forces into hostilities. Nevertheless, the practical effect of the statute is somewhat limited because it recognizes the power of the president to unilaterally deploy military forces when necessary. As the head of the executive branch, the president executes the law but does not legislate, although he submits budgets and may propose bills to Congress. The president’s legislative power is limited to approving or disapproving bills passed by Congress. If the president approves a measure, it becomes law. If he vetoes the bill, or refuses to approve it, it goes back to either the HOUSE OF REPRESENTATIVES or the SENATE (wherever the bill first originated). If both bodies then pass the bill again by a two- thirds margin, the VETO has been overridden, and the president must sign it into law. In 1996 Congress sought to give the president more control over the budget by passing a line-item veto law (2 U.S.C.A. § 691 [1996]). Under the law, the president could veto portions of an APPROPRIATION bill while leaving the remainder of the legislation intact. Members of Congress challenged the law as an unconsti- tutional surrender of Article I congressional power that jeopardized the SEPARATION OF POWERS , but the SUPREME COURT refused to hear the case until the veto was actually used. After President Clinton used the line-time veto, several entities that lost federal funds because of the veto filed a federal lawsuit. The Supreme Court, in Clinton v. City of New York, 524 U.S. 417, 118 S. Ct. 2091, 141 L. Ed. 2d 393 (1998), struck down the law. The law allowed the president to effectively amend or repeal acts of Congress, but this action was not authorized by the Constitution. The only way for the president to obtain this power would be through the passage of a CONSTITUTIONAL AMENDMENT. The president’s executive powers also in- clude the authority to issue proclamations and executive orders. A proclamation is a general announcement of policy, whereas an EXECUTIVE ORDER has the force and effect of law by carrying out a provision of the Constitution, a federal statute, or a treaty. For instance , during WORLD WAR II , President FRANKLIN D. ROOSEVELT issued an executive order confining Japanese American citizens to camps following the bombing of Pearl Harbor. The president has the exclusive authority to represent the United States in its relationships with governments of other countries. Through the SECRETARY OF STATE and other officials, the president communicates with other nations, recognizes foreign governments, and makes agreements, including the nego tiation of trea- ties. Treaties, however, must be approved by two-thirds of the Senate before taking effect. Executive agreements with other nations do not require Senate approval but still carry the force of law. For instance, the United States, through the president, has frequently entered into executive agreements to supply economic aid to other nations. The administration of President GEORGE W. BUSH adhered in part to a theory known as the “unitary executive.” This theory was advocated by John Yoo, a law professo r and former official in the DEPARTMENT OF JUSTICE. Under this theory, the president has the authority to fire certain executive branch officials, including INDEPEN- DENT COUNSEL . In a broader form, the unitary executive theory would allow the president to exercise broad authority during wartime with- out checks from the other two branches of government. In domestic matters, the president is advised by the cabinet, which consists of more than a dozen executive departments covering a wide range of areas, including commerce, housing, labor, and the treasury. Each department is headed by a secretary, who is responsible for its overall administration and for reporting to the president. Should the president be unable to serve a full term, Article II and the TWENTY-FIFTH The official seal of the office of the President of the United States. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 78 PRESIDENT OF THE UNITED STATES AMENDMENT to the Constitution provide for a line of succession. If the president dies, resigns, or is removed from office through the IMPEACH- MENT process, the vice president becomes the acting president. This transfer of power also occurs if the president informs both houses of Congress that he is temporarily unable to discharge the duties of president. The House of Representatives can IMPEACH a president or indict him for TREASON, BRIBERY, or other HIGH CRIMES AND MISDEMEANORS . If the House votes to impeach, the president is not automatically removed from office; impeachment is instead a formal charge accusing the president of a crime. The articles, or charges, of impeachment are submitted to the Senate, where the president is tried, with the chief justice of the U.S. Supreme Court presiding over the proceeding. A two- thirds vote in the Senate is needed for a conviction and the removal of the preside nt from office. ANDREW JOHNSON was impeached in 1868 and then was acquitted by only one vote. In 1974 the House Judiciary Committee voted to impeach RICHARD M. NIXON, but he resigned from office before the entire House could vote on the matter. The House of Representatives passed a bill of impeachment against President BILL CLINTON, but the Senate acquitted him of the charges in 1999. The Supreme Court has ruled that the president h as absolute IMMUNITY from civil lawsuits seeking damages for presidential actions. However, the Court ruled in Clinton v. Jones, 520 U.S. 681, 117 S. Ct. 1636, 137 L. Ed. 2d 945 (1997), that a sitting president does not have presidential immunity from suit over conduct unrelated to