Criminal Justice

Front 1

What limitations does the 4th Amendment place on searches and seizures?

Back 1

Limits authorities to search to the specific areas and things for which there is probably cause to search. Must have warrant & established probable cause.

Front 2

To whom does the 4th Amendment apply? Has it always applied to the federal government? Tostate government?

Back 2

DOES NOT APPLY to private actors. Applies to police and other governmentagents. Yes to national and No to state constitutions. 14th amendment changed to states also.

Front 3

When does the 4th Amendment apply?

Back 3

It applies when a search and seizure occurs bylaw enforcement agencies at all levels of government, whether federal, state,or local.

Front 4

Does the 4th Amendment apply to searches conducted by private citizens? May the police useevidence obtained by a private citizen in an unlawful search? If so, under what circumstances?

Back 4

No. Yes, let’s say I knew John took my lawnmower and was hiding it in his garageand so I went to his garage (trespassing) and then found dead bodies. The dead bodies would hold up in court aslong as the government didn’t know and acquiesced of the activities and if theydidn’t motivate me to go look for the dead bodies.

Front 5

Does the 4th Amendment protect abandoned property? What are some examples of "abandoned"property?

Back 5

It does not apply to abandoned property. Examples- Discarded objects, garbage, impounded cars.

Front 6

Does the 4th Amendment also protect places of business?

Back 6

It does but more heavily regulated places (bars,restaurants) have less protection. Administrative searches OK.

Front 7

Does the 4th Amendment apply to searches in other countries?

Back 7

No.

Front 8

What is "curtilage" and why is it important for search and seizure law? How does it contrast with"open fields"?

Back 8

Curtilage- enclosed space surrounding adwelling, likely a fence and it protects you more. Police cannot cross the curtilage. So it is protected. Open field is generally not protected. So police can search there. No trespassing signs in open fields- depends on state whether it willprotect you or notBOTH are not protected from aerial surveillance.

Front 9

What constitutes a "seizure" for purposes of the 4th Amendment? Must the item seized be tangible?If not, give an example of something intangible that can be seized. Give an example of somethingtangible that can be seized.

Back 9

Seizure- taking into custody of physicalevidence, property, difital evidence, or even a person.

Front 10

What does the phrase "reasonable expectation of privacy" mean? According to Justice Harlan, whatare the two requirements?

Back 10

People have the expectation of privacy

- That a person have exhibited an actual(subjective) expectation of privacy.

-That the expectation be one that society isprepared to recognize as reasonable

Front 11

Does the 4th Amendment protect places?

Back 11

No,but people are in places….

Front 12

What is a search warrant? What is required for the police to obtain a search warrant? What does asearch warrant allow the police to do?

Back 12

A search warrant is a paper that allows policeto search a specific place where the officer with probable cause believes that evidence of a crime is located at that specific place. Probably cause allows the police to search a specific place as mentioned above thatwould be protected under the fourth amendment. If the fourth amendment does not apply they will not need a searchwarrant.

Front 13

What is "probable cause"? What is its relationship with the warrant requirement?

Back 13

Probable cause exists when prudent and cautiouspolice officers have trustworthy information leading them to believe thatevidence of a crime might be obtained through a particular search.Furthermore, determination of probable cause is a “commonsense, practicalquestion” that must be decided in light of the totality of circumstances. You must have probable cause to obtain a search warrant.

Front 14

If probable cause exists, does it mean the defendant is guilty? Why or why not?

Back 14

No, because the evidence has to be enough for areasonable person to think an offense could be charged. Probable cause does not require certainty of guilt.

Front 15

What is a supporting affidavit for a warrant? What must it contain?

Back 15

A supporting affidavit is a signed documentattesting under oath to certain facts of which the affiant (generally a cop),has knowledge. Alwayscontain a rather precise description of the place(s) or person(s) to besearched and the things to be seized. The affidavit must attest to specificfacts that establish probable cause to justify a search. Information must be sufficiently“fresh”.

Front 16

Who issues a search warrant? Who cannot issue a search warrant?

Back 16

The warrant must be issued by a neutral anddetached magistrate and certainly not by an official responsible for criminalprosecutions.

Front 17

What does it mean for a search warrant to become "stale"?

Back 17

Stale means invalid. If one expects quicker turnover then the warrantwill become stale quicker.

Front 18

Can information from informants and anonymous sources be used to support the application for asearch warrant? What is the problem with such information?

Back 18

Courts have held that anonymous tips corroborated by independent police work was sufficient to establish a reasonable suspicion to make an investigatory stop of the vehicle described by the one who gave police the tip.

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Front 19

What is hearsay evidence? What is the problem with it?

Back 19

Yes because they can establish the probablecause necessary.The problem is that this is usually to help their own case so you alwaysneed to check the credibility. AKA they might make stuff up to help themselvesget out of trouble.

Front 20

Why might informants be willing to give information to the police?

Back 20

To receive favorable consideration in respect to their own cases and sentencing.

Front 21

What is an "anticipatory search warrant"? When can it be used?

Back 21

A warrant that is issued before the evidenceoccurs. Itis usually used in drug busts. Probable cause does not have to exist until the warrant is executed and the search conducted.

Front 22

What does it mean to "execute" a search warrant? When can search warrants generally be executed?

Back 22

Execute means the actual searching. During “daytime” in general. 6am-10 pmSomestatutes do not have a general time and can be executed during “nighttime” andthe specified time cannot exceed 10 days.

Front 23

What are the exceptions to the warrant requirement listed in S&S?

Back 23

The exceptions are: evidence in plain view,emergency searches, preservation of evidence, search incident to a lawfularrest, hot pursuit, and automobile stops and roadside searches of motorvehicles.

Front 24

What does it mean for something to be in "plain view"? Does plain view include items seen duringthe course of a valid search for something else?

Back 24

Plain view is in front of the officerseyes. The officer has a legal justification to be in a constitutionallyprotected area when the seizure occurs, the evidence seized is in the plainview of the officer who comes across it and it is apparent that the objectconstitutes evidence of a crime. Yes,you could be searching for a gun and then find cocaine. The cocaine can be seized.

Front 25

What is a search incident to a lawful arrest? How broadly can the police search after an arrest?

Back 25

Lawfully arrested then the police can search thebody of an arrestee and the area within that person’s immediate control. Immediatecontrol- defined as the area within the “grasp” or “lunge” of the arrestee. Toconduct a more extensive search, police must generally obtain a search warrant.

Front 26

What is the justification for the motor vehicle exception? How thoroughly can the police searchone's car without a warrant?

Back 26

Justification- as long as police have probablecause to believe the vehicle contains contraband or evidence of a crime, on thepremise that the mobile character of a motor vehicle creates a practicalnecessity for an immediate search. Thepolice can search as thoroughly as one that could be authorized by a magistrateissuing a warrant.

Front 27

What is an inventory search? What are three reasons for allowing such warrantless searches? Howthorough can an inventory search be?

Back 27

?????

Front 28

What is a consent search? Who must give the consent? Who has the authority to give consent tosearch personal property, a home, or a particular room?

Back 28

You allow the police to search your car if theyask and you say yes. Someone who has the authority to do so, like theperson who owns it.

Front 29

What is "hot pursuit"? (You can insert a joke about Clinton and interns here.)

Back 29

Hot pursuit- you are fleeing the cops. Cops may pursue the suspect into a protectedplace such as a home, without having to abandon their pursuit until a warrantcan be obtained.

Front 30

What is an emergency search? When might this occur?

Back 30

Police can obtain evidence in plain view whenthere is an emergency, Thiswill occur when it is the upmost of an emergency, If not in plain view, thenthe police must possess probable cause to make warrantless emergency searchesof dwellings.

Front 31

What is evanescent evidence? Why is this an exception to the warrant requirement?

Back 31

Evidence that may be lost or destroyed. Because there is a reasonable belief that loss or destruction of evidenceis imminent.Amere possibility of such is insufficient.

Front 32

What is a "stop-and-frisk" search? What is the justification for such a warrantless search? Howthorough can such a search be?

Back 32

Police stop, question, and sometimes searchsuspicious persons,The search is limited and meant to protect police officers.It cannot go beyond a reasonable search for weapons.- Limited search, pat down, not going intopockets.If weapon is found then a full search is permitted.

Front 33

Does the 4th Amendment protect electronic communications? What does federal law have to sayabout such communications?

Back 33

It somewhat is protected under the 4thamendment. However, federal lawintervenes are there are many exceptions.

Front 34

What are pen registers? Can such information be seized in terms of the 4th Amendment?

Back 34

They record ingoing and outgoing calls. They do not record the conversation and notconsidered a seizure under the 4th amendment.

Front 35

What is a border search? Does it require a warrant? Why or why not?

Back 35

A search on the border. Notreally, we have to protect the homeland and the citizens and do not wantillegals or drugs or other things coming in. They can conduct very broad searches.

Front 36

Are warrants required for most airport searches? Why or why not?

Back 36

No, because that constitutes the border.

Front 37

What are "drug courier profiles" and how are they used? Can the police detain anyone fitting theprofile?

Back 37

Profiles- a set of characteristics that typifydrug couriers.How they are used. Examples- paying for airline tickets in cash,appearing nervous, carrying certain types of luggage.Nothey cannot, they might keep a closer eye on them however.

Front 38

Do searches in schools generally require a warrant? Why or why not?

Back 38

No, because it is particularly unsuited to theunique circumstances of the school environment.

Front 39

To what extent does drug testing require a warrant? What about strip searches?

Back 39

Generally not required for drug test. Need one for a strip search???

