Exam #1

Question 1

Civil Rights Act of 1871

Answer 1

-enacted in the post-Civil War environment with the goal of preventing partisan Southern judges from ignoring newly enacted rights under the 13th, 14th, and 15th Amendments
-13th Amendment: abolishes slavery and involuntary servitude, except as punishment for a crime
-14th Amendment: grants citizenship to all persons born or naturalized in the United States—including former enslaved people—and guaranteed all citizens “equal protection of the laws.”
-15th Amendment: prohibits the federal government and each state from denying or abridging a citizen’s right to vote “on account of race, color, or previous condition of servitude.” (gives African American men the right to vote)

-in the 1960s, the use of these laws was expanded to cover all constitutional rights. Since then, Sections 1983 and 1985 have been used extensively to see redress for constitutional violations by criminal justice personnel as well as by other government employees.

-Section 1983 key provisions:
-depravation of any rights, privileges, or immunities secured by the Constitution
-by person who is under color of any statute, ordinance, regulation, custom, or usage, of any state or territory or the District of Columbia

-Exceptions to section 1983: “ except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”

-Section 1985 key provisions:
-two or more persons in any State or Territory conspiring
-for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws

-Civil Rights Act cases can result in the award of money, injunctions, and other civil types of relief, but the judge cannot order someone released from jail or modify the length of a sentence
-the panoply of constitutional rights covered by these statutes includes the Fourth, Fifth, Sixth, and Eighth Amendments; Due Process; and Equal Protection. Illegal searches and Miranda violations are probably the most common examples of cases filed under the Civil Rights Act. Police brutality violates the Fourth amendment, so it can be the subject of a suit. Extreme prison conditions, viewed as cruel and unusual punishment, are actionable Eighth Amendment violations. Failure to follow appropriate procedures when revoking probation or parole violates due process. Racial and gender discrimination violates equal protection

Question 2

Qualified Immunity

Answer 2

-There are two types of immunity that arise from the decision of who should have immunity under the Civil Rights Act (these two types of immunity that arise are largely based on job function):
-Absolute immunity: applies to judges and prosecutors when acting in their official roles (regardless of their state of mind)
-> Absolute immunity means that a civil rights act case would be dismissed (witnesses holds absolute immunity)
-Qualified immunity: when these judges or prosecutors step outside their official roles
->most other state and local government employees will have qualified immunity if it can be shown that their actions were taken in “good” faith, then a civil rights act case against them can be dismissed
-> “Good faith” is decided if (1) the person objectively believed that their actions were constitutional, and (2) efforts have been made to remain current on Supreme Court decisions and other relevant laws.

-Qualified immunity is not available if the person knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injuries

-Example: In a case involving a search conducted without a warrant, the Court summarized what is needed for a police officer to have qualified immunity:
->the police officer, as a matter of law, could have reasonably believed that the search was lawful.

Question 3

Title 42 of the US Code

Answer 3

-used extensively to seek redress for constitutional violations by criminal justice personnel as well as by other government employees
-applies to state but not federal government personnel
-deprivation of any rights, privileges, or immunities secured by the Constitution
-by person who is under color of any statute, ordinance, regulations, customs, or usage, of any state of Territory of the District of Colombia

Question 4

1st Amendment

Answer 4

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peacefully assemble, and to petition the Government for a redress of grievances

Question 5

2nd Amendment

Answer 5

The right of the people to keep and bear Arms shall not be infringed (makes the argument that a well regulated militia is necessary for the security of a free state)

Question 6

4th Amendment

Answer 6

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized (no unreasonable searches or seizures)

Question 7

5th Amendment

Answer 7

-No person shall be held to answer for a crime unless on a presentment or indictment of a Grand Jury
-Nor shall any person be subject for the same offense to be twice put in jeopardy (no double jeopardy)
-Nor shall be compelled in any criminal case to be a witness against himself
-Nor be deprived of life, liberty, or property without due process of the law
-Nor shall private property be taken for public use without just compensation

Question 8

6th Amendment

Answer 8

-In all criminal prosecutions, shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed
-The accused must be informed of the nature and cause of the accusations
-The accused has the right to be confronted with the witness against him
-The accused has the right to have compulsory process for obtaining witnesses in his favor and to have Assistance of Counsel for his defense

Question 9

8th Amendment

Answer 9

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted (no cruel and unusual punishments)

Question 10

9th Amendment

Answer 10

States that the rights not specified in the Constitution belong to the people, not the federal government

Question 11

Habeas Corpus

Answer 11

-Habeas Corpus is a civil lawsuit filed in the trial court to challenge illegal confinement. Being in jail, in prison, or on probation or parole due to an improper conviction fits in this category; so does failure to release an inmate after the sentence is completed and involuntary confinement of a mentally competent person in a mental health facility
-Unlike a direct appeal, which must be filed within a specified time period after conviction, habeas corpus can be filed whenever the situation merits- before or after trial.
-In Habeas Corpus proceedings, the judge can order that the person be released from custody or that the conditions of confinement should be changed; a conviction cannot be reversed nor can monetary damages be awarded

-Examples of issues that can be raised by Habeas Corpus:
-person was illegally arrested and is being held in county jail
-person was placed in a mental hospital against his or her will and claims to be legally sane
-person has served his or her entire sentence but has not been released
-Defendant’s sixth amendment right to an attorney at trial was violated because the defense attorney was incompetent

