Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P44 potx

allowing the government to be shut down for a long period rather than give in to Republican spending cuts. The IMPEACHMENT trial of Clinton in 1999 furthered the partisan divide in the country. Led by a Republican Congress, the impeachment process was backed by a majority of Repub- licans and opposed by a majority of Democrats. Despite the embarrassment to Clinton, the LEGAL PROCEEDINGS did not seem to hurt the Democrats in the same way WATERGATE hurt the Repub- licans. The Democrats actually picked up seats in the House and the Senate in both the 1998 and 2000 elections. Just how evenly the country was split between the Republicans and Democrats was illustrated by the 2000 election. Democratic presidential candidate AL GORE won the popular vote by over 500,000 votes; however, the Electoral College was another story. A disputed ballot count in Florida kept the election from being officially decided for more than a month after election day. When it was over, GEORGE W. BUSH had become PRESIDENT OF THE UNITED STATES by a mere 537 votes, according to the Florida statewide official tally. Bush beat Al Gore in the Electoral College 271 to 266, one of the closest results in U.S. history. Ironically, considering that they won the popular vote for president and picked up seats in both the House and Senate, the 2000 election paradoxically lef t the Democrats in their weakest position since the Eisenhower admin- istration. In addition to the presidency, the Republicans controlled the House and the Senate by slim majorities. In the Senate, that majority consisted of one seat. However, the decision by Senator Jim Jeffords (R-Vt.) to become an independent in 2001 gave the Senate majority to the Democrats for the first time since 1994. Using their majority, the Democrats were able to frustrate President Bush on some of his proposed policies, though they were too weak to pass legislation on their own. The Republicans strengthened their posi- tion after the 2002 election, regaining control of the Senate and increasing the number of seats they controlled in the House. But they still did not have enough votes to stop a Democratic FILIBUSTER in the Senate, thus giving the Demo- crats a measure of power. Some party activists felt at the end of the 2002 campaign that the Democratic Party had lost its way with the centrist policies advocated by former president Clinton and others; they saw the way back to power to take the party in a more liberal direction and to delineate more strongly their differences with Republicans. Others saw this as political suicide, pointing out that Clinton was the only successful Democratic candidate in the past quarter century. The Democratic nominee in the 2004 presidential election was Senator John Kerry (D-Mass.). He ran against George W. Bush, who sought a second term in the Oval Office. Bush was re-elected as president, winning in the Electoral College 286 to 251 and earning nearly 51 percent of the popular vote. Democrats critical of Kerry lamented about what they had perceived as a slow-moving and unf ocused campaign by a stiff candidate. In the wake of the election, Democrats with centrist positions urged against the party swinging more to the left as an answer to the political defeat. The 2006 mid-term elections began a period of positive change for the Democratic Party. Amid scandals tainting several Republican can- didates seeking re-election and an increasingly unpopular war in Iraq, Democratic candidates won control of both houses of Congress, and a majority of governorships and state legislatures. The shift in power to Democrats was made historically significant by giving rise to the first woman Speaker of the House of Representa- tives, Nancy Pelosi. BARACK OBAMA was the Democratic nominee in the 2008 presidential election. Obama was considered a relative newcomer in Washington, D.C., and a mainstream Democrat on nearly all issues. Obama first began serving in the Senate in 2005 and officially launched his campaign for president in 2007. His campaign focused on bringing change to the United States by ending the unpopular war in Iraq, conserving energy and reforming the healthcare system. He defeated Republican nominee JOHN MCCAIN 365 to 173 in the Electoral College and earned 53 percent of the popular vote. He is the first African American and biracial president in the history of the United States. FURTHER READINGS Judis, John B., and Ruy Teixeira. 2002 The Emerging Democratic Majority. New York: Scribner. Miller, Senator Zell. 2003 A National Party No More: The Conscience of a Conservative Democrat. Macon, Ga.: Stroud & Hall Publishers. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 418 DEMOCRATIC PARTY Stanley, Timothy. 2010. Kennedy vs. Carter: the 1980 Battle for the Democratic Party’s Soul. Lawrence: University of Kansas Press. Wagner, Heather Lehr. 2007. The History of the Democratic Party. New York: Chelsea House Publications. Wilson, James Q., and John J. Dilulio Jr., and Meena Bose. 2010. American Government: Institutions and Policies. 