduating from there in 1835. He served as member in the Illinois House of Representatives in 1845 ; in Illinois Constitutional Convention; and as an Illinois circuit court judge. The most interesting part of his life is when he served as Abraham Lincoln’s campaign manager during the presidential election of the year 1860. It is when Davis was appointed the associate justice of the United States Supreme Court by Lincoln that he made the most important decision of his life. The court’s ruling on the case entitled Ex parte Milligan, shows us Davis’ view on civil liberties—particularly, the suspension of the writ to habeas corpus. The Ex parte Milligan case was regarding Lambdin P. Milligan and four others members who were accused, charged, found guilty and sentenced to be hanged by the military court in 1864. However, when brought to the Supreme Court, the Court ruled in favor of the case. Justice Davis delivered the opinion of the Court for...
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...Habeas Corpus And it’s Impact on Civil Liberties and Terrorism. Alson Watson Professor: Scot Wilson Politics 201 November 4, 2012 Introduction In times of national crisis civil liberties are sometimes abridged in exchange for greater security. The Framers, countenancing such an eventuality, granted to Congress the power to suspend the right to a writ of habeas corpus in times of rebellion or invasion. The war on terror has created many a rift in political, judicial and civil rights circles thus creating unique circumstances in regard to dealing with individuals detained due to acts of terrorism. The Habeas Corpus Act ensures that due process is given to those who believe they are innocent of charges set upon them. However those rights to habeas corpus are forfeited when they are found to be guilty of acts against the U.S and its territories and in so doing are not subject to the trials held in a civilian court whether they are citizens or not. In this paper I look to examine the meaning of habeas corpus, its placement in the constitution and its impact on modern society’s laws, civil liberties and political/judicial stances. What is Habeas Corpus? HABEAS CORPUS is a term that was originated in the English legal system and is an important legal instrument in safeguarding individual freedom against arbitrary state action. The writ (legal action) is issued in form of an order calling upon a person by whom another person is detained to bring that person before...
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