Bail in the U.S.A. How does it work?

Bail in the U.S.A. How does it work?

For those who are not familiar with the “legalese”, one of the primary sources of approaching the U.S. legal world (and in general, the U.S. cultural world) is the Hollywood industry and its products. Indeed, we have seen plenty of times this shady figure: the bail bondsman. And we have heard\seen many times the villain\suspicious being bailed out of jail, i.e. someone pays to get him\her out of jail. But how does it work?

First of all, what is a bail?

Bail is cash, a bond, or property that an arrested person gives to a court to ensure that he or she will appear in court when ordered to do so. If the defendant doesn't show up, the court keeps the bail and issues a warrant for the defendant's arrest (the act of jumping bail is either a misdemeanor or a felony, depending upon statute).

Who sets the bail?

Judges are responsible for setting bail.

The idea of setting a bail overlaps with the concept of pre-trial detention. At this point we need some juridical background: in many western style democracies, imprisonment without\before trial is considered to be in contradiction to the idea that a suspect is innocent until proven guilty, and for this reason pre-trial detention is usually subject to safeguards and restrictions as to its permissible duration. It is the so called “presumption of innocence”, a cornerstone of our legal systems. This means that, after being charged, a person must appear in court to defend himself\herself form the accusations in front of a unbiased judge\jury. Only at the end of the trial, if found guilty, he\she will be deprived of his\her freedom (if so requires the law). But setting up a trial requires time. So, in order to grant a rightful administration of justice, the system makes some exceptions to the principle shown above.

In general, an individual accused of a crime must be held in the custody of the court until his or her guilt or innocence is determined (in U.S. facing a judge is matter of one or two days, unlike in Italy). However, the court has the option of releasing the individual before that determination is made, and this option is called bail. Bail is set by the judge during the defendant's first appearance. For many misdemeanors, bail need not be set. For example, the defendant may be released on the issuance of a citation such as a ticket for a driving violation or when booked for a minor misdemeanor at a police station or jail. But for major misdemeanors and felonies, the defendant must appear before a judge before bail is determined.

A defendant can also be released upon her or his own recognizance, which is the defendant's written, uninsured promise to return for trial. Such a release occurs only if the suspect has steady employment, stable family ties, and a history of residence in the community. Willful violation of the terms of a personal recognizance constitutes a crime.

How much?

The bail is set at an amount that is large enough to convince the accused to return to the court. In general, it can be influenced by some key factors like:

- seriousness of the crime;

• accused's criminal record;
• likelihood the accused will leave or flee to escape the trial;
• accused financial resources

Legal framework

The first and higher legal reference is the Constitution itself: the Eight Amendment bars excessive bails and fines (link).

At a Federal level the main reference is the United States Code, Title 18, Section 3141-3150 (Title 18).The main innovation of this law is that it allows pre-trial detention of individuals based upon their danger to the community; under prior law and traditional bail statutes in the U.S., pre-trial detention was to be based solely upon the risk of flight (see next paragraph).

On the other hand, states may have very strict guidelines for judges to follow; these are usually provided in the form of a published bail schedule (California ; Illinois). These schedules list every single crime defined by state law and prescribe a presumptive dollar value of bail for each one. Judges who wish to depart from the schedule must state specific reasons on the record for doing so. Some states go so far as to require certain forfeitures, bail, and fines for certain crimes.

Recently some states have enacted statutes modeled on federal law that permit pre-trial detention of persons charged with serious violent offenses, if it can be demonstrated that the defendant is a flight risk or a danger to the community.

Pre-trial detention

As mentioned above, pre-trial detention is the exception and is generally subject to restrictions.

Anyway, the accused maybe held in jail without bail if :

• the judge thinks he\she is danger to the community;
• he\she might avoid trial;
• he\she is charged with a crime punishable with life imprisonment or death;
• he\she is charged with a serious or violent crime;
• he\she is charged with certain drug-related crimes and faces more than then years if found guilty;
• there's a reason to believe he\she will obstruct the justice or tamper with witness;

As a practical matter, a judge may also set an extraordinarily high bail – one most people can't afford - as a way of keeping someone in jail until it's time for trial.

