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1、Lesson 3a. Trial Courts 初审法院Trial courts are exactly what their n ame implies, courts in which trials are held and testim ony take n. State trial courts have either gen eral or limited jurisdicti on. Trial courts that have gen eral jurisdicti on as to subject matter may be called coun ty, district,
2、superior, or circuit courts. The jurisdict ion of these courts is ofte n determ ined by the size of the county in which the courts sit. State trial courts of gen eral jurisdicti on have jurisdict ion over a wide variety of subjects, in clud ing both civil disputes and crim inal prosecuti ons. In som
3、e cases, trial courts of gen eral jurisdicti on may hear appeals from courts of limited jurisdict ion.Some courts of limited jurisdicti on are called special in ferior trial courts or minor judiciary courts. Small claims courts are in ferior trial courts that hear only civil cases involving claims o
4、f less than a certain amount, such as $5,000 (the amount varies from state to state). Suits brought in small claims courts are gen erally con ducted in formally, and lawyers are not eve n allowed to represe nt peoples in small claims courts for most purposes. Another example of an inferior trial cou
5、rt is a local mun icipal court that hears mai nly traffic cases. Decisi ons of small claims courts and mun icipal courts may be appealed to a state trial court of gen eral jurisdict ion.Other courts of limited jurisdiction as to subject matter include domestic relations courts, which handle only div
6、orce actions and child-custody cases, and probate courts.b. Courts of Appeals 上诉法院Every state has at least one court of appeals (appellate court, or reviewi ng court), which may be an in termediate appellate court or the state highest court. About three-fourths of the states have in termediate appel
7、late courts. Gen erally, courts of appeals do not con duct new trials, in which evide nee is submitted to the court and wit nesses are exam in ed. Rather, an appellate court panel of three or more judges reviews the record of the case on appeal, which includes a transcript of the trial proceed in gs
8、, and determ ines whether the trial court committed an error.Usually, appellate courts do not look at the questio ns of fact (such as whether a party did, in fact, commit a certa in action, such as bur ning a flag) but at questi ons of law (such as whether the act of flag-bur ning is a form of speec
9、h protected by the First Ame ndme nt to the Con stituti on). Only a judge, not a jury, can rule on questi ons of law. Appellate courts n ormally defer to a trial courtquesifindiogfeonibecausethe trial court judge and jury were in a better position to evaluate testimony by directly observ ing wit nes
10、ses gestures, demea nor, and non verbal behavior duri ng thetrial. At the appellate level, the judges review the writte n tran scripti on of the trial, which does not in clude these nonv erbal eleme nts.An appellate court will challenge a trial court inding of fact only when the finding is clearly e
11、rron eous (that is, whe n it is con trary to the evide nee prese nted at trial) or whe n there is no evide nee to support the findin g. If a jury con cluded that a manufacturer product harmed the plaintiff but no evidenee was submitted to the court to support that con clusi on, the appellate court w
12、ould hold that the trial court decisi on was erron eous.Lesson 4The Un ited States shall guara nteeto every state in this union a republica n form of gover nment.-Article 4, Sectio n 4.合众国保证本联邦各州实行共和政体。REPUBLICAN GOVERNMENT - A government in the republican form; a gover nment of the people; it is us
13、ually put in oppositi on to a mon archical or aristocratic gover nment.Article 3 The state orga ns of the People s Republic of Chi na apply the prin ciple of democratic cen tralism.第三条 中华人民共和国的国家机构实行民主集中制的原则。Separati on of powersThe first three Articles of the Con stituti on establish the three bran
14、 ches of the n ati onal gover nment: a legislature, the bicameral 两院制 9) Con gress; an executive branch led by the Preside nt; and a judicial branch headed by the Supreme Court. They also specify the powers and duties of each bran ch.All powers not listed are reserved to the respective states and th
15、e people, thereby establish ing the federal system of gover nment.The framers of the Con stituti on knew that accumulati on of all powers in the same hands would result in tyra nny. In their effort to preve nt tyra nny and to form a more perfect union, they un dertook to separate the legislative, th
16、e executive and the judicial powers in the first three articles of the Con stitutio n.Examples:Con gress can legislate, but statutes en ter into force after they have bee n sig ned by the preside nt or at the time specified in them. If vetoed by the preside nt, a statute must be passed anew by a two