Front 40

What is the Exclusionary Rule? Where did this rule originate? Does it apply to both the state andfederal governments? What is the purpose of the rule? How broadly does the rule apply? Whatdoes the phrase "fruit of the poisonous tree" mean?

Back 40

The rule is one that prohibits the use ofillegally obtained evidence in a criminal prosecution of the person whoserights were violated by the police in obtaining evidence. Originated in 1914 U.S. Supreme Court.Federal, states are not required to follow the ruleTo limit over-zealous police officers?It means that evidence derived from other evidence that is obtained through anillegal search or seizure is itself inadmissible.

Front 41

What is the good faith exception to the Exclusionary Rule? What are the requirements for thisexception?

Back 41

Where evidence obtained on the basis of a searchwarrant that is later held to be invalid may be admitted as evidence at trialif the police officer who conducted the search relied on the warrant in “goodfaith.” Theofficer thought that is affidavit was valid, the judge must sign it, theevidence is seized then, but later the warrant issued was consideredunconstitutional.

Front 42

Who has standing to invoke the Exclusionary Rule?

Back 42

A person with “Standing” to do so. Page 468 for examples, kind of complicated.

Front 43

What was the factual situation in Mapp v. Ohio? What was the specific issue before the Court in thatcase?

Back 43

Facts: police entered house where they thoughtsomeone was hiding. They claimed theyhad search warrant but turned out they didn’t. Mapp took the paper and then the police had to “fight” to get itback. They found nothing they werelooking for but they did find obscene material. Mapp was arrested and convicted.

Issue:Should unconstitutionally seized items be admissible in court?

Front 44

Did the police have a warrant in Mapp? If not, why not? Was there a rush to get in for fear oflosing evidence? Did the police even need a warrant?

Back 44

No, because there could have been a rush thatthe police thought evidence could have been destroyed. Yes. No, Mapp was found guilty.

Front 45

What is the exclusionary rule? What is it's purpose? Where does it come from? Prior to Mapp, didit apply to the states? Why or why not?

Back 45

Illegally obtained evidence cannot be usedagainst you in court. To stop over-zealous cost. Supreme Court in 1914. No,because it was not an essential element of 4th amendment protection.

Front 46

What had the Court held in Wolf v. Colorado? Why is this important to Mapp?

Back 46

Held that illegally obtained evidence can beheld up in court. One of the majorreasons why this search and seizure was held up.

Front 47

What was the "silver platter" doctrine?

Back 47

Allowed state police from giving information tofederal agents.

Front 48

If the restrictions of the 4th Amendment applied to the states, why wouldn't the exclusionary rule aswell?

Back 48

Because it is not an essential element in the 4thamendment

Front 49

Does it matter how many states supported application of the exclusionary rule to the states at thetime of Wolf? What about the time of Mapp? What does Harlan have to say about this?

Back 49

No, Yes/// He would not impose upon the statesthis federal exclusionary rule.

Front 50

Why don't Harlan and the other dissenters think the rule should be extended to the states?

Back 50

State procedures not against the specificsubstantive commands of the 4th amendment, but under flexiblecontours of the Due Process Clause.

Front 51

What was the factual situation in United States v. Leon? What was the primary issue before theCourt in this case?

Back 51

Cop got a warrant but Judge shouldn’t haveissued warrant and led Leon to go to trial. Theissue was should we throw out information where the cop had a warrant but thejudge got it wrong because there really wasn’t probable cause?

Front 52

Does the 4th Amendment expressly prohibit the use of unlawfully obtained evidence? If not, doesit mean there are no restrictions on the police?

Back 52

No, No there are restrictions

Front 53

What is the purpose of the warrant requirement? What is the justification for a "good faith"exception to the warrant requirement? Would the purposes of the warrant requirement continue tobe served under a good faith exception?

Back 53

A warrant is required to make sure there isprobable cause by a neutral observer. Good faith is in there because the copthought there was probable cause and the judge got it wrong. The cop was doing his job and obtainedevidence. Yes because the officer isgoing about his business as he would if the warrant were valid.

Front 54

Will there be times when the police ought to know that reliance on a defective warrant is notreasonable? If so, when? Will police need legal training to make such determinations?

Back 54

Yes, when they don’t do it in good faith. Theyneed to have a good understanding of probable cause.

Front 55

According to Brennan and Marshall, is deterrence the primary justification for the exclusionary rule?If not, what is?

Back 55

No, to prevent over-zealous cops from going HARD

Front 56

What do Brennan and Marshall think will happen as a result of the good faith exception?

Back 56

It will encourage police to provide only thecare minimum of information in future warrant applications.

Front 57

What was the factual situation of Katz v. United States?

Back 57

Police put recording device outside of a glassphone booth to hear a conversation of illegal gambling. The evidence was allowed to be used in court.

Front 58

How did the Court change its analysis from Olmstead? What's the new catch phrase?

Back 58

Changed because it now “protects people notplaces”

Front 59

Why could Katz expect privacy in a glass booth?

Back 59

Because he closed the door behind him and putmoney in the phone to talk privately--Expectation of privacy.

Front 60

Under what circumstances would Katz's expectation have been unreasonable?

Back 60

Because he was in public and it was a glassbooth

Front 61

Could the police have gotten a warrant in Katz? Why didn't this change the result?

Back 61

Yes, but they needed the evidence right then andthere and no time to get a warrant?

Front 62

What was the important part of Harlan's concurring opinion? Why is Harlan's opinion important?Why didn't he agree with the Court?

Back 62

Expectation of privacy. There should be some sort of privacy. Onewho occupies a phone booth should have an expectation of privacy after hecloses the door and puts money in the phone

Front 63

Why might his mention of a field not have been a good example of where no expectation of privacyexists?

Back 63

Because if it was your own open field then youwill probably expect some sort of privacy

Front 64

Who is most likely to determine whether an expectation of privacy is "reasonable"?

Back 64

Jury---society

Front 65

Why did Black dissent?

Back 65

Does not believe that the words of the Amendmentwill bear the meaning given them by today’s decision and does not believe thatit is the proper role of the court to rewrite the Amendment in order to bringit into harmony with the times.

Front 66

What's the status of Olmstead after Katz?

Back 66

???????

Front 67

Does the Court's holding in Katz mean that it recognizes a general right of privacy grounded in theFourth Amendment?

Back 67

Only to the extent that it prohibitsunreasonable searches and seizures of persons, houses, papers, and effects.

Front 68

What was the factual situation in Illinois v. Gates? What was the main issue before the Court in thiscase?

Back 68

Anonymous letter sent to police about a coupleand how they traffic drugs from Florida. Wasthe letter probable cause to search and seize their belongings?

Front 69

On what basis did the Illinois Circuit Court suppress the evidence obtained by the police?

Back 69

Letter was not probable cause

Front 70

Was the letter alone sufficient to establish probable cause? Why or why not?

Back 70

No because it didn’t pass the Spinelli test

Front 71

Can an affidavit be used to supplement the letter? Did it?

Back 71

Yes? No?

Front 72

What was the Spinelli two-part test? What was it for? What does the Court do to the Spinelli test inthis case?

Back 72

Had to adequately reveal the basis of knowledgeof the letterwriter/ had to provide facts sufficiently establishing either theveracity of the affiant’s informant or the reliability of the informants reportin the particular case. To see if the random letter can be relied on. Switchesit to “totality of the circumstances.

Front 73

Does the Court think probable cause can be precisely defined? Why or why not? What approachdoes the Court prefer in defining probable cause?

Back 73

No because “totality of the circumstances” ismuch more precise

Front 74

Why does White only concur in the judgment? What would he do with Spinelli?

Back 74

He doesn’t believe that totality of thecircumstances should overrule the Spinelli test

Front 75

Why do Brennan and Marshall think the warrant would have been defective even under the Court'snew test?

Back 75

Validity of the hearsay evidence

Front 76

What was the factual situation in Terry v. Ohio? What was the main issue before the Court in thiscase?

Back 76

Men walking back and forth by shop. Cop thought they were up to something andsearched for weapons. Found a weapon. Validsearch is what's in question.

Front 77

As used in this case, what's the difference between a "stop" and an "arrest" and between a "frisk" anda "search"?

Back 77

Stop and arrest is a lot more formal. Frisk and search is a quick and limited search only for weapons to protect thecop’s safety.

Front 78

What's the justification for a quick pat down of a suspect? Can the police frisk everyone they comein contact with? What must be their justification? Did the officer in Terry have sufficientjustification for the frisk?

Back 78

To protect police. No they must think that theperson has a weapon on them. Yes but they did not say there was probable cause.

Front 79

Must the officer's justification for a frisk rise to the level of probable cause? Why or why not? If itdid, would we even need to worry about frisks?

Back 79

No because its limited and only to protect thecops safety.

Front 80

What are the two corollaries Harlan sees to the Court's decision?

Back 80

The officer must first have constitutionalgrounds to insist on an encounter to make a forcible stopTheright to frisk must be immediate and automatic if the reason for the stop is,an articulable suspicion of a crime of violence.

Front 81

What is an arrest? When does it occur?

Back 81

Arrest- to take someone into custody orotherwise deprive that person of freedom of movement.An arrest occurs when a cop has probable cause to believe that youcommitted a crime. Itis a “seizure”Usually occurs when police take an individualinto custody and charge that person with the commission of a crime.

Front 82

What is an interrogation? When does it occur?

Back 82

Interrogation refers to the questioning of asuspect by law enforcement officers to elicit a confession, an admission, orinformation that otherwise assists them in solving a crime. Occurinterrogation takes place behind closed doors in a law enforcement facility,although today a suspect being questioned is often accompanied by an attorney.