12th ed. Boston: Cengage Learning. CROSS REFERENCES Elections; Republican Party. DEMONSTRATIVE EVIDENCE Evidence other than testimony that is presented during the course of a civil or criminal trial. Demonstrative evidence includes actual evidence (e.g., a set of bloody gloves from a murder scene) and illustrative evidence (e.g., photographs and charts). Many trial attorneys view the presentation of evidence to the jury as analogous to the presentation of information by a teach er to students. As in the classroom, the involvement of more than one of a juror’s senses in the courtroom increases the amount of information retained by that juror. For example, combining verbal testimony from WITNESSES with before and after X rays, or introducing a defective machine part that jurors can hold in their hands for inspection, makes for compelling courtroo m activity. In a modern, “show-me” society, the ability of a trial lawyer to use demonstrative evidence effectively can make the difference between winning and losing a case . One common and effective example of demonstrative evidence is the still photograph. Photographs of a plaintiff’sbruisestakenimme- diately after an accident can help a jury under- stand those injuries in a trial that occurs months or even years after the accident, when the injuries may have healed. Aerial photographs of the scene of a vehicular accident can show how a particular intersection is laid out, and can make more clear an ambiguous description of a blind intersection given by a witness. X rays and medical models and illustrations can be very helpful to a jury in physical injury cases. These examples of demonstrative evi- dence help the jury “see inside” the victim to understand the nature and extent of the injuries. X rays can show not only fractures but also permanent metal pins and plates. Accurate models of a plaintiff’s head and neck can show the interaction between the cervical area of the spine and the surrounding muscle and tissues in a soft-tissue injury case. Sometimes, partial or full skeletons are brought into courtrooms to demonstrate losses or restrictions of movement due to injuries. Modern computer-generated illustrations can show the exact injury to a specific PLAINTIFF, as opposed to the generic injury represented in a stock medical illustration. Graphs and charts are perhaps the most useful forms of demonstrative evidence. These tools can vividly illustrate a loss of earnings, a decrease in life expectancy, and past and future medical bills. Clear and concise charts can help a jury to arrange a complex set of events in a chronological fashion. These time lines can be crucial in organizing evidence, whether in a criminal trial or in a complex securities litigation. Often, maps and other geographic charts are used to show water flow, elevation, and other physical characteristics of real property (land). Graphs and charts can be presented to a jury in a variety of ways. In addition to offering the standard large prepared poster board on an easel, some attorneys prefer to create charts as they speak to the jury, using large blank pieces of poster board and colored marker pens. Other attorneys like the dramatic effect of dimming the courtroom lights and using an overhead projector or computer screen to focus visual attention on their illuminated charts and graphs. Whatever the style of presentation, well-constructed charts and graphs that make good use of color and are clear and easy to understand are appreciated by jurors and can have a big effect during deliberations. Articles and objects are also forms of demon- strative evidence. In addition to actual evidence that is introduced at trial (like the knife from a MURDER scene), other physical articles and objects A common and effective type of demonstrative evidence is the still photograph. In this example, a police technician points to an area on an interior photograph of a defendant’s home where fiber evidence (actual evidence) submitted in a San Diego, California, murder trial was discovered. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DEMONSTRATIVE EVIDENCE 419 can be used to help the jury understand the testimony. For example, in a PRODUCT LIABILITY action based on a defective artificial hip, giving the jury models of ball-and-socket joints to manipulate and examine with their own hands can clarify testimony regarding the replacement joint that is still inside the plaintiff. Three- dimensional models and mock-ups of roadways, accident sites, or proposed buildings can simulate the outside world inside the courtroom to give proportion and scale to a witness’stestimony. With the permission of the judge, attorneys may be allowed to take the jurors to the scene of the crime or accident. Here, all of a juror’s senses are at work, and testimony presented in court can be compared to and contrasted with the physical scene. A list prepared by both attorneys of items to “notice” ma y be read by the BAILIFF at the scene. Many juries appreciate not only the chance to get outside the courtroom but also the opportunity to see for themselves the place where it all happened. With the advent of low-cost videocassette players and recorders, it has become more and more common to see videotape in the court- room. A “day in the life of …” video can graphically demonstrate the activities of a plaintiff living with debilitating injuries. For example, a plaintiff witness may say, “Ican’tpick up my children,” whereas a video can actually show the plaintiff’s young children milling about with the plaintiff able only to sit by and watch them. Videotapes can also show the traffic volume at a busy intersection or provide a driver’s-eye view of a road sign obstructed by brush and leaves. If a jury is unable to leave the courtroom to visit the scene of a fire, a video camera can provide a tour through the burned-out remains of the family’s residence. Some attorneys have begun hiring stuntpersons to re-create vehicular accidents, drivi ng comparable vehicles at the speeds they were going when the accidents occurred, and filming the results. Unlike a controlled dramatic re-creation, this kind of actual re-creation, with its inherent danger yet accurate representation of accident conditions, can be an effective tool at trial. Though waning in popularity owing to the greater availability