The Bail Bondsman

We have seen the theory behind the bail system: the objective of bail in criminal actions is to prevent the imprisonment of the accused prior to trial while ensuring her or his appearance at trial.

But what if the accused cannot afford the money? People often turn to a bail bondsman.

A bail bond is a contract between three parties:

1. The surety = the bail bondsman;
2. The obligee = the court;
3. The principal = the accused

With a bail bond, the bondsman promises to pay the full bail amount to the court if the accused doesn't live up to the terms of release, like show up in court for a hearing or the trial. In exchange for his service, the bondsman usually charges a non-refundable fee of about 10 %.

Few states, such as Illinois, Kentucky, Oregon and Wisconsin, have completely banned commercial bail bonding. In these states, the accused is allowed to pay 10% of the bail directly to the court. This bond, called surety on the bond, is refunded if the accused appears in court.

A comparative perspective

The bail system is totally absent in the Italian procedure. The necessity of making coexist the prevention of imprisonment without\before trial (presumption of innocence is a cornerstone in Italy too) and the guarantee that the accused will appear in trail is reached through a series of precautionary measures specifically defined by the criminal procedure code.

During the investigations, the judge may limit the personal freedom of the accused if the particular case matches two classes of requirements set by articles 273 and 274 of the codice di procedura penale:

• strong clues\evidence of culpability (high probability that the accused is guilty, based on the evidence so far collected) ;
• precautionary measures needed (high risk of fleeing, contamination of the evidence, reiteration of the crime)

If both of the two requirements exist, the judge may apply the more suitable measure, being the imprisonment the utmost and most serious one.

Next time you will see someone being bailed out in a movie, you will know what it means!

U.S. - Italian legal vocabulary

U.S. - Italian legal vocabulary

What do Π and Δ mean in U.S. legalese?

Today it occurred to me that after 9 posts, some of you may not know the difference between a plaintiff and a defendant. So I thought it would be useful a pret-a-porter English -Italian legal dictionary.

Starting from scratch, hereafter you will find some basic English legal terms followed by some technical expressions and with the italian translation at the end.

1.trial = the examination before a judicial tribunal = processo

fair trial =processo equo

trial by jury =processo con la partecipazione della giuria

trial by court=processo senza la partecipazione della giuria

For the Italian law students, remember that processo is not to be translated with the english term process.

2.claimant\plaintiff = the party that starts the trial = attore\ricorrente

rightful claimant = avente diritto

3.respondent \ defendant =the party that is defending himself\herself in court from the accusations\ requests of the plaintiff = convenuto

4.to sue =commence and carry out legal action against someone = citare\convenire in giudizio qualcuno

5.suit\lawsuit =any proceeding in a court of justice where the plaintiff pursues the remedy the law affords him for the redress of an injury or enforcement of a right = azione\istanza\procedimento civile\ controversia

6.to acquit =pronounce someone not guilty of a crime = assolvere

The noun is acquittal=assoluzione

7.to convict= the opposite of acquitting, means pronouncing someone guilty of a crime = condannare

The same word (convict, to be read as /kənˈvɪkt/) can be the verb, with the meaning we've just seen, and also the noun (to be read as /ˈkɒnvɪkt/) meaning a person found guilty of a crime\ a person serving prison sentence =condannato.

The only difference is the accent.

8.hearing=proceeding before a judge \ official in a lawsuit (similar in meaning to sitting) = udienza

to hold a hearing=tenere udienza

adversary hearing=udienza accusatoria

preliminary hearing=udienza preliminare

hearing of an action=udienza di causa civile

hearing (or sitting) in camera=udienza a porte chiuse

In this case the verb is to hear=to give formal hearing

to hear a case =esaminare un caso

9.pleadings=formal allegations by the parties of their respective claims and defenses=difese, memorie, note

The relative verb is to plead=to make any allegation or plea in an action of law; to put forward an answer on the part of a defendant to a legal declaration or charge; to address a court as an advocate=fare una dichiarazione; addurre un argomento; patrocinare

to plead guilty=dichiararsi colpevole

to plead a case=difendere, perorare una causa

10.appeal=to resort to a higher court, to review the decision of a lower court=appello.

to file (or to lodge) an appeal=presentare un ricorso in appello

to appeal against a sentence=appellare contro una sentenza

to give notice of appeal=ricorrere in appello

This 10 - term vocabulary is just the first of a series of  posts focused on improving your legal\comparative dictionary.

p.s. I didn't forget the question in the title: in a U.S. legal firm, when drafting informal documents, you may see Π and Δ. The first stands for plaintiff and the second stands for defendant. In case any of you is going to start as an internship, now you know!

