False Imprisonment is Happening more often than You Think

False imprisonment is considered a “lesser included offense” of kidnapping; being such, it is considered unlawful because it involves the illegal detention of another individual even if the person guilty of the act has no actual serious or evil intent.

False imprisonment, otherwise known as false arrest or wrongful arrest, happens when a person takes into custody, or holds or keeps another individual against his/her will. This mistake usually happens when a person is falsely accused of a crime or when a person wrongfully brings criminal charges against another; it can be committed by private citizens or law enforces, particularly those who act outside or beyond the limits of their authority. Examples of false imprisonment include: a person holding another individual (against the latter’s will) inside any confined place; a worker or a security guard detaining someone accused of having committed a crime (despite lack of proof); and, detaining someone for personal gain, due to false information or simply due to pure malice.

As explained by The Benton Law Firm, false imprisonment occurs when one person prevents another person from leaving a specified area without their consent. This can happen for any length of time and is frequently seen in kidnapping cases. While falsely imprisoning someone is a criminal offense, it can additionally be brought in civil court to compensate the victim for any harm done by the perpetrator.

In the state of Texas, specifically, Texas law defines false imprisonment as meeting the following four criteria:

  • Nonconsensual confinement of victim
  • Confinement must be intentional
  • Victim has to have knowledge that they are imprisoned
  • Victim is not aware of any means of escape

False imprisonment cases are in the news more often than you think. Kidnapping claims are often highlighted in the news, but many do not involve only a few hours of imprisonment. However, these charges are often tied together with other criminal charges such as kidnapping, sexual assault, and unlawful restraint. You are able to pursue civil charges separately from any criminal charges brought against an attacker by proving the above elements in a civil court. A civil court additionally has a lower burden of proof to demonstrate that the attacker falsely imprisoned you. In criminal court, the prosecutor must prove that the attacker committed false imprisonment “beyond a reasonable doubt,” while in civil court, the attorney for the victim must only prove that the attacker held someone against their will “by a preponderance of the evidence.”

Filing a claim for damages, however, will only be honored by a court if it can be proven that the victim is not guilty of whatever he or she has been accused of. If a person is guilty, though, but the procedure of his/her arrest was not done correctly, like when there was no just cause or if he/she was not read his/her Miranda Rights, then the court may have the criminal charge brought against him/her dismissed, but he/she will not be granted the right to file for damages.

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The Teamwork Crime of Conspiracy

Conspiracy involves someone agreeing to assist another person or a group of people with the carrying out of a crime or an illegal act. Conspiracy charges can be complicated because prosecutors do not need to prove that the accused participated in any act that was overtly criminal in order to either charge or to convict. According to Kohler Hart Powell, SC, the only thing that prosecutors will need to prove is that the accused conspired with at least one other person to commit a federal crime that was eventually attempted by another of the alleged conspirators. The charge of conspiracy requires only that action had been taken to begin the process of carrying out an illegal act. This action itself need not be a crime.

The conspiracy must begin with an agreement between the co-conspirators. This agreement does not need to be written or even overtly expressed. This agreement can be implicit, demonstrated merely by an action to complete the task taken by the party. Two common types of conspiracies include robbery conspiracies and drug conspiracies. In the case of a robbery conspiracy, the group plans together to rob either a person or a place. Drug conspiracy involves a plan to commit a drug crime, possibly by conspiring to possess, distribute, or manufacture illicit drugs.

Intent also plays an important role in conspiracy crimes. At least two parties in the conspiracy must intend to agree and all parties must intend to complete the illegal act. This means that knowledge of a crime is not enough to be considered of conspiring to commit a crime; the person must also agree to assist in the act in a direct way. Another type of conspiracy, RICO conspiracies, involve a group of people conspiring to commit a racketeering crime. A racket is a form of fraud that involves offering a service to solve a problem that does not exist or would not exist if the racket itself did not exist. The Racketeer Influenced and Corrupt Organization Act (RICO) was created with the purpose of seeking to eradicate organized crime of this nature. Racketeering is ripe for conspiracies because it often necessarily involves a large number of people in order to execute the act.

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All You Need To Know About Malicious Prosecution

When a criminal or civil case is filed without sufficient basis or for the wrong purpose, the victim has the right to sue the defendant for malicious prosecution. The law prohibits any individual from abusing the legal process. According to the website of Clawson and Staubes, LLC Injury Group, being wrongfully accused of a crime can bring humiliation and embarrassment to the plaintiff.