and lower cost of computers, slide projectors and human-created animation are still used by some attorneys. By taking two slide projectors, superimposing their projec- tions, and connecting them with a sophisticated mechanical device, an attorney can make a before picture fade into an after picture with dramatic results. As with a presentation using an overhead projector, the dark courtroom and brightly-lit screen of a slide presentation focus the jury’s visual attention. Animated cartoon shorts, hand inked by artists, are eye-catching and can portray exactly what the attorney wants to emphasize to the jury: For example, a cutaway “operating” engine might show how a defective part can cause the engine to break down. Computers and computer-generated dis- plays are at the cutting edge of demonstrative evidence. Computer-enhanced graphics can demonstrate anything from the speed of a vehicle to the loss of range of motion on an injured portion of the body. Computers also provide high storage capacity. One CD-ROM disc can store thousands of still photos, graphs, charts, digitized video clips, and even three-dimensional computer animations. An attorney who uses a computer to coordinate a presentation can com- bine many different forms of demonstrative evidence into a cohesive and dramatic whole. Still photos of an injury might be followed by a digitized video showing limited physical abilities after the injury. X-ray images can fade into graphs showing a loss of earning capacity. All these exhibits can be stored in a laptop computer and presented with minimal setup and distraction to the jurors. And the attorney making the presentation can instantly return to a particular demonstrative exhibit when mak- ing a point during closing argum ents. Another significant development in court- room technology is the use of bar codes. This technology is helpful in organizing evidence in cases with numerous exhibits. Bar codes function in court much as they do in the department or grocery store. Exhibits, be they photographs or documents, are stored on CD-ROM according to bar code. By entering or scanning the number, the item is immediately retrieved and can be displayed on the computer screen. Many newer courtrooms are equipped with individual computer terminals, so that jurors may view computer displays by attorneys on individual screens in the jury box. A future development may be the use of virtual reality— where individuals see and hear computer- generated images and sounds, and through body sensors “see” their hands and body within the simulation. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 420 DEMONSTRATIVE EVIDENCE No matter the technology, demonstrative evidence must still conform to standard eviden- tiary rules. The trial court may disallow any item of demonstrative evidence that is inaccurate or incomplete. Courts can also strike evidence if it is unnecessarily cumulative: For example, 30 photographs of one bruise that can be seen clearly in one or two photographs constitute evidence that is unnecessarily cumulative. An attorney must keep in mind that demon- strative evidence is not REAL EVIDENCE:Itmerely illustrates the points being argued to the jury and court. Computer-generated animation may only portray evidence that has been pro- perly presented to the jury through testimony or as physical evidence. A chart or graph may only present numbers and amounts that have been properly calculated and proved. No matter how exciting the “show,” the attorney must remem- ber that items of demonstrative evidence are merely props, and that the witnesse s and their testimony are still the primary method of presenting evidence to a jury. FURTHER READINGS Brain, Robert D., and Daniel J. Broderick. 1992. “The Derivative Relevance of Demonstrative Evidence: Charting Its Proper Evidentiary Status.” Univ. of California at Davis Law Review 25. Branson, Frank L. 1986. Demonstrative Evidence. New York: McGraw-Hill. Heffernan, Thomas A. 1987. “Effective Use of Demonstra- tive Evidence—‘Seeing Is Believing.’” American Journal of Trial Advocacy 5. Lilly, Graham C. 1996. An Introduction to the Law of Evidence. 3ded.Eagan,Minn.:West. Mauet, Thomas A., and Warren D. Wolfson. 2009. Trial Evidence. 4th ed. Frederick, Md.: Wolters Kluwer Law & Business. O’Callaghan, Richard M. 1988. “Introduction and Use of Demonstrative Evidence.” Practising Law Institute/ Litigation 360 (October 1). Reuben, Richard. 1995. “Stuntpersons Add Drama to Cases.” American Bar Association Journal (November). Taub, Theodore C. “Demonstrative Evidence.” American Law Institute-American Bar Association C432 (August 14). DEMONSTRATIVE LEGACY A gift by will of money or other personal property that is to be paid to an heir from a fund designated in the provisions of the will but, in any event, is to be paid if there are sufficient available assets in the estate. A demonstrative legacy differs from a SPECIFIC LEGACY , a gift of particular PERSONAL PROPERTY by will. A demonstrative legacy is payable from the general assets of the estate that have not been specifically devised or bequeathed if its desig- nated source has been adeemed or no longer exists or if it is inadequate to satisfy the gift. In the case of a specific legacy the ademption of property revokes the gift completely so that the heir receives nothing. However, if the value of the gift has only been reduced, the heir receives the decreased value. Courts often interpret provisions of a will that appear to grant specific legacies of money or shares of stock as demonstrative legacies to avoid the consequences of ademption where it is clear that the TESTATOR intended the gift to be made in any event. DEMUR To dispute a legal pleading or a