The Jury, pt. 2: a technical follow-up: what if a judge disagrees with the jury?

The Jury pt2: if a judge disagrees with the jury

In a previous introductory post we discussed what a jury is and what its tasks are in a common law system. That post was meant to give a general background about this institution by a comparative perspective, but didn't analyze in depth (for reason of time and space) every single power given to the jurors nor every single aspect involving the jury's tasks and responsibilities.

The idea of deepening some aspects about this important topic was given to me when a friend of mine asked me: “ can a judge disagree with a jury's verdict?”. He also graduated from law school and the idea that a lay jury, ignoring the basic legal concepts, may decide the fate of a trial conflicted with one of the supreme principles of the Italian system: the judge is the peritus peritorum, i.e. the expert among the experts \ the supreme expert.

In this post we will try to analyze more in depth this topic, introducing some important law concepts: “judgment notwithstanding verdict”, “directed verdict”, “judgment as matter of law” and “jury instructions”.

Judgment notwithstanding verdict

A judgment notwithstanding the verdict is a judgement entered by a judge after a jury has returned a verdict that cannot reasonably be supported by the evidence presented in court, or that is paradoxical or contradicts itself. It is also known as JNOV or judgment non obstante verdicto.

The motion, introduced by one party, is based on the argument that no reasonable jury could have reached the conclusion that the jury actually reached, based on the evidence and the law that governs the case.

A judge in a civil case (such as torts or personal injury) may enter a JNOV in favor of either party, while in a criminal case may not enter such judgment to convict a defendant after he\she has been found innocent by a jury, for to do so would violate the defendant's Sixth Amendment right. However, a criminal judge could grant a motion to set aside judgment, similar to JNOV, if no reasonable jury could have found the defendant guilty beyond reasonable doubt.

Directed verdict and Judgment as matter of law

A directed verdict is a ruling entered by a trial judge after determining that there is no legally sufficient evidentiary basis for a reasonable jury to reach a different conclusion. The trial court may grant a directed verdict either sua sponte or upon a motion by either party. A directed verdict may be granted at any time, but usually occurs after at least one party has been fully heard. A directed verdict is only used when the evidence for either the plaintiff or the defendant in a case is so weak that the law cannot possibly support a finding in favor of that party. In these cases, the directed verdict is entered in favor of the other party.

In many U.S. courts, the concept of “judgment as a matter of law” (JMOL) has largely replaced the use of directed verdicts. A judgment as a matter of law is a judgment made by the judge, not the jury, but it is based on the same principle as a directed verdict: the evidence for one party is so minute that, as a matter of law, that party cannot win a court case based on that evidence.

This procedure is not dissimilar to a “motion for summary judgment”: in this case one party asks for a judgment as a matter of law, and supports the request by showing that, even if all the evidence collected in discovery up to that point is taken in favor of the opposing party, there still is not enough evidence to support the opposing party’s case to justify sending the case to the jury. Therefore, argues the typical motion for summary judgment, the judge should rule as a matter of law that the party making the motion should win.

Motions for a directed verdict are rarely granted, but they are frequently made, because the rules of procedure in many civil and criminal courts state that, if a motion for directed verdict is not made, the party that failed to make it might be unable to appeal if he or she ends up losing the case or being dissatisfied with the verdict, the judgement in a civil case, or the sentence in a criminal case.

Motions for a directed verdict are regulated by Rule 50 of the Federal Rules of Civil Procedure (rule50) and by Rule 29 of the Federal Rules of Criminal Procedure (rule29).

All three kinds of judgments (directed verdict, JMOL and JNOV) are therefore similar and all depend on the argument that no reasonable jury could have return a particular result and so the result should be overturned. The point in time at which a party makes this argument – before trial, during trial, or after the verdict has been reached – determines whether the argument is called a motion for a directed verdict, a motion for summary judgment, or a motion for judgment notwithstanding the verdict.

