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44 Cards in this Set
- Front
- Back
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$ Caption Clause-- |
-caption need only be a signpost that conveys the general subject involved.
-caption of bill must state its SUBJECT -each bill can contain ONLY 1 SUBJECT -if bill effects REPEAL of a former law, it must state it in the caption to challenge a bill in violation of the caption clause, one must file an action before the act is codified at the next legislative session. |
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establishment clause
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Establishment clause of the first am incorporated to the states through the DP clause of the 14th amendment, government may not make a law respecting the establishment of a religion.
-any govt action preferring one religious sect over another must show that the interest is narrowly tailored to promote a compelling govt interest. -government action NOT preferring one sect of religion over another must show that: 1. it has a secular purpose 2. its primary effect neither advances nor inhibits religion 3. it does not produce excessive entanglement with religion |
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What must the government demonstrate for a regulation based upon the content of speech to withstand a constitutional challenge?
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content-based speech:
the government must demonstrate a compelling state interest for the regulation AND it must be narrowly drawn. The strict scrutiny standard is applied. |
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obscenity one of the categories of speech within the protection of the First Amendment?
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he Supreme Court has set forth certain categories of speech that are not within the protection o f tile First Amendment. One such category is obscenity. The Supreme Court has described obscenity as speech that
when taken as a whole by the average person applying contemporary community standards appeals to the prurient interest in sex and portrays sex in a patentIy offensive way and, using a national reasonable person standard, does not have serious literary, artistic, political, or scientific value. (LAPS) The Supreme Court has also held that the states may adopt a standard for minors that proscribes speech that would not be obscene under the adult standard. |
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May the government regulate the nse of streets as public
fora? |
Yes. It may require permits that specify time, place, duration and manner of use.
It may also charge a fixed fee to defray the costs of maintaining the forum, but it may not vary the rate based on who is speaking. Further, it cannot regulate the speech which is taking place, but it may stop incitements to riot. To qualify as an incitement, the speech must be (1) directed at and producing, and (2) likely to produce (3) imminent lawless action. This standard is difficult to meet. |
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freedom of speech/association
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freedom of speech/association includes the right to speak/associate and the right not to speak/associate.
-people cannot be compelled to subsidize private messages with which they disagree, |
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Does constitutional protection extend to the protection of personal information?
TN |
enerally, absent some other fundamental right or other compelling reason, Tennessee courts have refused to extend constitutional protection to the nondisclosure ofpersonal information, Thus, the disclosure of information from a database probably does not violate the fundamental right to privacy under the Tennessee Constitution.
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12. Can schools regulate the content of speech under certain circumstances?
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the Court has held that the government may regulate speech through viewpoint neutral regulations reasonably related to a legitimate government purpose.
Generally, schools and curriculum-based school activities are not public forums. Thus, a student's speech can be proscribed or punished at school as long as the regulation is content neutral and related to a legitimate government purpose |
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What does the Tennessee right of privacy protect?
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Source for the fundamental right to privacy is the Law of the Land clause.
**which, according to TN supreme court, confers greater protections to individuals than the USCT's Bill of Rights. Fundamental right: government action is subject to strict scrutiny NOT a fundamental right: law must "bear a reasonable relation to a proper legislative purpose" AND be neither arbitrary not discriminatory. The Tennessee right of privacy protects interests of paramount importance to the individual, such as marriage, parenting, procreation, and intimate or sexual relationships. MARRIAGE, the right of a person to enter into (and probably dissolve) a marriage relationship is a fundamental right that cannot be burdened UNLESS the law is narrowly tailored to promote a compelling or overriding interest. PARENTING, a person generally has the right to raise her child as she sees fit.(e.g. Court struck down a grandparent-visitation statute on the basis that it interfered with this right.) PROCREATION: Tennessee courts have held that the right extends to the right NOT to procreate, as well to procreation. e.g. the Tennessee Supreme Court has used the "strict scrutiny" standard in ruling on restrictions placed on abortions, rather than the "undue burden" standard used in federal courts. SEXUAL RELATIONS e.g.a Tennessee court has struck down a statute prohibiting homosexual conduct between consenting adults. |
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Class Legislation Clause
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Under this clause, laws which discriminate against certain classes are not permitted unless there is a rational basis for the discrimination.