his official duties. The holding came in a civil suit brought by Paula Corbin Jones against President Clinton. Jones’s suit was based on conduct alleged to have occurred while Clinton was governor of Arkansas. Clinton had sought to postpone the lawsuit until af ter he left office. The Court stated that it had never suggested that the presiden t or any other public official has an immunity that “extends beyond the scope of any action taken in an official capacity.” It has based its immunity doctrine on a functional approach, extending immunity only to “acts in performance of particular functions of his office.” It also rejected Clinton’s claim that the courts would violate the separa- tion of powers between the executive and judicial branches if a court heard the suit. Finally, the Court rejected the president’s contention that defending the lawsuit would impose unacceptable burdens on the president’s time and energy. It seemed unlikely to the Court that President Clinton would have to be occupied with the Jones lawsuit for any substantial amount of time. The Court also expressed skepticism that denying immunity to the president w ould generate a “deluge of such litigation.” In the history of the presiden cy, only three other presidents had been subject to civil damage suits for actions taken prior to holding office. FURTHER READINGS Brinkley, Alan, and Davis Dyer, eds. 2004. The American Presidency. Boston: Houghton Mifflin. Milkis, Sidney M. 2003. The American Presidency: Origins and Development, 1776–2002. 4th ed. Washington, D.C.: CQ Press. Nelson, Michael, ed. 2003. The Presidency A to Z. 3d ed. Washington, D.C.: CQ Press. Schroeder, Christopher H., and Curtis A. Bradley, eds. 2009. Presidential Power Stories. New York: Foundation Press. Will, George F., and George R. Stephanopoulos. 2001. “The Power of the Presidency.” Northern Kentucky Law Review 28 (summer). CROSS REFERENCES Constitution of the United States; Electoral College; Executive Privilege; Impeachment; Presidential Powers; Separation of Powers; Watergate. PRESIDENTIAL POWERS The executive authority given to the president of the United States by Article II of the Constitution to carry out the duties of the office. Article II, Section 1, of the Constitution provides that the “executive power shall be vested in a President of the United States,” making the president the head of the executive branch of the federal government. Sections 2 and 3 enumerate specific powers gra nted to the president, which include the authority to appoint judges, ambassadors, and other high- ranking government officials; VETO legislation; call Congress into special session; grant par- dons; issue proclamations and orders; adminis- ter the law; and serve as commander in chief of the armed forces. Article II gives the president the authority to recommend measures for congressional consid- eration. Pursuant to this authority, presidents submit budgets, propose bills, and recommend other action to be taken by Congress. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRESIDENTIAL POWERS 79 Breadth of Presidential Power Courts have long established that the breath of the president’s power depends to some degree on congressional authoriza tion or delegation of authority. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952), the SUPREME COURT identified three principles related to the president’s power. First, “[w]hen the President acts pursuant to an express or implied authorization of Congress, his auth ority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate ” Second, “[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent author- ity, or in which its distribution is uncertain.” In such a circumstance, the president can derive authority from Congress’ lack of action. And third, “ when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,” and the Court can susta in his actions “only by disabling the Congress from acting upon the subject.” Veto Power Under Article I, Section 7, of the Constitution, “every bill” and “every order, resolution or vote to which the concurrence of the SENATE and HOUSE OF REPRESENTATIVES may be necessary” must be presented to the president for approval. This “presentment” requirement does not apply to constitutional amendments, procedural rules of each house, and several other types of legislative action. Under the Constitution, the president has ten days (not counting Sundays) in which to consider legislation presented for approval. The president has three options: sign the bill, making it law; veto the bill; or take no action on the bill during the ten-day period. If the president vetoes the bill, it can be overridden by a two-thirds majority of both houses of Congress. If the president takes no action, the bill automatically becomes law after ten days. However, if Congress adjourns before the ten days have expired, and the president has not signed the bill, it is said to have been subjected to the pocket veto, which differs from a regular veto in that the pocket veto cannot be overridden by Congress. In 1996, Congress gave the president the authority to select particular items from APPROPRIATION bills and individually veto them. The federal line-item veto authority (2 U.S.C.A. §§ 691 & 692) gave the president the ability to impose cuts on the fed eral budget without vetoing a bill in its entirety. The line- item veto, like a regular veto, could be overrid- den by a two-thirds majority vote of both houses. Five members o f Congress immediately challenged this law as a violation of SEPARATION OF POWERS . They argued that the line-item veto disrupted the historic balance of powers between the legislative