statement of the facts being alleged through the use of a demurrer. DEMURRAGE A separate freight charge, in addition to ordinary shipping costs, which is imposed according to the terms of a carriage contract upon the person responsible for unreasonable delays in loading or unloading cargo. In maritime law, demurrage is the amount ident ified in a charter contract as damages payable to a shipowner as compensation for the detention of a ship beyond the time specified by a charter party for l oading and unloading or for sailing. Demurrage is intended to serve the PUBLIC INTEREST by facilitating the flow of commerce through the prompt loading and unloading of cargo. In general, the person liable for demur- rage is the one who assumed the duty to unload or load the cargo but failed to fulfill it. A consignee who agrees to unload a shipment but unreasonably delays in doing so is liable for the charge. Payment of demurrage is excused only if the delay was unavoidable, such as a delay caused by a natural disaster or the fault of the carrier. Reciprocal demurrage may be imposed upon a carrier who unreasonably delays in providing transportation to customers. The practical effect of reciprocal demurrage is a reduction in the customer’s shipping charges unless the contrac- tual amount exceeds that figure. If a person against whom demurrage is imposed fails to pay, the carrier might have a right to keep the goods until payment is made. This is known as GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DEMURRAGE 421 demurrage lien, enforceable only if authorized by statute, contract, or custom. CROSS REFERENCE Shipping Law. DEMURRER An assertion by the defendant that although the facts alleged by the plaintiff in the complaint may be true, they do not entitle the plaintiff to prevail in the lawsuit. The pleadings of the parties to a lawsuit describe the dispute to be resolved. The PLAINTIFF sets out the facts that support the claim made in the complaint, and the DEFENDANT then has an opportunity to respond in an answer. A demurrer is a type of answer used in systems of CODE PLEADING, established by statute to replace the earlier common-law FORMS OF ACTION . Whereas a demurrer admits the truth of the plaintiff’s set of facts, it contends that those facts are insufficient to grant the complaint in favor of the plaintiff. A demurrer may further contend that the complaint does not set forth enough facts to justify legal relief or it may introduce additional facts that defeat the legal effectiveness of the plaintiff’s complaint. A demurrer asserts that, even if the plaintiff’s facts are correct, the defendant should not have to answer them or proceed with the case. Under the modern rules of pleading estab- lished by the rules of federal CIVIL PROCEDURE and followed in a number of states, the demurrer has been abolished as a formal type of answer. The same argument against the plaintiff’s CAUSE OF ACTION can be, however, made by motion to dismiss the plaintiff’s action on the ground that he or she has failed to state a claim on which relief can be granted. Even where the formal demurrer is no longer used, lawyers and judges often use the old term for an argument of the same type. DENY To refuse to acknowledge something; to disclaim connection with or responsibility for an action or statement. To deny someone of a legal right is to deprive him or her of that right. A denial is a part of a legal pleading that refutes the facts set forth by the opposing side. A general denial takes exception to all the material elements of the complaint or petition, and a specific denial addresses a particularalle- gation in issue. DEPARTMENT OF… See specific department; e.g., EDUCATION DEPART- MENT . DEPENDENT A person whose support and maintenance is con- tingent upon the aid of another. Conditional. A dependent is someone w ho is sustained by another person, such as a child supported by his or her parents. In an insurance policy, the term legal de- pendent generally includes all of those people whom the insured person is under a legal duty to support, such as a spouse and minor children. A lawful dependent includes someone whom an insured perso n is permitted, but not required, to support. That which is dependent is conditional upon the occurrence of another event. A depen- dent contract is an agreement between two parties that is conditional upon another agreement. For example, one person agrees to deliver goods to another person only after that person con- tracts to purchase such goods from the first person only for a certain designated period. DEPENDENT RELATIVE REVOCATION The doctrine that regards as mutually interrelated the acts of a testator destroying a will and executing a second will. In such cases, if the second will is either never made or improperly executed, there is a rebuttable presumption that the testator would have preferred the former will to no will at all, which allows the possibility of probate of the destroyed will. Some jurisdictions decline to apply the doctrine of DEPENDENT RELATIVE REVOCATION to cases to eliminate a written revocation of a will, but apply it t o decla re the ineffectiveness of a physical act of revocation. The justification for the distinction is that the physical act is inherently equivocal. The court has the power to interpret the ambiguous act to ascertain what the TESTATOR did but not to disregard an express statement of the testator and substitute its own conception of what the testator should have done. The doctrine of dependen t relative revoca- tion contravenes the strict interpretation of and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 422 DEMURRER demand for rigid adherence to the specific language of the statutes