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PSC 240 > Midterm > Flashcards

Midterm Flashcards

1
Q

What was the reason for the creation of the Constitution?

A

Plan to bring about commercial and political stability

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2
Q

What was equality from the constitution aimed at?

A

Means of balancing power among various states, NOT individuals

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3
Q

Individual states=

A

citizens

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4
Q

What was the operative element under the constitution?

A

States, not citizens

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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
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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)

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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

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8
Q

Constitutional Convention (1787)

A

Follow-up to Annapolis Convention, all but Rhode Island showed up, result of Constitution

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9
Q

Structure of Constitution

A

-Bicameral Legislature (Senate and HOP)
-National Chief Executive
-National Judicial branch
Does not rule by prohibition

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10
Q

Bicameral Legislature

A

Provided protection for small states

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11
Q

National Chief Executive

A

Provided national direction

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12
Q

National Judicial branch

A

Creation of a strong Federal government mandated the need a Judicial branch to enforce Federal Law

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13
Q

Exceptions to ruling by prohibition in Constitution

A
  • Coinage of currency by states

- Prohibition against state bankruptcy legislation, impaired contractual obligations

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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
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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
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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

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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.)

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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

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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

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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

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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

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22
Q

Natural Law

A

Gave the court the inherent power to refuse to follow an illegal law or a “disobedient act”

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23
Q

3 basic sources of rights

A
  1. Direct rule or edict
  2. By interpretation of an organic instrument
  3. Religion or social custom
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24
Q

Locke’s views

A

Natural state was not one of violence, could be a natural peace–> Natural Law

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25
Q

Hobbs’ views

A

Natural state would lead to “war of all against all”, Lord of the Flies

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26
Q

What did Locke create concepts for? (3)

A
  1. Property (what man changed became his)
  2. Money
  3. Liberty (child is property of parent until old enough)
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27
Q

According to Locke, what 3 things are all men entitled to?

A
  1. Lives
  2. Liverties
  3. Estates
    =property
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28
Q

William Blackstone

A
  • His writings became more popular in America than England
  • Infatuated with property
  • Took Locke’s views too far and said that “Rights”=property
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29
Q

Paradigm of “Rights”

A

Seen as property dominated (ex: Dred Scott)

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30
Q

Fundamental Rights

A

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

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31
Q

3 additional fundamental rights

A
  1. Freedom to travel
  2. Freedom to marry
  3. Right to privacy
    All found to be “Rights” (under 9th amend.)
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32
Q

Obergefell v. Hodges (2015)

A
  • 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
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33
Q

Douglas’ Penumbra

A

Right of privacy older than Bill of Rights that protected intimate relation of husband and wife

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34
Q

Same-sex marriage

A

Found to be a “fundamental right”, major difference because not under Constitution, new right with no historical basis

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35
Q

Effect of Obergefell

A

Could lead to a credible claim that other lifestyle choices with a longer history should be afforded similar “Fundamental Rights” protection (ex: cocaine)

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36
Q

What is the first formal charge in a case?

A

Felony complaint, filed in local criminal court, signed by police officer

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37
Q

Arraignment

A

Criminal taken to local criminal court, judge “arraigns” criminal, become Defendant, purpose is to formally charge them and inform of rights

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38
Q

Public defender

A

Provided for criminal if they cannot afford an attorney, given during an arraignment

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39
Q

Preliminary hearing

A

Purpose is to determine if there is “reasonable cause” to hold defendant for action of Grand Jury, prosecution presents witnesses

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40
Q

Order of preliminary hearing

A
  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
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41
Q

Grand Jury

A

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

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42
Q

When is the only time the defense lawyer is permitted in the Grand Jury?

A

When the defendant is testifying

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43
Q

How many votes from the Grand Jury are required to indict?

