Midterm Flashcards
(152 cards)
1
Q
What was the reason for the creation of the Constitution?
A
Plan to bring about commercial and political stability
2
Q
What was equality from the constitution aimed at?
A
Means of balancing power among various states, NOT individuals
3
Q
Individual states=
A
citizens
4
Q
What was the operative element under the constitution?
A
States, not citizens
5
Q
What was the primary moving force behind uniform action within the confederacy?
A
- Fear, but it was weak when individual state interests were at stake
- Only lead to trust when there was collective security as an agreement
6
Q
Shay’s Rebellion (1786-87)
A
Caused by lack of money after Revolution, citizens rebelled but it was put down (federal gov couldn’t afford troops)
7
Q
Annapolis Convention (1786)
A
Discussed the creation of a system for the uniform regulation of commerce, sparked by “Virginia Acts”- imposed tariffs, no agreement reached
8
Q
Constitutional Convention (1787)
A
Follow-up to Annapolis Convention, all but Rhode Island showed up, result of Constitution
9
Q
Structure of Constitution
A
-Bicameral Legislature (Senate and HOP)
-National Chief Executive
-National Judicial branch
Does not rule by prohibition
10
Q
Bicameral Legislature
A
Provided protection for small states
11
Q
National Chief Executive
A
Provided national direction
12
Q
National Judicial branch
A
Creation of a strong Federal government mandated the need a Judicial branch to enforce Federal Law
13
Q
Exceptions to ruling by prohibition in Constitution
A
- Coinage of currency by states
- Prohibition against state bankruptcy legislation, impaired contractual obligations
14
Q
Exceptions to protect individual rights
A
- Protection against suspending habeas corpus
- Protection of those charge with treason
- Guarantee of a jury trial in civil cases
15
Q
Why was there no Bill of Rights?
A
- Not needed
- States had their own
- -Federalists argued that inclusion of some rights would disparage those which were not included
16
Q
Where did the power come from that was redirected by Constitution?
A
Power that was claimed when US served relationship with England, power predates DOI
17
Q
Proof from Lincoln and ability to abolish slavery
A
American sovereignty was founded upon principles in DOI, Constitution was NOT the source of power (*pre-existing right and existence of power before Const.)
18
Q
Proof of 9th and 10th amendments: Habeas Corpus
A
Constitution does not create the right of habeas corpus, only suspended in cases of rebellion or invasion of public safety, it is a continuation of pre-existing right
19
Q
9th amendment
A
There are rights that may exist outside of ones explicitly stated, but that does not mean they can be violated if not listed
20
Q
10th amendment
A
Powers not delegated to US by Constitution, nor prohibited by it to States, are reserved to the States or people
21
Q
14 amendment
A
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US
22
Q
Natural Law
A
Gave the court the inherent power to refuse to follow an illegal law or a “disobedient act”
23
Q
3 basic sources of rights
A
- Direct rule or edict
- By interpretation of an organic instrument
- Religion or social custom
24
Q
Locke’s views
A
Natural state was not one of violence, could be a natural peace–> Natural Law
25
Hobbs' views
Natural state would lead to "war of all against all", Lord of the Flies
26
What did Locke create concepts for? (3)
1. Property (what man changed became his)
2. Money
3. Liberty (child is property of parent until old enough)
27
According to Locke, what 3 things are all men entitled to?
1. Lives
2. Liverties
3. Estates
=property
28
William Blackstone
- His writings became more popular in America than England
- Infatuated with property
- Took Locke's views too far and said that "Rights"=property
29
Paradigm of "Rights"
Seen as property dominated (ex: Dred Scott)
30
Fundamental Rights
Deemed so essential that the proponent of any diminution must surpass an examination known as "strict scrutiny", called for in Constitution or Bill of Rights
31
3 additional fundamental rights
1. Freedom to travel
2. Freedom to marry
3. Right to privacy
All found to be "Rights" (under 9th amend.)