-Examples of issues that should not be raised by Habeas Corpus:
-the judge did not give proper jury instructions during the trial
-the evidence presented at trial was not sufficient to convict the defendant
-the defendant should receive monetary payment from the arresting officer because he was arrested illegally
-any issue raised by a person who is no longer in custody

-Process of Habeas Corpus:
-The person seeking release files a petition for a writ of habeas corpus in the trial court for the jurisdiction where he or she is confined. The petition briefly states why the person filing the petition believes that he or she should be released. There is no right to have an attorney appointed to help with habeas corpus because it is considered a civil case. Many states have judicial staff screen the petitions in order to weed out the frivolous ones and those that should have been filed as some other form of legal action. Once the petition clears this review, the government must file a reply giving reasons the confinement is valid and attaching the relevant documents. If the judge reviewing the response believes that there are legal grounds to consider the case, a hearing will be held in the trial court and both sides will be allowed to call witnesses who will be cross-examined by the opposing side.

-Habeas corpus is the best way to request reversal on the grounds that the defense attorney at trial was incompetent because a hearing is usually needed to determine how much research and preparation the attorney did prior to trial. Habeas corpus has been successfully used when the U.S. Supreme COurt made retroactive rues that affected cases that were beyond the time limits for direct appeals. It is also used to allege that prison conditions are so bad that they violate the Eigth Amendment standard for Cruel and Unusual punishment; if the judge agrees, inmates will be transferred to a facility that meets constitutional muster but they will not be released.

-Restrictions to federal Habeas Corpus:
>Through the passing of the Antiterrorism and Effective Death Penalty Act of 1996 (which restricts a state inmate’s access to federal habeas corpus):
-limits challenges of a conviction to 1 year after state remedies have been exhausted
-prohibits repetitive filings on the same issue and mandated that the inmate combine all the legal issues in one petition
-AEDPA allocates the burden of proof to the person filing the habeas corpus petition; the presumption that the state court proceedings were correct must be rebutted by clear and convincing evidence (this makes it difficult to win release)
-Stone V. Powell court case rendered the restriction in regard to the fourth amendment that if a state court provided an opportunity for full and fair litigation for a fourth amendment claim, then the state prisoner may not be granted federal habeas corpus relief on fourth amendment grounds

Habeas corpus can also be filed when new scientific technologies suggest that the evidence introduced at the trial did not belong to the defendant

Question 12

Writ of Certiorari (US Supreme Court)

Answer 12

-Context:
The U.S. Supreme Court will only consider cases involving constitutional issues that have gone through normal channels first; this is called exhaustion of remedies. For defendants convicted in state court, the direct appeal and petitions for discretionary review by the state’s courts must be complete before asking the U.S. Supreme Court for a hearing.
Defendants convicted in federal court must also exhaust their remedies before taking the case to the U.S. Supreme Court. The chances of a hearing being granted are slim: Well over 3,000 petitions are received each year but less than 100 receive full hearings.

-The process of requesting that the U.S. Supreme Court hear a case starts with a Petition for Writ of Certiorari (frequently referred to as “cert”).
-The party who wants a hearing files a petition stating the constitutional issues to be considered. The petition for cert is frequently accompanied by a request to proceed in forma pauperis. The purpose of this request is to obtain a waiver of some of the formalities that make the cost of petitioning the Court prohibitive. For example, briefs normally must be typeset and printed in 6⅛” × 9¼” booklets; a person granted in forma pauperis status can prepare briefs on a computer printer and standard 8½” x 11” paper. The nine justices review the incoming petitions with the help of their law clerks; the justices then meet as a group and vote on them. Cases that receive four votes are scheduled for oral arguments.
This is referred to as “granting cert”. The issues to be briefed will be stated by the Court at this time.
-Many of the criminal cases heard by the U.S. Supreme Court involve indigent defendants. If cert is granted, an experienced attorney will be appointed to handle the case. The government is frequently represented by the state’s attorney general; if the case is from the federal courts, the U.S. Solicitor General represents the prosecution. Both sides prepare briefs. Many other people and organizations who are interested in the outcome of Supreme Court cases petition the Court for the right to file a brief in support of one side. These are called amicus curiae (friend of the court) briefs. Oral arguments for each case are normally scheduled for one hour-30 minutes for each side. Each justice reads the briefs and comes to oral arguments ready to ask each attorney questions. The attorneys come to the Court ready to make a presentation about the case but usually end up being peppered with questions from several justices. The defendant does not address the Court.

-During the weeks that the Court is hearing oral arguments, the justices meet at least once to discuss cases and vote. They vote in order of seniority with the newest justice voting first. If the chief justice is in the majority, he or she will assign someone to write the opinion; if not, the senior justice in the majority will make the assignment. Draft opinions are circulated among the justices prior to their release. Each justice has the right to write a separate opinion that is a concurring opinion or a dissent; other justices who agree may also sign them. Only opinions, or portions thereof, that have the signatures of five justices become “the opinion of the Court” and are precedent. The Court issues its opinion before the end of the term (a term runs from the first Monday in October until the justices go on vacation in late June). Newly issued opinions are called “slip opinions”

Question 13

Discretionary Appeal

Answer 13

-There is no right to a second appeal. Assuming the side that lost the first appeal wants to take the case to a higher court, a formal brief is prepared stating the issues and requesting a hearing. This is called a discretionary appeal because the justices of the higher court vote on whether or not they want to hear the case. State law specifies how many votes are required; mandating four out of seven is common.

