Social Work & Understanding Civil and Criminal Law : Social Work & Understanding Civil and Criminal Law An Overview Objectives : Objectives Identify the difference between policy and law.
Identify social work roles (interaction) within the civil and criminal legal system.
Identify and describe civil law, terminology and procedure.
Identify and describe criminal law, terminology and procedure.
Clarify differences in case jurisdiction in state vs. federal court systems.
Develop an understanding of the role of expert witness.
Develop an understanding of mitigation Format of power point presentation : Format of power point presentation Is Policy Law?
Snapshot on Law
Social Work ‘s Role in Policy and Law
Tom’s role as expert witness
Mitigation Is Policy Law? : Is Policy Law? The simple answer is sometimes.
Public policy can be defined as a “relatively stable, purposive course of action used in dealing with a problem or matter of concern” (Anderson, 2006) that forms a basis for law.
Polices (like law) fall into many categories:
Procedural- Spells out how things will be done and what action will be taken
Substantive- Spells out will be done (or not done).
Distributive- Seeks allocation of services or benefits.
Regulatory- Imposes restrictions and limitations on behavior.
(Anderson) Snapshot on policy : Snapshot on policy Policies, when approved through a state or federal process, becomes or creates a basis for law. Florida Policy Process
Policy is translated into laws.
An example of this can be seen HERE.
The Americans with Disabilities Act (ADA) is a federal act and law that went through a policy process resulting in the ADA of 1990. This Act has is an example of all four categories of policy previously mentioned. Can you describe why?
Law is then translated into guiding policies at the organizational level. Snapshot on Law : Snapshot on Law So if policy is a process or a course of action then law can be thought of as a “dynamic set of rules of conduct that are prescribed by authorities, holding binding legal force” (pg. 2).
Dynamic- Change along in tandem with the policy environment.
Authorities –Set forth by constitution, legislation, or court.
Binding legal force- sanctions attached.
Carper & West (2004) Snapshot on sources : Snapshot on sources Constitutional law at both the state and federal levels
Legislative law (statutes) is that made via a policy process through a federal or state legislature—ending with the governor or president. The ADA example illustrates this type of law.
Case law is law which is created, by the judge or court, in the course of a case when there is no current statutory or common law which can be applied to the case. A new precedent is set and “published” EXAMPLE-1A EXAMPLE-1B
Carper & West (2004)
Maschi, Bradley & Ward (2009) Snapshot on law- Types : Snapshot on law- Types Like its parent (policy), law falls into many different categories.
Civil and Criminal This is our focus
Private: Regulates the rights and duties existing between private persons. Contract and Tort law are examples
Tort law refers to legal remedy provided for a private by one injuring another or another’s property (aside from breach of contract).
Procedural: Contains the rules for processing civil and criminal cases.
Substantive: Establishes rights and wrongs, do’s and don’ts!
Carper & West (2004) Social Work’s Role in Policy and Law : Social Work’s Role in Policy and Law [Forensic] Social workers:
Influence and set policy through advocacy and analysis efforts.
Work at many points within the policy process to set the agenda, or what Kindgon (1984) referred to as utilizing Policy Windows.
Influence the policy environment towards social justice outcomes (one prong of our two pronged approach).
Interface with civil and criminal law and court systems on behalf of client systems. Civil Law - Definition : Civil Law - Definition Civil law is law concerned with a dispute regarding private or civil rights between two or more parties in which…..
the plaintiff (initiator of the lawsuit) alleges a….
“cause of action” or something the defendant did or did not do which injured or violated a particular right of the plaintiff.
Carper & West (2004)
Maschi, Bradley & Ward (2009) What do standing and cross
claim refer to? Civil Law – Tom’s Role : Civil Law – Tom’s Role In our text we see that Tom the social worker has been called to help evaluate Wanda who has suffered as the result of a car accident.
In this case Tom:
Assesses and evaluates Wanda to determine if she meets the criteria for PTSD.
Tom serves as an expert witness in this case.