A

12 yes votes

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44
Q

Motions

A

Written requests asking the Court to do something in the case, must be in writing and done no more than 45 days after arraignment

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45
Q

Most common motion requests (3)

A
  1. Suppression of evidence
  2. Suppression of statements
  3. Dismissal of the charge
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46
Q

Pre-Trial Hearings

A

Result of motions (ex: Huntley, Wade, Mapp, Ingle), run like prelim hearings, *burden is on DA to est. legality in first instance

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47
Q

The trial

A

Begins with Jury selection, lawyers (starting with District Attorney) questions jurors

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48
Q

2 major types of challenges in trial

A
  1. Challenges for cause

2. Preemptory challenges

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49
Q

How to perfect an appeal (3)

A
  1. File an appellate brief
  2. The State then files a brief
  3. The appeal is then argued
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50
Q

4th amendment

A

Prohibits unreasonable searches and seizures, capstone of first 3 amendments about privacy, requires that warrant particularly describes the person or place to be searched

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51
Q

What are some words of limitations that limit the SCOPE of the 4th amendment?

A
  • “unreasonable searches and seizures”

- “papers, houses, persons, and effects”

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52
Q

What are some words of limitations that limit the POWER of the Federal Government to withdraw the freedom from the 4th amendment?

A
  • “probably cause”

- “particularly describing the place to be searched, and the persons or things to be seized”

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53
Q

Important of the word “AND” in regards to protection

A
  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
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54
Q

Warrantless

A

Must not be “unreasonable”; interpreted to mean probable cause

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55
Q

By warrant

A

Must have probable cause

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56
Q

Importance of Boyd v US (1886)

A

Origin of the ***exclusionary rule- search was unreasonable and evidence should have been excluded at trial

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57
Q

Why did Weeks only controvert the Federal Government?

A

Pre-Mapp, the 4th amendment had no effect upon State searches

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58
Q

Silver Platter Doctrine

A

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)

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59
Q

Selective incorporation

A

Relies on the Due Process Clause, incorporates only those elements deemed to fall within “due process”

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60
Q

Full incorporation

A

Relies upon the Privileges and Immunities Clause, deemed to incorporate the entire body of the Bill of Rights

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61
Q

Wolf v Colorado (1949)

A

Stated that due process clause of 14th does not require exclusion at trial of evidence unlawfully seized by state agents, no remedy

62
Q

Shocks the conscience test

A

Rochin v. Cali (1952)- evidence had to be excluded because it was obtained in an unjust way (forced to throw up pills)

63
Q

Mapp v Ohio (1961)

A

Her house was searched without a warrant, “Exclusionary Rule” now applied to searches by state agents

64
Q

Purposes of the Exclusionary Rule (3)

A
  1. Deter illegal conduct by the state
  2. Preserve judicial integrity
  3. Remove the incentive for unlawful behavior
65
Q

When is it ok to not have a search warrant?

A

If it is open to public eye

66
Q

Exceptions to 4th amendement

A
  1. Plain View (+plain feel)
  2. Open fields
  3. Discarded and abandoned property
  4. Garbage
  5. Overheard conversations
  6. Misplaced trust
  7. Odor
67
Q

The Reasonable Person Test

A

Test of objectivity, balance facts and circumstances against decision making process of an objective standard=probable cause

68
Q

When does the judge apply the reasonable person standard? (2)

A
  1. Time of the warrant application

2. Time of the pre-trial hearing (for a warrantless search or arrest)

69
Q

2 types of probable cause

A
  1. Probable cause to search

2. Probable cause to arrest

70
Q

Probable cause to search

A

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
Q

Probable cause to arrest

A

Speaks to the INDIVIDUAL. Reasonable belief that a person has committed a crime, does not mean that a search warrant could lawfully issue

72
Q

At which point in the proceedings is probable cause measured WITHOUT a warrant?

A

Point of analysis is the moment immediately prior to the arrest or seizure, what was known and who knew it?

73
Q

At which point in the proceedings is probable cause measured WITH a warrant?

A

Determined at the time the info is presented to the Magistrate to obtain the warrant

74
Q

When is probable cause lower?