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When does the right to counsel attach
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Under the Sixth Amendment ofthe federal constitution, the right to counsel attaches after the first formal charging o f a suspect.
Therefore, if a Iineup is conducted prior to charging the suspect with the crime, there is no right to counsel. Under the Tennessee Constitution, the right to counsel attaches when a warrant is issued for the suspect's arrest or, absent a warrant, the accused has appeared before a magistrate or an indictment has been issued. |
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When does jeopardy attach in Tennessee
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The double jeopardy clause ofthe Tennessee Constitution provides that a defendant in a criminal trial cannot be tried for the same crime twice.
This right attaches when the jury is sworn in for the criminal trial or the first witness is sworn for exceptions: hung jury, an appeal by the defendant or a mistrial due to manifest necessity. manifest necessity--jury is biased or had been unduly influenced by information not presented as evidence. |
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What are the three requirements for a search (like a road block) to check for drunk drivers?
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1. clear guidelines;
2. a compelling state interest; & 3. supervisory authority |
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Fines
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-no limit to fines a jury may impose
-judge cant impose criminal fine of more than $50 but if ∆ waives right to jury trial then judge can impose a fine >$50. -factors in determining whether a fine is excessive: 1. ∆'s prior history; 2. ∆'s financial means 3. seriousness of the offense. |
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Ex Post Facto
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The Ex Post Facto Clause mandates that laws may not be applied retroactively ifto do so would: (I) make an act criminal which would not have been criminal at the time it was committed, (2) increase a pun:islunent after the Clime was committed, or (3) lower the burden of proof for a conviction.
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Does the collection of DNA by means of blood samples constitute a search and seizure under the Tennessee Constitution?
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Clearly, the drawing of blood constitutes a search.
Because it is a search, a warrant (or some exception for a warrant) is required. Searches without a warrant, individualized suspicion, or even probable cause are sometimes allowed when there are "special needs" that go beyond the general interest oflaw enforcement (e.g. customs agents connected to drug interdiction may be required to undergo a drug test). Additionally, under Tennessee law, there has to be a link between the proposed search and the achievement of the state interest. |
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Can the police search the yard around a house without a warrant?
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eople are to be free from unreasonable searches and seizures oftheir person or their property, including the "curtilage."(area surrounding the dwelling house and used in connection therewith.)
A search is unreasonable i f a search warrant has not been issued and the property owner has a reasonable expectation ofprivacy. Tennessee courts have held that there is always an expectation ofprivacy in the home. There is no expectation o f privacy in the area outside o f the dwelling and curtilage, nor can this expectation be created by constructing a fence around the property and posting waming signs. |
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Can a videotaped statement be used against a defendant in a criminal trial, constitutionally?
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Under the state constitution, the defendant has the right to come "face to face" with the accuser.
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Can a defendant who is incompetent be tried?
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Under the Federal Due Process Clause of the 14th Amendment, defendants must be able to understand, both rationally and factually, the charges against them and to consult reasonably with their attorneys and assist in their own defense. Tennessee cases also apply the Declaration of Rights "Law of the Land" Clause.
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Aguilar/Spinelli
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(1) a basis of the informant's knowledge,
AND EITHER 1. a basis for the informant being considered reliable or 2. a basis for the information being considered reliable A deficiency in either prong may be overcome by independent police corroboration. 2/97 Q10. ---- officer requesting the warrant must demonstrate that the informant is reliable as well as the facts on which the informant based his information. |
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Impeachment
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Impeachment must be for crimes committed by officeholders in their official capacity.