-One of the key differences when requesting a discretionary appeal is that the attorneys argue the importance of the case to the legal system and society rather than focusing solely on the person who was convicted. If it is “just another drug case,” the justices are unlikely to grant a hearing even if they believe the lower court’s decision was wrong. The attorney requesting the hearing is more likely to argue the policy implications of what occurred in the lower court. Another argument that may convince the higher court to review the case is that the lower appellate courts have conflicting precedents on the issue.

Question 14

Direct Appeal

Answer 14

-The side that loses in the trial court has the option to appeal to a higher court. When a defendant is acquitted, double jeopardy prevents the prosecution from re-filing the charges; therefore, the prosecution rarely appeals. On the other hand, a conviction can be reversed on appeal, so defendants frequently appeal. Conviction eliminates the presumption of innocence; therefore the defense bears the burden of proof on appeal.
The U.S. legal system places great reliance on the jury’s ability to determine which witnesses are telling the truth; therefore, cases are rarely reversed if the defense bases its appeal on the credibility of witnesses. Occa-sionally, a conviction is reversed because the court of appeals believes the case was so weak, which a reasonable jury would not have convicted. If a case is reversed on grounds of insufficient evidence, the legal consequences are the same as if the jury had acquitted the defendant: The prosecutor cannot re-file the case. Most appeals are based on legal problems with the case rather than the sufficiency of the evidence.
-Ex: In the Flowers case, appellate courts reversed three of his convictions. The first two were because of the judge’s error in allowing the prosecutor to introduce photographs and other details about the deaths Flowers had not been charged with commit-ting. The conviction in the third trial was reversed because the prosecutor used peremptory challenges in a racially discriminatory manner. Note that these verdicts were not reversed because of the way the jurors evaluated the evidence. The charges were re-filed against Flowers despite the fact that these reversals were caused by the prosecutor’s errors.
-The basic rule is that a person who has been convicted is entitled to one post-conviction appeal, referred to as a direct appeal. The entitlement to one appeal means that the court is mandated to hear the case; a person who cannot afford an appeal has the right to have the government pay for a lawyer, necessary documents, and filing fees.’ Traffic tickets and other infractions do not qualify for appeals at government expense. Neither do appeals taken after the first one is complete; for example, the state government does not have to pay for appeals to higher state courts or the U.S. Supreme Court.’S A different set of titles is used on appeal. Suppose the defendant is convicted and appeals. The defendant will become the appellant (person who appeals). The prosecution will become the respondent (person that responds to the appellant). If the case goes to a higher level, the titles appellant and respondent will be used, but they will be assigned based on who filed the second appeal.
The appellate process starts when a Notice of Appeal is filed in the trial court after the verdict. Depending on the state, this must be done in the first 30 or 60 days; failure to make a timely request forfeits the right to appeal. All necessary documents are prepared by the trial court staff and transferred to the appellate court. The court’s paperwork in the case (complaint, motion to suppress, jury instructions, etc.) is copied and filed in the clerk’s transcript. The verbatim account of what was done during pre-trial hearings as well as the trial and sentencing hearings are called the reporter’s transcript. The verbal sparring between the attorneys and judge will be in the reporter’s transcript as well as a record of what the witnesses said while testifying. If there was no court reporter, the attorneys will confer and agree on a settled statement of facts.
Each side prepares a brief of the case, which must base its legal arguments on facts in either the clerk’s or the reporter’s transcript. Issues the attorney did not raise at trial are not appealable unless it is alleged that the attorney was incompetent or there was a due process violation. Some states allow pre-trial issues, such as the legality of a search, to be included in the direct appeal; others have separate hearings and appeals before the
trial for such issues.
The appellant files a brief that states the issues the court should review. This may involve constitutional issues, such as a Sixth Amendment violation when the judge did not allow a witness to answer a question that the defense asked, or issues based solely on state law. The judge’s rulings on whether or not a witness can testify and the content of the jury instructions are among the most frequent issues appealed. State rules determine how long the appellant has to complete the brief, but it is rarely more than 60 days although continuance may be granted. When the appellant’s opening brief is complete, copies are given to the trial court judge, the appellate court judges, and the respondent.
- The respondent answers the appellant’s issues by filing a brief that cites legal sources and the respondent’s own analysis. The respondent does not need to address issues that the appellant overlooked. The respondent is usually given 30 days to prepare this brief although continuances are common. After the appellant’s opening brief and the respondent’s opening brief have been filed, the appellate court will consider the case. Sometimes the case is considered solely on the briefs, whereas other times there will be a hearing. At the hearing, the attorneys will address the appellate judges (called justices); all discussions are restricted to the evidence presented before the trial court and the legal reasoning presented in the appellate briefs; no new evidence is presented.
It is not unusual for the appellant to successfully establish that an error occurred in the trial court but still lose the appeal. This is because of the Harmless Error Rule, which is based on the premises that errors occur at virtually all trials and therefore a case should be reversed only if the appellate court is convinced that the errors contributed to the outcome of the case in a significant way. When constitutional issues are involved, the U.S. Supreme Court ruled that the case need only be reversed if the judges are convinced beyond a reasonable doubt that the error affected the verdict; there are a few exceptions, such as denial of the Sixth Amendment right to counsel, that require automatic reversal.”
Under the U.S. view, double jeopardy bars a retrial only if the case was reversed due to insufficient evidence. The vast majority of cases are returned to the prosecutor’s office for a decision on what to do next. If the appellate court ruled that key evidence is inadmissible, it is unlikely that charges will be re-filed, but if there was a more technical error, such as poorly worded jury instructions, or if a substantial amount of evidence remains admissible, the prosecutor will probably re-file the same charges or possibly a lesser charge.Once the prosecutor files charges, the case proceeds in the same manner as other cases; also similar to other cases, it probably will result in a plea bargain. Only a small proportion of the defendants who win their appeals go free.