Jury instructions

The jury instructions are the set of legal rules a jury ought to follow when deciding a case. These instructions are given to the jury by the jury instructor, who usually reads them aloud to the jury. They are often the subject of discussion of the case, how they will decide who is guilty, and are given by the judge in order to make sure their interests are represented and nothing prejudicial is said.

Forty-eight states have a model set of instructions (Texas and West Virginia being the exceptions), usually called “pattern jury instruction”. Here is the link to the Illinois pattern jury instruction for both civilc cases and criminal cases : (civil pattern; criminal pattern).

At this point, I hope your doubts about this topic have been clarified.

Next jury-related topic will be “jury nullification”; but this a subject that deserves an all new post for itself!

*sources: http://www.law.cornell.edu/; http://www.rotlaw.com/?l=hea; http://www.law.com/jsp/law/index.jsp; http://www.thefreedictionary.com/

A visual contribution. A typical U.S. courtroom plan

A visual contribution. A typical U.S. courtroom plan

Before actually entering a courtroom at the Daley Center, the only mental representation of a U.S. courtroom I had was from either Tv shows or movies. 

This post is dedicated to those of you with a preference for visual contributions.

P.s. One of the things that impressed me the most was the vast use of technology during the process of submission of evidence. Something we are not really used to in Italy.  

(Picture from http://www.wbdg.org/design/courtroom.php)

(Picture from http://www.litigationtech.com/popUp_diagram_oakland.shtml)

U.S. Legal System 101: introductory notes. Federal and State powers

U.S. Legal System 101: introductory notes. Federal and State powers

Chicago's Richard J. Daley Center is one of the seven main courthouses in Cook judicial circuit (first appellate district) and one of the American largest courthouse systems; however, to those not familiar with the U.S. court system, this statement may seem a little bit void and an end to itself: is it a federal or a state court? What is the difference between the two? How is the entire system organized?

This post will help you (hopefully)to clear any doubt about the division between federal and state powers.

Starting with basics, let's review the structure of the U.S. legal system.

As most of you may know, the U.S.A. is a federal republic consisting of fifty states and one district. Having a double-level structure means having also an integral court system divided into two components: one set of courts exists at the federal level and the other set of courts is set up in every and each of the 50 states plus the District of Columbia. While each court system is responsible for hearing certain type of cases, neither is completely independent of the other, and the systems often interact.

Federalism means sharing powers between two different entities, federation and states, and the judicial power makes no exception. The general principle is that the federal government is relevant with regard to those powers expressly or implicitly delegated to it, while the states remain supreme in matters reserved to them. Hence, the federal court system deals with issues of law relating to those powers granted to it by the Constitution, whereas the state court system deals with issues of law relating to those matters that the constitution did not give to the federal government or expressly denies to the states.

Federal Court System

Federal courts are created by the Congress under the power described by Article III of the Constitution (Art. III), which expressly requires the establishment of a Supreme Court and permits the Congress to create other federal courts. Therefore, federal courts are divided into three tiers and include:

1. Supreme court of the U.S. - court of last resort, mainly with appellate jurisdiction but also has original jurisdiction over a very narrow range of cases;
2. Appellate Courts
   i) appellate courts with geographic-based jurisdiction:
   - eleven U.S. Courts of appeals;
   - U.S. court of appeals for the District of Columbia circuit;

ii) courts with appellate jurisdiction over specific subject matter:

• U.S. Court of Appeals for veteran claims;
• U.S. Court of Appeals for the armed forces;
• U.S. Court of Appeals for the federal circuit;
• U.S. foreign intelligence surveillance court of review

3. Original Jurisdiction
   i) general trial courts:
   - U.S. District Courts (one in each of the 94 federal judicial districts);
   ii) courts over specific subject matter:

- U.S. alien terrorist removal court;
- U.S. bankruptcy court;
- U.S. court of federal claims;
- U.S. court of international trade;
- U.S. court of private land claims (1891-1904);
- U.S. foreign intelligence surveillance court;
- U.S. tax court.

Although the system may seem complicated, it is pretty much easy to understand: viewed as pyramid, it has as its top the Supreme Court, on the next level there are 13 appellate courts plus some specialized appellate court, and at the lowest level there are 94 district courts, plus other specialized ones.