In order to succeed with a malicious prosecution case, there are four elements that needs to be proven:

1. The original case was dismissed in the victim’s favor

The victim must prove to the court that the case was dismissed in his favor. If there was a plea deal or the victim pleaded to a lesser charge, a successful malicious prosecution case is unlikely. Likewise, if there was a not guilty verdict, proving malicious prosecution can be difficult.

2. Active involvement

For their case to be successful, the plaintiff must be able to prove that the prosecutor played an active role in the criminal case. For instance, it was the prosecutor who filed the charges, handled the case, and supervised the other attorneys handling the case.

3. Probable cause

The prosecutor must be able to prove that the defendant had probable cause to commit a crime. If they are able to gather enough evidence to support reasonable suspicion for committing a crime or that it was more likely for the defendant to commit the crime, then there is probable cause.

4. Improper Purpose

To prove improper purpose, the plaintiff must be able to show that the prosecution did not make a mistake or gathered information but relied on that wrong information. Pursuing the case despite the lack of probable cause is a good example of improper purpose.

However, the problem with filing a malicious prosecution case is that the prosecutor is immuned from any liability in such types of cases. Such immunity is designed to protect prosecutors and other law enforcers so that they can do their jobs without having to defend themselves from allegations of malicious prosecution.

However, if it can be proven that the prosecutor acted beyond his authority by instigating or pursuing a criminal case, they may be exempted from such immunity.

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An Overview of Wrongful Death Claims

Losing a loved one as a result of somebody else’s negligence can be a devastating experience. And while it cannot replace the life that was lost, filing a wrongful death claim can at least help the surviving family members to recover and get back on their feet again. The Legal Dictionary defines wrongful death as the taking of the life of an individual due to the willful or negligent act of another person or persons.

According to the website of Zavodnick Zavodnick & Lasky, wrongful death may arise from medical malpractice, car and motorcycle accidents, criminal behavior, construction accidents, and workplace injuries. A wrongful death claim can be filed independently from criminal charges. According to the Legal Dictionary, “neither proceeding affects nor controls the other.” This is regardless of whether the act was intentional or not.

A wrongful death claim is filed by a representative on behalf of the survivors affected by the death of the deceased. The representative is usually the executor of the decedent’s estate. They are called “real parties in interest” and may vary from one state to another. The representative of the decedent may include the following:

Immediate family members. All states recognize immediate family members such as a spouse, children, and parents of unmarried children as parties that may file a wrongful death claim.

Life partners, financial dependents, and putative spouses. In some states, the domestic or life partner, persons who are financially dependent on the deceased and putative spouses can also recover damages in a wrongful death claim.

Distant family members. Distant family members are allowed by the court to sue for wrongful death. A grandparent who is raising a child can also file a wrongful death case.

Persons who experience financial suffering. If a person is financially dependent on the deceased, they can file a wrongful death claim for lost care or support.

Parents of a dead fetus. In some states, a deceased fetus serves as the basis for a wrongful death suit. In other states, parents cannot file a wrongful death claim for the purpose of recovering financial and emotional losses.

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Joint Managing Conservatorship or Joint Custody, Now the Decision of Many Family Courts

Family courts consider many different factors when making decisions over divorce-related issues, which include child custody and visitation rights, child support, spousal support or alimony, and division of property, assets and debts. Though these factors usually differ from one state to another, there is one similar basis when it comes to determining who shall have custody of the child: the child’s best interest.

A child custody lawyer from the law firm Kirker Davis, LLP, explains that, under Texas statute, the overarching standard for Austin and Texas courts in making conservatorship determinations is to ensure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and duties of raising a child after they have separated or divorced.`

More than one hundred years ago, child custody was a right enjoyed by fathers; this was due to the Property Law and inheritance issues that were in effect during those times. The early 1900s saw a new direction in how courts decided over child custody cases. Having perceived that mothers were naturally better caretakers of their children, there was, then, the transfer of custodial right to mothers. This perception came to be known as the “The Tender Years Doctrine” and it remained to be observed up to the 1970s.

Since then, neither father nor mother has the sole right to custodianship or conservatorship because so long as the court finds both parents fit to care for their child, then the child will not be denied the love and care of both parents. This is why many courts today are in favor of joint conservatorship and, so, give both parents equal time with their child, as well as equal rights in making decisions for their child’s well-being. Under the joint managing conservatorship ruling, the child may either reside with one parent at a location that is easily accessible to the other parent, or move from one parent’s residence to another.

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