Question 15

Post-conviction Appeals

Answer 15

-Once the trial court has concluded its actions, there are a variety of avenues available to the defendant. An immediate appeal to the next higher court, called a direct appeal, is the best known and most frequently used.
-In most cases there is the possibility of an appeal to at least one higher court after this, but a case is heard only if the higher court grants the request. If constitutional issues are involved, it may be possible to appeal a state court conviction to the U.S. Supreme Court.
-Two other procedures, neither restricted to individuals who have been convicted, are also utilized. Habeas corpus is a civil proceeding brought in a trial court to challenge illegal confinement. “Civil Rights Act cases are civil suits, filed in U.S. District Courts, based on violations of federal constitutional rights. Monetary damages, but not release from custody, can be awarded.

Question 16

What can be raised on appeal and what cannot

Answer 16

-Examples of Issues That Can Be Raised on Appeal:
 -Confession obtained in violation of Miranda rules.
 -Search violated the Fourth Amendment.
 -Improper jury instruction given by judge.
 -Judge improperly sustained objections and refused to allow a witness to testify on important questions.
 -Judge improperly overruled objection and allowed witness to testify about highly prejudicial material.

-Examples of Issues That Cannot Be Raised on Appeal:
 -Weight to be placed on testimony of individual witnesses.
 -Credibility of each witness.
 -Possible testimony of witnesses who were not called during trial.
 -Issues that were not raised in the trial court.
 -Why the defense attorney used unsuccessful tactics.

Question 17

Beyond a Reasonable Doubt

Answer 17

-The prosecution has the burden of proof in criminal cases.
This means that the prosecution is required to produce credible evidence to prove every element of each crime charged.

-Proof must be “beyond a reasonable doubt.” This places a heavy burden on the prosecution. The American society, however, has decided that it is better to let the guilty go free than to convict innocent people.

-“Beyond a reasonable doubt” is defined as: proof that precludes every reasonable hypothesis except that which the law requires for the case.
In criminal cases, the accused guilt must be establish beyond a reasonable doubt, which means that the facts proven must, by virtue of their probate of force, establish guilt.

-Each statute has specific elements and each has to be proved. Within
specific statutes intent may or may not play a role.
*No Intent (traffic infraction)
*General Intent (812.13 Robbery) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently
or temporarily deprive the person or the owner of the money or
other property, when in the course of the taking there is the use of
force, violence, assault, or putting in fear.
*Specific Intent (Burglary) Florida Statutes 810.02 –Burglary

-Proof beyond a reasonable doubt does not mean proof beyond all possible doubt. Possible doubt or doubts based purely on speculation are not reasonable doubts.

-A “reasonable doubt” is a doubt based on reason and common sense. It may arise from evidence, the lack of evidence, or the nature of the evidence.

-“Proof beyond a reasonable doubt” means proof which is so convincing that you would not hesitate to rely and act on it in making the most important decisions in your own lives.

-“If you are convinced that the government has proved the defendant guilty beyond a reasonable doubt, then you return a guilty verdict. If you are not convinced return a not guilty verdict.”

-The prosecutor is required to fully satisfy to the jury that the defendant committed each crime charged. Prosecutors must look at the definition of each crime and make sure that proof has been presented on each element of every offense.

-The defense does not have to prove that the defendant did not commit the crime or suggest who the culprit was, but as a practical matter, the defendant is more likely to be convicted if no defense evidence is presented. So, it is usually safer to cross-examine prosecution witnesses and then call on defense witnesses in order to convince the jury that the prosecution’s evidence does not establish the case beyond a reasonable doubt.

pgs. 4-6

Question 18

Bias and prejudice (what causes it) when it comes to a defendant, the witness, or the police

Answer 18

• Jurors:
  -The attorneys will ask the judge to dismiss anyone whose answers during voir dire indicate that he or she will not decide the case solely on the facts introduced at trial and the law as stated in the jury instructions.
  -This request is called a “challenge for cause” and maybe use as often as believe necessary. Reasons for being excuse at this stage include racial bias against the defendant, believe that police only arrest those guilty, and exposure to pretrial publicity to the extent that the prospective juror has already formed a conclusion regarding the defendant’s guilt or innocence.

        -The court may exclude relevant evidence if it’s probative value is substantially outweighed by the danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
        -Relevant evidence is not admissible if it would be unduly prejudicial due to its emotional impact on the jury. The court is cautious about admitting evidence if it would likely arouse either hostility or sympathy toward one side. The defendant’s prior convictions are in this category. Another example is that color photographs are now the norm, however, the prosecutors face restrictions on the size of pictures no larger by 8” x 10”. (Federal Rule 403)

-Defendant:
-Depending on the facts of the case, possible motives could include hate, prejudice, revenge, retaliation, greed, lust, profit, economic
need, love, and mercy.
-Greed is a motive in many cases, hatred and prejudice also motivate criminals.

