Court http://court.laws.com Court- Court Law, Supreme Court, Hamilton County Clerk of Courts, Supreme Court Justices Thu, 29 Sep 2016 15:43:26 +0000 en-US hourly 1 http://wordpress.org/?v=4.1.15 Res Judicata http://court.laws.com/res-judicata http://court.laws.com/res-judicata#comments Fri, 03 Apr 2015 14:31:42 +0000

Res judicata is a term that literally means a matter judged in Latin. Res judicata is the idea or principle that generally speaking, an issue may not be litigated after it has been judged once on the merits. Basically, if something has been decided on based on its merits once, it cannot be litigated again by the same parties so it cannot be retried or appealed.
In the case involving res judicata, the matter cannot be brought up again, in either the same court or another court. A court will apply the principle of res judicata to deny any reconsideration of the matter.
The legal idea of res judicata came about as a method of preventing any sort of injustice to involved parties of a case that was supposedly finished, as well as to avoid any unnecessary use of court system resources. Res judicata does not only prevent any future judgments from contradicting earlier judgments, but it also prevents any litigants from doubling or multiplying judgments, so a plaintiff who wins a case cannot recover damages multiple times from a defendant.
Res judicata can be applied by either a defendant or a judge. After a final judgment has been made in a lawsuit, any subsequent judges confronted with the substantially identical suit can apply res judicata to preserve the first judgment’s effect.
A defendant can apply res judicata as a form of defense. This works because when a plaintiff who has prosecuted an action and received a valid final judgment, he is not allowed to initiate another court action with the same defendant if:
The same transaction is in question.
The plaintiff wants a different or future remedy than what was received in the first action.
The claim could have been joined with the first action.
The 7th Amendment to the U.S. Constitution says that no fact or issue that has been tried already by a jury will be looked at again in any United States court or state court. 
In order for res judicata to be a binding principle, there are a few requirements:
identity of the thing and cause at suit as well as the parties that are bringing forth the action against other parties
The judgment must have been final;
The parties should have been given fair and full chance to be heard on the relevant issue.
While res judicata is supposed to prevent retrial, it does not apply to appeals that go up and down the appellate court ladder since these appeals challenge a judgment as opposed to creating a new trial. Other exceptions to res judicata occur based on jurisdictional and procedural problems regarding the court’s competence or authority on an issue.


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Writ of Mandamus http://court.laws.com/writ-of-mandamus http://court.laws.com/writ-of-mandamus#comments Fri, 03 Apr 2015 14:31:42 +0000
What is a Writ of Mandamus?
 
 
A writ of mandamus is a court order issued by a court from a superior jurisdiction which compels an individual to execute a duty that he or she is legally bound to complete. A writ of mandamus can also be applied to force a lower court to complete an assigned which is given by law.
A writ of mandamus is hardly ever used, because it must be first shown that there is no other possible remedy or solution available and that an individual is suffering an injustice as a consequence of the failure or inability to complete a required duty that is legally bound. A writ of mandamus can potentially be very disruptive and because of that reason, most judges are extremely reluctant to grant these writs unless they are absolutely necessary.
In certain instances, a writ of mandamus can order an individual to complete a specific task, while in other situations the writ may order for an activity to be stopped.
For example, if two people wanted to get married but they were refused a marriage license by a clerk despite even though there were no legal barriers that should stop the marriage, the couple could file for the writ of mandamus in order to compel the clerk to issue the license. On the other hand, a person could file for a writ of mandamus to ensure that a court would not try to pursue a given case which was outside its jurisdiction.
When a writ of mandamus is forced on a court, the writ must be from a higher court that has the authority over the lower one. In circumstances where the highest court seems to be neglecting its legal obligations or performing tasks that are outside its authority, people may potentially resort to other methods to compel the court. The court or person subjected to the writ of mandamus can try to oppose it if the argument can be made that the writ of mandamus is inappropriate to the situation.
A writ of mandamus can be used only if there is a strong legal duty that is not being met. A writ of mandamus cannot be used for other things, such as to compel a person to do something that she or he is not legally obligated with his or her position. Similarly, if there are other remedies that can be pursued, those options must be considered before a writ of mandamus is granted.
In order to file for a writ of mandamus, a lawyer may be very beneficial. A lawyer can look over the situation and figure out whether or not a writ of mandamus is an appropriate remedy, and then can draft the writ of mandamus so that it will be rapidly approved by the court.