conce rning the execu- tion and revocation of wills and the theory of the PAROL EVIDENCE rule. In deciding whether to apply the doctrine, the court considers the TESTAMENTARY pattern of the decedent, the terms of the prior wills, the respective identities and shares of the beneficiaries under the previous will and the new will in question, the nature of the defect that prevents the new will from taking effect, the trustworthiness of the proof of the reasons for the testator’s desire to make the desired objective to the former testamentary plans as contrasted to the application of the laws of DESCENT AND DISTRIBUTION. The court will not execute a new will, but it will eradicate revoca- tions to infuse new life into a prior will that achieves the same objective. DEPENDENT STATES States can be classified into two general catego- ries: dependent and independent. A dependent state does not exercise the full range of power over external affairs that an independent state possesses under INTERNATIONAL LAW. The control- ling or protecting state may also regulate some of the internal affairs of the dependent state. Formal treaties and the conditions under which the status of dependency has been recognized by other states govern the balance of sovereign powers exercised by the protecting state and the depen- dent state. Various terms have been used to describe different types of DEPENDENT STATES, such as condominium, mandate, PROTECTORATE, and vassal state. Since 1945 there has been strong international pressure to eliminate forms of dependency associated with colonialism. DEPLETION ALLOWANCE A tax deduction authorized by federal law for the exhaustion of oil and gas wells, mines, timber, mineral deposits or reserves, and other natural deposits. Frequently, the ownership of such resources is split so that the depletion deduction is allotted among the various owners. Rights to royalty payments, leases, and subleases are not the same as ownership but the holders of such rights may be entitled to depletion deductions under the theory of “economic interest” formulated by the courts to ascertain the right to depletion allowances. Such economic interest, which signifies an investment interest in the minerals that furnish the sole resource for recouping the investment, is usually determined by the parties according to the provisions of their contract. The cost method and the percentage, or statutory, method represent the two ways of calculating the DEPLETION ALLOWANCE. Cost depletion, like depreciation, bases the allowance on the original cost of the income- generating property. For example, a taxpayer who purchases rights to extricate oil for $2 million should be permitted to regain the capital tax-free when he or she extracts and markets the oil. The earnings from the deplet- able property should be viewed as encompass- ing a return of the taxpayer’s capital investment. A proportionate segment of such receipts each year should be exempt from TAXATION as income. When oil is viewed as a “wasting asset,” cost depletion permits yearly deductions for the receipt of $2 million tax-free over the duration of the pumping operations. The tax law permits the taxpayer to divide the cost of the investment by the estimated total of recoverable units in the natural deposit. This cost per unit is subsequently multiplied by the number of units sold annually, which results in the depletion deduction permitted for that year. The percentage, or statutory, method does not employ recovery of cost in the computa- tion of the deduction. A percentage of annual income, rather than cost, is deductible each year, even if the owner has recovered all cost or discovery value of the depletable asset. The federal tax laws vary from year to year in regard to the percentage depletion allowable for oil and some other deposits, and the categories of producers entitled to such allowances. Federal law allows the owners of mining operations, such as this copper mine in southeastern Arizonia, to claim a tax deduction upon the depletion of the mine’s natural deposits. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DEPLETION ALLOWANCE 423 Percentage depletion, which applies to other mineral deposits or energy sources such as geothermal steam, provides an extremely profit- able allowance as an alternative to cost depletion. The taxpayer calculates a fixed percentage of his or her gross income and deducts that amount from gross income annually for as long as the property generates income, even after he or she has completely recovered the actual cost. Some taxpayers employ cost depletion at the outset of operations, when a large number of units of the deposit are extracted and sold, and then convert to percentage depletion upon RECOUPMENT of cost in other circumstances—when percentage deple- tion yields a more sizable deduction. Percentage depletion furnishes an additional tax subsidy to detection, development, and dissi- pation of qualified reserves. The subsidy approach began during WORLD WAR I t o induce exploration for minerals. Cost depletion ha d been expanded to permit discovery value rather tha n cost to serve a s the ga uge of tax-exempt recovery. A problem in estimating the quantity of depletable units prior to extraction ex isted, how ever, a nd p ercentage deple- tion was en acted in 1924 as the solution. This method w a s sub-sequently extended t o include additional minerals and other deposits and to raiseratesofdepletioninsomeinstances.Itwas eventually diminished due to excessive profits and tax b enefits obtained by some companies. Only depletion, rather than percentage depletio n, may be used for gas, water, soil, t imber, and oil. For percentage depletion, gross income must be