The independence of the judicial branch at the federal level is granted by the Constitution itself that, at Article III, establishes that judges are appointed for life (by the President with the consent of the Senate) and their compensation “shall not be diminished during the continuance of office” .

The jurisdiction of federal court is established by the same Article III, section 2, of the Constitution, and covers A) diversity of citizenship and B)federal question. 

The first field includes all those cases of a civil nature in which parties are residents of different states and the amount in question exceeds $75,000; the second field includes all those cases that arise under the U.S. Constitution, laws, and treaties under the authority of the U.S.: a) suits between states; b) cases involving ambassadors or other high - ranking public figures (original jurisdiction of the Supreme Court); c) bankruptcy; d) patent, copyright and trademark cases; e) admiralty; f) antitrust; g) security and banking regulation; h) federal crimes; i) cases specified by federal statute.

State Court System

No two state court systems are exactly alike; nevertheless, there are enough similarities to provide an example of what a typical state court system looks like.

Most state court systems are made up of:

1. Trial Courts, either of general jurisdiction (i.e. state criminal offenses, torts, contract law, real estate, election issues) or limited jurisdiction ( i.e. probate court, family court, traffic court, juvenile court, small claims court, municipal court, criminal);
2. Intermediate Appellate Court.
   Many, but not all states have intermediate appellate courts (like the U.S. version of the Italian Corte d'Appello). Any party, except a case where a defendant is found not guilty in a criminal trial, who is not satisfied with the judgement of a state trial court may appeal the matter to an appropriate appellate court. Such appeals are usually matter of right and these courts will usually neither review the facts nor accept additional evidence;
3. Highest State Courts.

The jurisdiction of the state courts extends to basically any type of case that does not fall within the exclusive jurisdiction of the federal courts. This means that the vast majority of the trials and cases in the U.S. are matter of state jurisdiction.

To make it a little bit clearer, this chart may help you:

STRUCTURE
The Federal Court System	The State Court System
Article III of the Constitution invests the judicial power of the United States in the federal court system. Article III, Section 1 specifically creates the U.S. Supreme Court and gives Congress the authority to create the lower federal courts.	The Constitution and laws of each state establish the state courts. A court of last resort, often known as a supreme court, is usually the highest court in a state. Some states also have an intermediate court of appeals. Below these appeals courts are the state trial courts. Some are referred to as circuit or district courts.
Congress has used this power to establish the 13 U.S. courts of appeals, the 94 U.S. district courts, the U.S. Court of Claims, and the U.S. Court of International Trade. U.S. bankruptcy courts handle bankruptcy cases. Magistrate judges handle some district court matters.	States also usually have courts that handle specific legal matters, e.g., probate court (wills and estates); juvenile court; family court; etc.
Parties dissatisfied with a decision of a U.S. district court, the U.S. Court of Claims, and/or the U.S. Court of International Trade may appeal to a U.S. court of appeals.	Parties dissatisfied with the decision of the trial court may take their cases to the intermediate court of appeals.
A party may ask the U.S. Supreme Court to review a decision of the U.S. Court of Appeals, but the Supreme Court usually is under no obligation to do so. The U.S. Supreme Court is the final arbiter of federal constitutional questions.	Parties have the option to ask the highest state court to hear the case.
	Only certain state court cases are eligible for review by the U.S. Supreme Court.

SELECTION OF JUDGES
The Federal Court System	The State Court System
(Article III, Section 1 of the Constitution) Federal judges are nominated by the President and confirmed by the Senate. They hold office during good behavior, typically, for life. Through congressional impeachment proceedings, federal judges may be removed from office for misbehavior.	State court judges are selected in a variety of ways, including election, appointment for a given number of years, appointment for life, and combinations of these methods, e.g., appointment followed by election.

TYPES OF CASES HEARD
The Federal Court System	The State Court System
Cases that deal with the constitutionality of a law; Cases involving the laws and treaties of the U.S.; Cases involving ambassadors and public ministers; Disputes between two or more states; Admiralty law; Bankruptcy; and Habeas corpus issues.	Most criminal cases Probate (involving wills and estates) Most contract cases Tort cases (personal injuries) Family law (marriages, divorces, adoptions), etc State courts are the final deciders of state laws and constitutions. Their interpretations of federal law or the U.S. Constitution may be appealed to the U.S. Supreme Court. The Supreme Court may choose to hear or not to hear such cases.