32
Obergefell v. Hodges (2015)
- We may yet see another basis of "Rights" creation, ***"Rights" before have been tied to either property or pre-existing "Fundamental Right"
- Approval for same sex marriage
33
Douglas' Penumbra
Right of privacy older than Bill of Rights that protected intimate relation of husband and wife
34
Same-sex marriage
Found to be a "fundamental right", major difference because not under Constitution, new right with no historical basis
35
Effect of Obergefell
Could lead to a credible claim that other lifestyle choices with a longer history should be afforded similar "Fundamental Rights" protection (ex: cocaine)
36
What is the first formal charge in a case?
Felony complaint, filed in local criminal court, signed by police officer
37
Arraignment
Criminal taken to local criminal court, judge "arraigns" criminal, become Defendant, purpose is to formally charge them and inform of rights
38
Public defender
Provided for criminal if they cannot afford an attorney, given during an arraignment
39
Preliminary hearing
Purpose is to determine if there is "reasonable cause" to hold defendant for action of Grand Jury, prosecution presents witnesses
40
Order of preliminary hearing
1. DA calls county pathologist to testify how murder was committed
2. Killer's lawyer cross-examines pathologist
3. DA calls arresting officer to testify
4. Defense attorney cross-examines him
- Continue process with other witnesses
41
Grand Jury
Purpose is to investigate felonies, consists of 16-23 people, presented proof from District Attorney, *difference is that witnesses are not cross-examined, no judge present
42
When is the only time the defense lawyer is permitted in the Grand Jury?
When the defendant is testifying
43
How many votes from the Grand Jury are required to indict?
12 yes votes
44
Motions
Written requests asking the Court to do something in the case, must be in writing and done no more than 45 days after arraignment
45
Most common motion requests (3)
1. Suppression of evidence
2. Suppression of statements
3. Dismissal of the charge
46
Pre-Trial Hearings
Result of motions (ex: Huntley, Wade, Mapp, Ingle), run like prelim hearings, *burden is on DA to est. legality in first instance
47
The trial
Begins with Jury selection, lawyers (starting with District Attorney) questions jurors
48
2 major types of challenges in trial
1. Challenges for cause
| 2. Preemptory challenges
49
How to perfect an appeal (3)
1. File an appellate brief
2. The State then files a brief
3. The appeal is then argued
50
4th amendment
Prohibits unreasonable searches and seizures, capstone of first 3 amendments about privacy, requires that warrant particularly describes the person or place to be searched
51
What are some words of limitations that limit the SCOPE of the 4th amendment?
- "unreasonable searches and seizures"
| - "papers, houses, persons, and effects"
52
What are some words of limitations that limit the POWER of the Federal Government to withdraw the freedom from the 4th amendment?
- "probably cause"
| - "particularly describing the place to be searched, and the persons or things to be seized"
53
Important of the word "AND" in regards to protection
1. Prevented "unreasonable searches and seizures"
2. Prevented searches and seizures authorized by warrants issued upon less than probable cause
=broadened ability to search/arrest, created warrantless search and arrest
54
Warrantless
Must not be "unreasonable"; interpreted to mean probable cause
55
By warrant
Must have probable cause
56
Importance of Boyd v US (1886)
Origin of the ***exclusionary rule- search was unreasonable and evidence should have been excluded at trial
57
Why did Weeks only controvert the Federal Government?
Pre-Mapp, the 4th amendment had no effect upon State searches
58
Silver Platter Doctrine
Said that federal court could introduce illegally state-seized evidence, as long as federal officers had played no role in obtaining it. Declared unconstitutional in 1960 (Elkins v US)
59
Selective incorporation
Relies on the Due Process Clause, incorporates only those elements deemed to fall within "due process"
60
Full incorporation
Relies upon the Privileges and Immunities Clause, deemed to incorporate the entire body of the Bill of Rights
61
Wolf v Colorado (1949)
Stated that due process clause of 14th does not require exclusion at trial of evidence unlawfully seized by state agents, no remedy
62
Shocks the conscience test
Rochin v. Cali (1952)- evidence had to be excluded because it was obtained in an unjust way (forced to throw up pills)
63
Mapp v Ohio (1961)
Her house was searched without a warrant, "Exclusionary Rule" now applied to searches by state agents
64
Purposes of the Exclusionary Rule (3)
1. Deter illegal conduct by the state
2. Preserve judicial integrity
3. Remove the incentive for unlawful behavior
65
When is it ok to not have a search warrant?