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Prosecutors http://court.laws.com/prosecutors http://court.laws.com/prosecutors#comments Fri, 03 Apr 2015 14:31:41 +0000
The Role of a Prosecutor


A prosecutor acts as the government's attorney in any criminal case. The prosecutor’s role is to represent the people, which can include the United States Attorney, States Attorney, District Attorney, Solicitor General, Attorney General, or a special prosecutor. Being a prosecutor may require investigating certain criminal offenses on his or her own initiative, or by request of a government body or government officer.
A prosecutor can work with law enforcement agents to make sure that justice is served. He or she will make decisions about whether or not to put forth charges for a crime against the individual or group who the charges will be brought. A prosecutor must convince the judge or jury beyond a reasonable doubt about the facts needed to consist of the crime charged.
The prosecutor must do all of this while refraining from the use of any improper methods with the intention of producing a wrongful conviction. He or she also must use every legitimate method available to obtain just convictions.
Both county and state governments can employ a prosecutor to represent a local community in an against a criminal defendant. On a federal level, the President of the United States appoints the prosecutors that will represent the United States in any complaints against criminal defendants.
In certain states, a prosecutor will present the court with a written statement containing the charges. In other states, a prosecutor may be required to convene a Grand Jury for the court before charging a defendant with any serious criminal charge.
A grand jury is a collection of potential jurors selected by the prosecutor who will then examine the evidence and decide whether or not to indict the defendant and by doing so, authorizing prosecution. On a federal level, the Fifth Amendment of the United States Constitution requires a prosecutor to get an indictment for certain crimes, such as those that are capital or otherwise infamous, excluding crimes that come out of active military service.
In regards to most criminal cases, a prosecutor must argue with the defense attorney, the attorney who represents the defendant. In the majority of cases, the criminal defendant is represented by an attorney, even when the defendant cannot afford the services of one. If a judicial court does not offer this legal representation in the form of a defense attorney to a criminal defendant, the criminal defendant may avoid being incarcerated upon a conviction.
Prosecutors have a very broad discretion in deciding whether to prosecute a particular criminal defendant. A prosecutor does not personally have to believe in the guilt of a defendant beyond a reasonable doubt, but must simply have enough evidence to support a good enough belief that the defendant has in fact committed the crime.


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Alibi http://court.laws.com/alibi http://court.laws.com/alibi#comments Fri, 03 Apr 2015 14:31:41 +0000

An alibi is a form of defense used in legal proceedings and trials that shows that a defendant was not in a location where the alleged offense occurred. The alibi defense relies on the idea that the defendant is in fact actually innocent and has not committed the alleged crime. When an alibi defense is used by a defendant, the appropriate strategy for the defense is to work to prove innocence as opposed to simply being not guilty.
If the defendant does not have an alibi, the attorney for the defendant can say that the prosecution is unable to prove the case beyond a point of reasonable doubt. However, having an alibi defense changes the focus and the defendant case must be able to convince the jury of his or her innocence. If the jury does not think the alibi is true, it becomes more difficult for the defense to suggest that the prosecution is unable to prove the case.
Most legal jurisdictions have certain notice rules that are used for an alibi defense. The defense attorney usually must give notice to the prosecution about using an alibi defense. The defense also must disclose the location of the alibi where the defendant was during the crime as well as names, telephone numbers, and addresses of the alibi witnesses.
In return, the prosecution then discloses the names, telephone numbers, and addresses of the witnesses to the alleged crime along with witnesses that the prosecution plans to use to dispute the alibi defense.
If the alibi defense of the defendant is good enough to raise any reasonable doubt concerning his or her guilt in the alleged crime, the burden is then on the prosecution who must then disprove the alibi defense to a point beyond a reasonable doubt.
When the defense presents an alibi defense, the entire case switches focus and looks at how poorly or how well the witnesses of the alibi handles the cross-examination. Sometimes, an alibi witness can be vulnerable to attack in the following areas during a cross-examination:
Personal attacks on the alibi witness:
The relationship the alibi witness has with the defendant.
Any bias or unusual interest the witness appears to may have in the case's outcome.
Any refusal by the witness to speak with the prosecution before the trial.
Failure by the witness to report the alibi to any law enforcement before trial.
The witness's pretrial preparation:
How the witness learns about the importance of the date in question
The witness’s timing of the request to testify
Any prior meetings with the defense team or other alibi witnesses involved
The witness's trial testimony:
Failure to give a reason for knowing or remembering the alibi date
The overall chance that the alibi is legitimate or probable
Inability to recall other dates
Inconsistencies between the statements with other alibi witness statements.
Inability to remember certain details about the alibi
Unusually perfect ability to remember the details
Lack of proof to support the alibi
Proof that is not consistent with the alibi given