-Witnesses:
-Impeachment is the process of attacking the credibility of a witness. Bias and prejudice is a main method used to impeach a witness.
-If a person is bias or prejudiced, it can be infer that he or she cannot testify objectively.
-This includes bias or prejudice toward the defendant, a witness, one of the attorneys, or the police.
-A person can be bias due to friendship. -> there may be a conscious or unconscious distortion of the facts
-The jury will have to decide if the witness was truthful or allowed the friendship to affect his or her testimony.
-Hatred and lesser degrees of animosity toward a party to the case may also cause a witness to distort the facts. During cross-examination, questions may be asked to explore bad feelings between the witness and others concerned with the case. Once again, the jury has the task of deciding how these personal feelings may have affected the testimony.
-Family ties are generally assumed to form strong bonds that would cause a witness to testify more favorably toward a relative. Obviously, some family feuds result in just the opposite bias. Cross-examination is once again the key to discovering the extent of the distortion.

           -Racial prejudice can also cause a witness to distort the truth. Questions regarding racial bias would only be allowed if the facts of the case indicate they are relevant (eg, the victim or the defendant or both are from ethnic groups). Prejudice toward the police officer or one of the attorneys might also be involved. However, the fact that the witness is a bigot is not admissible if there are no aspects of the case that are likely to cause him or her to distort the facts.
            -Other forms of bias or prejudice may arise in individual cases. Sexual biases may be relevant. For example, the witness may testify in a very critical manner at a rape trial because of a belief that women should not go to bars alone. Sexual preference may also become grounds for impeachment. A witness with very strong feelings on this topic (either anti- or pro-homosexuality) can be cross-examined on these attitudes if they are relevant. Any relationship with the defendant, or anyone else in the case, that could result in a financial impact on the witness can also be used to impeach. This is based on the idea that a person would possibly alter testimony if he or she would be harmed (or helped) financially. For example, an employee may not be able to be totally objective on the witness stand if he or she fears being fired because of that testimony.
              -Whether consciously or unconsciously, a witness might also alter the facts if he or she could be promoted, earn a commission from a sale, or make a profit in the stock market if the side calling him or her wins the case.
             -The list of possible biases is quite long (age, occupational, regional, religious, educational, etc.). Only the facts of the case determine what could be relevant in any one case. If there is a question of relevance, the attorneys will debate the issue with the judge outside the hearing of the witness and jury. Motive to distort the truth or fabricate evidence can also be inferred from the fact that the witness is being paid to testify. The jury is more likely to conclude that the payment influenced the testimony when a large amount of money is at stake. Expert witnesses can be impeached by showing the fees they receive for testifying. This also applies to the person who provides evidence in hopes of receiving a reward that the city posted for information leading to a conviction. A witness who has accepted money from a journalist for information about the case fits into this category. Paid police informants are also suspect. Entering into a plea bargain in exchange for testifying against a co-conspirator also implies a motive. The defense in the Clemens case impeached Kirk Radomski by showing that he received probation when charged with crimes with a potential5-year prison sentence because of his cooperation with authorities prosecuting Clemens

pgs. 151

Question 19

Preponderance of evidence

Answer 19

-Context: Suppression motions are usually heard before trial. The judge will hear testimony about the procedures used by the police to seize
evidence or to obtain a confession, and rule on the defenses’ request
to exclude the evidence from trial. The prosecution normally has to
establish by a “preponderance of evidence” that the procedures were
conducted properly.
-The greater weight of evidence, not necessarily established by the
greater number of witnesses testifying to a fact, but by evidence that
has the most convincing force; superior evidentiary weight that, though
not sufficient to free the mind holy from all reasonable doubt, is still
sufficient to incline a fair and impartial mind to one side of the issue
rather than the other.
-Influence: Once these pre-trial reviews are made, the attorneys engage in plea bargaining and dispose of the vast majority of cases

Question 20

Direct Evidence

Answer 20

• All evidence can be divided into two classifications: direct and circumstantial.
  -A conviction can be based on either direct or circumstantial evidence or a combination of both. In other words, either the evidence establishes that a fact exists (direct evidence) or the jury needs to draw an inference based on the evidence in order to conclude that a fact exists (circumstantial evidence). The defense attorney’s favorite argument, “It is only circumstantial evidence,” may be reassuring to the defendant, but it is legally possible to convict a person solely on the basis of circumstantial evidence. On the other hand, the Casey Anthony case demonstrates that a huge number of pieces of circumstantial evidence may not be sufficient to convince the jury that the defendant is guilty.

-Direct evidence of a fact at issue is always relevant. In a criminal case, direct evidence usually involves eyewitness testimony regarding the commission of the crime. For example, it would be considered direct evidence if a witness testified that he saw the defendant shoot the murder victim. If the jury believes the witness is telling the truth, it has no choice but to conclude that the defendant shot the victim. On the other hand, it is only circumstantial evidence if the witness testified that he heard a gunshot and ran to the scene of the crime just in time to see the defendant run from the location with a smoking gun in her hand. This is not direct evidence because it is necessary to draw a conclusion from the facts given, namely that the person with the smoking gun is the same person who shot the victim. Even though the jury believes the witness, it can still conclude that someone else shot the victim and the defendant merely picked up the gun after the shooting and ran with it.

-Direct Evidence defined: Direct evidence is based on personal knowledge or observation of the person testifying. No inference or presumption is needed. If the testimony is believed by the jury, the fact it relates to is conclusively established.

pg. 95

Review all of Chapter 5!!!!!!