Front 83

Is an arrest a "seizure"? If so, of what? Also, if an arrest is a seizure, what are the legal implicationsin relation to the 4th Amendment?

Back 83

Yes, because you need probable cause andwarrants are routine.Sinceit is a seizure, probable cause must exist and warrants are routine however,warrantless arrests happen.

Front 84

Does a seizure occur every time a police officer speaks with or questions a citizen? If not, whendoes a seizure occur?

Back 84

No, when they deprive the arrestee of theirliberty.

Front 85

What are the four levels of police-citizen interaction noted by Scheb and Scheb?

Back 85

1. Request for info

2. Sobriety check points

3. Stops and Frisks

4. formalarrests

Front 86

Do citizens have a duty to cooperate with the police when asked questions in public? Is this true asa practical matter?

Back 86

Yes but practically you would beself-incriminating then and that would be a 5th amendment violation.

Front 87

What are roadblocks and sobriety checkpoints? What is the purpose of such traffic stops? Does theCourt consider them constitutional? If so, under what circumstances?

Back 87

Roadblock are set up to stop fleeing suspectsand sobriety checkpoints are to stop drunk drivers. The purpose is to stop immediate threats to the communityYes,because they’re stopping every car and for a short period of time.

Front 88

What is an investigatory detention? What is a "Terry-stop"? Does a Terry-stop necessarily justify afrisk? When does it?

Back 88

An investigatory detention does not allow afrisk. Simply questioning and must bebrief. A “Terry stop” is a stop and frisk. Has to have reasonable suspicion that a person is armed. Terry stop gives police right to frisk undertotality of the circumstances. Onlyjustifies a frisk if the police thinks the person is armed.

Front 89

How does the concept of a Terry-stop apply to traffic stops?

Back 89

If just a ticket is issued then searches are notallowed. If arrested then a search ispermitted.

Front 90

Are arrests subject to probable cause and warrant requirements? If so, why?

Back 90

Yes, because it is a “Seizure” ted.

Front 91

What does "probable cause" mean in the context of an arrest? What's required for probable cause?

Back 91

It means the same thing as in the context ofsearch and seizure. Thefacts and circumstances within the officers knowledge and of which they hadreasonably trustworthy information are sufficient in themselves to warrant aman of reasonable caution in the belief.

Front 92

Does the officer have to personally witness the activities that form the basis of probable cause? Ifnot, where might the officer get such information?

Back 92

No, obtain the probable cause from crimevictims, eyewitnesses, official reports, and confidential or even anonymousinformants.

Front 93

Are warrantless arrests ever allowed? If so, under what circumstances?

Back 93

Yes,plain view doctrine or had probable cause to believe that a person hadcommitted or was committing a felony.

Front 94

What is the problem regarding warrantless arrests that require forcible entry of a dwelling? Whatfactors will courts consider in determining whether such a warrantless arrest is justified?

Back 94

Your dwelling is extremely protected under the 4thamendment. There is probable cause to arrest the suspect. The police have good reason to believe the suspect is on the premises. There is good reason to believe the suspect is armed and dangerous. There is a strong probability that the suspect will escape or evidencewill be destroyed if the suspect is not soon apprehended. The entry can be effected peaceably. The offense under investigation is a serious felony.

Front 95

What level of force may police use in effecting an arrest? Can deadly force ever be used? If so,when?

Back 95

Entitled to use whatever reasonable force isnecessary to effect an arrest. Yes when, he reasonably believes that such force is necessary to preventdeath or great bodily harm to himself or other such person, or when hereasonably believes that such force is necessary to prevent the arrest frombeing defeated by resistance or escape andTheperson committed or attempted a forcible felony.

Front 96

What is a "citizen's arrest"? When can it be used?

Back 96

Citizen’sarrest- citizen can arrest someone if they witness the crime or have probablecause they committed a felony.

Front 97

Why must suspects be told their rights prior to interrogation by the police? What are the rights ofwhich they must be informed? In what case did the Court make this a requirement?

Back 97

A person needs to know their rights or presentedthe ability to have an attorney or remain silent.Mirandawarnings.

Front 98

What is the public safety exception to Miranda? When does it apply?

Back 98

When police are protecting themselves or othersthen police can ask questions before warnings are stated. Questionsare asked to protect public safety.

Front 99

What constitutes an interrogation? Where can it occur?

Back 99

Interrogation- expressed questioning orfunctional equivalent occurs when police question you. ????

Front 100

Can one waive one's Miranda rights? What's required for this to occur? Why do courts look closelyat such waivers?

Back 100

Yes, if the person does so knowingly andvoluntarily. Tomake sure it is not the product of some coercion or deception by police.

Front 101

How does the "fruit of the poisonous tree" doctrine apply to statements made in violation of asuspect's Miranda rights?

Back 101

Inadmissiblequestions so not saying someone their rights, is an inadmissible search whichequals evidence found is inadmissible.

Front 102

May police use deception to obtain information or a confession?

Back 102

Yes.

Front 103

What factors do judges use in evaluating confessions?

Back 103

The factors:

False documents are too far

Duration and methods

Delay between arrest and interrogation

Attitude of police toward suspects

Suspect’sphysiological state

Anything else relevant

Front 104

What are the three common methods of witness identification and what are some important aspectsor problems associated with each?

Back 104

Lineups- shielded from suspect, attorney can beat lineup, people in lineup have to be somewhat similar looking

Showups- prevents someone from changing appearance

Photopacks-same idea as lineup but with photos, suspect can’t be overemphasized morethan others.

Front 105

What was the factual situation that involved Ashcraft? What was the primary issue before theCourt?

Back 105

Ashcraft was questioned for over 36 hours forthe murder of his wife. This eventuallyled to the confession and conviction of the murder. Confession made inadmissible at court. Inadmissible because confession was notvoluntary, it was compelled.Issue:Was the situation so coercive that it made the confession either voluntary orinvoluntary?

Front 106

The majority held that the situation in Ashcraft was inherently coercive? What was the basis for thisconclusion? Why does it matter if a custodial interrogation is inherently coercive?

Back 106

Yes because, there was no mental freedom. Meaning that 36 hours of constant interrogation and Ashcraft had no sleep or rest was coercive. The prosecutors even rotated because they were tired. It can’t be coercive because that would violate the due process of law.

Front 107

What was the basic position of the dissenters in Ashcraft?

Back 107

They think that the Court made their own rulingbased on their own interpretation of facts even though that should have beenthe trial courts job. There is no linedrawn as too long of an interrogation as long as the confessor was inpossession of his own will and self-control at the time of the confession.

Front 108

Do the dissenters view the facts differently than the majority? If so, how?

Back 108

Yes, basically saying that these are allpresumptions and that there is no conclusion as to whether this confession wasTRULY coerced

Front 109

Do the dissenters feel a forced confession is constitutional? If not, then why are they dissenting?

Back 109

No, they disagree because they don’t even knowif his confession was coerced. Andbelieved that the Supreme Court was doing more fact finding than applying thelaw to it.

Front 110

The majority held that a 36-hour interrogation was unconstitutional. How long could aninterrogation be and still be constitutional? (In other words, what's the time limit forconstitutionality?)

Back 110

There is no time limit for an interrogation.

Front 111

According to the dissenters, what is the ultimate question in determining the constitutionality of aconfession?

Back 111

When the confession is made it has to bedeliberate, free and voluntary

Front 112

Was this situation just a case of the police's word against Ashcraft's?

Back 112

In a sense, yes.

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Front 113

What was the factual situation in Miranda v. Arizona? What was the primary issue before the Court?

Back 113

Miranda gave police incriminating evidence withoutnotification of his rights.Issue:Does the government have to notify defendants of their rights?

Front 114

What was the Court's basic holding in Miranda?

Back 114

Police must tell you that you have a right to anattorney and you don’t have to self-incriminate.

Front 115

How does the Court define a custodial interrogation? Does this mean the warnings only apply tostation house interrogations?

Back 115

Meaning, questioning initiated by lawenforcement officers after a person has been taken into custody or otherwisedeprived of his freedom of action in any significant way. NO.

Front 116

What are the rights of which a detainee must be warned? What is the basis for each of these rights?

Back 116

You have the right to remain silent, anythingyou say can and will be used against you in the court of law. You have the right to an attorney. If you cannot afford an attorney, then onewill be appointed for you.

Front 117

Can a defendant waive any of these rights? If so, when or under what circumstances?

Back 117

He can waive his rights provided that the waiveris made voluntarily, knowingly, and intelligently.

Front 118

Can a defendant change his or her mind about either waiving or invoking these rights? If so, whenor under what circumstances?

Back 118

They can invoke their right whenever during thequestioning. However, if one wishes toforgo his attorney, the attorney must be present.

Front 119

The Court notes that modern interrogation techniques are psychologically rather than physicallyoriented. What does this mean? What does it mean in terms of the rights mentioned in Mirandawarnings?

Back 119

Interrogation is a mind game rather than theprosecutors beating you.Iguess it means that if you do confess after the warning then it will be usedagainst you?

Front 120

Why is it that defendants must be specifically warned of these rights? If the person arrested hadbeen a cop, would he still need to be "Mirandized"?

Back 120

Because everything needs to be voluntary and ifnever arrested then then may not know their rights.Yes.

Front 121

What if a defendant wants a lawyer, but cannot afford one? Does the state have to appoint one? Ifso, what's the justification for doing so?

Back 121

He is appointed one. Yes, to make sure that theyhave a fair trial.

Front 122

What happens to the interrogation if the defendant asks for an attorney?

Back 122

Questions must stop until the attorney ispresent.

Front 123

What was the specific basis for the Court's ruling in each of the four cases combined in Miranda?