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Arbitrary http://court.laws.com/arbitrary http://court.laws.com/arbitrary#comments Fri, 03 Apr 2015 14:31:41 +0000
Arbitrary Decisions


The word arbitrary is derived from the Latin work arbitrarius, meaning the source of arbiter, who is the person who must judge a particular matter. In legal terms, an arbitrary judgment is a legal decision decided at the discretion of a judge, and is a decision that is not one that is fixed by law.
When a decision is arbitrary, it means that the decision is not based on judgment or reason but instead on discretion without any regard to standards or rules or personal will. It also implies a disregard of the evidence. In many circumstances, the term arbitrary implies an aspect of bad faith, and it sometimes may be taken as despotic or tyrannical.
In certain countries, a ban of arbitrariness is preserved into the constitution. For example, the Swiss Federal Constitution Article 9 theoretically supersedes even democratic judgments in barring arbitrary government action.
The United States Supreme Court has previously overturned laws for not having any “rational basis." A study of the United States asylum system finds that arbitrariness in decisions may be the cause of extremely large differences in outcomes between various adjudicators, which is known as refugee roulette.
In the United States, there is an arbitrary and capricious legal standard which states that a lower court’s findings will not be disturbed or contradicted unless it did not have any reasonable basis. Likewise, a jury’s finding of a fact will rarely be disturbed during an appeal unless it is found to be arbitrary and capricious. This idea of arbitrary decisions also applies to a decision by a government agency on an administrative law. 
In these arbitrary decisions, the previous ruling is considered invalid because of the fact that the ruling was based on unreasonable grounds or without proper consideration of the circumstances involved.
On a federal level and sometimes state level, non-elected officials in administrative agencies are given the authority to make rules, render decisions, and handle miscellaneous disputes. Here they must provide due process to the parties affected while complying with the procedures set by federal and state legislature.
These proceedings recognize the right of judicial review where citizens affected by the administrative body’s actions can ask for the actions to be reviewed by a judicial court. Standards have been created through state and federal legislature in order to prevent excess arbitrary decision making.
Congress tried to ensure this balance between protection of individual rights and giving agencies enough freedom to function through the Administrative Procedure Act. This act limited the range of judicial review of the court in question. It limited the scope of the court’s authority to decide whether an administrative agency made an arbitrary and capricious decision.
More specifically, the act said that the reviewing court must figure out whether the agency specified a rational connection between the facts and its decision. The court must also look at the record of the agency to ensure that the decision was based on a reasonable evaluation of the relevant facts. 


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Esquire http://court.laws.com/esquire http://court.laws.com/esquire#comments Fri, 03 Apr 2015 14:31:41 +0000
The Use of the Title Esquire in the United States


In the United States, esquire, more commonly seen as the suffix Esq., is used most often by individuals who are licensed to practice law. The suffix esquire is not gender specific and can be used by both female and male lawyers. The term esquire was not officially granted by any government authority but rather assumed by the legal community and profession. Certain states also give this title to other ministerial officers, such as commissioners of deeds, notary publics, and justices of the peace.
It is customary to not use the suffix esquire when referring to any sitting judges, who are members of the bench as opposed to members of the bar, and are not allowed to practice law in most jurisdictions in the United States. These judges will generally be given the prefix the Honorable as their title of respect. In certain jurisdictions, this title can also be given to attorneys who are current members of the jurisdiction's bar. 
Often it is suggested that certain United States jurisdictions explicitly indicate that the esquire suffix should only be used for lawyers. However, these jurisdictions actually do this in order to suggest that the term may be sometimes used by an individual who is falsely or wrongly claiming to be a licensed member of the state bar. It sometimes may be used in conjunction with the claim of being associated to the bar. The suffix alone is not enough to be considered evidence of misrepresentation.
All previous court cases in the United States that questioned the use of the suffix esquire always involved an individual who was practicing law without the proper authorization. None of these cases prosecuted an individual for the term when it was used only in a legitimate law practice.
The legal associations of an esquire in the United States have not completely eliminated out the modern British use of esquire where it is an alternative honorific to Mister.
The use of esquire by attorneys most often occurs when filing documents with a court or signing correspondence. In these situations, the use of the suffix only occurs when reference is done in the third person, for example by making a formal introduction, addressing an envelope, or for a business letterhead. Esquire is not used with any other honorific such as Mr., Ms., or Dr.
However, if a person has a post-nominal professional designation or an academic degree such as an M.D. or a CPA, the designation can be used after esquire. Furthermore, when a social correspondence is addressed to a commissioned officer from the U.S. Foreign Service, the suffix esquire can be used in a complementary fashion. It can also be used when addressing a diplomat.