A

When the offense indicates a possibility of danger to human life-it is VARIABLE (not fixed)

75
Q

Objective probable cause

A

Relies on facts and circumstances presented and any reasonable inference

76
Q

Subjective probable cause

A

Looks at intentions of the officer and his/her reason(s) in making the arrest or the search-NOT USED

77
Q

Good faith exception

A

If the officer believes he/she has a validly issued search warrant that subjective belief is sufficient

78
Q

Pretext

A

Reason given in justification of a course of action that is not the real reason

79
Q

Aguilar test-what does it look for?

A

Reliability

80
Q

Spinelli test-what does it look for?

A

Basis for the information

81
Q

Illinois v Gates (1983)

A

Abandoned Aguilar/Spinelli test, adopted the “totality-of-the-circumstances” (based on all available info) approach for hearsay

82
Q

NY Rule

A

Hearsay must have a known basis and be reliable, the description of person and place must be reasonably specific

83
Q

People v Ingle (1975)

A

Ford is stopped because trooper wanted a closer look, asked driver to open pouch and found marijuana, violated 4th amendment

84
Q

Whren v US (1996)

A

Officer stopped car for minor traffic infraction but he really suspected drugs–> New Jim Crow Law

85
Q

*Reasonable suspicion vs Probable cause

A

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
Q

Exigent circumstances=

A

Contraband + probable cause + mobility

Measured on a balancing test, created from Carroll v. US (1925)

87
Q

Containers in cars

A

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
Q

Grab area (what case did it originate)?

A

Chimel v Cali (1969)-warrantless search can only extend to person of arrestee and that area within its immediate control

89
Q

Passengers in car

A

May frisk passengers with Terry search for own protection, all passengers are “seized” as result of stop

90
Q

Difference between Holmes and Chesternut in street encounters

A
  • Holmes: defendant was called over to car and then ran, no probable cause
  • Chesternut: not called, discarding drugs created probable cause
91
Q

Terry v Ohio (1968)

A

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
Q

Balancing test

A

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
Q

Is reasonable suspicion needed for a roadblock?

A

No, roadblock deemed less intrusive, no individual motorist is singled out, NON-ARBITRARY

94
Q

Potential problems for roadblock (3)

A
  1. Distance from crime
  2. Direction that the offender was headed
  3. Alternate escape routes
95
Q

Where do we draw the line for roadblocks?

A

Balanced the level of the intrusion against the societal benefits to be derived

96
Q

What is the most common form of a search?

A

Consent, “safest” course of action in terms of minimizing the risk of suppression, broader in scope, available when there is no probable cause

97
Q

Waiver (not voluntary)

A

*You must know the right that is being waived, strictly applied to trial rights (protects truth)

98
Q

Voluntary (not waived)

A

*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
Q

Johnson v. Zerbst (1938) definition of waiver

A

An INTENTIONAL relinquishment or abandonment of a KNOWN right or privilege

100
Q

Consent by others

A

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
Q

Scope of consent

A

A consent to search does not authorize police to search bags and containers which could not conceal a person

102
Q

Claim of authority

A

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
Q

What is a factor that governs reliability?

A

Number of police officers

104
Q

What affects reliability of consent? (2)

A
  • Weapons (reduces likelihood of freely given consent)

- Time of day/night

105
Q

Consent and custody

A

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
Q

Consent give in response to a threat to seek a warrant is…

A

Upheld as voluntary

107
Q

Fruit of the poisonous tree

A

Evidence that is taken illegally

108
Q

Implied consent

A

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
Q

Olmstead v. US (1928)

A

First consideration of eavesdropping, found that 4th amendment had no bearing on wiretapping (electrical impulses were not things), applied to Goldman (1942)

110
Q

Irvine v. Cali (1954)

A

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
Q

Silverman v. US (1961)

A

Trespass now used as a means of invalidation, mic penetrated into Silverman’s space, *“silent approaches” and “slight deviations”

112
Q

Reasonable expectation of privacy

A

Katz v. US (1967)- standard of the 4th, objectivity (can intercept radio communications because anyone can listen on radio)

113
Q

What is a return in wiretapping?