and executive branches andthatitviolatedArticleI,Section7.The Supreme Court, in Raines v. Byrd, 521 U.S. 811, 122 S.C t. 1700, 152 L.Ed.2d 771 (19 97), refusedtohearthecaseanddismisseditfor lack of jurisdiction. The Court held that the legislators lacked legal standing to bring the lawsuit because they could show no PERSONAL INJURY from the new power. The constitutionality of the line-item veto act was finally adjudicated in Clinton v. City of New York, 524 U.S. 417, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998). The Supreme Court ruled that the law was unconstitutional because it violated the Constitution’s Presentment Clause. Under the Presentment Clause (Article I, Section 7), after a bill has passed both Houses, but “before it become[s] a Law, ” it must be presented to the president, who “shall sign it” if he approves it, but “return it,”(“veto” it) if he does not. Nothing in this clause authorized the president to amend or repeal a bill. President Barack Obama executes his presidential powers in signing an executive order forming the Economic Recovery Advisory Board. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 80 PRESIDENTIAL POWERS The veto gives the president enormous power to influence the writing of legislation. By threatening a veto before legislation is passed, the president can force Congress to compromise and pass amendments it would otherwise find unacceptable. Executive Orders The president’s executive powers also include the authority to issue proclamations and executive orders. A proclamation is the pre- sident’s official announcement that the presi- dent is taking a particular action. Such an announcement is not the same as an EXECUTIVE ORDER , which has the force and effect of law by carrying out a provision of the Constitution, a federal statute, or a treaty. The Constitution does not expressly give the president the power to promulgate executive orders. Instead, this power has been inferred from the president’s obligation to faithfully execute the laws. Pro- clamations and executive orders are published in the Federal Register to notify the country of presidential actions. Powers of Appointment The president has the power to appoint ambassadors, cabinet officers, and federal judges, subject to confirmation by a majority vote of the Senate. Upper-level executive branch officials are appointed solely at the discretion of the president or department head without Senate review. The power to appoint federal judges gives a president the opportunity to place on the federal bench fo r lifelong terms persons who agree with the president’s views on law and the role of the judicial system. A president is limited to serving two elected terms in office. A federal judge may serve for decades. Pardon Power The president is given the power under the Constitution to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The president may grant a full pardon to a person accused or convicted of a federal crime, thus releasing the person from any punishment and restoring her or his CIVIL RIGHTS. The president may also issue conditional pardons that forgive the convicted person in part, reduce a penalty by a specified number of years, or modify a penalty with conditions. A pardon is generally a private transaction bet- ween the president and an individual. However, in 1977, President JIMMY CARTER granted an AMNESTY that was, in effect, a blanket pardon to those who were either deserters or draft evaders during the VIETNAM WAR. Power of Impoundment Presidential IMPOUNDMENT is the refusal of the chief executiv e to expend funds appropriated by Congress. THOMAS JEFFERSON was the first presi- dent to impound funds, and many other presidents have followed suit. Congress has granted the president the authority not to spend funds if it has appropriated more funds than necessary to reach its goals. However, the president does not have a limitless impound- ment power. The U.S. Supreme Court, in Train v. City of New York, 420 U.S. 35, 95 S. Ct. 839, 43 L. Ed. 2d 1 (1975), ruled that President RICHARD M. NIXON could not order the impoundment of substantial amounts of environmental protection funds for a program he vetoed, which had been overridden by Congress. The president cannot frustrate the will of Congress by killing a program through impoundment. Foreign Policy Powers The president or his designated representative, such as the SECRETARY OF STATE,hasthe exclusive authority to communicate with other nations, recognize foreign governments, re- ceive ambassadors, and make executive agree- ments. Throughout U.S. history, Congress and the courts have granted the president great deference in conducting foreign policy. This deference is based, in part, on the need for one person, rather than 535 members of Congress, to represent and speak for a national constituency. These powers were illustrated in the after- math of the SEPTEMBER 11, 2001, TERRORIST ATTACKS on New York City and Washington, D.C. President GEORGE W. BUSH warned the Taliban government of Afghanistan to surren- der Osama bin Laden and other terrorists or face the poss ibility of war. In the months leading up to the March 2003 invasion of Iraq, President Bush, Secretary of State Colin Powell, and other representatives lobbied the UNITED NATIONS for support of the U.S. position on Iraq. Although Congress never formally declared war, it authorized the military engagement in Iraq. In addition to the authority to recognize foreign governments, the president is empow- ered by Article II to make treaties with foreign GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRESIDENTIAL POWERS 81 nations, subject