ARTICLE I COURTS
Congress has created several Article I or legislative courts that do not have full judicial power. Judicial power is the authority to be the final decider in all questions of Constitutional law, all questions of federal law and to hear claims at the core of habeas corpus issues. Article I courts are U.S. Court of Veterans' Appeals, theU.S. Court of Military Appeals, and the U.S. Tax Court.

Approaching the end of this post, we can make a couple of considerations.

The first one is about comparative law: although having some similarities (i.e the three layer judicial system), the two systems -Italian and American – cannot be compared (at least not in a three pages post), mainly because of the totally different institutional and political structure of the two nations, one being a federal republic and the other one being a unitary parliamentary republic.

The second consideration is about the answer to the question at the beginning of this post. But I think that after this U.S. legal system mini-lesson, you should be able to answer it by yourselves.

Capital Punishment in the U.S., i.e. a cool legal topic at last.

After boring you with some technical constructs, here's the time for some controversial and interesting topic: death penalty in the U.S.A.

The spark was given me by this case we analyzed in class: State of Maryland vs. Kirk Bloodsworth (http://en.wikipedia.org/wiki/Kirk_Bloodsworth). In 1985, Mr. Bloodsworth was convicted for murder, rape and sexual offense, and sentenced to death by the Circuit Court for Baltimore County. After 10 years in the death row, he walked out of prison as DNA tests exonerated him from committing the crime . He has become the first person in the U.S. to be sentenced to death and then absolved by DNA evidence, and the strongest advocate to end the death penalty in Maryland.

But don't get too excited about this topic, for we'll try to analyze it only by a legal perspective.

First of all, the comparison: Italy, being part of the EU, abides by the Article 2 of the Charter of fundamental rights of the European Union that expressly prohibits the use of capital punishment.

Anyhow, death penalty in Italy was first banned in 1889 under the “Zanardelli” Penal Code, with the exception of regicide and high treason. After being officially re- introduced by Benito Mussolini during his dictatorship (1926- 1945), it was definitively abolished by the democratic Constitution in 1948. The last execution in Italy took place on March 4, 1945 in Turin.

As for the U.S., death penalty is part of the cultural legacy brought by the first settlers from Great Britain, were this practice was generally used to punish capital crimes. Capital punishment and death penalties laws varied from colony to colony and from state to state; that's why there's a record of states with long tenure of no death penalty, like Michigan (the first state to abolish it in 1846), Wisconsin, Rhode Island, Main, Vermont, Iowa and Minnesota, against other states that still largely use this punishment (i.e. Texas).

Illinois abolished it only in 2011, but the last execution dates back to 1999.

At a constitutional level, capital punishment finds a limit in the Eight Amendment, which expressly provides that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”; although the Supreme Court never ruled that death penalty was per se unconstitutional, from 1972 to 1976 it has been temporary suspended after the Court itself found that death penalty was imposed in an unconstitutional manner (Fruman vs. Georgia 408 U.S. 238). The practice resumed in 1976, after the Supreme Court ruling in the case Gregg vs. Georgia 153).

But how the legal administration of death penalty is actually performed? We can say that it is a complex process and generally involves 5 main steps:

1. sentencing;
2. direct review;
3. state collateral review;
4. federal habeas corpus;
5. the Section 1983 challenge.

If a convicted is sentenced to death at a trial level (1), the case then goes into a direct review (2). This second phase is described by the title 18, §3595, of the U.S. Code (3595) and is a typical legal appeal: the appellate court examines the evidence and the law applied by the lower court and then decides if the decision was sound or not. Three are the possible results: (i) the appellate court upholds the decision; (ii) if it is found any legal error, the court will reverse the judgment or nullifies the sentence and orders a new penal hearing; (iii) if the appellate court finds that no reasonable juror could find the defendant eligible for the death penalty- a rarity -then it will order the defendant acquitted, or not guilty, of the crime for which he/she was given the death penalty, and order him sentenced to the next most severe punishment for which the offense is eligible. Generally, about 60 % of the cases survive this level of censure.

