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Distinguish between the two types of precedent and provide examples of each
There are two kinds of precedents, persuasive precedents and binding precedents. Binding precedents also known as mandatory precedents are precedents that obligate a court to follow its decision. Binding precedents have to be followed by a court; however, there are circumstances where a court can refrain from a binding precedent. When the details of a case are parallel, all inferior courts are obliged to follow ratio decendi of the superior courts. In a binding precedent, if a case has been previously ruled and a same matter is presented in the court, the same precedent should be used (Stephen 123). For instance, maybe a person committed murder and in the ruling the judges declared the person not guilty after the facts were presented in court or due to certain circumstance. When a similar case is again presented in court, the court is obliged to use the same precedent used in the previous case and declare the person not guilty again.
While persuasive precedents are precedents that can compel or influence a decision, but they are not binding in any way. Persuasive precedents are commonly made by inferior courts and this makes them not binding in any way but they can influence a decision achieved in a court. Precedents made in lower courts can be used by judges for guidance while making a decision on a certain case. In addition, persuasive precedents can be utilized by superior judges in developing a new precedent which can become a binding precedent. If a court as not existing binding precedent in its hierarchy to follow, it can be obliged to follow a persuasive precedent in determining the facts of a case. An example is when an inferior court makes a decision and a higher court is allowed to use the precedent but they are not obliged to use it because the precedent used is not binding. The main distinguishing factor between the persuasive and the binding precedents is that, one is binding and the other one is not.
Explain the difference between procedural and substantive law. Give examples of how the Bill of Rights protects people from their government
Substantive law is a law that consists of rules, rights as well as describing their offenses and punishments. This type of statutory law deals with the legal relationship between the state and the people or just between people. In addition, in this law, the right and duty of the citizens is defined because it consists of the rules that govern the people and the state. On the other hand, procedural law consists of rules and regulations that are to be complied with while administering justice, and in the application of substantive law.
There are many differences between the two; for instance, substantive law deals with the rights and duties of the people, while procedural law deals with the rules that govern the administration of substantive law as it ensures fairness. Another difference is that, procedural law can be applied in non-legal contexts while substantive law cannot be applied in non-legal contexts. Procedural law uses no independent powers while substantive law applies independent powers while determining a case.
The Bill of Rights was anticipated to defend the citizens from their government. A good example is the freedom of speech, religion, and to petition the government. The residents are sheltered by the Bill of Rights by giving them these privileges whereby they can use them to criticize the government in any way. In addition, the Bill of rights protects the citizen’s fundamental rights and liberties by preventing the federal government from taking them away (Werle and Florian 102). The Bill of Right protects people from the government by setting limitations on the power granted to the government, and this protects the rights of the citizens.
Define the concept of a defense to a criminal act. Who do you think should bear the burden of proving a defense?
A person accused of a criminal offense should be in a position to defend himself or find an attorney to defend him or her. The prosecutor must prove beyond a reasonable doubt that the defendant has committed the criminal act, and an individual should present a defense to prove otherwise. The common defenses offered by the accused are "I didn't do it" to "I did it, but it was self-defense” (Schmalleger78).
The person responsible to bear the burden of proving a defense is the prosecutor. It is the work of the prosecution to convince the judges or the jury that the defendant is guilty. Before a jury convicts the defendant, the prosecutor must provide enough and indisputable evidence to the jury that he/she is guilty of the criminal act accused of. Nonetheless, each party is also required to bear the burden of proof because the defendants have to establish that they are guilty, and the prosecutor has to prove beyond reasonable doubt that the defendant is guilty. The prosecutor has an obligation to demonstrate beyond a reasonable doubt that, the respondent is guilty to the jury and that is why he is the person responsible to bear the burden of proof. The prosecutor bears the burden of proof, but it can also fall on the plaintiff who is supposed to prove or disapprove the facts.
List and discuss the four tests for an insanity defense. Which do you feel should be the standard?