Back 123

They don’t presume that a defendant has beeneffectively apprised of his rights and that his privilege againstself-incrimination has been adequately safeguarded on a record that does notshow that any warnings have been given or that any effective alternative hasbeen employed. Nor can a knowing andintelligent waiver of these rights be assumed on a silent record.

Front 124

What was the basis for Clark's dissent in three of the four cases?

Back 124

These police “manuals” are written in the fieldby professors and some police officers. They are also old and not one is shown to be the official manual.

Front 125

What was the basis for the dissents of Harlan, Stewart, and White?

Back 125

The new rules is to negate all pressures, toreinforce the nervous or ignorant suspect, and ultimately to discourage anyconfession at all. The aim in short, istoward “voluntariness” in a utopian sense, or, to view it from a differentangle, voluntariness with a vengeance.

Front 126

Does Harlan see "voluntariness" differently than the majority? If so, how?

Back 126

Yes. See above.

Front 127

What amendment does Harlan think is the basis for the Court's decision?

Back 127

6th Amendment.

Front 128

What does Harlan think will happen to law enforcement as a result of the Court's decision?

Back 128

Provide a disadvantage to law enforcement.

Front 129

What is White's basic complaint about the Court's decision?

Back 129

A lot of things said can be argued that therewas coercion that made the suspect say something that self-incriminated him.

Front 130

What does White think about the Court's reliance on the manuals and texts?

Back 130

Thinksthat they are old????

Front 131

What does White think will happen as a result of the Court's decision?

Back 131

White believes that this will preventinterrogations, to reduce the incidence of confessions and pleas of guilty, andincrease the number of trials.

Front 132

Based on the Hoffman article, did Harlan's and White's predictions come true?

Back 132

My guess is yes, however unknown.

Front 133

What was the basic factual situation in Brewer v. Williams? What was the primary issue before theCourt?

Back 133

Williams traveling to Des Moines withofficer. Officer got Williams to tellhim where body of girl was. Williamsindicated on several occasions he didn’t want to talk to the police without hisattorney. Was Williams in an interrogation environment?DidWilliams waive his rights?---- majority says no.

Front 134

What was the "Christian burial speech"? Why was it given?

Back 134

Detective Leaming knew that Williams was deeplyreligious and played on that. He saidthat Williams should locate the body before it snows that night so that thefamily can have a proper “Christian burial.”

Front 135

Had Williams invoked his right to counsel? If so, how?

Back 135

Williamsat one point stated that “when I get to Des Moines and see Mr. McKnight I amgoing to tell you the whole story” Hereally did not express a willingness to be interrogated in the absence of anattorney though.

Front 136

Was the speech an interrogation? Did the speech itself require a response (like a question)? Was itdesigned to elicit a response from Williams? If so, how?

Back 136

Yes because he knew Williams was reallyreligious and former mental patient. Played on the religious strings and gotwhat he wanted, Williams to show him where the body was.

Front 137

Was Williams' response voluntary? If not, was it coerced? Does it matter?

Back 137

No, yes, doesn’t matter because he was convictedon the basis of the inevitable discovery doctrine.

Front 138

Did Williams waive his right to counsel? What would the state have to show to prove he did? Didthe state meet this burden?

Back 138

No, theofficers would have had to ask him in the car whether he would be willing toanswer questions in counsel’s absence, and if he had answered yes. No.

Front 139

What is the primary basis of Burger's dissent?

Back 139

That the exclusionary rule should be applied onthe basis of its benefits and costs, at least in those cases where the policeconduct at issue is far from being outrageous or egregious.

Front 140

On what basis does Burger argue that Williams waived his right to counsel?

Back 140

When he led the police to the body he waived hisright because he had abundant knowledge of his right to have counsel presentand of his right to silence.

Front 141

What is Burger's argument about the speech being just a technical error and the application of theexclusionary rule?

Back 141

Technical violation meaning not stating hisrights one more time and the exclusionary rule shouldn’t apply here because ofits obvious social costs.

Front 142

What is the basis of White's dissent? Does he think there was a waiver?

Back 142

ThatWilliams waived his rights. Yes.

Front 143

What does White mean by saying that waiver is not a formalistic concept? How does he apply thatnotion in this case?

Back 143

Meaning waiver is shown whenever the factsestablish that an accused knew of a right and intended to relinquish it. There isn’t a specific saying that must besaid that constitutes waiving ones rights. Hiswaiver had been expressed?

Front 144

What is the basis of Blackmun's dissent?

Back 144

He disagrees that Williams was denied of hissixth amendment right.

Front 145

Why does Blackmun not think the speech was unconstitutional per se?

Back 145

Because the police did not deliberately seek toisolate Williams from his lawyersLeaming’s purpose was not solely to obtain incriminating evidence.Notevery attempt to elicit information should be regarded as “tantamount tointerrogation."

Front 146

As a follow up to Williams I, what happened in Nix v. Williams (Williams II)? What was the basis ofthe Court's decision in that case? What did the various dissenters say about it?

Back 146

The body of the girl would have inevitable beenfound so you can convict Williams of the murder. It would have been foundbecause they had a lot of people that were going to look for the body the nextday. Dissenters say that the evidencedoctrine is constitutional but the prosecution must prove by clear andconvincing evidence that the evidence would have been discovered as a matter ofcourse.

Front 147

What was the factual situation in Manson v. Brathwaite? What was the primary issue before theCourt?

Back 147

Glover, an undercover cop, bought heroin from aseller. Gave a detailed report of theseller to another cop. Then the cop,D’Onofrio thought that might be the heroin seller (I guess who he was lookingfor). Cop D a couple days later, showedGlover ONE photo and Glover said that was the guy. Why wasno photo array or lineup conducted in this case?

Front 148

What does Biggers have to do with this case?

Back 148

Totality of circumstances, the identificationwas reliable even though the confrontation procedure was suggestive.

Front 149

What are the two rules for showups used by lower courts? Which does the Court apply here?

Back 149

1. Per se approach, employed by the Second Circuitin the present case, focuses on the procedures employed and requires exclusionof the out-of-court identification evidence, without regard to the reliability,whenever it has been obtained through unnecessarily suggested confrontationprocedures.

2. More lenient, approach is the one that continues to rely on the totality of thecircumstances. Court applies this one.

Front 150

What are the interests the Court considered in making its choice of which rule to use?

Back 150

Problems with eyewitness testimonies, and thewitness’ recollection of the stranger can be distorted easily by thecircumstances.

Front 151

What are the factors to consider in judging the totality of the circumstances?

Back 151

The opportunity to view, the degree ofattention, the accuracy of the description, the witness’ level of certainty,the time between the crime and the confrontation.

Front 152

What is the basic position of the dissenters?

Back 152

Distressing to see the Court virtually ignorethe teaching of experience embodied in those decisions and blindly uphold theconviction of a defendant who may well be innocent.

Front 153

Do they think the facts of this case would pass the totality test? If not, why not?

Back 153

No, because there was no photo lineup?

Front 154

Does the Due Process clause apply to pretrial proceedings? If so, in what way?

Back 154

Yes, requires that persons accused of crimes begiven fair notice of criminal charges and an adequate opportunity to contestthem.

Front 155

What are the main components of the pretrial process?

Back 155

The main components are the initial appearancebefore a magistrate, the preliminary hearing, the grand jury proceeding, andthe arraignment.

Front 156

What is the basic purpose of the various pretrial proceedings?

Back 156

The procedures are designed to eliminate fromthe system those cases for which there is insufficient evidence of criminalwrongdoing and to set the stage for a fair and orderly resolution of cases forwhich the evidence is sufficiently strong to proceed the trial.

Front 157

Is there a right to counsel during pretrial proceedings? What is the basis for the right to counsel?What is the basic role of the attorney during pretrial proceedings?

Back 157

Yes, it preserves the fundamental fairness ofall criminal procedures. Representsthe accused in pretrial proceedings but also advises on strategy and oftenserves as the negotiator between the defendant and the prosecutor.

Front 158

What did the Court decide in Gideon v. Wainwright regarding the right to counsel?

Back 158

"The rightof one charged with crime to counsel any not be deemed fundamental andessential in some countries, but it is in ours."

Front 159

What happens to the right to counsel if the defendant is too poor to afford one? In what cases didthe Court deal with this issue?

Back 159

The indigent person is appointed a counsel. ScottsboroCase, Gideon Decision

Front 160

When does counsel have to be appointed to satisfy the requirements of the 6th Amendment?

Back 160

Must appoint an attorney if facing ACTUAL jailtime, not just possible.

Front 161

What are the two main ways jurisdictions use to appoint counsel for indigent defendants? What arethe advantages and disadvantages of each system?

Back 161

Can either be a public defender’s office (largerjurisdictions), and appoint people from bar and rotate (smaller jurisdictions).

Front 162

How does a court determine who is indigent?

Back 162

Generally inclined to appoint counsel if thecost of hiring an attorney would prevent the defendant from making bail. Accused fills out form about employment,income, assets, and liabilities. Thenthe information will be verified.

Front 163

Does a defendant have a right to self-representation in criminal proceedings? Does the defendanthave to have a law degree or legal training to do so? What will the court need to determine beforeletting a defendant represent himself? What do many courts to do minimize problems with selfrepresentation?

Back 163

Yes. No. Must do so knowingly and intelligently. “Stand-by” lawyers, if things are going south you can invoke your rightto counsel and whenever then these lawyers are there.They’reavailable to answer questions by a pro se defendant, and necessary to terminatethe self-represented person because of misconduct, then standby counsel isavailable to complete the case.

Front 164

What does pro se mean?

Back 164

"for oneself"

Front 165

Can a defendant have a nonlawyer represent him in legal proceedings? Why or why not?