Question 21

Circumstantial Evidence

Answer 21

-Circumstantial evidence defined: Circumstantial evidence indirectly proves a fact. Is based on an inference that the jury must draw rather than personal knowledge or observation of the witness.
-An inference is a logical conclusion that a person can make based on a fact or group of facts. In the example of the woman with the smoking gun, it is a logical conclusion that she shot the victim if there was no one else at the shooting scene between the time that the gunshot was heard and the time when she was observed running away with the smoking gun. The jury will make the final determination on whether to draw this inference. The defense may be able to offer a logical explanation for her conduct that convinces the jury that someone else actually shot the victim.
-Circumstantial evidence may be so strong that it is nearly conclusive or so weak that it is immaterial. There are many common situations in which circumstantial evidence is used in criminal cases. Some states have enacted these into law; others merely allow the jurors to use their common sense and draw the logical inferences. Admissibility of weak circumstantial evidence is at the discretion of the judge.

Review all of Chapter 5!!!!!!

Question 22

Real Evidence

Answer 22

-Real evidence is physical evidence such as clothing or knife that itself
plays a direct part in the incident in question.
-Real evidence, is also referred to as physical evidence, demonstrative
evidence, and tangible evidence are all commonly used terms.
-Many states only consider objects that are admitted into evidence as exhibits to be real evidence. Some authors use a broader approach and apply the term real evidence to items such as drawings on blackboards or butcher paper that were made while a witness was testifying, but not formally introduced into evidence

-Examples of real evidence:
 -Physical items: guns, knives, blood-soaked clothing, key to the safe deposit box
 -Documents: checks, contracts, letters, ransom notes, newspapers, maps, deeds, wills, fingerprint cards, computer files
 -Exhibits made for trial: models, scale drawings, charts, demonstrations
 -Pictures: still photographs, enlargements, motion pictures, videos, digital images, photocopies, X-ray films, jpegs

-Real evidence is defined as a thing, of any kind, that was present or used in the case being presented in court. Real evidence can include bloodied clothing, a mangled vehicle, a gun, a knife, money marked by anti-theft coloring and many other items.
-Documentary evidence is most often considered real evidence. It is any type of evidence that helps to document the issue being discussed in the trial. For example, if the trial surrounds a breach of contract, the documentary evidence would be the actual contract that was breached.

*look into chapter 7 and 8**

Question 23

Marbury V. Madison

Answer 23

-The U.S. Constitution does not explicitly give the courts the power to rule that laws are unconstitutional. The issues first came to the U.S. Supreme Court in the 1804 case of Marbury v. Madison. President John Adams signed a commission authorizing William Marbury to serve as a justice of the peace for the District of Columbia. Secretary of State James Madison affixed the official seal to the document but refused to deliver it. Marbury filed a Petition for a Writ of Mandamus to force Madison to deliver the document so he could assume office. The Court ruled that the federal law which established authority for the Supreme Court to hear mandamus petitions was in conflict with the jurisdiction established by Title III of the Constitution and therefore it could not order Madison to transmit the commission to Marbury. It found that the Court was duty-bound to declare acts of Congress void if they were in conflict with the Constitution:

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

-So, after reviewing all the technicalities of Marbury’s commission and finding them in order, the Court refused to take jurisdiction over the case and order Madison to act. The case became precedent for the proposition that the U.S. Supreme Court has the authority to rule that an act of Congress is unconstitutional; whether Marbury later found relief in a lower court is lost in history.

-The U.S. Supreme Court also hears cases regarding application of federal statutes and procedures in the federal courts. For example, Jeffrey Skilling, CEO of scandal-ridden Enron Corporation, was convicted in federal court for conspiracy to commit “honest-services” wire fraud under Title 18 United States Code Section 1346 because his involvement in fraudulent bookkeeping and other acts deprived Enron’s shareholders of the intangible right of his honest services. After a review of the statute and the prior Supreme Court cases on point, the Court held that the section was confined to situations involving bribery and kickback schemes.” The decision is only binding of federal courts because it involved a federal statute with no constitutional implications. State courts may interpret state statutes differently even though they are worded exactly the same as Section 1346.

-establishes the principle of judicial review!!!!

pg.33

Question 24

Terry V. Ohio

Answer 24

• Establishes standard for temporary detention: the police may temporarily detain someone for questioning if there are specific articulable facts that would lead a reasonable police officer to believe that criminal activity is occurring. The leading case is Terry v. Ohio.
  -The scope of the search is limited to what is necessary to protect the officers. As previously indicated, in most cases, this involves “patting down” the suspect for weapons. If officers feel something they believe is a weapon, then they may retrieve it. Sometimes this search may be slightly broader. For example, in Terry v. Ohio the suspects were wearing heavy coats because it was a cold winter day. The Court approved a search that included checking inner pockets for items that could not be detected during a pat down because of the bulky nature of the coats.
  Figure 12-1 depicts the extent of a legal search when a person driving a car was detained based on Terry v. Ohio and there was reasonable suspicion that he was armed or that there were weapons in the car.
  pg. 359
• The only search that applies when the driver is given a citation is the search for weapons authorized in Terry V. Ohio

Question 25

The limitations of a federal court appeal in contrast to the US Supreme court of appeal (Who does it affect)