Insanity defense is when there is a claim that, the defendants cannot be held responsible for their actions because of their mental state. Appropriate tests have to be done to the defendant by the forensic mental health professionals to prove that he/she is not of sound mind. There are four legal tests for an insanity defense, the Model Penal Code Test for Legal Insanity, the M'Naghten Rule, the Durham Rule, the Irresistible Impulse Test (Mackay, Mitchell and Howe 402). The M'Naghten Rule is a test that proves that, the defendant was not able to distinguish between right or wrong while he/she committed the crime. In addition, the test is to show that, the defendant did not understand what he/she was doing because of the state of mind. The second insanity test is the Durham Rule a test that proves that the defendants’ mental state resulted in the criminal act he/she is accused of. The Irresistible Impulse Test is a test that proves that the accused could not control their impulses because of their unsound mental state thus leading to a crime. The last test for insanity defense is the Model Penal Code Test for Legal Insanity. It shows that, the defendant committed the crime because he/she does not understand the criminality of his actions or what the law requires. I feel that the M'Naghten Rule should be the standard test for insanity because at least it proves the genuinely of the insanity of a person.
5. Normally, the failure to act is not criminal in nature. Identify four (4) situations where the failure to act constitutes crime. Should we require witnesses to a crime to come forward? Why or why not.
Failure to act does not result in a criminal offense; however, there are situations where it constitutes to crime. For instance, there can be a patient in a hospital that is using a drip to feed, and it is the work of a doctor or nurse to replace the drip. When a doctor or a nurse fails to replace a drip on this patient who is using a drip to feed, they will have failed to act to save a situation. Therefore, this can be considered a criminal offense. It is a criminal offense because; they failed to do their work and this may lead may be to the death of the patient. Another situation where failure to act can result in a crime is when, for instance a mother beats up her child, and she starts breathing. The fact that the husband does not take the responsibility of taking the child to the hospital and she dies is a crime. It is a crime because, the husband was there while the child was being beaten and he did nothing. Moreover, he could have saved the child’s life by taking her to the hospital but he failed to act leading to the death of the child. Failure to act constitutes a crime in a situation where maybe a person accidentally starts a fire in a building and when it spreads, he/she runs away without calling for help or extinguishing it. The fire can lead to destruction of property or even death, and this is a crime of omission because the individual failed to act in order to extinguish the fire, and also his actions put other people in danger. Lastly, a situation where a parent fails to save a young child from drowning can also result in a criminal offense. Parents are obligated to look out for their younger children and to fail to do so results to a criminal liability.
We do not need a witness a failure to act crimes or situations because there is no criminal liability for such offenses. In addition, a misdemeanor can come forward even without any witness as long as a criminal act has been proven.
Discuss the similarities and differences of the crimes of attempt and solicitation. Give examples of the similarities and differences
Crimes of attempt are crimes committed when a person acts in a criminal way but does not successfully complete his/her actions. Therefore, an attempt to commit a crime is a criminal offense in criminal law and these crimes are punishable with imprisonment. According to the criminal law, an endeavor to commit an offense is a venture to accomplish it (Robinson 403). Nonetheless, an individual can only be charged with attempt when he is proved to have an explicit intent to commit the authentic crime. A crime of solicitation is when a person solicits the other to engage in crime. In this case, this individual importuned the other person, and that person can either commit the offense or not. Therefore, the solicitor remains guilty for the crime solicited whether the crime was committed or not. However, a person can only be convicted for an offense of solicitation if they had a specific intent to induce the other party to commit a criminal offense (Fletcher 98).
The difference between crimes of attempt and crimes of solicitation is that, in Crimes of attempt, the individual only intends to commit a crime and does not commit it. In contrast, crimes of solicitation are real crimes committed. Another difference is that, in crimes of attempt, it a person or a group of people trying to commit an offense. While in crimes of solicitation, it is an individual asking or requesting another person to perform a criminal act.
Examples of crimes of attempt are attempted suicide, attempted murder, attempted arson, attempted rape and many more. An individual can plan to commit suicide and in the process he/she fails with the attempt. Another example is when a person tries to shoot another person but miss the target. An example of a crime of solicitation is when a man asks a woman for sex in exchange for money. The woman can choose to refuse the offer meaning she will not be guilty of prostitution, but the man can be charged with the crime of solicitation, even though his request was not performed.
Schmalleger, Frank. Criminal Justice: A Brief Introduction. New York: Prentice Hall, 2001. Print.
Mackay, Ronnie D. Mitchell, Barry J. and Howe, Leonie. Yet more facts about the insanity defense. Criminal Law Review, (2006): 399-411. Print.
Robinson, Paul H. Criminal law: Case Studies and Controversies. NY: Aspen Casebook Series, 2012. Print.
Stephen, James Fitzjames. A history of the criminal law of England. Cambridge : Cambridge University Press, 2014. Print.
Werle, Gerhard, and Florian Jessberger. Principles of international criminal law. Oxford University Press, 2014.
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