At this point, if the direct review confirms the death sentence, it could be considered final. Nevertheless, there are some supplemental remedies to attack the judgement, though less familiar than a typical appeal: these are the so called collateral reviews (3), a way for upsetting judgements that otherwise have become final. If the prisoner received his death sentence in a state-level trial (as usual), the first step in collateral review is state collateral review [if the case is a federal death penalty case, it proceeds immediately from direct review to federal habeas corpus (4)]. Although all states have some type of collateral review, the process varies widely from state to state. Generally we can say that this collateral proceeding has the main purpose of giving the convicted the possibility of challenging the sentence on grounds that could have never been raised at the trial or direct review (similarly to many rimedi eccezionali that may be found in the Italian system). It is estimated that about only 6% of the death sentences are overturned by a a collateral state review.

If a sentence is affirmed by a state collateral review, nevertheless a prisoner's hopes are still alive: one may file for federal habeas corpus (4), which is a unique type of lawsuit that can be brought in federal courts.

Federal habeas corpus is a type of collateral review the main purpose of which is to guarantee and ensure that state courts, through the process of direct review and collateral review (2-3), have operated in respect of the prisoner's constitutional rights. Convicted and prisoners con use this remedy also to bring forth new pieces of evidence to prove that they are innocent for the crime. Although being narrow in theory, about 21% of death penalty cases are reversed through federal habeas corpus (Eric M. Freedman, "Giarratano is a Scarecrow: The Right to Counsel in State Postconviction Proceedings" 91 Cornell L. Rev. 1079, 1097 (2006).

Although a person is allowed to file only one suit for habeas corpus in federal court, in recent times prisoners have put off their execution by applying a further and final round of federal litigation, using the Civil Rights Act of 1871 (U.S. Code, title 42, ¶1983), which allows people to bring lawsuits against state actors to protect their federal constitutional and statutory rights (5). Traditionally, this remedy was of limited use because the Supreme Court has held that habeas corpus, and not § 1983, was the only federal vehicle for a prisoner to attack a state capital punishment. However, with the 2006 Hill vs. McDonough case, the Supreme Court approved the use of the §1983 as a avenue for challenging a state's method of execution as cruel and unusual punishment in violation of the Eight Amendment of the Constitution (547 US 573). This special procedure has been criticized by lower courts, which have often blamed it as a claim to delay the execution. Anyway, after the decision Blaze vs. Rees, the court has narrowed the opportunity of relief through §1983 (5439; reuters)

To recap, the procedure by which a capital sentence is actually executed is long and complex, and a prisoner is given all the possible vehicles to challenge and attack a death sentence. Linking with the case of Mr. Bloodsworth mentioned at the beginning, this analysis may also answer the questions “why it took 10 years to prove he was innocent?” and “why prisoners spend tens of years in the death row before being executed?”.

Although we tried analyzing this delicate topic under a legal point of view, nevertheless some questions seem to raise automatically: is it worthwhile for the State to maintain capital punishment as a public chastisement , and to kill a man after 10\15 years of imprisonment? Does death penalty really work as a general deterrent ? The answers may considerably vary according to the cultural and judicial background of those asked, and ethical considerations go beyond the purpose of this post. Nonetheless, we can gladly say that Mr. Bloodsworth won his cause and Maryland repealed death penalty on March 2013.

32 more States to go.

P.s. A little legal detail: Maryland's abolition of the death penalty is not retroactive; but we can discuss about retroactivity in the next post!

Torts: why O.J. Simpsons was acquitted in criminal court and found liable for the tort of wrongful death.

In this third chapter I will try to analyze one of the major areas of law along with contracts, real property and criminal law: tort law.

First, what is a tort? A tort, in common law, is a civil wrong (wether intentional or accidental), other than a breach of contract, from which injury or harm occurs to another. This results in a legal liability for the person who commits the tort, also known as the tortfeasor.

To make it clearer, tort law is what in the Italian legal system is known as illecito civile extracontrattuale, which is established in article 2043 of the Civil Code that establishes the obligation for anyone who unfairly causes another to suffer an unjust loss or harm to pay the damages to the injured party.