to the consent of the Senate. A treaty is an agreement between two or more nations containing promises to behave in specified ways. Executive agreements are international compacts that the president makes with foreign nations without the approval of the Senate. They do not have the same legal status as treaties unless they are subsequently ratified by the S enate. The Constitution does not expressly give the president the power to make executive agreements. However, this power has been inferred from the president’s general constitu- tional authority over foreign affairs. At one time, executive agre ements involved minor matters, such as p ostal relations and the use of radio frequencies. Since the 1930s, however, presidents have negotiated important foreign policy issues through these agreements rather than through treaties. The Supre me Court has recognized that an executive agreement is legally equivalent to a t reaty and therefore the supremelawoftheland.Executiveagreements enable the president to achieve results while avoiding the uncertainty of treaty RATIFICATION. Presidential War Powers An integral part of the president’s foreign policy role is the enormous power of the U.S. armed forces, over which the Constitution makes the president commander in chief. The president may threaten a foreign nation with force or actually conduct military actions to protect U.S. interests, aid U.S. allies, and maintain national security. Although the president is commander in chief, Article I of the Constitution gives Congress the power to declare war. Despite this apparent constitutional impediment, presidents since Thomas Jefferson have dispatched troops to combat situations without the prior approval of Congress. The Supreme Court held in the Prize cases, 67 U.S. 635, 17 L. Ed. 459; 70 U.S. 451, 18 L. Ed. 197; 70 U.S. 514, 18 L. Ed. 200; 70 U.S. 559, 18 L. Ed. 220 (1863), that the president has the authority to resist force without the need for special legislative action. In times of crisis, the president has the power to commit U.S. forces, but the Vietnam War led Congress to place limits on the presidential war power. The War Powers Resolution of 1973 (50 U.S.C.A. §§ 1541 et seq.) restricts t he president’spowertomobilizethe military during undeclared wa r. It requires the president to m ake a full report to Congr ess when sending troops into foreign areas, l imits the duration of troop commitment without congres- sional authorization, and provides a veto mecha- nism that allows Congress to force a recall of troops at any time. Following the September 11 terrorist attacks on the United States, Congress passed a resolution authorizing the president to use force to fight a WAR ON TERRORISM. President George W. Bush issued military orders in October and November 2001 that mobilized NATIONAL GUARD and Army Reserve units and directed the detention of enemy combatants by the military. In a controversial move, President Bush autho- rized military tribunals to try suspected terror- ists. After the U.S. invasion of Afghanistan, many suspected terrori sts were captured and moved to military prisons for indefinite terms of detention. The invasion of Iraq by U.S. forces in March 2003 was authorized by Congress in the fall of 2002, again giving the president as commander in chief broad authority to conduct a military campaign. As the IRAQ WAR continued, Congress continued to have a role by approving appropriations reques ts related to the U.S. military presence in Iraq. The president also has broad powers over domestic policy during wartime. President ABRAHAM LINCOLN issued an order to military commanders suspending HABEAS CORPUS during the Civil War, which allowed the military to arrest and detain persons without trial for an indefinite time. Congress later passed a law suspending habeas corpus, but after the Civil War, the Supreme Court, in Ex Parte Millig an, 71 U.S. 2, 18 L. Ed. 281 (1866), condemned Lincoln’s directive establishing military jurisdic- tion over civilians outside the immediate war zone. During the early days of U.S. involvement in WORLD WAR II, President FRANKLIN D. ROOSEVELT issued orders authorizing the establishment of “military areas” from which dangerous persons could be expelled or excluded. This order was used to designate the West Coast as a military area and to remove and imprison 120,000 Japanese Americans in “relocation centers” for the duration of the war. The Supreme Court upheld the relocation order in Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), finding that the government GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 82 PRESIDENTIAL POWERS had a compelling national security interest during a time of war to take such extreme measures. Following the September 11 attacks on the United States, Congress passed the USA PATRIOT ACT , which gives the president increased powers to wiretap suspected terrorists without judicial supervision as well as the power to indefinitely detain ALIENS who are suspected of TERRORISM.U.S.citizenswhohavebeenheldas enemy combatants in military prisons without the right to consult with an attorney or have a criminal trial have challenged the president’s authority. The Bush administration’s decisions regard- ing detainees at Guantanamo Bay, Cuba was controversial both during and after Bush’s terms in office. Bush signed an executive order in 2001 al lowing the military to detain any non- U.S. citizen believed to be involved in terrorist activities. As early as 2002, prisoners captured in Afghanistan were moved to the Guantanamo Bay detention camp. In Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003), the U.S. Court of Appeals for the Fourth Circuit held that the courts must defer to the president when conaidering issues of national security. The Supreme Court, however, limited the president’s prerogative regarding these deten- tions. In Hamdi v. Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004), the Court reversed the Fourth Circuit, holding that a U.S. citizen being held as an ENEMY COMBATANT was entitled to contest the factual basis for his detention. Later, in Hamdan v. Rumsfeld, 548 U.S. 557, 126 S. Ct. 2749, 165 L. Ed. 2d 723 (2006), the Court ruled that the administratio n lacked the authority to establish military commissions to try the detainees. The adminis- tration did not have congressional authoriza- tion, and the Court concluded that the commissions failed to comply either with the UNIFORM CODE OF MILITARY JUSTICE or the Geneva Convention. Bush also sought broader authority to fight terrorism within the United States. Beginning in about 2002, he authorized the National Security Agency to conduct warrantless WIRETAPPING to listen to the private communications of U.S. citizens. The New York Times ran a story about the program, leading to criticism. Bush defended the action as being consistent with inherent powers found in Article II. Congress formally approved the wiretapping practice by enacting the Protect America Act of 2007, Pub. L. No. 110-55, 121 Stat. 552. FURTHER READINGS Neustadt, Richard E. 1990. Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan. New York: Free Press. Parmet, Herbert S. 2002. Presidential Power from the New Deal to the New Right. Malabar, Fla.: Krieger. Rozell, Mark. J., ed. 2002. Executive Privilege: Presidential Power, Secrecy, and Accountability. 2d ed. Lawrence: Univ. Press of Kansas. Schroeder, Christopher H. and Curtis A. Bradley, eds. 2009. Presidential Power Stories. New York: Foundation Press. Shapiro, Robert Y., Martha Joynt Kumar, and Lawrence R. Jacobs, eds. 2000. Presidential Power. New York: Columbia Univ. Press. CROSS REFERENCES Congress of the United States; Constitution of the United States; Executive Privilege; Japanese American Evacuation Cases; President of the United States; Separation of Powers PRESS, FREEDOM OF See FREEDOM OF THE PRESS. PRESUMPTION A conclusion made as to the existence or nonexistence of a fact that must be drawn from other evidence that is admitted and proven to be true. A RULE OF LAW. If certain facts are established, a judge or jury must assume another fact that the law recognizes as a logical conclusion from the proof that has been introduced. A presumption differs from an inference, which is a conclusion that a judge or jury may draw from the proof of certain facts if such facts would lead a reason- able person of average intelligence to reach the same conclusion. A conclusive presumption is one in which the proof of certain facts makes the existence of theassumedfactbeyonddispute.Thepre- sumption cannot be rebutted or contradicted by evidence to the contrary. For example, a child younger than seven is presumed to be incapable of committin g a felony. There are very few conclusive presumptions because they are c onsidered to be a su bstantive rule of law, as opposed to a rule of evidence. A rebuttable presumption is one that can be disproved by evidence to the contrary. The FEDERAL RULES OF EVIDENCE and most state rules GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRESUMPTION 83 are concerned only with rebuttable presump- tions, not conclusive presumptions. PRESUMPTION OF INNOCENCE Presumption of innocence is a principle that requires the government to prove the guilt of a criminal defendant and relieves the defendant of any burden to prove his or her innocence. The presumption of innocence, an old tenet of CRIMINAL LAW, is actually a misnomer. According to the U.S. SUPREME COURT, the presumption of the innocence of a criminal DEFENDANT is best described as an assumption of innocence that is indulged in the absence of contrary evidence (Taylor v. Kentucky, 436 U.S. 478, 98 S. Ct. 1930, 56 L. Ed. 2d 468 [1978]). It is not considered evidence of the defendant’s innocence, and it does not require that a mandatory inference favorable to the defendant be drawn from any facts in evidence. In practice, the presumption of innocence is animated by the requirement that the government prove the charges against the defendant BEYOND A REASONABLE DOUBT.This DUE PROCESS requirement, a fundamental tenet of criminal law, is contained in statutes and judicial opinions. The requirement that a person suspected of a crime be presumed innocent also is mandated in statutes and court opinions. The two principles go together, but they can be separated. The Supreme Court has ruled that, under some circumstances, a court should issue jury instructions on the presumption of innocence in addition to instructions on the requirement of proof beyond a REASONABLE DOUBT (Taylor v. Kentucky 436 U. S. 478 [1978]). A presumption of innocence instruction may be required if the jury is in danger of convicting the defendant on the basis of extraneous considerations rather than the facts of the case. The presumption of innocence principle supports the practice of releasing criminal defendants from jail prior to trial. However, the government may detain some criminal defendants without bail through the end of trial. The EIGHTH AMENDMENT to the U.S. Constitution states that excessive bail shall not be required , but it is widely accepted that governments have the right to detain through trial a defendant of a serious crime who is a flight risk or poses a danger to the public. In such cases the presump tion of innocence is