An expert witness is someone with “knowledge or experience of a particular discipline beyond that expected of a layman” (Springer & Roberts, 2007, pg 70). This witness makes his/her knowledge available to attorneys or the court by providing information or evaluation pertinent to the issue being adjudicated (Barker & Branson, 2000).
Social workers may serve as an EW in many areas. Civil Law - Process : Civil Law - Process In Wanda’s case “Cause of action exists” Describe the cause of action
A written complaint in filed in the court with jurisdiction, or authority to hear a particular case/issue. …..
Determining jurisdiction in civil cases may be tricky.
Many courts to “choose from” and the cases with which we work may add to difficulty. What is an example of this from Chapter 4?
After Wanda’s attorney has the PTSD evaluation information from Tom and can draft the complaint……..
Within the statute of limitations. Civil Law – Process/courts : Civil Law – Process/courts State vs. Federal Court in Civil Matters
Federal level when federal law is violated or in question examples: ADA, civil rights, or Social Security Act appeals and claims; bankruptcies; when a law’s constitutionality is in question.
State level in the case of most family and criminal law.
If the parties do not share domicile (Plaintiff lives in Florida, but Defendant lives in New York and event or incident took place in Florida then the case may be heard in federal court.
Maschi, Bradley & Ward (2009) Civil Law - Process : Civil Law - Process Within the Discovery Phase in Wanda’s civil trial, which is a process of information sharing between the parties Tom the social worker and our expert witness receives a notice of deposition which requires that he be examined under oath (but not in court).
Tom has notified Wanda that their discussion/evaluation is not confidential! During his deposition did Tom experience an ethical dilemma?
No motions were made in writing asking to court for any course of action.
Maschi, Bradley & Ward (2009) Civil Law - Process : Civil Law - Process No settlement was made and the case went to trial.
The decision maker in Wanda’s trial was a judge however a jury trial was possible.
Jury size varies by state and the type of dispute or criminal charge, however most maintain juries of 12 jurors. Florida allows jury size to be 6 even in felony cases except death penalty and eminent domain cases. See here (Rottman et al., State Court Organization, 2004).
Wanda as the plaintiff presents her case first, first by the plaintiff's attorney and then by defense counsel.
Maschi, Bradley & Ward (2009) Civil Law - Process : Civil Law - Process At the trial it was important for Tom to only provide an opinion based on the evaluation and never give an opinion as to the ultimate issue (liable/not liable, guilty, not guilty).
Wanda as the plantiff has the burden of proof in which she must provide enough evidence/support so that the judge (or jury) is more sure than not as to liability. This is called preponderance of the evidence.
If both sides present case, as plaintiff met burden of proof, then closing arguments will occur.
Verdict will be in the form of a finding of liability
. Maschi, Bradley & Ward (2009) Why will the EW’s
testimony be so important
if the trial makes it past
closing arguments? Criminal Law - Definition : Criminal Law - Definition Criminal law differs from civil law in 3 main ways:
Involves statutory law (federal and state) that declares certain conducts criminal and sets forth penalties for the commission of such conducts.
Parties: Complainant is the party prosecuting (state or federal government) the defendant who has been charged with a violation of criminal code.
Process through which the criminal case proceeds.
Carper & West (2004)
Maschi, Bradley & Ward (2009) Criminal Law - Process : Criminal Law - Process A defendant is charged with an act that falls into two categories of broad unlawful acts.
Malum in se, an act wrong in of itself. A universal acceptance of the act as wrong exists. Such acts are criminalized in all states, however penalties may differ. Example murder.
Malum prohibitum, an act prohibited by the will of the people. Such acts will be codified in the statutes with a gradation system. Example speeding.
Felonies and misdemeanors are terms that distinguish the seriousness of crime. MORE
Carper & West (2004)
Maschi, Bradley & Ward (2009) Criminal Law - Process : Criminal Law - Process Prosecution & Jurisdiction
A criminal case will be prosecuted by the government (state or federal).
The prosecutor must prove that the defendant knowingly, intentionally, purposely, or recklessly committed the act. This is known as showing mens rea (the defendant had a guilty mind).