-House must vote to impeach by a majority, then 2/3 of Senate must convict after a TRIAL with chief justice presiding(or if on trial, sr. assoc. justice) |
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removal
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judges and attys can be removed for official OR PERSONAL conduct
-2/3 vote of each house required -vote by roll call with statement of cause for removal. |
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amending tn constitution
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1. CONVENTION
-can only be held once every 6 years -GAssem calls convention -voters agree to have a convention -if so, they elect delegates delegates vote on amendments -if majority vote by delegates, amendments put to the voters who pass amendments by a majority vote 2. Legislature -amendment must pass both houses by majority vote -then must pass by a 2/3 vote of "all members elected to each house" -then voters pass by majority |
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Maya judge refuse a motion to change venue by bringing in jurors from a different county than the one in which the action arose?
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Yes. The Tennessee Supreme Court has held this diminishes the likelihood that local publicity tainted the jurors and this is within the discretion ofthe trial judge.
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lotteries
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unconstitutional
-include games of chance played for money. -do not include poker b.c it is not a game of chance. -casinos expreesly not authorized |
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directed verdicts
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proper only if no factual dispute for the jury to decide.
additur and remittitur are permitting but objecting party may have case retried, or may accept under protest and appeal. |
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Is the delegation of regulatory functions to industry members a violation of due process?
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Yes. The delegation of regulatory functions to industry members is a violation of due process and is forbidden by both the federal and Tennessee Constitutions.
Although due process rights do not require all the protections of an Article III court in every context, a core requirement is that decision makers not have a personal stake in the outcome of the proceedings. |
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effect of [non]commercial activity on commerce
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***commerce clause
-channels, instrumentalities, activities that substantially affect->wickard aggregate theory -commercial activity: some rational basis on which Congress could conclude that the activity in aggregate substantially affects IC, then it will be constitutional if activity is noneconomic, congress must show factually that it substantially affects IC |
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Facial attacks--Void for vagueness
-relevant if "guns in bars" comes up on bar exam |
statute is facially vague when person of ordinary intelligence would, even with knowledge of the law, be uncertain as to whether certain conduct was prohibited.
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TNSC has final say over Qs of interpreting TN Const. but must declare ruling basedon an adequate and independent state ground
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plain statement in judgment/ opinion that federal cases cited are relied on simply as guidance and do not compel result reached
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Structure of TN Const.:
11 Articles Amendments incorporated into body |
Declaration of Rights = Bill of Rights of US Const.
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First Amendment Rights
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Art I, Sect. 3 = Religion
Art I, Sect. 19 = Speech |
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Second Amendment Rights
(broken up as right to keep militia and right to bear arms) |
Art I, Sect. 26 = Rt to Bear Arms
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Eight Amendment (Cruel and Unusual/ Excessive Bail)
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Art. I, Sect. 16
Capital punishment allowed in TN |
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TNSC has final say over Qs of interpreting TN Const. but must declare ruling basedon an adequate and independent state ground
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plain statement in judgment/ opinion that federal cases cited are relied on simply as guidance and do not compel result reached
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Structure of TN Const.:
11 Articles Amendments incorporated into body |
Declaration of Rights = Bill of Rights of US Const.
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First Amendment Rights
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Art I, Sect. 3 = Religion
Art I, Sect. 19 = Speech |
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Second Amendment Rights
(broken up as right to keep militia and right to bear arms) |
Art I, Sect. 26 = Rt to Bear Arms
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Eight Amendment (Cruel and Unusual/ Excessive Bail)
TNSC recently upheld state's system of lethal injection NOT applicable to retards, juveniles or child rapists (unless child dies) |
Art. I, Sect. 16
does the punishment for the crime conform with evolving stndrds of decency? is the punishment disproportionate to the offense? Does the punishment go beyond what is necessary to accomplish any legitimate penalogical objective? |
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Fourth Amendment
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Art. I, Sect. 7
NO MENTION OF PC ("without evidence of the fact committed") "possessions" rather than "effects" |
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What constitutes a Seizure?
State v. Randolph |
TNSC rejected USSC Hodari stndrd
a person seized when they reasonably believe that they are not free to leave |
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**Look into TN Exclusionary Reform Act (passed in 5/2011)**
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previously did not accept the good faith exception to the exclusionary rule
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Affidavits
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TN law provides that in determining whether PC supports issuance of warrant, only info within four corners may be considered
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TNSC = 5 justices
(in Constitution) |
no more than 2 from any one grand division
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