largely theoretical. Aside from the related requirement of proof beyond a reasonable doubt, the presumption of innocence is largely symbolic. The reality is that no defendant would face trial unless somebody—the crime victim, the PROSECUTOR,a police officer—believed that the defendant was guilty of a crime. After the government has presented enough evidence to constitute PROBABLE CAUSE to believe that the defendant has commit- ted a crime, the accused need not be treated as if he or she was innocent of a crime, and the defendant may be jailed with the approval of the court. Nevertheless, the presumption of innocence is essential to the criminal process. The mere mention of the phrase presumed innocent keeps judges and juries focused on the ultimate issue at hand in a criminal case: whether the prosecution has proven beyond a reasonable doubt that the defendant committed the alleged acts. The people of the United States have rejected the alternative to a presumption of innocence—a presumption of guilt—as being inquisitorial and contrary to the principles of a free society. In 48 states, a jury must unanimously agree about a defendant’s guilt in a felony trial. However, two states follow different rules. In Louisiana, a jury of 10 out of 12 jurors can reach a verdict in a non-capital case. Likewise, a jury in Oreg on can reach a verdict in a non-capital case with 10 votes. In a non-capital MURDER case in Oregon, 11 of the 12 jurors mu st agree. FURTHER READINGS LaFave, Wayne R. 2003. Criminal Law. 4th ed. St. Paul, Minn.: Thomson West. Low, Peter W. 2007. Criminal Law. 3d ed. St. Paul, Minn.: Thomson West. CROSS REFERENCES Criminal Procedure; Criminal Law; Inquisitorial System. PRETERMITTED HEIR A child or other descendent omitted from the will of a testator. Modern laws concerning the inheritance of property attempt to protect the rightful heirs. A pretermitted heir is a child or descendant of the testator—the maker of a will—who has unintentionally been omitted from the will. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 84 PRESUMPTION OF INNOCENCE States have enacted “pretermitted heir statutes” that protect these heirs. The presumption of these statutes is that the testator must expressly disinherit a child or descendant in his or her will. This presumption dates back to early ROMAN LAW. If the will does not specify intention to disinherit, the law will presume that the omission of the child or descendant was unintentional. These statutes authorize the child or descendant to take the same share of the estate that he or she would have taken if the testator had died intestate, without a will. All states have fixed, objective rules for dividing property when a person dies without a will, which apply to the division of an estate for pretermitted heirs. A pretermitted heir must be a child or descendant either living at the date of the execution of the will or born thereafter. For example, if John executes a will and his son Bob is born a week later, Bob will be considered a pretermitted heir unless John changes his will to expressly disinherit Bob. If Bob has a child and dies before John, at John’s death the grandchild will share in John’s estate, because he or she will take Bob’s share. Some states have specific laws that deal with a child born after the making of a will. These after-born heir statutes are similar to pretermit- ted heir provisions. The presumption is that an AFTER-BORN CHILD does not revoke a will but has the effe ct of modifying it. Louisiana and Puerto Rico protect children and descendants in a different way. These jurisdictions, which come from a civil-law rather than a common-law tradition, grant heirs an indefeasible share. This share is a certain portion of the estate, usually expressed in a fixed dollar amount, and a percentage of the decedent’s estate. CROSS REFERENCE Descent and Distribution. PRETRIAL CONFERENCE A meeting of the parties to an action and their attorneys held before the court prior to the commencement of actual courtroom proceedings. A pretrial conference is a meeting of the parties to a case conducted prior to trial. The conference is held before the trial judge or a magistrate, a judicial officer who possesses fewer judicial powers than a judge. A pretrial conference may be held prior to trial in both civil and criminal cases. A pretrial conference may be requested by a party to a case, or it may be ordered by the court. Generally, the term pretrial conference is used interchangeably with the term pretrial hearing. A pretrial conference may be conducted for several reasons: (1) expedite disposition of the case, (2) help the court establish managerial control over the case, (3) discourage wasteful pretrial activities, (4) improve the quality of the trial with thorough preparation, and (5) facili- tate a settlement of the case. Pretrial conferences are conducted in crimi- nal cases to decide matters that do not inquire into the defendant’s guilt or innocence. Under rule 17.1 of the Federal Rules of Criminal Procedure, pretrial conferences for criminal cases may be conducted to promote a fair and expeditious trial. In practice, federal and state courts use the pretrial conference in criminal cases to decide such preliminary matters as w hat evidence will be excluded from trial and what witnesses will be allowed to testify. In a civil pretrial conference, the judge or magistrate, with the help of the attorneys, may (1) formulate and simplify the issues in the case, (2) eliminate frivolous claims or defenses, (3) obtain admissions of fact and documents to avoid unnecessary proof, (4) identify witnesses and documents, (5) make schedules