Answer 25

-U.S. Supreme Court:
-
Evidence is only one of the many topics addressed each year in the opinions of the U.S. Supreme Court. Two important functions of the Supreme Court should be noted: (1) The Court is the final arbiter of the meaning of the U.S. Constitution, and (2) the Court acts as supervisor of the federal court system. Decisions of the Court that interpret the Constitution are binding on all federal and state courts. When ruling on the meaning of the Constitution, the Supreme Court has the authority to overrule any court in the nation; it also has the power to overrule its own prior decisions. Gradual changes can be seen in the Court’s decisions as justices retire and are replaced.
On the other hand, if the Court is acting in its supervisory capacity, decisions regarding interpretation of federal statutes do not establish precedent for state courts. In addition to hearing cases that question the meaning of words in the definitions of specific federal crimes, it considers sentencing issues. For example, it recently ruled that the Federal Sentencing Guidelines were advisory and did not mandate the sentence that a federal judge could give.
The Court is very selective about which cases it hears. It obviously does not have the time to review every case filed in the United States. The vast majority of appeals to the U.S. Supreme Court and requests for review are denied. This means the Court does not hold a hearing on the cases. It does not mean that the Court agreed with the rulings of the lower courts. Refusal to hear a case sets no legal precedent.

-Federal Courts of Appeal:
-An appeal from a U.S. District Court goes to
the U.S. Court of Appeals for the circuit in which the trial was held. A panel of three judges at a U.S. Court of Appeals can rule on the constitutionality of state and federal laws. If the U.S. Supreme Court has not made a definitive statement on the constitutionality of a particular law, the decision of the federal Court of Appeal is binding on all states within its boundaries. This may cause confusion because the 13 courts of appeal may have made conflicting rulings. Ultimately, the problem will be resolved by a U.S. Supreme Court case.

-Impact of case law:
-Decisions by appellate courts are considered binding on subsequent cases. This is called stare decisis. These earlier decisions are what we are referring to when we talk about
“case law.” A decision becomes precedent for later cases involving the same issue.
A higher court can vacate or reverse decisions of courts below it in the organizational chart. If this has not occurred, an appellate court can overrule its own earlier decisions. When there is no precedent, a judge may consider cases that are not binding on the case (such as out-of-state cases or those from other appellate districts), and make a similar ruling.
The impact of Supreme Court decisions is easy to understand. An example will help clarify the role of precedent in the intermediate-level appellate courts. Please refer to the organization chart in Figure 2-1.
-Assume that the state legislature has passed no laws involving the phy-sician-patient privilege. The Court of Appeals for the First District held that the physician-patient privilege does not apply in criminal trials, and the Court of Appeals for the Second District held that the physi-cian-patient privilege applies in criminal matters except when the doctor was consulted to help the patient commit a crime. If Defendant X commits a crime in County A whose trial courts must follow the precedents from the First District, the physician-patient privilege cannot be claimed. If Defendant X’s offense was perpetrated in County C, which is located in the Second District, the privilege tan be used unless the doctor was consulted to help Defendant X commit a crime. The Court of Appeals for the Second District could overrule its prior decision and hold that the privilege does not apply in criminal cases. This would result in both the First and the Second Districts having the same rule. If Defendant X lost his direct appeal in the First District but successfully appealed to the state’s supreme court, the ruling on the use of the physician-patient privilege in criminal cases would apply to all courts in the state.

review everything about the courts in pgs. 31-33***

Question 26

Temporary detention by police
(What is reasonable suspicion)

Answer 26

pgs. 356-360

-reasonable suspicion:

Question 27

Checks and balances with the judiciary, legislative, and executive branch

Answer 27

-The U.S. Constitution established three branches of government. In addition to giving each branch specific duties, there is a system of checks and balances that requires interaction between them. For example, federal judges (judicial branch) are nominated by the president (executive branch) but must be confirmed by the Senate (legislative branch). The judicial system budget is established in a bill that must pass both houses of Congress and be signed by the president. New federal laws must be approved by Congress and signed by the president but the judicial branch can rule that they are unconstitutional. Most states have similar checks within their systems.

-Independent Judiciary:
The United States takes pride in the independence of its judiciary. In this sense, an independent judiciary means that although politicians appoint judges, they do not have the authority to remove them from the bench because of unpopular decisions; judges do not leave office when the party that appoints them loses power. The judicial selection process follows several different models.
Federal judges are nominated by the president and confirmed by the Senate. A simple majority vote is required. Once confirmed, the federal judges hold office “during good behaviour,” which in most cases means
until retirement. The House of Representatives can impeach a federal judge for “conviction of, treason, bribery, or other high crimes and misdemeanors.» The Senate would have the responsibility to hear the evidence and vote on the charges. For example, judges have been impeached after being convicted of bribery. Only eight federal judges have been removed from office by impeachment.’
State judges do not serve for life. In some states the initial appointment is by the governor or Judicial Council, but after assuming office, the judges face election periodically. In other states, a person can become a judge only by winning an election. Most judicial races are considered nonpartisan (candidates do not indicate party affiliation). Some states use both systems: Appellate judges are appointed by the governor but trial judges are elected. The Judicial Council (or similar agency) is usually empowered to remove judges from office for misconduct such as conviction for a felony or extorting sexual favors from litigants. In rare instances, judges who make controversial decisions encounter public hostility and are voted out of office at the next election.

