chap 9 Flashcards
Obscenity
Obscenity, when identified by a state, can be punished as a crime.
Defining obscenity, however, has been the subject of many court rulings and debates.
In general, freedom to use obscenity is not protected by the First Amendment when:
The communication is described in an offensive manner with depictions of explicit sexual acts.
Portrays sexual conduct in a patently offensive way
The communication has no redeeming social
value (literary, scientific, or artistic value
Public Nuisance Laws
intended to insure public safety and public order. Some regulations include: Laws on loud noise Nuisance speech Riots
The “Clear and Present Danger” Test
The test used to judge government restrictions on speech.
ex: shouting bomb on a plane
fighting words
words that incite violence or breach the peace
Symbolic Speech
Nonverbal expressions that convey a belief or idea.
Symbolic speech that is disruptive can reasonably be controlled
the First Amendment not protected
Actions that have a purpose other than/beyond communication of an idea or belief are not protected by the First Amendment.
ex: wearing a ninja mask to scare others
A true threat def.
a serious expression of an intent to inflict bodily harm.
Some identified true threats include:
Threats against public officials
Threats by schoolchildren against teachers or other students
Terrorist threats
Violations of restraining orders
Using the U.S. mail, telephones, the internet, or email to threaten another person
Obstruction of the Law Enforcement Process
There are a number of ways that the crime of obstruction can be committed, including:
Obstruction of a crime scene
Failure to identify a known offender
Failure to identify oneself when there is a legal obligation to do so
stalking
Stalking has become a serious problem in the United States and Europe.
Often stalking involves offenders who had a previous relationship with the victim.
Stalking has now been made criminal in most states
city street laws
Anti-cruising laws Truancy arrests or detentions Juvenile curfew laws Laws directed at homeless persons Stalking
applicable Gun Ownership
right to bear arms is applicable with both federal and state
gun registration laws
govt. may not outlaw completely, ownership and possession of firearms.
regulation of ownership/possession of firearms is permitted.
Right of Privacy in constitution
the us const. has no explicit right to privacy, but is implied in the 14th amendment.
only defense to slander
the truth.
use immunity
allows that the statements made by the witness may not be used in subsequent prosecutions.
a witness can be prosecuted for the crimes which they testified if other evidence is used to convict them
corpus delict
In all criminal cases, the government must prove that the crime charged was committed (corpus delicti) and that the defendant was party to the crime (committed the crime or was an accomplice).
transactional immunity
Total or full immunity for the criminal offense
coercion
A person who forces (coerces) another to commit a crime can be charged and convicted of the crime committed in addition to other offenses.
immunity
exemption from penalties, payments
exemption from legal requirements, granted by authorities or statutes.
Dual Sovereignty Doctrine
A doctrine that different governments may each file separate criminal actions for the same criminal act.
necessity
A defense to criminal prosecution on the grounds that the harm to be avoided outweighed the harm caused by the crime committed. Necessity will not justify taking another person’s life.
duress
A defense to criminal prosecution on the grounds that the defendant was forced to commit the criminal act.
entrapment
The defense that a law enforcement officer used excessive temptation or urging to wrongfully induce the defendants to commit a crime they would not have ordinarily committed.
“dual sovereignty” doctrine
A doctrine that different governments may each file separate criminal actions for the same criminal act
double jeopardy
when the defendant has been tried before on the same charge, and acquitted.
affirmative defense
Exists when the defendant generally admits to the crime but demonstrates an acceptable defense such as:
entrapment or duress
mistake of law
A claim by a defendant that the defendant did not know the action taken violated the criminal law.
statutes of limitations
statute that sets the maximum time the government has to prosecute a violation of a criminal law.
capital punishment
Inflicting deadly injury as punishment for criminal conduct.
aggravating circumstances
any fact or circumstance that increases the severity or culpability of a criminal act.
ex: Repeat Offenses, Vulnerability of Victim, lack of remorse
recidivist
One who is a habitual criminal.
sanctuary
In the Middle Ages in England, a sanctuary was a religious place where criminals could take refuge. The concept of sanctuary later broadened to include asylum for refugees
cruel and unusual punishment
a limitation on punishment for criminal conduct
Procedural due process
A claim under the Fourteenth Amendment that there is an absence of fair procedures regulating state conduct
Requires a fair hearing.
forfeiture
Going back to early English law, the concept and use of seizing the property that was used to commit a crime
Benefit of Clergy
A medieval limit on capital punishment. People convicted of a capital crime entitled to claim the benefit of clergy (by the fifteenth century, anyone who could read) could not be executed for their offense. By the end of the eighteenth century, the privilege had been eliminated for most crimes.
“three strikes” laws
Laws that impose increased penalties for multiple felony convictions
Corporal punishment
Inflicting nondeadly physical injury as punishment for criminal conduct.
Ex: Whipping or dismemberment
Substantive due process
A claim under the Fourteenth Amendment that state conduct is so brutal, demeaning, and harmful as to shock the conscience.
mitigating circumstances
Factors that lessen the severity or culpability of a criminal act
ex: age, mental/emotional disturbance, no criminal record, mental retardation
Proportionality Principle
Compares the gravity of the offense and the severity of the penalty to sentences imposed for other crimes and to sentencing practices in other jurisdictions.
Corporal Punishment in Prisons
prison inmates have none of the “community and legal constraints” that provide safeguards against the sort of abuses the Eighth Amendment prohibits.
capital punishment is constitutional if:
The victim dies
capital punishment does not count with:
in individual crimes such as: rape
underage (18) when the crime happened
insane at the time of execution/mental retardation
rape of child where child does not die
death penalty moratorium concerns:
innocence
racial bias
effects on victims’ families
Imprisonment as Punishment
Juveniles may not be sentenced to life without the possibility of parole
Offenders may not be imprisoned beyond the statutory maximum period solely because of inability to pay a fine.
Monetary fines
Monetary fines payable by the convicted offender are frequently used.
In most states, the maximum fine for any designated criminal act is set by statute.
PA 3 strikes
Pennsylvania has two- and three-strikes laws that mandate minimum terms of 10 and 25 years, respectively.
pa 3 strikes felonies
If the defendant has two previous “serious” felony convictions, a life sentence is mandatory
serious felony vs non serious felony
Serious felonies: rape and murder, burglary, and other thefts.
nonserious felonies: petty theft or even possession of a minor amount of drugs for personal use.