restricted to income from extracting and selling the deposit, not from refining, processing, or manufacturing it. The option to deduct present ex ploration and development expenditures rather than capitalizing them represents an additional tax advantage for the industries ent itled to depletion all owances. A more substantial tax benefit ensues if such expenses are d educted immediately, since they would never be recovered through the application of percentage depletion, which is based on gross income and not the cost of t he capital invested in the enterprise. CROSS REFERENCES Income Tax; Mine and Mineral Law. DEPONENT An individual who, under oath or affirmation, gives out-of-court testimony in a deposition . A deponent is someone who gives evidence or acts as a witness. The testimony of a deponent is written and carries the deponent’s signature. DEPORTATION Banishment to a foreign country, attended with confiscation of property and deprivation of CIVIL RIGHTS . The transfer of an alien, by exclusion or expulsion, from the United States to a foreign country. The removal or sending back of an alien to the country from which he or she came because his or her presence is deemed inconsistent with the public welfare, and without any punishment being imposed or contemplated. The grounds for depor- tation are set forth at 8 U.S.C.A. § 1251, and the procedures are provided for in §§ 1252–1254. To further clarify deportation, the U.S. Su- preme Court, in Zadvydas v Davis, 533 U.S. 678, 121 S.Ct.2491, 150 L.Ed.2d 653 (2001), r uled that ALIENS who are under investigat ion ca nnot be held indefinitely. This would be in violation o f the Due Process Clause of the FIFTH AMENDMENT of the federal Constitution. Moreover, the Court e stab- lished a maximum six-mont h detention period. At thatpointthealienmustprovideinformationasto why removal to the c ountry of origin is not likely in the foreseeable future. For example, in this case, Kestutis Zadvydas was born to Lithuanian parents who were held in a Germa n displaced persons camp; both Lithua nia and Germany refused to accept him into their countries because he was not a citizen. If the government cannot REBUT this information, the alien must be released from confinement. Finally, the Court declared that the federal c ourts are the proper place to review issues of deportation, rejecting the government’sclaim that IMMIGRATION is strictly the province o f t he executive branch. Following the September 11, 2001, terrorist attacks on the United States, Congress created the USA PATRIOT Act, Pub.L. No. 107-56, 115 Stat. 272 (2001). The law deals with various means of combat ing TERRORISM and includes provisions that authorize the deportation of individuals who provide lawful assistance to any group that provides assistance to terrorists. Accused persons must convince the governmen t that they did not know their contributions were being used for terrorist activities. FURTHER READINGS Cole, David, and Jack X. Dempsey. 2006. Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security. New York: New Press. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 424 DEPONENT “Deportation from the United States.” 2009. U.S. Immigra- tion Support Web site. Available online at http://www. usimmigrationsupport.org/deportation.html; website home page: http://www.usimmigrationsupport.org (ac- cessed September 1, 2009). Ngai, M ae M. 2003. “The Strange C are er of the Illegal Alien: Immigration Restriction a nd Depo rtation P olicy in t he United States, 1921–1965.” Law and History R eview 21, no. 1 (spring). Available online at http://www.historycoopera- tive.org/journals/lhr/21.1/ngai.html (accessedJuly19, 2009). DEPOSE To make a deposition; to give evidence in the shape of a deposition; to make statements that are written down and sworn to; to give testimony that is reduced to writing by a duly qualified officer and sworn to by the deponent. To deprive an individual of a public employ- ment or office against his or her will. The term is usually applied to the deprivation of all authority of a sovereign. In ancient usage, to testify as a witness; to give evidence under oath. DEPOSITION The testimony of a party or witness in a civil or criminal proceeding taken before trial, usually in an attorney’s office. Deposition testimony is taken orally, with an attorney asking questions and the DEPONENT (the individual b eing q uestion ed) a nswering w hile a COURT REPOR TER or tape recorder (or sometimes both) records the t estimony. Deposition testimony is generally taken under oath, and the courtr eporter and the deponent often sign a ffidavits attesting to the accuracy of the subsequent printed TRANSCRIPT. Depositions are a discovery tool. (Discovery is the process of assembling the testimonial and DOCUMENTARY EVIDENCE in a case before trial.) Other forms of discovery include INTERROGATO- RIES (written questions that are provided to a party and require written answers) and requests for production of documents. Depositions are commonly used in civil liti- gation (suits for money damages or equitable relief); they are not commonly u sed in criminal proceed- ings (actions by a government entity seeking fines or imprisonment). A minority of s tates provide for depositions in criminal matters u nder special circumstances, such as to compel statements from an uncooperative witness and a few provide for depositions i n criminal matters generally. Before a deposition takes place, the deponent must be given adequate notice as to its time and place. Five days’ notice is usually sufficient, but local rules may vary. Persons who are WITNESSES but not parties to the lawsuit must also be served with a subpoena (a command to appear and give