Back 165

No, because they are not admitted to the bar?

Front 166

What is the importance of compulsory process? To whom is it available?

Back 166

The means by which a court may acquirejurisdiction over an individual, or the means by which a court exercises suchjurisdiction in order to compel an individual to appear or otherwise abide bythe courts commands.

Front 167

What are the various stages in the pretrial process as listed by Scheb and Scheb?

Back 167

Initial appearance, Preliminary Hearing, GrandJury, Arraignment

Front 168

What happens at the initial appearance? What is the main purpose of this appearance?

Back 168

The main purpose of the initial appearance is tobegin the formal charging process.

Front 169

What types of offenses are handled summarily at the initial appearance? What is the typicalsentence for such offenses? Are attorneys typically present for such dispositions?

Back 169

Serious misdemeanor or felony, jail time, no????

Front 170

Why might a defendant be interested in pretrial release? Does the Constitution guarantee pretrialrelease?

Back 170

Desirability of freedom, to locate witnesses andbe able to confer with counsel outside the jail setting, pursue gainfulemployment and discharge family responsibilities pending the disposition of thecriminal charges. No,it is from common law origin?

Front 171

What are the four main forms of pretrial release?

Back 171

1. Personal Recognizance- promise to appear attrial

2. Release to Custody of another- Custody assumes custodial duties

3. Posting individual bond- post cash then come to trial and get cash back

4. Postingsurety bond- go to bail bond that puts up money for you for fee---usually 10%

Front 172

What is "excessive bail"? Why can't bail be excessive? What is the purpose of bail? How does acourt determine the appropriate bail (i.e., what factors does it consider)?

Back 172

Bail is set higher than an amount reasonablycalculated to fulfill this purpose is “excessive”8th amendment requires bail is not excessiveThe purpose of bail is to ensure the appearance f the accused in court,not inflict punishmentSufficientto assure compliance with the conditions set forth in the bail bond, notoppressive, Considerate of the financial ability of the accused, seriousness ofcrime, likelihood you will skip, then bail will be higher or not issue you bail.

Front 173

Do prosecutors have any discretion in determining what charge to bring? How does pleabargaining relate to this?

Back 173

Yes, there can be a negotiation of chargesbetween defense and prosecution

Front 174

What are the indictment and information? When is each used? What is the purpose of each?

Back 174

Information- a formal accusatorial documentdetailing the specific charges against a defendant.Indictment- a formal document handed down by a grand jury accusing one ormore persons of the commission of a crime or crimes.Information is handed to Grand Jury then Grand Jury issues an indictmentThepurpose is to make sure that the Grand Jury determines if there is probablecause to accuse one of a crime? Toprevent an overzealous prosecutor?

Front 175

What is the purpose of the preliminary hearing? Is it always necessary?

Back 175

Judge or magistrate examines the state’s case todetermine whether there is probable cause to bind the accused over the grandjury or (in the absence of a grand jury requirement) hold the accused fortrial. When an arrest is made without awarrant then a preliminary hearing is constitutionally required.Thatis of course, if there is no Grand Jury.

Front 176

What is a grand jury? Who sits on it? What does it do?

Back 176

A grand jury hands out an indictment in additionto or instead of a preliminary hearing.16to 23 people sit on the jury, 12 votes needed. Determinesif there is probable cause to charge someone with a crime (usually does).

Front 177

Who "runs" the grand jury? Why do some think this might be a problem?

Back 177

The Government, they usually vote in favor ofthe prosecution to bring the case to courtm

Front 178

What types of evidence can a grand jury hear? Can it only hear evidence that would be admitted attrial?

Back 178

It can admit far more evidence than in atrial. For example hearsay evidence.

Front 179

How are grand jury sessions conducted? Are attorneys allowed? What rights to witnesses have Study Questions, 20before a grand jury?

Back 179

“Secret proceeding”, only the prosecutingattorney, they have the right to not self-incriminate.

Front 180

What are the powers of the grand jury? Can it force witnesses to testify?

Back 180

They have the power to compel the appearance ofwitnesses, to subpoena documents, to hold individuals in contempt, and to grandimmunity from prosecution in exchange for testimony. Yes because their immunity privilege?

Front 181

What is extradition? Is it usually a problem?

Back 181

The surrender, on demand, of an individualaccused or convicted of an offense committed within the territorialjurisdiction of the demanding government and outside the territory of theceding government. Notreally.

Front 182

What are jurisdiction and venue and why are they important to courts?

Back 182

Jurisdiction- the authority of a court to hearand decide certain categories of legal disputes. Relates to the authority of a court over theperson, subject matter, and geographical area.

Venue- refers to what court @ a particular level, usually geographicallydetermined. Importantbecause this determines where your trial will likely be held.

Front 183

Is jurisdiction over the parties a problem in criminal cases?

Back 183

If it was a federal crime v state crime

Front 184

What does it mean for a court to have subject matter jurisdiction (i.e., jurisdiction to hear a particularcase)?

Back 184

The requirement that the court have power to hear the specific kind of claim that is brought to that court. While the parties may waive personal jurisdiction and submit to the authority of the court, the parties may not waive subject-matter jurisdiction.

Front 185

Why can venue be considered "geographic jurisdiction"? What determines venue?

Back 185

Because that is usually where the offense iscommitted. Usually geographicallydetermined.

Front 186

Can venue be changed? What factors will the court consider in deciding a change of venue request?

Back 186

Yes, nature of publicity, connection ofgovernment to the publicity, length of time between publicity and start oftrial, severity of offense, area from which jury is drawn, other events in thecommunity that affect the jurors, any factor likely to affect the candor andveracity of the prospective jurors.

Front 187

What does "joinder of offenses" mean? When does it usually apply? What is the Blockburger test?How might double jeopardy apply here? What about res judicata?

Back 187

Joinder of offenses- the indictment orinformation may charge a defendant in separate counts with 2 or more offensesif the offense charged- whether felonies or misdemeanors or both- are of thesame or similar character, or are based on the same act or transaction, areconnected with or constitute parts of a common scheme or plan Applies when charged with 2 offenses at the same timeBlockburger tests means someone cannot be charged with the same crime sothere has to be a different element in one of the crimesMight apply if the offenses are too similar.

?

Front 188

What is "severance"? When might it apply?

Back 188

Severance is breaking up the charges or peopleto make sure that there is a fair trial.Applies when multiple offenses are charged ormultiple people charged.

Front 189

When might it be appropriate to sever the trials of joint defendants? What might be a disadvantageto the prosecution of severing trials? Are there any advantages for the prosecution?

Back 189

Before trial if deemed necessary to protect adefendant’s right to a speedy trial. During trial, with the consent of the defendant to be severed, it isdeemed necessary to promote a fair determination of the guilt or innocence ofone or more defendants. Disadvantage- cannot use evidence against a person that they could ifthey were in the same trialAdvantage-if they somehow find evidence that can be carried over to someone else’s trial?

Front 190

What is a motion to dismiss? When is it used?

Back 190

Motion to dismiss- formal request to a trialcourt to dismiss the criminal charges against a defendant. Usedto dismiss the indictment or information, to determine the competency of theaccused to stand trial.

Front 191

What is the purpose of a motion to determine the competency of the accused to stand trial?

Back 191

To make sure the defendant is not incompetent tostand trial otherwise he would be insane and you cannot try those people.

Front 192

What is usually at issue in a motion to suppress evidence?

Back 192

The issue is whether the evidence was obtainedthrough an illegal search and seizure.

Front 193

What is the main issue in a motion to suppress a confession or other statement by the defendant?

Back 193

Issues with whether the evidence was obtained inviolation of the Miranda rules.

Front 194

What is usually at issue in a motion to suppress a pretrial identification?

Back 194

Issues with due process. Usually, if the procedures were impermissiblysuggestive to the witness.

Front 195

What is a motion for a continuance? When might it be granted?

Back 195

A postponement. Illnessor emergency that make it difficult or impossible for the defendant,prosecutor, defense counsel, or an important witness to be present asscheduled, the unavailability of a significant witness or piece of documentaryevidence, or the lack of adequate time to prepare for trial.

Front 196

What is arraignment?

Back 196

Arraignment- accused’s first appearance before acourt of law with the authority to conduct a criminal trial.

Front 197

What are the defendant's choices for a plea? What are the implications of each?

Back 197

Plea of not guilty, plea of guilty, no contestplea. Not guilty- goes to trial.

Plea of guilty- admitting guilt and no trial.

Nocontest- not admitting guilt or denying it, no trial though

Front 198

What must a court determine if the defendant pleads something other than not guilty?

Back 198

The plea must be made knowingly and voluntarily

Front 199

What is plea bargaining? When does it occur? Is it Constitutional? Why is it advantageous to theprosecution? To the defense?

Back 199

Agreeing to take a lesser charge if you pleadguilty to it instead of going to trial and being charged with a more seriouscrimeOccurs when a defendant accepts the lesser charge from the prosecutor andpleads guiltyYes, but critics say it deprives the defense a right to fair trialProsecution- saves them money Defense-usually your client is guilty and they get off on a lesser charge then they probablyshould.

Front 200

What must a court determine if a plea bargain is made?

Back 200

Whether the accused has knowingly waived his orher rights and agreed to plead guilty without coercion by the state.

Front 201

What occurs during pretrial discovery? What evidence is a defendant entitled to discover?

Back 201

Prosecution must disclose exculpatory evidenceto suggest that defendant didn’t commit the crime. Usually has to be asked for by the accusedProsecution has not duty to work for the defendant meaning they have togive you the evidence but not necessarily make it easy for you. (Receipt in through file drawers example)Exculpatoryevidence.

