Elements of U.S Legal System, Essay Example

Question 3

The family’s claim against Dull-ray is a strong one based upon the facts provided. As a general rule, the owner of a swimming pool facility must take reasonable care to guard against accidents that are foreseeable in the operation of the facility. At a minimum, this means providing a lifeguard whose responsibility it is to observe the behavior or the swimmers and to look for signs of distress or difficulty. Under normal circumstances, the lifeguard need not be constantly aware of every activity that is taking place within the pool area but should not participate in any activity that interferes with his or her ability to exercise her responsibilities which include observing and, if necessary, rescuing any swimmers in distress.

In this case, the fact that the lifeguard was busy updating his Facebook account and not observing the swimmers indicates that he was negligent in his duties and that, as a result, the swimmers were placed in danger. As the lifeguard’s duty was to observe and rescue any swimmers in need of assistance, he has breached his duty and this breach is certainly the proximate cause of the swimmer’s death. Because the lifeguard is an employee of the Dull-ray facility, the facility is liable for the lifeguard’s negligence.

The liability against the other swimmers is highly questionable. Ordinarily, bystanders are not liable for a failure to act unless such bystanders had a pre-existing relationship of some nature with the injured party. There may be some extending circumstances that might impose liability but, as a general rule, any action against the other swimmers would likely fail.

Question 4

The generalized right to a speedy trial is guaranteed by the Sixth Amendment to the U.S. Constitution, however, the specifics as to what is meant by “speedy” is not defined by the Constitution. Instead, a determination as to this issue is set forth by each state’s statutes which establish specific time lines depending on the seriousness of the crime. In most cases, the decision as to whether or not a defendant has been provided a speedy trial is simply a determination based on counting the days between the day of arraignment and the date of the trial. There are exceptions to this method but, ordinarily, this is how the system operates.

The issue of bail is also guaranteed by the U.S. Constitution. The Eighth Amendment guarantees every defendant the right of reasonable bail in all criminal cases other than those involving a capital crime. The discretion of whether or not to grant bail and the amount of such bail is vested with the court. Among the factors that the court may consider are the seriousness of the crime, the financial ability of the accused to meet bail, and whether or not the accused is flight risk. In most crimes, reasonable bail is set but the court does have the discretion to refuse bail where the accused is a substantial flight risk.

Question 5

The public policy reason for the state or plaintiff bearing the burden of proof is different in criminal and civil cases. In criminal cases the reason for the state possessing the burden is the fact that under the American legal system all defendants enter the courtroom with the presumption of their innocence. As a result, it becomes the responsibility of the state, through the prosecutor, to prove each and every element of the crime and to prove the commission of the crime beyond a reasonable doubt. The defendant has no obligation to provide any evidence of any kind. He or she can sit mute throughout the proceedings without any inference being created by such silence.

In civil proceedings the plaintiff is also obligated to go forward with the initial burden of proof but this burden may shift from time to time through the proceedings depending on the circumstances of the case. In civil proceedings, however, the burden of proof is a preponderance of the evidence. This means that the plaintiff must prove his case by something is more likely so than not.

The higher burden of proof required in criminal proceedings is a recognition that the possible deprivation of freedom that might result from a conviction is a more valuable right than the possible loss of money that might arise from the loss of a civil claim.