If it is open to public eye
66
Exceptions to 4th amendement
1. Plain View (+plain feel)
2. Open fields
3. Discarded and abandoned property
4. Garbage
5. Overheard conversations
6. Misplaced trust
7. Odor
67
The Reasonable Person Test
Test of objectivity, balance facts and circumstances against decision making process of an objective standard=probable cause
68
When does the judge apply the reasonable person standard? (2)
1. Time of the warrant application
| 2. Time of the pre-trial hearing (for a warrantless search or arrest)
69
2 types of probable cause
1. Probable cause to search
| 2. Probable cause to arrest
70
Probable cause to search
Speaks to an ITEM SOUGHT. Reasonable belief that the items sought will be located at a stated location, does not mean that a search warrant would necessarily justify an arrest
71
Probable cause to arrest
Speaks to the INDIVIDUAL. Reasonable belief that a person has committed a crime, does not mean that a search warrant could lawfully issue
72
At which point in the proceedings is probable cause measured WITHOUT a warrant?
Point of analysis is the moment immediately prior to the arrest or seizure, what was known and who knew it?
73
At which point in the proceedings is probable cause measured WITH a warrant?
Determined at the time the info is presented to the Magistrate to obtain the warrant
74
When is probable cause lower?
When the offense indicates a possibility of danger to human life-it is VARIABLE (not fixed)
75
Objective probable cause
Relies on facts and circumstances presented and any reasonable inference
76
Subjective probable cause
Looks at intentions of the officer and his/her reason(s) in making the arrest or the search-NOT USED
77
Good faith exception
If the officer believes he/she has a validly issued search warrant that subjective belief is sufficient
78
Pretext
Reason given in justification of a course of action that is not the real reason
79
Aguilar test-what does it look for?
Reliability
80
Spinelli test-what does it look for?
Basis for the information
81
Illinois v Gates (1983)
Abandoned Aguilar/Spinelli test, adopted the "totality-of-the-circumstances" (based on all available info) approach for hearsay
82
NY Rule
Hearsay must have a known basis and be reliable, the description of person and place must be reasonably specific
83
People v Ingle (1975)
Ford is stopped because trooper wanted a closer look, asked driver to open pouch and found marijuana, violated 4th amendment
84
Whren v US (1996)
Officer stopped car for minor traffic infraction but he really suspected drugs--> New Jim Crow Law
85
*Reasonable suspicion vs Probable cause
Standard is now reasonable suspicion of a crime or probable cause of a traffic violation, vehicle may not be searched by reasonable suspicion (needs pc)
86
Exigent circumstances=
Contraband + probable cause + mobility
| Measured on a balancing test, created from Carroll v. US (1925)
87
Containers in cars
Police may search a container located within an automobile (without a warrant) if they have probable cause that container holds contraband or evidence (Cali v Acevedo 1991)
88
Grab area (what case did it originate)?
Chimel v Cali (1969)-warrantless search can only extend to person of arrestee and that area within its immediate control
89
Passengers in car
May frisk passengers with Terry search for own protection, all passengers are "seized" as result of stop
90
Difference between Holmes and Chesternut in street encounters
- Holmes: defendant was called over to car and then ran, no probable cause
- Chesternut: not called, discarding drugs created probable cause
91
Terry v Ohio (1968)
Most important search and seizure decisions in last 40 years, created reasonable suspicion, walking in front of store window 12 times
-"Pat down" without probable cause was ok because it ensured officer safety
92
Balancing test
Used in Terry case-balanced the neutralization of danger to police officer against privacy of individual, needs reasonable cause about potential danger, applied in Sitz when stop and briefs were questioned upon less than reasonable suspicion
93
Is reasonable suspicion needed for a roadblock?
No, roadblock deemed less intrusive, no individual motorist is singled out, NON-ARBITRARY
94
Potential problems for roadblock (3)
1. Distance from crime
2. Direction that the offender was headed
3. Alternate escape routes
95
Where do we draw the line for roadblocks?