Front 202

What does it mean to have a right to a speedy trial? Is there a specific time limit? What are somefactors to consider?

Back 202

You have a constitutional right to a trial in afair time manner. No specific time limitFactorsinclude, the length of the delay, the reasons for the delay, the defendant’sassertion of the right, and prejudice to the defendant.

Front 203

What was the factual situation in Gideon v. Wainwright? What was the primary issue before theCourt?

Back 203

Offense was a felony. Not a capital crime however. Defendant was too poor to afford anattorney. Since it was not a capitalcrime then he was not awarded a free attorney and lost the case. Then reversed by Supreme Court. It was a retroactive case.Issue-whether having an attorney is necessary to a fair trial.

Front 204

What was the Court's decision in Gideon? What was the basis for the decision?

Back 204

Reversed the conviction. They determined that having an attorney isnecessary to a fair trial and that lawyers are not a luxury, they are anecessity.

Front 205

What did Clark add in his concurring opinion?

Back 205

The constitution makes no distinction between capital and noncapital cases.

Front 206

What was Harlan's main point in his concurring opinion?

Back 206

Thestate court had a duty to assign counsel for the trial as a necessary requisiteof due process of law.

Front 207

What was the factual situation in Stack v. Boyle? What was the primary issue before the Court?

Back 207

Wide ranging amount of bail. Bail exceeded the actual fine for thecrime.

Issue-Excessive bail question

Front 208

What was the Court's decision in Stack and the basis for it?

Back 208

The Court ruled that the bail be reducedBailset at a figure higher than tan amount reasonably calculated to fulfill thispurpose is “excessive” under the eighth amendment.

Front 209

What was the factual situation in Bordenkircher v. Hayes? What was the primary issue before theCourt?

Back 209

Plea bargaining case. Guy was facing possible 3rd felonycharge after forging a check. He wouldbe sentenced to life in prison if convicted. Prosecutor told him to plea to a lesser charge. If he did not plea guilty then the prosecutorwould charge him with the utmost, that being a felony. He said the prosecutor was threatening.Wasthe prosecutor threatening or is this how plea bargaining really is?

Front 210

Did the Court think the prosecutor's actions were a problem? Why or why not?

Back 210

No, because this is the reality of pleabargaining.

Front 211

Why did the dissenters object to the prosecutor's actions? What could the prosecutor have donedifferently to avoid the problem as seen by the dissenters?

Back 211

The respondent wanted to exercise his right to atrial and they thought the prosecution was so coercive that it made thedefendant feel like he did not have that right.Nottell him that he should plead guilty. Then telling him how he was going to charge him with the utmost?

Front 212

What was the factual situation in Boykin v. Alabama? What was the main issue before the Court?

Back 212

Plea bargain. Appointed attorneys did not really have the defendant’s best intentionsin mind. Because they were making a badcase for himThejudge stressed to the jury that the defendant had already pleaded guilty tocrimes. Can that evidence be used?

Front 213

What did the Court say needed to happen to make the plea valid?

Back 213

Reliable determination on the voluntarinessissue which satisfies the constitutional rights of the defendant.

Front 214

About what percentage of felony cases are disposed of prior to trial? Misdemeanor cases? Whathappens to the cases that don't go to trial?

Back 214

90 percent of felonies. Even higher number for misdemeanors. They are taken care of in the pretrialprocess.

Front 215

If the percentage of cases that actually go to trial is small, why do criminal trials seem so important?

Back 215

Trials are generally held before juries drawnfrom the community. Trials are the most visible aspect of the justice system and oftenattract widespread media coverage. Casesdisposed of by trial often have an important impact on the administration ofjustice.

Front 216

What is the basis for the right to a jury trial? Does the right extend to every criminal matter? If not,which criminal matters do not require a jury trial?

Back 216

To ensure a fair trial? In the 6thamendment No,where a penalty of less than six months imprisonment then you are notguaranteed a jury trial. Or militarytribunals or juvenile cases.

Front 217

Can an accused waive the right to a jury trial? Is the waiver automatic? Does the accused have theright not to have a jury trial? Under what circumstances might an accused not want a jury trial?When might the prosecution want a jury trial?

Back 217

Yes, must be made voluntary and knowingly, Yes, in most misdemeanor cases then you wouldn’t want a jury. Whenthere case affects a lot of people in the community then the people drawn fromthe community would likely rule in their favor.

Front 218

Is there a right to a public trial? If so, what is the basis for the right?

Back 218

Yes for the benefit of the accused and to ensurethat the judge and prosecutor carry out their duties responsibly.

Front 219

What does it mean to have a "public" trial? Does it include pretrial proceedings?

Back 219

The public has access to the court room. NO

Front 220

What does it mean to say that a defendant has a right to confront witnesses against him? What didthe Court say about this in Coy v. Iowa? Why were the witnesses initially shielded from thedefendant? What did the Court later say about this in Maryland v. Craig? How did the situation inCraig differ from that in Coy? How did the voting of the justices differ in the two cases?

Back 220

Right to ask them questions about the crimeThat the accused can question that person who, I suppose, initiallywanted to press chargesTo protect them????????

Front 221

What does it mean to say that the defendant has a right to compulsory process? Does theprosecution also have this right?

Back 221

He can obtain witnesses in his favor. Yes.

Front 222

How many jurors are required in federal cases? Is the same number required in all types of federalcases? If not, which require some other number? Must the verdict be unanimous in federal cases?If not, which allow some other number?

Back 222

2. No. Non capital offenses, misdemeanors. No,11-1, 10-2, rarely a 9-3.

Front 223

How many jurors are required in state cases? Is the same number required in all types of statecases? If not, which require some other number? Must the verdict be unanimous in state cases? Ifnot, what other verdicts are allowed?

Back 223

6. No. Non capital and misdemeanors. No11-1, 10-2, 9-3.

Front 224

Does a defendant have a right to self-representation in a criminal trial?

Back 224

Yes, must be knowingly and intelligently.

Front 225

What general qualifications for jurors do most jurisdictions have?

Back 225

18 years old and registered voter

Front 226

How are lists of potential jurors compiled? How does Iowa compile its list?

Back 226

Localofficials create "base list"Basedoff voter registration, driver registration, phone booksGoalis to select prospective jurors randomly and representative of community. ???

Front 227

What is the venire? What is voir dire?

Back 227

The body of persons summoned is referred to a asthe venireThensix or twelve of these prospective jurors are called at random to take theirseats in the jury box, where either the judge or counsel for each side may askfurther questions. This process iscalled the voir dire.

Front 228

What are the two ways jurors can be challenged during voir dire?

Back 228

Challenge for cause and peremptory challenges.

Front 229

What is a challenge for cause? What are some of the causes for which a juror can be challenged?What happens to a juror who is challenged for cause? How many challenges for cause does eachside get in a felony case? In a misdemeanor case?

Back 229

Something about that juror who isn’t an impartialjuror. So they are improperly selectedClose relationship with counsel, being significantly involved in the caseas a witness or in some other capacity, or having formed a definite opinionabout the caseThey are disqualified Unlimitedfor both.

Front 230

What is a peremptory challenge? What reason must an attorney give to challenge a jurorperemptorily? In general, how many peremptory challenges does each side get for different types ofcases?

Back 230

Don’t have to give reason to throw juror out None. Federal- each is allowed 12. If the offense is punishable by more than one year in prison, thegovernment is allowed six and the defendant is allowed. 10. Each side gets three where the offense carries a punishment of less thanone year in prison. Upto state for state cases.

Front 231

How does Iowa handle peremptory challenges? What does it call them? How many peremptorychallenges does each side get in a class "A" felony? In other felonies? In misdemeanors?

Back 231

They call them strikes and all must be used. ?

Front 232

What is the reason for using paid consultants during jury selection?

Back 232

To make sure for a fair trial.

Front 233

What is a "death qualified" jury? What is the reason for qualifying a jury in this way? What is anargument against doing so?

Back 233

The exclusion of prospective jurors who will notunder any circumstances vote for imposition of the death penalty.Reason- designed to obtain a jury that can properly and impartially applythe law to the facts at both the guilt and sentencing phases of a capitaltrial. Argumentagainst- excluding people of the community on a stereotype?

Front 234

Under what circumstances might the 1st Amd's guarantee of Free Press conflict with the 6th's rightto a fair trial conflict? When the two are in conflict, which is more likely to win? What does it takefor a court to close a courtroom to the press?

Back 234

When the judge issues a gag order. When the press interferes with the right to afair trial outlined in the 6th amendmentThe right to a fair trialAnoverriding interest that is likely to be prejudiced must be present, theclosure must be no broader than necessary to protect that interest, the trialcourt must consider reasonable alternatives to closing the proceeding, and itmust make findings adequate to support the closure.

Front 235

Are cameras allowed in courtrooms? If so, under what circumstances? Is this true of federal courtsas well?

Back 235

Yes, in almost all state courts as long as itdoes not affect the defendants right to a fair trial. The judge decides if they can be in thereFederal,there is a ban on television cameras in federal courts. Federal appeals let them in civil cases butnot criminal trials

Front 236

Trial court judges have the power the control the security in their courtrooms. How might a judgehandle problems with spectators, lawyers, and defendants?

Back 236

Spectators- they’re just told to leave

Lawyers- held in contempt and/or finedDefendants-cannot be thrown out but moved to another room

Front 237

What are the "opening statements"? What is their purpose? Who goes first? Does the other sidealways give its opening statement immediately afterward?

Back 237

Opening statements- outline their respectivetheories of the case and the evidence to be presented. Helps the jury understand the case and the arguments to be presented. Prosecution goes first. Openingstatements must not be argumentative, nor may counsel make disparaging remarksagainst one another.