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Caveat http://court.laws.com/caveat http://court.laws.com/caveat#comments Fri, 03 Apr 2015 14:31:41 +0000

Caveat is the Latin term that simply means to “beware of” something. It serves to be a warning or a notice. In a legal term, caveat can just refer to a formal legal notice sent to a public officer or a court to suspend a specific proceeding until the person who sent the notice receives a hearing.
The term was more often used in the past by an individual objecting to the appointment of:
An executor 
Administrator of an estate 
A patent for an invention
However, this meaning is much less used by modern attorneys today.
Today, the term is used more often as short hand for other Latin phrases that are often used in the law, such as caveat emptor, caveat venditor, and caveat lector.
Caveat Emptor


Caveat emptor, which is Latin for “let the buyer beware” is the idea that a buyer should be responsible for reasonably examining an item before choosing to buy it. By doing so, the buyer is responsible for the condition of the product. This is often applied to items that are not covered under a strict warranty. In the United States, caveat emptor is most often used for fitness type of implied warranties.
In the Uniform Commercial Code it specifically states that when a buyer is relying on a seller’s knowledge and skill to purchase the correct item, there is an implied warranty that whatever goods are being sold will be useful. Caveat emptor does apply to this warranty.
Not only is the term applied to an implied warranty of fitness, it is also often done with purchasing merchandise. In most circumstances, a seller is not required to allow have a return policy. Here caveat emptor is applied. The customer has the responsibility to inspect the quality of the product.  If the customer finds a problem with the product, the store is not liable for this.
Caveat Venditor


Caveat venditor is the Latin phrase for "let the seller beware" and acts as a counter to caveat emptor. The term suggests that a seller can also be in the position to be deceived during a market transaction. In this situation, the seller must take responsibility for the given product, which can discourage other sellers from attempting to sell products of unreasonable quality.
The phrase was derived from the case MacPherson v Buick Motor Co. in 1916 where Judge Benjamin Cardozo, the New York Court Appeals judge, stated that the privity of duty was no longer required in a lawsuit relating to product liability against the seller.
Caveat Lector
Caveat Lector, or “let the reader beware,” is used to warn a reader of potential errors in minor details of a passage, but that the general idea is accurate. It can also suggest to the reader that general idea of the passage may be problematic such as being misleading, but the details are fine.


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Decision http://court.laws.com/decision http://court.laws.com/decision#comments Fri, 03 Apr 2015 14:31:41 +0000
Judicial Decision Making and Case Law


In a legal context, a decision is an outcome of a case or proceeding before a government agency, arbitrator, judge, or other legal tribunal. The decision is often considered the first step in an interpretation by a judgment or a court in a case.
The term decision is often interchanged with an opinion or a judgment. Technically, this is incorrect since an opinion is a document written to describe the reasons for reaching a decision and a judgment is the court’s decision in a written form with the clerk’s notes or minutes.
Decisions can include:
Rulings
Provisional or inter-locutory orders made by the court
Final judgments
Legal decisions are most important when looking at case law. In a common law court, civil trials look at decisions on previous cases that dealt with similar issues. These court decisions rely on case law, which is the reported set of judicial decisions from certain appellate courts as well as other courts that are the first occurrence of a new interpretation to the law.
Because of these decisions with new interpretations, they can be cited by future courts as precedent, which is called stare decisis. This use of previous decisions is not applicable to all areas of the law including:
Statutory laws: rely on codes and statutes that were created and enacted by a legislative body.
Regulatory laws: based on the statutes and are established by various federal agencies
In cases where the trial or hearing is not considered in a court of first impression, their decisions do not act as precedents for future court decisions.
In common law, a court’s decision on how the law is applicable to a particular case relies on the interpretation of the statutes and application of relevant precedents that should how previous decisions were handled. Under the doctrine of state decisis, courts are almost entirely bound to their own previous precedents and decisions from precious cases. 
Furthermore, lower courts have to follow these decisions of the higher courts as well. This applies not only in the to the common law system in the U.S., but also in other common law systems across the world. For example, the Court of Appeals and the High court in England are bound by their previous decisions, but neither of them are bound by the Supreme Court of the United Kingdom or the County Courts.
Decisions from higher courts do not have much oversight over any of the lower courts of record since they cannot overrule the lower courts. This action is usually left to the higher appeal courts. Furthermore, a lower court cannot rule against a binding precedent, no matter how unjust to may seem. The court can only express the wish that the legislature or a higher court will reform whatever rule is at hand.


