Chap. 9 - Constitutional Defenses

Question 1

Are most rights found in the first 9 amendments?

Answer 1

Yes.

Question 2

Does each state have its own constitution?

Answer 2

Yes. And they might provide more protection than the US Constitution.

Question 3

Which amendment is the defense of double jeopardy found?

Answer 3

The 5th.

Question 4

What are the 2 prohibitions to the Double Jeopardy Clause?

Answer 4

1. a second prohibition for the same offense.

2. a second punishment for the same offense.

Question 5

Generally, when is a person put in double jeopardy?

Answer 5

1. Once a plea of guilty has been entered and accepted by the court. (An unapproved plea will not suffice).
2. In Jury Trials, jeopardy attaches once a jury has been selected and sworn.
3. In State trials, jeopardy attaches when the first witness has been sworn in.

Question 6

What are some exceptions to Double Jeopardy?

Answer 6

1. The defendant may be retried, if the first trial was terminated by a properly declared mistrial (Death of a judge, one of the participating attorneys dies, if one of the witnesses blurts out an answer to a question before the judge has an opportunity to sustain an objection to the question, and the answer is prejudicial, causes are endless).
2. The mistrial must be proper.
3. If the charges were dismissed before jeopardy attached.
4. If the defendant appeals a conviction and prevails, the defendant may be retried. (If a defendant is aquitted on a serious charge and convicted on a lesser and prevails on appeal, she may be retried only on the lesser. It violates the 5th if they’re retried on the more serious offense.
5. A conviction may be reinstated by an appellate court if a trial’s court’s order setting aside the conviction is found invalid.
6. An appellate court may not order a new trial where the trial judge entered a judgment of acquittal following a hung jury.
7. If it is a conviction, then an appellate court may tamper with the trial judge reversals of convictions. If it is an acquittal, then double jeopardy bars acting further against the accused.
8. Supreme Court has also held that double jeopardy does not bar correcting a sentence on appeal or rehearsing because such a procedure is not retrial of an offense. But, it may be different if resentencing results in the application of the death penalty.

Question 7

When are two offenses the same?

Answer 7

They are the same unless one requires proof of a fact that the other does not.

Question 8

What is the “same evidence test”?

Answer 8

Two offenses are the same unless one requires proof of a fact that the other does not.

Question 9

Does the civil law concept of collateral estoppel, or the preculsion of relitigating the same issue, apply in criminal cases as well?

Answer 9

Yes. (Ashe v. Swenson).

Question 10

How is the Double Jeopardy Clause applicable to the states?

Answer 10

Through the 14th Amendment. However, it does not prevent second punishments for the same offense by different sovereigns.

Question 11

Are municipalities independent beings?

Answer 11

No. They owe their existence not to the Constitution of the United States, but to a state.

Question 12

Are prosecutions by cities treated as being brought by the state?

Answer 12

Yes. It is a violation of the Double Jeopardy Clause for a state and city to punish one for the same offense.

Question 13

Which amendment has the no self-incrimination clause?

Answer 13

The 5th.

Question 14

What is transactional immunity?

Answer 14

1. Shields the witness from prosecution for all offenses related to his or her testimony. If a witness testifies concerning a robbery, the government may not prosecute the witness for that robbery, even though the government may have evidence of guild independent of the witness’s testimony. With it, the witness may be ordered to testify.

Question 15

What is derivative use immunity?

Answer 15

It is the minimum immunity that must be provided by a witness to overcome a 5th amendment claim. It prohibits the government from using the wtiness’s testimony or any evidence derived from that testimony to prosecute the witness. However, all evidence that is independently obtained may be used against the witness. It only prevents the government from using their testimony against them.

Question 16

May a person waive the 5th amendment?

Answer 16

Yes.

Question 17

What if they testify freely?

Answer 17

Then it is waived.

Question 18

If they waive it one time, is it waived forever?

Answer 18

No.

1. A witness may speak to the police during the investigative stage and later refuse to testify at trial, provided it is incriminating.
2. It is generally held that a person who testifies before a grand jury without claiming the 5th does not waive the right to raise the defense at trial.
3. They may waive it during the same proceeding, if the hearings are separate and distinct. (A defendant may testify at a supression hearing without waiving the privilege not to testify at trial.

Question 19

Does the 5th apply to civil, criminal, and administrative?

Answer 19

Yes.

Question 20

Which amendment expressly requires the states to extend equal protection of the laws to the people?

Answer 20

The 14th, but the Supreme Court has found it to be implied in the Due Process clause of the 5th amendment as well.

Question 21

If the classification between those who exercise a constutitional right and those who do not, if it results in prosecution or increased punishment for the former unconstitutional?

Answer 21

Yes.

Question 22

What other classifications are unconstitutional?

Answer 22

1. Race
2. Religion
3. Gender
4. Other immutable conditions

Question 23

What are the two aspects of Due Process?