Front 238

What is the right to cross-examination? What is its purpose? What is the scope of the questions thatcan be allowed on cross-examination?

Back 238

The right to cross-examination is the right to be confronted with the witnesses who offer evidence against the defendant. To insure that the witness will give his statement under oath, forces the witness to submit to cross examination, permits the jury to observe the demeanor of the witness thus aiding the jury in assessing his credibility. The scope of questions are limited to questioning the witness about matters he or she testified to on direct examination, and asking any questions that might tend to impeach the witness’s credibility or demonstrate a bias, interest, or hostility of the witness .

Front 239

What is "judicial notice"? What are the kinds of things of which a court will take judicial notice?

Back 239

Judicial notice- facts commonly known areaccepted by courts without formal proof. General knowledge- who is president, whisky is an intoxicating liquor. Certain facts within the geographical area of the court’s jurisdiction Noticeof law.

Front 240

What are some of the evidentiary presumptions made by most courts?

Back 240

Designed to aid a party who has the burden ofproof. Childunder 7 is incapable of committing a crime.

Front 241

What makes a person an "expert" witness? How are expert witnesses treated differently thanregular witnesses? Which side in the case can call expert witnesses?

Back 241

To qualify as an expert, a witness must presentproper credentials and be received by the trial court as an expert. An expert witness may respond to hypothetical questions and may expressopinions within the realm of his or her expertise.Both.

Front 242

What are the classifications of evidence discussed in the book?

Back 242

Real evidence- maps, blood samples

Testimonial evidence- sworn statements

Direct- eyewitness testimony

Indirect- circumstantial evidence

Circumstantial-depends on the circumstances

Front 243

In general, when will a court allow a new type of scientific evidence in the courtroom?

Back 243

Admits expert testimony deduced from awell-recognized scientific principle or discovery, the thing from which thededuction is made must be sufficiently established to have gained generalacceptance in the particular field in which it belongs.Soadmitted when it is generally accepted by that scientific community

Front 244

Is hypnotically induced testimony (recovered memories) generally allowed as evidence? Why orwhy not?

Back 244

No, the testimony is not sufficiently reliableto be admissible

Front 245

Is polygraph (lie detector) evidence generally allowed? Why or why not? How do police often usesuch evidence?

Back 245

No, because they don’t actually detect lies,danger in forcing someone to take it (5th amendment problem), Theywill ask you to take it and if you answer yes then they ask you if you arewillingly going to let the test hold up in court. If you answer no then they may question youfurther because if may give them suspicion to believe that you committed thecrime.

Front 246

For what purpose is evidence of Battered Woman Syndrome allowed?

Back 246

Defense to a crime. Self-defense to an abusive relationship. Does not prove that abuse actuallyoccurred. That is another case.

Front 247

Is DNA evidence allowed in court? What have been some recent problems in the use of suchevidence?

Back 247

It is accepted, things such as the quality ofthe sample and qualifications of the lab will be questioned, The statisticsinvolved are confusing and will confuse the jury because it requires high levelthinking.

Front 248

In generally, what are the legal requirements that must be met before evidence is admitted at trial?

Back 248

Search and seizure problems, make sure the evidence is relevant andallowed in that court case.

Front 249

What does it mean for an attorney to "object" to a question or testimony? What happens after suchan objection? What are some common types of objections?

Back 249

Saying that that the particular thing is notallowed in court. The judge either allows the objection and throws out that evidence ordenies the objection and the evidence is valid.General objection. Specificobjection- hearsay evidence, best evidence rule, opinion of witness

Front 250

What does it mean for a communication to be privileged? Why should some types ofcommunications be privileged? What are some common types of privileges?

Back 250

Limits testifying If it violates another person’s due process of law then it shouldn’t beallowedAttorney-client,marital, clergy-penitent.

Front 251

What is a directed verdict? Why would the defense ask for this after the prosecution rests its case?

Back 251

In a jury trial, a directed verdict is an orderfrom the presiding judge to the jury to return a particular verdict. Typically,the judge orders a directed verdict after finding that no reasonable jury couldreach a decision to the contrary.Restits case-??

Front 252

Does the defendant have to take the stand in a criminal case? Why or why not? What are some ofthe strategic concerns involved in this decision?

Back 252

No, self-incrimination clause, 5thamendment Can’t be questioned by prosecution and the prosecution cannot use that asevidence against you if you do not take the standCanhurt your case if the jury think it’s suspicious that you never took the stand?

Front 253

What are the rebuttals that each side may present after the main cases have been presented?

Back 253

Rebuttal witnesses- to dispute the testimony ofthe defendants witnesses.

Front 254

What does the jury do during the trial? Can jurors ask questions or take notes?

Back 254

Listen to the arguments, Yes they can take notesCansometimes ask questions if both sides let of the case let it happen. Usually written to the judge and he will thenask the parties in nonpartisan ways.

Front 255

What are the jury instructions? Who decides on what instructions to give the jury?

Back 255

Instructions outlining the crime and elements ofthem. Also the defensesJudgewill give the jury these in front of both parties in the actual court room.

Front 256

What are the closing arguments? What is their purpose? Who goes first? Who gets the last word?

Back 256

Opportunity to put case all together in a story. Emotion is important. To assist the jury in recalling and evaluating the evidence and drawinginferences from them. Prosecution?Defensegets the last word?

Front 257

What happens after the judge instructs the jury? How is a foreperson selected?

Back 257

The jury goes into a room and discusses the case. Thejury selects the foreperson.

Front 258

What are the two general forms of jury deliberations? What is an advantage of each?

Back 258

Verdict driven- vote on what you think theverdict is. Evidencedriven- discuss the evidence first

Front 259

What does it mean for a jury to be "deadlocked"? What happens if this occurs?

Back 259

Jury cannot reach a consensus on the case. Judgeeither declares a mistrial or urges the jury to make further attempts to arriveat a verdict.

Front 260

What is a "jury pardon"? What is "jury nullification"? Are these legal? What happens if they occur?

Back 260

Jury nullification- jury disregards the evidenceand the judge’s instructions on the law and acquit a defendant or convict themfor a lesser offense than charged. Jury pardon- Granting the defendant They are legal. Thedefendant is lucky if this happens?

******

Front 261

What does it mean to poll the jury?

Back 261

The clerk asks each juror “is this your verdict?"

Front 262

What was the basic factual situation in Batson v. Kentucky? Who wrote the opinion for the Court?What was the basic constitutional issue presented?

Back 262

Batson thought that the prosecution was usingthe preemptory challenges strictly off of race. Justice Powell. Equalprotection clause.

Front 263

What did the Court decide in Swain v. Alabama and how does it relate to Batson?

Back 263

The court noted in Swain that preemptorychallenges are necessary to the trial and did not grant that person the equalprotection clause in this situation. Itrelates because this trial is about the same thing.

Front 264

How does the majority propose to solve the problem in Batson? What must defendants, prosecutors,and judges do according to the majority?

Back 264

They said that you are to look for a pattern inYOUR OWN case if the prosecutor is taking off a lot of people of the jury andit seems to be a race thing.Youcannot discriminate off of race and if they do and it is proved then then thepetitioner’s conviction is reversed.

Front 265

Why does Marshall think the majority did not go far enough? What would he do differently?

Back 265

He says that any good lawyer would be able tomake an excuse for discriminating or come up with another excuse. Hewants to ban preemptory challenges.

Front 266

What is Burger's basic argument against the majority's decision? On what point does he agree withMarshall? Was Burger correct in his argument that the Court's reasoning would be quicklyexpanded to apply to other areas?

Back 266

If the prosecution is prohibited from preemptorychallenges then so should the defense?That preemptory challenges are necessary Yes?No?

Front 267

What is Rehnquist's basic complaint about the majority's opinion? What are two problems with hisargument?

Back 267

He says if blacks can’t serve on a blackperson’s trial than neither should white people serve on a white person’strial. And so forth with races… It’smostly discriminatory and a lot more people will be convicted if it is theopposite race?

Front 268

What was the basic factual situation in Griffin v. California? What was the main issue presented?Who wrote the majority opinion?

Back 268

Griffin did not take the stand in his murdertrial and the judge and prosecutor instructed the jury to make inferences aboutit.Can the judge/ prosecution tell the jury they are allowed to makeinferences about it? JusticeDouglas.

Front 269

What was the basis for the Court's earlier decision in Wilson v. United States? Why does this pose abit of a problem for the Court in Griffin? How does the majority get around this problem?

Back 269

They said in the Wilson case that this was not a5th amendment intrusion. How can the Court make a decision on a case that is almost entirely thesame?Theygot around it by blaming it on congress and such?

Front 270

What is the essence of Stewart's dissent?

Back 270

He thinks that the Court in this case stretchesthe concept of compulsion beyond all reasonable bounds, and that whatevercompulsion may exist derives from the defendant’s choice not to testify, notfrom any comment by court or counsel.

Front 271

Who is primarily responsible for sentencing? What role do juries play?

Back 271

Judges are the primary person who determines thesentenceJuriesfind them guilty or not guilty.

Front 272

What types of sentences are possible? Can they be used in combination?

Back 272

Fines, Forfeiture of property, Probation, DeathPenalty, Incarceration, Boot Camps, Yes.

Front 273

How much discretion do judges have in sentencing? What limitations might be placed on them?

Back 273

Their discretion is constrained by statues,statutory penalties, and must be in line with state and federalconstitutions. 8th amendment limits themLimitson how much time a person can serve, death penalty or not etc.

Front 274

What are the four legal justifications of criminal punishment presented in the book?