Balanced the level of the intrusion against the societal benefits to be derived
96
What is the most common form of a search?
Consent, "safest" course of action in terms of minimizing the risk of suppression, broader in scope, available when there is no probable cause
97
Waiver (not voluntary)
*You must know the right that is being waived, strictly applied to trial rights (protects truth)
98
Voluntary (not waived)
*Consent must be voluntary and not the result of force, duress, or coercion (no need to advise individual about his or her right not to consent)
99
Johnson v. Zerbst (1938) definition of waiver
An INTENTIONAL relinquishment or abandonment of a KNOWN right or privilege
100
Consent by others
Warrantless entry is valid upon consent of 3rd party if police at time of entry reasonably believe them to possess common authority over premises
101
Scope of consent
A consent to search does not authorize police to search bags and containers which could not conceal a person
102
Claim of authority
An express or implied false claim by the police that they can immediately proceed to make the search in any event will destroy consent
103
What is a factor that governs reliability?
Number of police officers
104
What affects reliability of consent? (2)
- Weapons (reduces likelihood of freely given consent)
| - Time of day/night
105
Consent and custody
Consent under custody can be valid but certain factors of arrest need to be taken into account to assure that there was no coercion
106
Consent give in response to a threat to seek a warrant is...
Upheld as voluntary
107
Fruit of the poisonous tree
Evidence that is taken illegally
108
Implied consent
Involves some undertaking, generally hazardous, whereby the undertaking is viewed as the means through which the consent is given, ex: driving a car =agreement to be tested for drugs or alcohol by police (most common is a DWI)
109
Olmstead v. US (1928)
First consideration of eavesdropping, found that 4th amendment had no bearing on wiretapping (electrical impulses were not things), applied to Goldman (1942)
110
Irvine v. Cali (1954)
Key was made to break into house and plant a mic, later moved to another location in house, *state court case so Constitution did not apply to states, constitutional under shocks the conscience standard
111
Silverman v. US (1961)
Trespass now used as a means of invalidation, mic penetrated into Silverman's space, *"silent approaches" and "slight deviations"
112
Reasonable expectation of privacy
Katz v. US (1967)- standard of the 4th, objectivity (can intercept radio communications because anyone can listen on radio)
113
What is a return in wiretapping?
Document where they set forth a summary of all that was contained in the conversations seized
114
What 2 forms of electronic surveillance have received considerable scrutiny?
1. Tracking devices
| 2. Video surveillance cameras
115
Admissions
Statements that admit damaging elements about a crime (nothing about intent)
116
Confessions
Statements that admit all the elements of a particular crime (includes intent and crime), most powerful weapons in prosecution of crimes
117
Reliability
Is the statement truthful? Unconcerned with the means through which the statement is procured
118
Propriety
How was the statement procured? Unconcerned with the truthfulness of the statement
119
nemo tenetur seipsum accusare
No man is bound to accuse himself-self incrimination clause
120
Accusatorial system
Our system, the state must accuse and establish the guilt of the defendant
121
Inquisitorial system
Compelled the alleged wrongdoer to deny his or her culpability through the use of the oath ex officio-alleged wrongdoer has to prove his or her innocence
122
Difference between accusatorial and inquisitorial systems
- Accusatorial: court acts as referee between prosecution and defense
- Inquisitorial: court is actively involved
123
Colonial experience
- Historically: designed to protect the innocent and further the search for truth
- Modern: preserve the integrity of the judicial system, personal privacy from unwarranted govt intrusion
124
Brown v. Mississippi (1936)
Accused all black men, were victims of a white lynch mob, *an accused person was tortured until he "confessed", violated Due Process, confession is only invalid if tortured by the STATE
125
Selective incorporation doctrine
Allowed Court to select and incorporate various portions of the Bill of Rights that it will make binding upon the states
126
Due process factors
- Age
- Education
- Mental impairment
- Physical condition, deprivation, and abuse
- Illness of the accused
- Administration of drugs
- "Recreational" drugs
- Lack of sleep
- Multiple factors
- Brutality and torture
- Psychological inducement
- Isolation
- Sustained interrogation
- Multiple interrogators
- Poetic license (using different language to create an effect)
- Collateral implications
- Offer of protection
127
When does the right to counsel come into play? (2)
1. When charged
| 2. When asked for it
128
6th amendment
Trial rights
129
When was right to counsel put into play?