Answer 23

1. Susbtantive

2. Procedural.

Question 24

In due process, what is the principle of legality?

Answer 24

It requires that criminal laws and punishments be written and enacted before an act may be punished.

Question 25

What are some of the categorical rights found in the Constitution?

Answer 25

1. Due Process (5th, 14th)
2. equal protection law (14th)
3. Rights to be free from unreasonable searches and seizures (4th)
4. Right to be free from self-incrimination (5th)
5. Right to counsel (6th)
6. Prohibition of cruel and unusual punishment (8th)
7. Right of free assembly (1st)
8. Right of association (1st)
9. Freedom to practice a religion (1st)
10. Freedom of speech (1st)
    11.

Question 26

What is void for vagueness?

Answer 26

It is whenever men of common intelligence must necessarily guess at its meaning and differ as to its application. Confusion among lower courts, resulting in varying interpretations, is evidence of vagueness. Statutes that permit arbitrary or discriminatory enforcement are void. If the police or courts are given unlimited authority to decide who will be prosecuted, the statute is invalid.

Question 27

What is overbreadth?

Answer 27

A statute is overbroad if it includes within its grasp not only unprotected activity but also activity protected by the Constitution.

Question 28

What is an ex post facto law?

Answer 28

1. A law that makes an act illegal after the act was taken
2. Increases the punishment or severity of a crime after it occurred.
3. Changes the procedural rules so as to increase the chances of conviction after the crime occurs.

The government may not make criminal law retroactive, if doing so is detrimental to the defendant. Changes that may benefit a defendant may be applied retroactively.

Question 29

What is a bill of attainder?

Answer 29

It is a legislative act punishing a person without a judicial trial. However, Congress may punish those who disrupt its functions for contempt. In addition, it can conduct impeachment hearings of the president, federal judges, and other federal officers and to discipline its own members.

Question 30

Is any law prohibiting a certain religious belief void?

Answer 30

Yes. However, some may be regulated.

Question 31

Can laws be passed that prohibit particular religious aspects, if they involve general applicability?

Answer 31

Yes. If they are made to solely regulate religious worship.

Question 32

What is the Religious Freedom Restoration Act?

Answer 32

Courts are required to apply the strict scrutiny test when applying statutes of general applicability to religious practices. (The government must demonstrate both a compelling reason and that there is no less restrictive way to accomplish the governmental objective).

Question 33

How does a court distinguish between fraudulent and bona fide religious practices?

Answer 33

1. It must be determined that the defendant is asserting a religious belief, not a personal or philosophical belief.
   a. How well established is the religion in the world.
   b. How many followers are there.
   c. How old is the religion.
   d. What is the nature of the practice in question.
   e. How important is the practice to the religion.
2. If the state’s interest is compelling, it may regulate the practice.

Question 34

What type of speech may be regulated?

Answer 34

1. Fighting words
2. Words that create a ‘clear and present danger’
3. Slanderous statements.
4. Libelous statements.
5. Sometimes not due to the content, but because of the time, place, and manner of being expressed.
6. Crimes motivated by prejudice. (Most states enhance the crime of trespass, battery, assault, and harrassment if the motive of the crime was the victim’s race, religion, color, or other characteristic.

Question 35

Which case showed that bigotry as a motive may be considered at sentencing to enhance a penalty.

Answer 35

R.A.V. vs. Mitchell. Conduct could be punished under content neutral laws, such as open burning.
Virginia v. Black (2003) upheld Virginia statute that criminalized cross burning.

Question 36

Where does the right of Privacy start in the Constitution and which case created it?

Answer 36

Griswold v. Connecticut (1965). Prohibition of contraceptives among married people violated the invasive right to privacy.

1st, 4th, 5th, 9th, and 14th amendments.

Question 37

What is the principal of total incorporation?

Answer 37

The belief that the 14th amendment was intended to extend the rights found in the Bill of Rights to the states, but that it was not intended to create independent rights.

Question 38

Which trimester has the Court found an interest in protecting the fetus?

Answer 38

The 3rd.

Question 39

What is the undue interference test?

Answer 39

A regulation is invalid if it unduly interferes with a woman’s choice. Until a fetus is viable outside of the mother’s womb, a state may not prohibit its abortion. Even after viability, abortion is permitted to save the life or health of the mother.

Question 40

What is unduly burdensome for women?

Answer 40

1. Requiring info concerning abortions is not.
2. Mandating 24 hour waiting periods is not.
3. Requiring parental consent by minor girls is not.
4. Requiring spousal notification by married women is.

Question 41

What 14th amendment protects interracial marriage?

Answer 41

14th.

Question 42

Which court case legalized sodomy?

Answer 42

Lawrence v. Texas (1986)

Question 43

Is it true that the government may regulate all rights if it has cause?

Answer 43

Yes. (307).