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Oyez http://court.laws.com/oyez http://court.laws.com/oyez#comments Fri, 03 Apr 2015 14:31:41 +0000
Oyez: The Supreme Court Archive


The Oyez Project is an unofficial multimedia archive dedicated to the Supreme Court of the United States and its purpose in the U.S. government. By archiving oral and audio arguments, Oyez tries to ben complete authoritative source for audio of the Court since October 1955 when the recording system was first installed. 
Not only does Oyez provide all recordings, but it attempts to give authoritative information about the justices, both historical and incumbent. It also provides a virtual 'tour' of different parts of the Supreme Court building, such as many of the justices’ chambers.
Oyez gives access to over 5,000 total hours of audio from the Supreme Court in hopes to provide an archive that is searchable to up to 1955. Oyez6, which is this current various, audio is available in its entirety from 1970 up to 2010.  The collection is not as thorough and is rather selective before 1970.
Beginning of Oyez
Oyez came from the idea of making a Supreme Court experience that was based on multimedia available at the time. The first version of this was a series of HyperCard stacks that revolved around a baseball card metaphor.
Since the start of the annual Term in October 1955, almost all proceedings in the Supreme Court have been recorded for use by the clerks and the justices. These recordings were first put on reel to reel tapes. The Supreme Court then agreed to have these recordings archived at the National archive & Records Administration, as long as they were used for research and educational purposes only and not duplicated for commercial purposes.
In 1993, a political science from the University of California, Peter Irons, challenged these conditions by creating copies and transcripts, which eventually the Court allowed. Jerry Goldman, another professor felt that these recordings were important to make available, and with this the Oyez project was started.
Next, the "Hitchhiker's Guide to the U.S. Supreme Court" showed the potential use of academic content that could be integrated with multimedia. There were many different versions of Oyez before it became the service became web based that is known today.
Funding for Oyez
Oyez receives support for the Weinberg College of Arts & Sciences, Northwestern University Libraries, FindLaw, and M. R. Bauer Foundation. In addition, the National Science Foundation provided funding and support for Oyez as well. It gave a major grant to Oyez in 2003 in order to show support for the Supreme Court and its interdisciplinary interests.
In 2011, Oyez also received a grant from Google, allowing them to continue adding to the archive, in hopes that it can ultimately be complete.


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Amnesty http://court.laws.com/amnesty http://court.laws.com/amnesty#comments Fri, 03 Apr 2015 14:31:41 +0000
The Legal Application of Amnesty


Amnesty law is a law is retroactively placed in order to exempt a specific group of individuals. It has been traditionally used as a political tool in order to compromise and allow reunion after a war. An act of amnesty is normally given to a group of people who have allegedly committed crimes against the state, such as rebellion, treason, or desertion from the military.
It is also applied to the government or military leaders so they do not become liable for the crimes they have committed. Often, amnesty is used in circumstances that deal with crimes against humanity or human rights abuses.
The use of amnesty is particularly common when dealing with countries that have experienced civil war, revolutions, or coups. In chaotic times, the outgoing regime’s leaders that want democracy or are forced to restore it within their country may be confronted with litigation regarding the counterinsurgency during their time in power.
Often, allegations of crimes against humanity or human rights abuse can to put forth as well. In order to overcome the possibility of facing prosecution for this allegation, some countries have absolved those through amnesty.
Amnesty laws can also be equally problematic to the opposition as a cost-benefit situation. There is a question of whether it is worth extending a conflict or rule to the new regime from the previous one, which can be accompanied with an increase in casualties and suffering when the previous regime resists losing its power.
In United States history, the first act of amnesty was offered in 1795 by President George Washington to the participants of the Whiskey Rebellion which allowed the American government to forgive the crimes involved, in exchange for their participants’ signatures on an oath of loyalty. Other historically significant amnesties in were granted in the United States during the Civil War and Vietnam War.
There is no specific or exact constitutional or legislative mention of amnesty, making its legal use vague. Most often it is justified by Article 2 Section 2 of the U.S. Constitution. Here the Constitution suggests that the president has the power to grant both reprieves and pardons for any offenses committed against the United States. While amnesty is typically granted before prosecution and a pardon is given after one, the distinction between the two is still vague. Courts often interchange the terms.
Amnesty laws are often opposed by various organizations including Amnesty International and Humanitarian Law Project as well the victims and their families. To these groups, amnesty laws are allowing a violation of both local and international law which should be corrected.
Even though someone who receives amnesty is no longer subject being judged local law, this amnesty does not invalidate law on an international level. This was the factor that caused the International Criminal Court to be established in order to ensure that those who received amnesty still are held responsible for their crimes if the local government does not prosecute the individual.

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