Question 28

Know about geography and finding the right court to hear cases
(Geographic Jurisdiction)

Answer 28

-Geographic Jurisdiction:
Geography is the key to finding the right court. The case must be filed in a court with jurisdiction over the location where the crime occurred; this is referred to as the court’s geographic jurisdiction. If the case is filed in the wrong court, the defense has the right to have it dismissed. The rule is more complicated for crimes such as kidnapping and telemarketing fraud, which frequently occur in multiple jurisdictions.
The legislature establishes the boundaries for each court. In many states, the trial courts are organized by county; there may be more than one courthouse if the county has a large population or driving time from outlying areas to a central location would be burdensome. Local authorities establish the boundaries, called venue, for each courthouses.
The first level appellate court is divided into several units, frequently called districts, which review cases from trial courts in their geographic area. The legislature assigns a group of adjacent counties to each appellate court district. As the population of a state increases, the number of districts may be increased or the boundaries realigned.

Question 29

How federal judges are nominated and approved
(Who approves them, etc)

Answer 29

-Federal judges are nominated by the president and confirmed by the Senate. A simple majority vote is required. Once confirmed, the federal judges hold office “during good behaviour,” which in most cases means until retirement. The House of Representatives can impeach a federal judge for “conviction of, treason, bribery, or other high crimes and misdemeanors.» The Senate would have the responsibility to hear the evidence and vote on the charges. For example, judges have been impeached after being convicted of bribery. Only eight federal judges have been removed from office by impeachment.

Question 30

Formal Processing of Marking Evidence

Answer 30

pgs. 180-181

Question 31

Plea Bargaining

Answer 31

pgs. 65-66

-Priliminary hearing context: The defense has the right to ask witnesses questions for the purpose of showing that they have not been truthful or they are mistaken. By listening to all the witnesses, the defense can also decide how strong a case the prosecutor has. This information may become very helpful during plea bargaining.

-If there is a plea bargain, the trial court judge evaluates the fairness of
the deal and conducts a conference to determine that constitutional
rights were protected, the defendant has not been coerced, and he or
she understands the consequences of the plea.
* Plea-bargaining is a process whereby the prosecution and defense work out an agreement for the defendant to plead guilty to one or more charges without a trial.
* Either the prosecutor or the defense attorney may initiate the plea bargaining process. Many factors will be considered. One is that very important is the strength or weakness of the evidence in the case.
* Both sides consider the police reports, testimony given at the preliminary hearing, and what was obtained during discovery. Information from further investigations may read be reviewed. Both sides will try to guess which witnesses the grand jury will believe or the jury will believe.
* US Supreme Court has set the following requirements for plea-bargaining: (1) The defendant must have an attorney during plea-bargaining if he or she would have the right to have one at trial on the same charges. (2) No threats or promises can be involved in plea bargaining process. (3) The defendant must have notice of the charges and the elements of each crime. (4) The defendant must be informed of collateral consequences, such as deportation, that may result from a guilty plea.
* Prior to accepting a plea bargain the judge must question the defendant in open court to ascertain that he or she understands the constitutional rights that are being waived when a guilty plea is entered: (1) privilege against compulsory self-incrimination. (2) Right to trial by jury. (3) Right to confront one’s accusers.

Question 32

Charge Bargaining

Answer 32

pg. 65

-The prosecutor usually agrees to drop some of the original charges were reduced sentencing demands. When the agreement is reached before the charges are filed, the process is referred to as “charge bargaining”; after the charges are filed it is called “plea-bargaining.”
-Charge bargaining is the process of working out an agreement between the prosecution and the defense on what charges will be filed. Charge bargaining is similar to plea bargaining except that it occurs before the charges are filed

Question 33

Documents (whether they’re electronic or sound) and how they are introduced into a court of law

Answer 33

pgs. 229-237 (236-237)

Authentication - pg.210

try reading chapter 8 for a better understanding!!!**

Question 34

Types of evidence

Answer 34

Chapter 4 key terms: circumstantial evidence, corroborative evidence, cumulative evidence, direct evidence, documentary evidence, material evidence, real evidence, relevant evidence, testimonial evidence

Question 35

Evidence Admissibility

Answer 35

pgs. 3-4
pg. 90-95 (probative value and relevance requirement)

Question 36

Who decides whether a case is going to be prosecuted or not?

Answer 36

The role of the prosecutor: pg. 9-10
The steps taken from the criminal complaint to the grand jury and who decides if the case will be prosecuted: pgs. 56-61

Role of the judge and the jury: pg.7-8

Extra info in relation to prosecuting a charge:
* The authority of courts is also limited by the statute of limitations enacted by the legislature. The basic concept is that it is unfair to leave criminal charges hanging over someone indefinitely.
* Specific laws establish expiration dates for charges. Murder usually has no statute of limitations, meaning that it can be prosecuted at any time. Misdemeanors typically have a short statute of limitations, such as one year from the day the crime was committed. The limit on felonies is typically three years or longer.

Question 37

Admitting Photographic Evidence

Answer 37

pgs. 233-236

Foundations for admitting photographic evidence at trial:

Question 38

The introduction of scientific evidence

Answer 38

pgs. 185-188

-Laying the foundation for the introduction of evidence

read into commonly accepted scientific tests!

Question 39

Reasonable suspicion

Answer 39

pg. 356

Additional info: pgs. 400-401

Question 40

Mapp V. Ohio

Answer 40

• the decision resulted in the police having to be concerned with how evidence is obtained. Information and physical objects obtained in violation of the defendant’s constitutional rights are generally not admissible as evidence in a case.

pg. 335 under the Exclusionary Rule category
pg. 427

*search up case specifics**!!

Question 41

Fingerprints and their classification

Answer 41

pgs. 188-190

Question 42

Reasonable Doubt

Answer 42

pg. 5 –> A reasonable doubt is…

pg. 36