Character & Fitness: CA Misdemeanor, Felony vs. Infraction

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CaveatLector
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Character & Fitness: CA Misdemeanor, Felony vs. Infraction

Postby CaveatLector » Fri Sep 23, 2011 6:47 am

Hello,

In this post I would like to discuss disclosure requirements for California Infractions on Character and Fitness (C&F) portions of law school applications. First off, in common language, an infraction is often known as a "petty crime" or "civil offense", although both are misnomers. According to California Penal Code section 19.6, an infraction is a crime. However, according to People v. Sava (1987) 190 Cal.App.3d 935, 235 Cal.Rptr. 694, an infraction is not a crime, because the right of trial by jury is not afforded. Also, it is not a "civil"offense, because it does not fall under civil law, as is evident fromthe fact that the state is the plaintiff. As Sava has yet to be overturned, it must stand that an infraction is not a crime, or civil offense, in California. It is a third type of offense, meaning neither criminal nor civil.

Therefore, when C&F asks something along the lines of "have you ever been convicted of a felony, misdemeanor or any other crime", an applicant who has only ever committed an infraction need not, and should not, mark Yes. However, the applicant should mark Yes if the phrasing is "have you ever been convicted of violating any law".

Nonetheless, it is still probably wise for the applicant to disclose all infractions on a separate addendum, so as to avoid any possible complications in the future with either the school and/or state bar association.

*Please note, we need not discuss minor traffic violations (which are infractions are CA), as most schools specifically exclude them.

I welcome all participants' civil feedback. Thank you.

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Blessedassurance
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Re: Character & Fitness: CA Misdemeanor, Felony vs. Infraction

Postby Blessedassurance » Fri Sep 23, 2011 8:08 am

Read the application carefully and proceed accordingly. When in doubt, disclose. This is not the time to be cute. Some application prompts are pretty thorough and ask that you disclose all charges, crimes etc (with the exception of minor traffic violations). I think Texas's application excludes certain things pursuant to Texas Law.

In a nutshell and ceteris paribus, the benefits of full disclosure and avoidance of getting f'ed in the ass by c&f (sans lube or the courtesy of a reach-around) far outweigh any imaginary, temporary gains one hopes to accrue from playing cute with semantics. Personally, I draw the line between conviction and charges in relation to these matters but that's just me.

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Hopefully2012
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Re: Character & Fitness: CA Misdemeanor, Felony vs. Infraction

Postby Hopefully2012 » Fri Sep 23, 2011 8:59 am

I agree with Blessed. Infractions are not worth playing with semantics or writing a pseudo-legal memo over (you probably know this but please don't use that formatting or cite cases in your addendum) since disclosing will likely not effect your cycle at all. All you have to write is a description of what happened and a short note about how "I've learned the importance of driving safely". If the tickets are recent and there are more than a couple (5+), you might want to go into more detail since that'll cause AdComms to pause (according to Asha's Yale blog).

CaveatLector
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Re: Character & Fitness: CA Misdemeanor, Felony vs. Infraction

Postby CaveatLector » Fri Sep 23, 2011 10:56 am

Yes, I think one should disclose everything in all cases. Also, when in doubt, disclose. I don't argue those points. I am talking about the situation when there is NO doubt, i.e., the question specifically and solely asks about crimes.

My main point is that one should not answer affirmative to being charged with and/or convicted of a crime when one in fact has not. This is not an attempt to play with semantics or be cute; this is a matter of constitutional law. I agree it might not be a good idea to use legal formalisms in an addendum, but how do you think one might best express that the infraction is in fact not a crime, or should the applicant just assume that the admission officer knows that?

Just to emphasize, under our US Constitution, when charged with a crime, one has the right to due process, which entails the right to trial by jury. An infraction does not carry with it the right to trial by jury, thus it cannot be considered a crime. There is nothing erudite or cute about this.

Thanks for the responses.

bp shinners
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Re: Character & Fitness: CA Misdemeanor, Felony vs. Infraction

Postby bp shinners » Fri Sep 23, 2011 11:06 am

hirschas wrote:I agree it might not be a good idea to use legal formalisms in an addendum, but how do you think one might best express that the infraction is in fact not a crime, or should the applicant just assume that the admission officer knows that?


It seems to me that the only reason to argue that an infraction is not a crime is so that you could leave it off of your application. Writing an addendum explaining the infraction and how it isn't a crime is counterproductive, in my opinion. Just admit to the infraction and leave it at that.

Just to emphasize, under our US Constitution, when charged with a crime, one has the right to due process, which entails the right to trial by jury. An infraction does not carry with it the right to trial by jury, thus it cannot be considered a crime. There is nothing erudite or cute about this.


I think you're conflating Due Process in a criminal situation with the ability of an organization to use information about past transgressions in their decision process. All this stuff you say is true, but there is little reason to be discussing it in regards to C&F for the bar.

CaveatLector
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Re: Character & Fitness: CA Misdemeanor, Felony vs. Infraction

Postby CaveatLector » Fri Sep 23, 2011 11:08 am

On second thought, it is probably not a good idea to introduce any legal jargon or reasoning at all. Just disclose the matter, be it a crime or non-crime, in the simplest way possible and let it be; anything else may lead to suspicion.

However, I still stick to my original point that if you have only ever committed an infraction, then you should not answer yes to any question that you are positive only addresses crimes.

Can we all agree on this?