A

Document where they set forth a summary of all that was contained in the conversations seized

114
Q

What 2 forms of electronic surveillance have received considerable scrutiny?

A
  1. Tracking devices

2. Video surveillance cameras

115
Q

Admissions

A

Statements that admit damaging elements about a crime (nothing about intent)

116
Q

Confessions

A

Statements that admit all the elements of a particular crime (includes intent and crime), most powerful weapons in prosecution of crimes

117
Q

Reliability

A

Is the statement truthful? Unconcerned with the means through which the statement is procured

118
Q

Propriety

A

How was the statement procured? Unconcerned with the truthfulness of the statement

119
Q

nemo tenetur seipsum accusare

A

No man is bound to accuse himself-self incrimination clause

120
Q

Accusatorial system

A

Our system, the state must accuse and establish the guilt of the defendant

121
Q

Inquisitorial system

A

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
Q

Difference between accusatorial and inquisitorial systems

A
  • Accusatorial: court acts as referee between prosecution and defense
  • Inquisitorial: court is actively involved
123
Q

Colonial experience

A
  • 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
Q

Brown v. Mississippi (1936)

A

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
Q

Selective incorporation doctrine

A

Allowed Court to select and incorporate various portions of the Bill of Rights that it will make binding upon the states

126
Q

Due process factors

A
  • 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
Q

When does the right to counsel come into play? (2)

A
  1. When charged

2. When asked for it

128
Q

6th amendment

A

Trial rights

129
Q

When was right to counsel put into play?

A

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
Q

Critical proceeding**

A

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
Q

When does the right to counsel attach?

A
  • 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
Q

When was the Miranda v. Arizona case?

A

1963

133
Q

Waiver=

A

Notification + Assent

134
Q

Miranda rules (10)

A
  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
Q

What percent of lost cases has Miranda led to?

A

3.8%

136
Q

Custodial interrogation

A

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
Q

Entick v. Carrington (1765)

A

Lawsuit for trespass-can’t render lawful actions that were otherwise unlawful

138
Q

Barron v. The City of Baltimore (1833)

A

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
Q

Chambers v. Maroney (1970)

A

Arrested (with probable cause) people on station wagon and then obtained a warrant, could have searched wagon before warrant because of p.c.

140
Q

Coolidge v. NH (1971)

A

Defendant arrested and his parked car was towed to police station and searched, not supported (non-exigent)

141
Q

NY v. Belton (1981)

A

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
Q

Arizona v. Grant (2009)

A

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
Q

Johnson v. Zerbst (1938)

A

Dealt with right to counsel, waived the right to an attorney and proceeded in trial

144
Q

Schneckloth v. Bustamonte (1973)

A

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
Q

Florida v. Jimeno (1991)

A

Search of vehicle extended to search of paper bag, reasonable man standard

146
Q

Bumper v. NC (1968)

A

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
Q

Berger v. NY (1967)

A

NYS liquor Authority were being bribed, eavesdropping warrant obtained, found unconstitutional-warrant was not particular enough

148
Q

Kyllo v. US (2001)

A

Used thermal imaging to find drugs, not ok because device is not in ordinary use

149
Q

US v. Antoine Jones (2012)

A

Govt. put GPS on car but warrant was filed too late (invalid), warrant was found to be necessary (from Olmstead)

150
Q

Chambers v. Florida (1940)

A

Elderly man murdered, questioned AA repeatedly without rest until confessed

151
Q

Spano v. NY (1959)

A

An indicted defendant surrendered with his retained attorney, still questioned and obtained confession without attorney present-not voluntary

152
Q

Powell v. Alabama (1932)

A

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

PSC 240 (2 decks)

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