testimony, backed by the authority of the court). Depositions commonly take place after the exchange of interrogatories and requests for production of documents, because the evidence obtained from the latter often provides founda- tion for the questions posed to the deponent. Any documents, photographs, or other evidence referred to during the deposition is marked and numbered as exhibits for the deposition, and the court reporter attaches copies of these exhibits to the subsequent deposition transcript. Generally, at the outset of the deposition, the court reporter, who is often also a NOTARY PUBLIC, leads the deponent through an oath that the testimony that will be given will be true and correct. The examining attorney begins the deposi- tion and may ask the deponent a wide variety of questions. Questions that could not be asked of a witness in court because of doubts about their relevance or concerns about hearsay (statements of a THIRD PARTY) are usually allowed in the deposition setting, because they might reason- ably lead to admissible statements or evidence. A party who refuses to answer a reasonable Depositions, the pretrial testimonies of parties or witnesses in civil or criminal proceedings, are often recorded by a court reporter on a stenographic machine. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DEPOSITION 425 question can be subject to a court order and sanctions. However, a party may refuse to answer questions on the basis of privilege (a LEGAL RIGHT not to testify). For examp le, statements made to an attorney, psychiatrist, or physician by a client seeking professional services can remain confidential, and a client may assert a privil- ege against being required to disclos e these statements. After the examining atto rney ’s questions are completed, the attorney representing the adverse party in the litigation is permitted to ask follow-up questions to clarify or emphasize the deponent’s testimony. In litigation involving a number of represented parties, any other attor- ney present may also ask questions. The court reporter often records the proceed- ings in a deposition on a stenographic machine, which creates a phonetic and coded paper record as the parties speak. Occasionally, an attorney or witness may ask the court reporter to read back a portion of previous testimony during the deposition. Most modern stenographic machines also write a text file directly to a computer diskette during the deposition. In the past, arduous manual labor was required to turn the phonetic and coded paper copy into a complete hand-typed transcript. This is now rarely necessary because sophisticated computer programs can create a transcript automatically from the text file on the diskette. When the transcription is complete, copies are provided to the attorneys, and the deponent is given the opportunity to review the testimony and correct any typographic errors. The deposition, because it is taken with counsel pre sent and under oath, becomes a significant evidentiary document. Based upon the deposition testimony, motions for SUMMARY JUDGMENT or partial summary judgment as to some claims in the la wsuit may be brought. (Summary judgment allows a judge to find that one party to the lawsuit prevails without trial, if there are no disputed mate rial facts and judgment must be rendered as a matter of law.) If motions for summary judgment are denied and the case goes to trial, the deposition can be used to IMPEACH (challenge) a party or witness who gives contradictory testimony on the WITNESS STAND. The advent of sophisticated and low-cost video technology has resulted in increased video recording of depositions. Both sides must agree to the video recording, through a signed agreement called a STIPULATION, and in some jurisdictions, the parties must also seek a court order. A video record of a deposition offers several advantages. First, a video shows clearly the facial expressions and posture of the witnesses, which can clarify otherwise ambigu- ous statements. Second, physical injuries such as burns, scars, or limitations can easily be demonstrated. Third, a video may have a greater effect on a jury if portions of the deposition are introduced at trial as evidence. Finally, a video recording can serve as a more effective substi- tute for a party who cannot testify at trial, such as an expert witness from another state or a witness who is too ill to be brought to the courtroom. If a witness dies unexpectedly before trial, a videotaped deposition can be admitted in lieu of live testimony because the deposi- tion was taken under oath and the opposing attorney had the opportunity to cross-examine the wi tness. Another advance in technology is the ability to take depositions by telephone. Telephonic depositions are allowed under the federal rules and are acceptable in most states. The procedures for a telephonic deposition are the same as for a regular deposition, although it is preferable (and sometimes required) that the examining attorney state for the record that the deposition is being taken over the telephone. A telephonic deposi- tion can occur with the attorneys and the deponent in three different sites; in any case, federal and state rules stipulate that the judicial district within which the deponent is located is the official site of the deposition. Another technology used for depositions is videoconferencing, where sound transmitters and receivers are combined with video cameras and monitors, allowing the attorneys and depo- nents to see each other as a deposition proceeds. Videoconferenci ng makes the examination of exhibits easier and also helps reduce confusion among the participants that may result from ambiguous or unclear verbal responses. FURTHER READINGS Balabanian, David M. 1987. “Medium v. Tedium: Video Depositions Come of Age.” Litigation 7, no. 1 (fall). Collins, Maureen B. 2002. “Taking the Deposition (and Getting It Right).” Illinois Bar Journal 90 (June). Malone, David M., and Peter T. Hoffman. 