CaveatLector
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Re: Character & Fitness: CA Misdemeanor, Felony vs. Infraction

Postby CaveatLector » Fri Sep 23, 2011 11:16 am

Shiners,

First, I am actually in favoring in disclosing everything, therefore it does not make sense for you to say that the only reason to argue an infraction is not a crime is in order to leave it off the application. I think it is beneficial to the applicant for the admission officer to know that the infraction is not a crime because that solidifies the notion that the transgression is really no big deal.

Second, you are right, it is counterproductive to argue that the infraction is not a crime. The best the applicant can do is hope that the admissions officer knows an infraction is not a crime...or just not think about it at all.

Third, my discussion of due process was really just a digression. I just want to emphasize that you should not answer yes to being a criminal when you are in fact not.

Thanks

freestallion
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Re: Character & Fitness: CA Misdemeanor, Felony vs. Infraction

Postby freestallion » Fri Sep 23, 2011 12:08 pm

hirschas wrote:Shiners,


Third, my discussion of due process was really just a digression. I just want to emphasize that you should not answer yes to being a criminal when you are in fact not.

Thanks


So you would recommend attaching an addendum for things like traffic violations, but not checking a box saying you committed a crime?

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Blessedassurance
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Re: Character & Fitness: CA Misdemeanor, Felony vs. Infraction

Postby Blessedassurance » Fri Sep 23, 2011 12:35 pm

hirschas wrote:Just to emphasize, under our US Constitution, when charged with a crime, one has the right to due process, which entails the right to trial by jury. An infraction does not carry with it the right to trial by jury, thus it cannot be considered a crime. There is nothing erudite or cute about this.

Thanks for the responses.


Actually you don't have the right to a trial by jury when charged with all crimes. It depends on the crime. Also (and this is not necessarily relevant to your case), but when you're charged under a summary court martial under the UCMJ, you don't have a right to a lawyer or a jury but a conviction is nevertheless, considered a misdemeanor (in most cases). So on and so forth. Ultimately, the decision is yours and yours alone.

CaveatLector
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Re: Character & Fitness: CA Misdemeanor, Felony vs. Infraction

Postby CaveatLector » Sun Sep 25, 2011 2:24 am

To Freestallion: For the second part of your question, yes, do not say you are a criminal if you are not. As for minor traffic violations, I deal with that in my original post, which says: "*Please note, we need not discuss minor traffic violations (which are infractions are CA), as most schools specifically exclude them." Of course, if a school does ask questions about such violations, then deal with them appropriately. I hope that answers your questions.

To Blessedassurance: US Constitution, Section 2, Clause 3: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury..." I believe that makes it quite clear.

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Blessedassurance
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Re: Character & Fitness: CA Misdemeanor, Felony vs. Infraction

Postby Blessedassurance » Sun Sep 25, 2011 2:51 am

http://www.halt.org/articles/8/38.php

The right to a trial by a jury of your peers is a basic guarantee of the U.S. Constitution. Although fundamental, the right to a jury trial does not apply to all people in all cases.

For federal civil cases, the 7th Amendment to the U.S. Constitution guarantees the right to a jury trial. The number of jurors varies from six to 12, depending on the court but all federal juries must render a unanimous verdict in civil cases.

However, the constitutional right to a jury trial is neither automatic nor absolute.

http://en.wikipedia.org/wiki/Jury_trial#United_States

In the United States, every person accused of a crime punishable by incarceration for more than six months has a constitutional right to a trial by jury, which arises in federal court from Article Three of the United States Constitution, which states in part...

The Supreme Court has ruled that if imprisonment is for six months or less, trial by jury is not required, meaning a state may choose whether or not to permit trial by jury in such cases.

[ District of Columbia v. Clawans, 300 U.S. 617 (1937) and Baldwin v. New York, 399 U.S. 66 (1970)]

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PDaddy
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Re: Character & Fitness: CA Misdemeanor, Felony vs. Infraction

Postby PDaddy » Sun Sep 25, 2011 3:42 am

The schools do not care about states' definitions. Schools will explicitly tell you that, even if a state rule or some other advisor tells you that you don't have to disclose, you should still disclose.

Tell them about it even if you don't think you have to. Believe me, the schools are, in most cases, less concerned with the actual offense than they are making sure they don't admit someone who obviously shouldn't have the privilege of going, like a child molester, serial arsonist or murderer.

Of course, they will be concerned with the nature, severity and age of the violation, as well as whether you have paid all fines and otherwise satisfied your societal debt, but that is all. You really should not worry too much that you will be re-judged by the adcom because, in 85% of the cases, that's not what happens.

Unless the school tells you explicitly not to, DISCLOSE!!! And if you don't disclose because of a single school's requirement (the Massachusetts schools and the N.C. schools have less stringent reporting requirements from what I remember), be sure to disclose at other schools.

CaveatLector
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Re: Character & Fitness: CA Misdemeanor, Felony vs. Infraction

Postby CaveatLector » Sun Sep 25, 2011 5:22 am

To Blessedassurance: Yes, everything you said is true. I do not agree with or accept such activist policies as constitutional, but that's the way it is, and I don't really want to debate it here, so I would appreciate if we could just leave it at that. Anyway, I targeted this post at California exactly for that reason, since in that state the judiciary accepts the limits that the Constitution places on criminal law.

To PDaddy: Thank you for your input, but you should clearly read the above posts before commenting. If you were to do so you would find that the participants have already reached a consensus concerning disclosure, which is to disclose everything. The other issue is how to answer (yes or no) to criminal questions of applications. The consensus thus far reached is that if you should never answer positive to being a criminal if you in fact are not. Of course, when in the doubt about the actual nature of the question, proceed with caution.




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