As with civil cases jurisdiction may vary.
Carper & West (2004)
Maschi, Bradley & Ward (2009) Criminal Law - Process : Criminal Law - Process Because the defendant has been charged with a violation of the criminal code bail will be set by a judge.
Bail is typically a set amount depending upon the nature of the crime and the flight risk of the individual. 10% is typically needed in cash.
Bail in Florida works a bit differently than other states and requires the services of a licensed bail bondsman. See more on Here and Here. Criminal Law - Process : Criminal Law - Process If the charge is a felony the defendant will be called for a first appearance (arraignment) at which the formal charges are read.
The defendant may plead guilty, not guilty, or no contest which is an admission of the facts of the case but not guilt.
Preliminary hearing is set (this sets felony hearings apart from misdemeanors (ABA).
Preliminary hearing is held and probable cause for arrest is established or it is established that evidence lacks.
Carper & West (2004)
Maschi, Bradley & Ward (2009) Criminal Law - Process : Criminal Law - Process When evidence is sufficient a bill of information is entered and the case moves forward, if not the case becomes a no bill case. The case may still be re-prosecuted at later time.
At this point defendants are often offered plea deals in which they plead guilty to lesser charges.
Pretrial Intervention may also be offered to new offenders with lesser offenses.
After the arraignment has occurred the process is similar to that of a civil trial.
Carper & West (2004)
Maschi, Bradley & Ward (2009) Criminal Law - Process : Criminal Law - Process Please note that in the Discovery phase of a criminal case should the defendant make the request, the prosecutors MUST disclose any evidence that could show the accused is innocent.
There is the possibility for reciprocal discovery in many states.
Maschi, Bradley & Ward (2009) Which Amendment
guarantees the right
to a speedy trial? Mitigation- A Role for Social Work : Mitigation- A Role for Social Work Mitigation is a process of assessment, developing evidence, and presenting evidence as an expert witness in a court setting as a means of lowering a sentence or deferring a sentence.
A forensic social worker gathers biopsychosocial information, focusing in mental health assessment.
In practice the terms mental health evidence and mitigation evidence are often used interchangeably.
Springer & Roberts (2007) Mitigation- A Role for Social Work : Mitigation- A Role for Social Work Mitigation work is most important at two phases of a trial:
1) Sentencing phase and
2) Determining a client’s level of culpability. (deserving of blame). In other words does the client have capacity to stand trial. How do you think the concept of mens rea relates?
Mitigation work is especially important in Death Penalty cases.
Springer & Roberts (2007) Resources : Resources Florida Statutes, Title XLVII is Florida Criminal Procedure and Corrections.
Albert, R. (2000). Law and social work practice (2nd edition). New York, NY: Springer.
Behnke, S. H., Winick, B. J., & Perez, A. M. (2000). The essentials of Florida mental health law. New York, NY: W.W. Norton & Company, Inc.
Grana, S. J. (2002). Women and (in)justice: The criminal and civil effects of the common law on women’s lives. Boston, MA: Allyn and Bacon.
Madden, R. G. (2003). Essential law for social workers. New York, NY: Columbia Press.
Vogelsang, J. (2001). The witness stand: A guide for clinical social workers in the courtroom. Binghampton, NY: Haworth Social Work Practice Press. [electronic book available via the UCF library] References : References Anderson, J. E. (2006). Public Policymaking (6th edition). Boston, MA: Houghton Mifflin Company.
Kingdon, J. W. (1984). Agendas, alternatives, and public policies. Boston: Little, Brown and Company.
Barker, R. L., & Branson, D. M. (2000). Forensic social work: Legal aspects of professional practice (2nd ed.). Binghamton, NY: Haworth Press.
Carper, D. L., & West, B. W. (2004). Understanding the law (4th edition). Mason, OH: Thomson.
Maschi, T., & Killian, M. L. (2009). Forensic social work. New York, NY: Springer.
Springer, D. W., & Roberts A. R. (Eds.) (2007). Handbook of forensic mental health with victims and offenders: Assessment, treatment and research. New York, NY: Springer.