17、-thirds majority in houses before it en ters into force.As comma nder-in-chief of the armed forces, the preside nt may dispatch troops abroad, but only Con gress can declare war and authorize the n ecessary finan ces.The preside nt appo ints judges, with the approval of the Sen ate, but the laws mad
18、e by Con gress and sig ned by the preside nt are subject to judicial review.Judicial review: power of the courts of a country to examine the actions of the legislative, executive, and admi nistrative arms of the gover nment and to determ ine whether such actions are con siste nt with the con stituti
19、 on.The in stituti on of judicial review in this sense depe nds upon the existe nee of a writte n con stituti on.A case brief:FactsProcedural HistoryIssue PresentedHoldingRule of LawReasoningConcurring/Dissenting OpinionSign ifica nee of the caseIn Marbury v. Madis on (1803), the Supreme Court ruled
20、 that the federal courts have the duty to review the con stituti on ality of acts of Con gress and to declare them void whe n they are con trary to the Con stitutio n. Marbury was the first Supreme Court case to strike dow n an act of Con gress as uncon stituti on al. Since that time, the federal co
21、urts have exercised the power of judicial review. Judicial review is now a well settled doctri ne.Chief Justice Marshall enun ciated a major power for the Supreme Court, recog nizing it as the sole interpreter and custodian of the Constitution, to the exclusion of the preside nt and Con gress.With t
22、his declarati on came the awesome duty of defi ning what the Con stituti on means and what it does not mean.Lesson 5High crime and misdemeanor, felony在以往两者均被一些词典当作重罪”处理，让人觉得他们的似乎是完全相同的法 律术语，但实际上它们的内涵有很大差异。high crime主要是指因违反公共道德而导致声名狼籍的犯罪，从技术角度上讲它不构成重罪(felo ny)范畴，其尤其 是指美国参议院视为的可以此为理由而对总统、副总统、以及任何其他公职官
23、员进行弹劾的犯罪2.，在美国联邦宪法中，词组 high crimes and misdemeanors 则用于表示可导致联邦官员被弹劾的犯罪3.，high crime在此也并非一定等于 重罪”，故将它译为 严重违反公德罪”，以与真正意义上的felony (重罪)相区分。Fel onies are more serious crimes, puni shable by a pris on sentence of more tha n a year, or sometimes death.Misdemea nors are con sidered less serious and are deal
24、t with more lenien tly; with senten ces of a fine, probatio n or a jail sentence less tha n a year.Imprisonment / jail/ prisonJail通常被译为看守所、拘留所，以及非严格意义上的监狱，兼有动词和名词的 属性。在一般场合，该词的意义常等同于prison，因此，也有人将其翻为prison。Impris onment: putt ing sb in pris on or in jail as lawful puni shme nt(in carcerati on)Capita
25、l punishmentz Capital puni shme nt, the death pen alty, death senten ce, or executi on is a legal process whereby a pers on is put to death by the state as a puni shme nt for a crime.z Crimes that can result in a death penalty are known as capital crimes or capital offen cesz The term capital origin
26、ates from the Latin capitalis, literally “regardinghe head”z Capital puni shme nt has in the past bee n practised by most societies.z Curre ntly only 58 n ati ons actively practice it, and 97 coun tries have abolished it.z In the Europea n Un io n member states, Article 2 of the Charter of Fun dame
27、ntal Rights of the Europea n Union prohibits the use of capital puni shme nt.Death penalty in the U.S.z In the United States, Michigan was the first state to ban the death penalty, on 18 May 1846.z The death pen alty was declared uncon stituti onal betwee n 1972 and 1976 based on the Furma n v. Geor
28、gia case, but the 1976 Gregg v. Georgia case once aga in permitted the death pen alty un der certa in circumsta nces.z Further limitations were placed on the death penalty in Atkins v. Virginia (death pen alty uncon stituti onal for pers ons sufferi ng from men tal retardati on) and Roper v. Simmons
29、 (death pen alty uncon stitutio nal if defe ndant was un der age 18 at the time the crime was committed).z Currently, as of March 9, 2011, 16 states of the U.S. and the District of Columbia ban capital punishment, with Illinois the most recent state to ban the practice.z A 2010 Gallup poll shows tha
30、t 64% of America ns support the death pen alty for some one con victed of murder, dow n from 65% in 2006 and 68% in 2001 z Of the states where the death pen alty is permitted, California has the largest number of inmates on death row, while Texas has been the most active in carry ing out executi ons
31、.About Drugn arcotics / drug traffick ingdrug smuggli ngtraffick ing in dan gerous drugsdan gerous drugs主 要有：morphi ne吗啡coca ine可卡因amphetam ine (fli ng; ice)安非他命opiumheroineecstasyketami ne K 仔grass与 pot 指的是 大麻”(marijuana)coke指的是 古柯碱”或 可卡因”(cocaine)可卡因还称为 snow, flake, candy等。Duty also can arise from
32、 one s own creation of a dairtgiartOausL sIn R v Miller (1983) 2 AC 161, the defendant was sleeping in a building. He fell asleep on his mattress while smok ing a cigarette. Whe n he woke, he found that the mattress was smoulderi ng but, in stead of calli ng for help, he simply moved into ano ther r