2001. The Effective Deposition: Techniques and Strategies That GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 426 DEPOSITION Work. Notre Dame, IN: National Institute for Trial Advocacy. Martiniak, Chris. 2002. How to Take and Defend Depositions. 3d ed. Frederick, MD: Wolters Kluwer Law & Business. McElhaney, James W. 2003. “Deposition Goals: Develop a Plan to Get What You’re After from Witnesses in Discovery.” ABA Journal 89 (August). Montoya, Jean. 1995. “A Theory of Compulsory Process Clause Discovery Rights.” Indiana Law Journal 70. Practising Law Institute. 2009. Taking and Defending Deposi- tions. New York: Practising Law Institute/Litigation. DEPOSITORY The place where a deposit is placed and kept, e.g., a bank, savings and loan instit ution, credit union, or trust company. A place where something is deposited or stored as for safekeeping or conve- nience, e.g., a safety deposit box. This term should not be confused with depositary, which is the person or institution taking responsibility for the deposit, rather than the place itself. U.S. depositories are banks selected and designated to receive deposits of the public funds (e.g., taxes) of the United States. DEPOSITS IN COURT The payments of funds or property to an officer of the court as a precautionary measure during the pendency of litigation. The amount placed with the court consti- tutes the acknowledged liability of a person who is uncertain as to whom he or she is liable. The ascertainment of the court as to who is entitled to the property is binding. This term also encompasses payment into court pursuant to court order. DEPRECIATION The gradual decline in the financial value of property used to produce income due to its increasing age and eventual obsolescence, which is measured by a formula that takes into account these factors in addition to the cost of the property and its estimated useful life. Depreciation is a concept used in account- ing to measure the decline in an asset’s value spread over the asset’s economic life. Deprecia- tion allows for future investment that is required to replace used-up assets. In addition, the U.S. INTERNAL REVENUE SERVICE allows a reasonable deduction for depreciation as a busines s ex- pense in determining taxable net income. This deduction is used only for property that generates income. For example, a building used for rent income can be depreciated, but a building used as a residence cannot be depreciated. Depreciation arises from a strong PUBLIC POLICY in favor of investment. Income-producing assets such as machines, trucks, tools, and structures have a limited useful life—that is, they wear out and grow obsolete while generat- ing income. In effect, a taxpayer using such assets in business is gradually selling those assets. To encourage continued investment, part of the gross income should be seen as a return on a capital expenditure, and not as profit. Accord- ingly, tax law has developed to separate the return of capital amounts from net income. Generally, depreciation covers deterioration from use, age, and exposure to the elements. An asset likely to become obsolete, such as a computer system, can also be depreciated. An asset that is damaged or destroyed by fire, accident, or disaster cannot be depreciated. An asset that is used in one year cannot be depre- ciated; instead, the loss on such an asset may be written off as a business expense. Several methods are used for depreciating income-producing business assets. The most common and simplest is the straight-line method. STRAIGHT-LINE DEPRECIATION is figured by first taking the original cost of an asset and subtract- ing the estimated value of the asset at the end of its useful life, to arrive at the depreciable basis. Then, to determine the annual depreciation for the asset, the depreciable basis is divided by the estimated life span of the asset. For example, if a manufacturing machine costs $1,200 and is expected to be worth $200 at the end of its useful life, its depreciable basis is $1,000. If the useful life span of the machine is 10 years, the depreciation each year is $100 ($1,000 divided by 10 years). Thus, $100 can be deducted from the business’s taxable net income each year for 10 years. Accelerated depreciation provides a larger tax write-off for the early years of an asset. Various methods are used to accelerate depre- ciation. One method, called declining-balance depreciation, is calculated by deducting a per- centage up to two times higher than that recognized by the straight-line method, and applying that percentage to the undepreciated balance at the start of each tax period. For the manufacturing machine example, the business could deduct up to $200 (20 percent of $1,000) GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DEPRECIATION 427 . Scribner. Miller, Senator Zell. 20 03 A National Party No More: The Conscience of a Conservative Democrat. Macon, Ga.: Stroud & Hall Publishers. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 418 DEMOCRATIC. undepreciated balance at the start of each tax period. For the manufacturing machine example, the business could deduct up to $200 (20 percent of $1,000) GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DEPRECIATION. ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 422 DEMURRER demand for rigid adherence to the specific language of the statutes conce rning the execu- tion and revocation of wills and the theory of the PAROL