for the submission of pretrial briefs and motions, (6) make rulings on motions submitted before the conference, (7) set dates for further con- ferences, (8) discuss the possibility of a settle- ment, and (9) discuss the consolidation or management of large, complex cases. After the conference, the judge or magistrate issues an order reflecting the results of the conference, and the order controls the future course of the case. Generally, the substance of a pretrial confer- ence for a criminal case is the same as that for a civil case. At the conference the judge or magistrate may make rulings on motions, elimi- nate repetitive evidence, and set schedules. If a preliminary issue arises after the pretrial confer- ence, a party may request a special pretrial hearing with the court to address the issue. (This special hearing marks the distinction between pretrial hearing and pretrial conference, when such a distinction is made.) In the alternative, the parties may address such an issue in court on the first day of trial, out of the presence of the jury. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRETRIAL CONFERENCE 85 All cases are guided by procedural rules that allow parties to obtain relevant evidence from other parties. The process of turning over evidence is called discovery, and the rules that apply to obtaining evidence are called discovery rules. In civil cases, discovery refers to the right of either party to obtain evidence from the other, but in a criminal case, discovery generally refers to the right of the defendant’s attorney to have access to information necessary to prepare a defense. Discovery issues are a common topic in pretrial conferences. Discovery orders that were issued prior to a pretrial conference may be reviewed for compliance at a pretrial conference, and new discovery orders may be issued after a pretrial conference. Criminal defendants enjoy more procedural protections than do civil defendants, and the judge or magistrate must be careful to protect those rights. Generally, no criminal defendant who has requested assistance of counsel may be required to attend a pretrial conference without an attorney. No admissions made by the defendant or the defendant’s lawyer during the conference may be used against the defendant in a trial unless the admissions are written and signed by the defendant and the defendant’s attorney. The judge or magistrate assigned to the case can choose to hold a pretrial conference, but the denial of a pretrial conference may be an unconstitutional denial of DUE PROCESS rights. For example, in a criminal case, a defendant has a due process right to a pretrial hearing when the defendant claims that a prosecutor has breached a plea agreement (United States v. Ataya, 864 F.2d 1324 [7th Cir. 1988]). Criminal defendants must raise some issues before trial in a pretrial motion. Pretrial motions are specific requests for favorable orders from the court on particular issues. Under the Uniform Rules of Criminal Procedure, a set of model rules written by the American Law Institute and adopted by many jurisdictions, a defendant should lose the opportunity to raise the following issues if they are not raised prior to trial: defenses and objections based on defects in the indict- ment or formal charging instrument; requests regarding discovery, or disclosure of evidence; requests to suppress or exclude from trial potential testimony or other evidence; requests for severing the trial in cases involving codefen- dants; requests for the dismissal of the case; and requests for transfer of the case to another jurisdiction. Similar requirements are imposed on prosecutors. The prosecution must tell the defendant prior to trial of its intention to use certain evidence, such as evidence obtained as a result of a search or seizure, wiretap, or other ELECTRONIC SURVEILLANCE mechanism; evidence culled from a confession, admission, or state- ment made by the defendant; and evidence relating to a lineup, show-u p, picture, or voice identification of the defendant (Uniform Rules of Criminal Procedure 422(a)(1)). Pretrial proceedings vary from jurisdiction to jurisdiction. In some jurisdictions courts have bifurcated the pretrial conference into dispositional conferences and trial management conferences. In St. Paul, Minnesota, for exam- ple, the district court schedules a trial manage- ment conference to discuss administrative aspects of the case, such as scheduling. The courts also schedule a dispositional conference in which the parties may discuss the possibility of a plea bargain or settlement. If no agreement between the parties is forthcoming at the dispositional conference, the case proceeds to trial, and the court schedules no further meet- ings between the parties until trial. The parties are, nonetheless, free to continue negotiating, and they also may request a special pretrial hearing if an issue arises after the conference but prior to trial. The first pretrial conference in the United States was held in Michigan in 1929. Over the years, as courts became more crowded, the pretrial conference became more important. Pretrial conferences save valuable time for courts and jurors by narrowing the focus of the trial and resolving preliminary matters. They also assist the court in the fair and impartial administration of justice by facilitating discovery and reducing the element of surprise at trial. Pretrial conferences are so important in civil cases that a court may order litigants to appear at a pretrial conference and impose fines on them if they refuse to appear (G. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648 [7th Cir. 1989]). FURTHER READINGS Carlson, Elaine A. 1992. “Rule 166 Pretri al Conferences, Masters and Private Agreements: Revitalizing Old Tools to Meet Today’s Needs.” South Texas Law Review 33. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 86 PRETRIAL CONFERENCE Masciopinto, Tony J. 1990. “G. Heileman Brewing Co. v. Joseph Oat Corp.: Expanding Rule 16’s Scope to Compel Represented Parties with Full Settlement Authority to Attend Pretrial Conferences.” DePaul Law Review 39. Miller, Frank W., et al. 2000. Prosecution and Adjudication. 5th ed. New York: Foundation. Parness, Jeffrey A., and Matthew R. Walker. 2002. “Thinking Outside the Civil Case Box: Reformulating Pretrial Conference Laws.” Univ. of Kansas Law Review 50. Richardson, Elizabeth C., and Milton Regan, Jr. 1997. Civil Litigation for Paralegals. Clifton, NY: Delmar Cengage Learning. CROSS REFERENCES Civil Procedure; Criminal Procedure; Due Process of Law; Plea Bargaining; Right to Counsel. PRETRIAL PUBLICITY The right of a criminal defendant to receive a fair trial is guaranteed by the SIXTH AMENDMENT to the U.S. Constitution. The right of the press (print and electronic media) to publish infor- mation about the defendant and the alleged criminal acts is guaran teed by the FIRST AMEND- MENT . These two constitutional safeguards come into conflict when pretrial publicity threatens to deprive the defendant of an impartial jury. The U.S . Supreme Court has grappled with the issue of pretrial publicity since the 1960s. In Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961), the defendant, Leslie Irvin, was convicted of committing six murders in a rural area of Indiana. The crimes generated extensive media coverage. Irvin argued that the pretrial publicity prevented him from receiving a fair trial by an impartial jury. The Court agreed, noting that eight of the twelve jurors who heard the case had decided that Irvin was guilty before the trial began. Despite these admissions, the trial judge accepted as conclu- sive the jurors’ statements that they would be able to render an impartial verdict. The Court held that the substantial publicity surrounding the case made the trial judge’s determination of juror impartiality erroneous. It set out a basic rule that when pretrial publicity has been substantial, a trial court should not necessarily accept a juror’s assertion of impartiality. In these cases a presumption is raised that the jurors are biased. The Supreme Court extended this concern to the trial stage in Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). Local officials allowed Dr. Samuel H. Sheppard’s 1954 murder trial to degenerate into a media circus. The Cleveland media heavily publicized the case before trial and disrupted the control of the court during the trial. The jurors were exposed to intense m edia coverage of the case until the time they began their deliberations. Following deliberations, Sheppard was convicted of murder. Sheppard spent ten years in prison before the Supreme Court ruled that the publicity had deprived him of a fair trial. Sheppard was acquitted at his second trial. The Sheppard case brought national atten- tion to the problem of pretrial publicity. Trial judges attempted to address this problem by imposing gag orders on the press, preventing it from reporting pretrial information. The press resisted this approach and was supported by the S upreme Court in Nebraska Press Associa- tion v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976). The Court held that the trial judge’s GAG ORDER was an unconstitutional PRIOR RESTRAINT on the press. Trial courts then attempted to close crimi- nal trials to the public, including the press. The Supreme Court, in Richmond Newspapers v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980), limited this approach, holding that the right of access to criminal trials is guaranteed by the First and Fourteenth Amend- ments. Closure will only be permitted if there is an overriding interest, such as ensuring a defendant’s right to a fair trial. In this and subsequent cases, the Court has adopted a test that makes it very difficult to justify closure. A troublesome issue for defense attorneys is whether a jury pool is so “contaminated” by pretrial publicity that it will be extremely difficult to seat an impartial jury. In Mu’min v. Virginia, 500 U.S. 415, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991), the Supreme Court held that the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT does not mandate that prospective jurors be asked in VOIR DIRE examinations about specific information concerning the case that they have seen or heard in the media. The Sixth Amendment’s impartial jury requirement will be satisfied when jurors do not admit during voir dire that they have been prejudiced by pretrial publicity. Faced with court decisions that make it difficult to prevent the media from reporting pretrial information, courts have several ways of overcoming prejudicial pretrial publicity. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRETRIAL PUBLICITY 87 . II and the TWENTY-FIFTH The official seal of the office of the President of the United States. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 78 PRESIDENT OF THE UNITED STATES AMENDMENT. child or descendant of the testator—the maker of a will—who has unintentionally been omitted from the will. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 84 PRESUMPTION OF INNOCENCE States. such an issue in court on the first day of trial, out of the presence of the jury. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRETRIAL CONFERENCE 85 All cases are guided by procedural rules