33、oom. This allowed the fire to spread. He was convi cted un der the Crimi nal Damage Act 1971 for recklessly caus ing damage by omissi on.different modes of culpability1. Purposefully 蓄意2. Knowingly 明知3. Recklessly 放任4. Negligently 过失CausationA case dem on strati ng this is R v. White, 1910. The defe
34、 ndant in this case, laced his mothers drink of milk with pois on, however she did not drink it,but died later any way. It was later revealed that she died due to a heart attack. Since his mother would have died regardless of the fact that he pois oned her drink, White was acquitted of murder. Factu
35、al causati on had not bee n established.ConcurrenceIn gen eral, mens rea and actus reus must occur at the same timethat is, the crim inal intent had must precede or coexist with the crim inal act, or in some way activate the act.Imprisonment / jail/ prisonJail通常被译为看守所、拘留所，以及非严格意义上的监狱，兼有动词和名词的 属性。在一般
36、场合，该词的意义常等同于 prison,因此，也有人将其翻为prison。Impris onment: putt ing sb in pris on or in jail as lawful puni shme nt(in carcerati on)Criminal procedureCriminal procedure mean sthe rules gover ning the mecha ni sms un der which crimes are inv estigated, prosecuted, adjudicated, and puni shed.It in cludes the
37、 protect ion of accused pers on s con stituti onal rights.crimi nal procedure刑事诉讼；刑事程序。规定有关对犯罪的侦查(in vestigatio n)、起诉(prosecution)、审理、裁判(adjudication)、刑罚(punishment)等程序的法律规 则，其规定中包括对被告人宪法性权利(con stitutio nal righ ts)的保护。Defenses1. alibis不在犯罪现场2. justificati ons正当理由3. excuses无罪辩护理由4. procedural defe
38、nses程序性抗辩Justifications:had no other choice in order to mi ni mize their own losses or those of some one else. Justificati ons in clude claims of self-defe nse, defe nse of others, the n eed to defend one s home or property from intruders.Excusesihe defendant admitting he or she committed the offens
39、e but couldn t help it.Com mon excuses in clude insanity （精神病），me ntal in compete nee 精神不健全）, duress, involun tary in toxicati on.Procedural defensesEither some one in the crim inal justice system markedly discrim in ated aga inst them or that one or more importa nt procedural rules were not followe
40、d, thereby denying due process of law, violat ing a fun dame ntal right In clude en trapme nt, double jeopardy, selective prosecuti on, to provide a speedy trial and prosecutorial misc on duct.Mira nda Rightsz The Court s decision requires atiieg officers to inform those they take into custody of th
41、e follow ing:z 1. They have the right to rema in sile nt.2. Any thi ng they say can and will be used aga inst them in a court of law.3. They have the right to be represe nted by coun sel.4. A lawyer will be appo in ted for them if they cannot afford to hire one.Lesson 6Fifth Ame ndme nt to the Un it
42、ed States Con stituti onz No pers on shall be compelled in any crim inal case to be a wit ness aga inst himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be take n for public use, without just compe nsati on.z任何人（不得因同一犯罪行为而两次遭受生命或身体伤残的危害；）
43、不得在任何刑事案件中被迫自证其罪；未经正当法律程序，不得剥夺任何人的 生命、自由和财产；非有恰当补偿，不得将私有财产充作公用。缺席审判z Default judgment is a binding judgment in favor of either party based on some failure to take action by the other party.z Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has
44、 failed to appear before a court of law.z被告在庭审中不到庭或未对原告的请求作出答辩的情况下，法庭所作的对被告不利的判决Lesson 7Parol contractA con tract or modificatio n of a con tract that is not in writ ing or is only partially in writi ng. Also termed oral con tract; parol agreeme nt; (loosely) verbal con tract.At com mon law, a con t
45、ract not un der seal, although it could be in writi ng.Or simple con tract，简单合同，简单契约。在普通法中，指虽以书面形式作成但 未封印的合同，亦称为非要式合同。In law, damages is an award, typically of money, to be paid to a person as compe nsati on for loss or injury; grammatically, it is a sin gular noun, not plural.Specific performanee i
46、s an order of a court which requires a party to perform a specific act, usually what is stated in a con tract.An inju nctio n is an equitable remedy in the form of a court order that requires a party to do or refrain from doing specific acts. A party that fails to comply with an injun cti on faces c
47、rim inal or civil pen alties and may have to pay damages or accept sanctions. In some cases, breaches of injunctions are considered serious criminal offen ses that merit arrest and possible pris on senten ces.At com mon law, the elements of a contraca re mutual asse nt and con sideratio n.In additi
48、on to the eleme nts of a con tract:a party must have capacity to con tract;the purpose of the con tract must be lawful;the form of the con tract must be legal;the parties must intend to create a legal relati on ship; andthe parties must consent.In the law of con tracts, the mirror image rule, also referred to as an un equivocal and absolute accepta nee requireme nt states that an offer must be accepted exactly without modificatio ns.The offeror is the master of his own offer.An attempt to accept the offer on differe nt terms in stead creates a coun ter-offer, and this