The main difference is that under civil law jurisdictions, every kind of damage cause (at least) by negligence is considered unlawful (with the subtle distinction that in Italy, the damage has also to be unfair=danno ingiusto). It is what in law school is called principle of “atypicality”.

On the other hand, in common law systems there is a series of unlawful facts, i.e. torts, each one with its own discipline based on judicial precedents and its own cause of legal action (in law-language: principle of “typicality”).

So we can say that, in the U.S., tort law defines what a legal injury is and wether or not a person will be held liable for the injury he\she has caused. Legal injuries can be physical, emotional or economic as well as violations of property or privacy and the victim can file a lawsuit requesting damages for the harm or loss he\she suffered.

While most of the torts are the result of negligence, tort law also recognizes intentional torts and, in few cases, strict liability (i.e. being legally responsible for the damage caused regardless of the culpability = responsabilità oggettiva).

That being said, we can divide this huge category (tort law results in more civil litigation than any other category) into the following three sub categories: negligence tort, intentional tort, and strict liability tort, and analyze them separately.

Negligence torts

Negligence is a failure to exercise the care that a reasonable person would use in likewise circumstances. In case of tort law, negligence involves harm caused by carelessness and not intention.

A plaintiff, in order to win a negligence suit, has to prove 4 elements:

1)Duty = the plaintiff was owed a duty of care, i.e. a duty to conduct as a reasonable person, or a particular duty of care based on specific relation between him and the defendant (i.e. patient-doctor);

2)Breach of duty = the defendant breached this duty;

3)Cause = the breach must be the actual and proximate cause of the plaintiff's harm;

4)Harm = the plaintiff must have suffered harm as result of the defendant breach.

Intentional torts

An intentional tort is an injury caused by someone who meant to cause physical, mental or economic harm to another person or thing, i.e. any act that is foreseeable to cause a damage and that does so. The plaintiff does not have to show that the defendant intended to cause injury; it is enough that the defendant intended a particular result.

Examples of intentional torts can be assault, battery, intentional infliction of emotional distress, false imprisonment, trespassing and defamation.

Strict liability torts

Strict liability makes a person legally responsible for a harm or loss caused by his\her acts regardless of his\her culpability. This is because even if there is no negligence, public demands strict liability on situations that are considered inherently dangerous. In tort law, strict liability is present in only the following cases:

• ownership of wild and dangerous animals;
• hazardous activities (i.e. demolition company);
• product liability

In these cases, the plaintiff has only to prove that the tort occurred and that the defendant caused it.

Strict liability in civil law is also present in the Italian system, under the name of “responsabilità oggettiva”. The cases of responsabilità oggettiva are listed in the Civil Code from article 2048 to article 2054, that declare the strict liability of\for:

• parents and tutors for the under-age individuals;
• owners for the actions of their servants;
• hazardous activities;
• damages caused by things held in legal custody;
• damages caused by animals (domestic or not);
• collapse of a building (the owner is responsible for any damage derived from the collapse of his\her building)
• circulation of vehicles (the owner of a vehicle is responsible for any damage derived from the circulation of his\her vehicle).

Now, if you have gotten to this point, we can answer the question in the subtitle, and maybe some doubts from Italian law-students.

Some torts, for example intentional torts like assault or battery (causing or threatening to cause physical damage), may also be prosecuted as crimes. These are the huge differences between criminal law and tort law:

• first, a tort is a civil wrong for which the remedy (damages) is pursued by, and at the discretion of, the injured individual or his or her representative, while a crime is a wrong for which the accused is prosecuted by the state for the purpose of punishment;
• second, and more important to answer our question, tort lawsuits have a lower burden of proof such as preponderance of evidence (the proposition is more likely to be true than not true) rather than beyond a reasonable doubt (proposition being presented by the prosecution must be proven to the extent that there could be no "reasonable doubt" in the mind of a "reasonable doubt" that the defendant is guilty);

• third, the victim of a crime can seek recovery (i.e. asking for damages) from the offender in a civil action for tort.

This is why it may happen that a defendant can be found liable in a tort lawsuit even though he was acquitted in a previous criminal trial, which is the case of O.J. Simpson, who was acquitted in criminal court and later found liable for the tort of wrongful death.