Gideon v. Wainwright (1963), influence from the "Cold War", charged with minor crimes in Florida, in all circumstances the denial of counsel violated the 14th amend's Right to Due Process
130
Critical proceeding**
White v. Maryland (1963)- stage at which a person accused of a crime will receive the right to counsel, if right is denied then later proceedings will be prejudiced, *first time court recognized pre-trial right of counsel
131
When does the right to counsel attach?
- Brewer v. Williams (1977)- 6th and 14th amendments the right to counsel attaches at or after the time that judicial proceedings have been initiated against him
- Escobedo v. Illinois (1964)- when the defendant has become the focus, is in custody and requests an attorney, the right to counsel attaches prior to being charged**Defendant is in charge
132
When was the Miranda v. Arizona case?
1963
133
Waiver=
Notification + Assent
134
Miranda rules (10)
1. Obey all rules
2. When it does and does not apply
3. Rights must be given whether arrestee knows them or not
4. Anything you say can and will be used against you in court
5. Have to be told they have right to an attorney
6. Will be provided lawyer if can't afford one
7. Can stop or invoke right to remain silent or right to attorney at any time
8. "Heavy burden"-beyond reasonable doubt
9. Nothing obtained in violation of this rule can be used as part of prosecution's direct case
10. *Prosecution cannot comment that defendant remained silent or obtained an attorney in face of questioning
135
What percent of lost cases has Miranda led to?
3.8%
136
Custodial interrogation
Suspect's freedom of movement is restrained, even if he is not under arrest, in Miranda the Supreme Court help that prosecution could not use statements elicited during custodial interrogation
137
Entick v. Carrington (1765)
Lawsuit for trespass-can't render lawful actions that were otherwise unlawful
138
Barron v. The City of Baltimore (1833)
Re-routing of streams and creeks-->wharf was filled with silt and was unusable
-Importance: Bill of Rights only limits actions of Federal govt. and not State
139
Chambers v. Maroney (1970)
Arrested (with probable cause) people on station wagon and then obtained a warrant, could have searched wagon before warrant because of p.c.
140
Coolidge v. NH (1971)
Defendant arrested and his parked car was towed to police station and searched, not supported (non-exigent)
141
NY v. Belton (1981)
Driver arrested and searched leather coat, found cocaine, case said that if there is p.c. to arrest then ALL containers in vehicle within passenger compartment are subject to search
142
Arizona v. Grant (2009)
Rules of Belton cut back significantly, when suspect is handcuffed in police car and no longer has access to weapons, the search is illegal
143
Johnson v. Zerbst (1938)
Dealt with right to counsel, waived the right to an attorney and proceeded in trial
144
Schneckloth v. Bustamonte (1973)
Officer stopped vehicle about lights and found stolen checks, court said he didn't have to be advised to refuse consent-waiver applied strictly to trial rights
-This case (and Whren) created potential for abuse
145
Florida v. Jimeno (1991)
Search of vehicle extended to search of paper bag, reasonable man standard
146
Bumper v. NC (1968)
Police stated that there was a warrant and lady let them into house, but there was no warrant, consent was freely and voluntarily given
147
Berger v. NY (1967)
NYS liquor Authority were being bribed, eavesdropping warrant obtained, found unconstitutional-warrant was not particular enough
148
Kyllo v. US (2001)
Used thermal imaging to find drugs, not ok because device is not in ordinary use
149
US v. Antoine Jones (2012)
Govt. put GPS on car but warrant was filed too late (invalid), warrant was found to be necessary (from Olmstead)
150
Chambers v. Florida (1940)
Elderly man murdered, questioned AA repeatedly without rest until confessed
151
Spano v. NY (1959)
An indicted defendant surrendered with his retained attorney, still questioned and obtained confession without attorney present-not voluntary
152
Powell v. Alabama (1932)
Fight on train, AA charged with rape, tried without counsel, found that state violated their rights by not allowing them to discuss case with lawyer