Back 274

Retribution

General Deterrence

Rehabilitation

Incapacitation

Front 275

Why was the concept of retribution by the state a leap forward in dealing with injuries to propertyor people?

Back 275

It is forcing people to “pay” for their crimesand so the other party can feel like justice has been served.

Front 276

How does the notion of deterrence related to classifying crimes as mala in se or mala prohibita?

Back 276

I could be wrong but mala in se is more likely aworse crime (murder), and mala prohibita is like speeding. *****

Front 277

How is the deterrent effect of punishment related to the swiftness and certainty of punishment?

Back 277

???

Front 278

Aside from the death penalty, what other forms of corporal punishment are still allowed? What iscorporal punishment?

Back 278

Corporal Punishment- one that induces pain orinjury to a person’s body. Sonone other than the death penalty.

Front 279

How many states currently authorize the death penalty? Is Iowa one of them? What was the firststate to abolish the death penalty?

Back 279

32. No. Iowa is not. Michigan was the first state.

Front 280

For what types of crimes can one received the death penalty?

Back 280

First degree murder

Front 281

What is a capital trial? How does the structure of a capital trial differ from a noncapital trial?

Back 281

Capital trial- one where the death penalty canbe the punishment for the crime.

Front 282

Why do some argue that the death penalty is applied in a racially discriminatory manner? What didthe Court say about this in McClesky v. Kemp?

Back 282

Because more black are executed compared towhites. Thecourt refused this as an argument against letting the black man get away fromthe death penalty.

Front 283

Why might the deterrent effect of the death penalty be limited? To the extent the death penalty doesnot deter others, what are the justifications for it?

Back 283

The actual deterrent effect is reduced by theyears of delay between sentencing and execution.Primarilyon the grounds of retribution and incapacitation.

Front 284

Can juveniles be executed? If so, under what circumstances?

Back 284

Yes, a juvenile at the age of 16 or older at the time of the crime, may be sentencedto death.

Front 285

How can fines be used as punishment? For what types of crimes are they generally used?

Back 285

Yes, generallyused for first time offenses and economic crimes.

Front 286

What is the most frequently used punishment for violent crimes?

Back 286

Incarceration

Front 287

By the end of 1996, about how many people were in state and federal penal institutions in the US?

Back 287

More than 2 million are today

Front 288

Why do some question the efficacy of prisons? Does this questioning depend on the purpose onethinks prisons serve?

Back 288

Question the efficacy of prisons because of howmuch it costs to keep someone incarcerated.No?They just see them as taking their money.

Front 289

About how much does it cost to keep a person in prison per year? Why might this be a "bargain"?

Back 289

Around 30 K.Bargainbecause people only see that it costs them money to keep people in jail they donot see the “price” it could cost them by letting these criminals on thestreets to commit more crimes.

Front 290

What can happen when prisons become overcrowded? What are the approximate lengths of timeconvicts serve for various crimes compared to their maximum sentences?

Back 290

People will be let out early. Usuallyabout half the time they are supposed to serve.

Front 291

What is a prison "boot camp"? What is its purpose? Why is it sometimes used as an alternative toregular incarceration?

Back 291

It is a program designed to employ a system ofdiscipline much like the one the military uses to instill discipline in itsrecruits. Designed to rehabilitate the young. Becauseit is supposed to change someone’s behavior. However, it is usually just a short term change.

Front 292

What is probation? When is it usually used? What kinds of conditions might be placed on aprobationer? Are such limitations constitutional?

Back 292

Instead of going to jail you get restrictionsput on you.Used for first time offenders, non-violent crimes.Will not commit further crimes, will avoid certain persons, not go tocertain places, and not leave the jurisdiction. Yes, as long as they are related to the goal of rehabilitation.

Front 293

How is community service used as a punishment? What is a problem with using this form of Study Questions, 25punishment?

Back 293

An offender is required to perform a specifiednumber of hours of service to the community doing specified tasks.Problemswith costs in training and supervising offender.

Front 294

What is "community control" as a punishment?

Back 294

Person can only leave for community service and to go to work

Front 295

What are some of the other creative forms of punishment that have been tried in recent years? Onwhat basis have some of these been challenged?

Back 295

Bumper stickers for drunk drivers, signs onhouses for sexual offenders, billboards for crimes.Challengedbecause civil rights issues.

Front 296

What occurs during the sentencing stage of the criminal process? Is this always done in open court?If not, under what circumstances is it held elsewhere?

Back 296

Adults are always sentenced in open courts. Juveniles are in the judge’s chambers becausethey think this will help with the rehabilitation more. There is a felony report if it is a felonycase. Misdemeanors are sentenced directlyafter conviction.

Front 297

What is a presentence report? What is in the presentence report? How is the report used, and bywhom?

Back 297

A report that says how long the judge willsentence you for and of the charges associated with it. Thejudge will pronounce the charges and then the victim may make a statement.

Front 298

What occurs during the sentencing hearing? Who can present evidence at the sentencing hearing?Do the regular rules of evidence apply?

Back 298

The judge sentences the convicted and theconvicted makes a statement.Yes. ??

Front 299

What are the various types of sentences that can be imposed?

Back 299

Intermediate, definite, determinant, indefinite,mandatory minimum

Front 300

What is the difference between concurrent and consecutive sentences?

Back 300

Concurrent if you are charged with two crimeslet’s say for 10 years each, then you serve each together and will be in jailfor only 10 years. Consecutiveyou serve each sentence separately so you would go to jail for 20 years.

Front 301

What usually happens to someone given a suspended sentence?

Back 301

Asuspended sentence is a legal term for a judge's delaying of a defendant'sserving of a sentence after they have been found guilty, in order to allow thedefendant to perform a period of probation.

Front 302

What is indeterminate sentencing? How frequently is this method used today?

Back 302

Itis where you sentence someone for an unknown time and it is not used much today.

Front 303

What are definite and determinate sentencing?

Back 303

Definite is a number of years specifically anddeterminate is like 10-15 years sentenceSodeterminate, it is determined on the prisoner’s behavior in jail.

Front 304

What is indefinite sentencing?

Back 304

Indefinite is a range of years with the lowestbeing the minimum in the state and the max number of years based off themaximum sentence for that crime

Front 305

What is mandatory sentencing? Who provides the mandate?

Back 305

Mandatory is the bare minimum someone can servethis is made by the legislative body of the government.

Front 306

What are enhanced sentences? Are they constitutional?

Back 306

Your sentence is lowered or heightened based onthings such as prior convictions, weapons, victim’s age and location. Iwould assume so.

Front 307

What is a habitual offender statute? What problem can occur with these statutes?

Back 307

It is a statute that says a person who commitsmultiple crimes, so habitually is committing crimes, will have increasedpenalties. Problemsoccur when the crimes are not even related and not even close to the same thing.

Front 308

How does the sentencing procedure in capital cases differ from that in other cases?

Back 308

Capital cases involve the jury more indetermining if the person will be sentenced to death?

Front 309

Are jury recommendations for the death penalty reviewable by higher courts? If so, when?

Back 309

Yes, if the person really shouldn’t be sentencedto death?

Front 310

When can't a defendant be sentenced to probation? How long can probation last?

Back 310

If the probation period is longer than themaximum sentence for the crime committed. Canlast no more than the maximum sentence for the crime.

Front 311

When might probation be revoked? What procedures must be followed to revoke probation?

Back 311

If the convicted is not following his guidelinesstated out than he can be sent to jail. A preliminary hearing and a revocation hearing.

Front 312

What rights do prisoners have? Do they have the same constitutional rights as other citizens?

Back 312

They do not have as much protection as othercitizens but they have civil rights live not to be raped and the overcrowdingissue.

Front 313

What disciplinary measures can be used against prisoners? What procedures must be used todiscipline a prisoner?

Back 313

Most of the disciplinary measures areaccomplished by granting and removing good time credit- which is early release.Theremust be a written notice of the disciplinary action, and the inmate has theright to an administrative hearing with a written record. They have the right to refute the charges ofmisconduct and call witnesses on their behalf. They are not granted counsel however.

Front 314

What is parole? What conditions might be placed on a parolee? When and how can parole berevoked?

Back 314

Parole- conditional release from jail or prisonof a person who has served part of his or her sentence.Just like probation things such as not going to certain places or hangingaround certain people. Etc.When a restriction is not followed than it can be revoked. Itcan be revoked by based on evidence that the parolee did not follow therestrictions and that this cannot occur from hearsay evidence.

Front 315

Do crime victims have any rights? If so, what are they? What is the Uniform Victims of Crime Act?

Back 315

Yes. Right to be reasonably protected from the accused. Right to reasonable accurate, and timely notice of any public courtproceeding. Right not to be excluded from any such public proceeding, unless there isa serious reason that could alter the testimony of someone elseRight to be reasonably head at any public proceeding in the districtcourtReasonable right to confer with attorney for the Government in the case. Right to full and timely restitution as provided in law. The right to proceedings free from unreasonable delayRight to be treated with fairness and with respect for the victim’sdignity and privacyUniformVictims Crime Act- attempt to lend uniformity to the patchwork of victim’srights laws that now exist at the state level.

Front 316

What is restitution? Where does the money to compensate crimes victims come from?

Back 316

Restitution is the return of a sum of money, anobject, or the value of an object that the defendant wrongfully obtained in thecourse of committing the crime. Notfrom taxes. Fines from the crimes thatare committed or if the victim ever runs into money than he will have to paysome sort of money to the victim. (Ifthey profit off of a book for example)

Front 317

What are victim impact statements? When can they be used? Why do some have concerns aboutthem?

Back 317

Statements of how the crime impacts the victim. Can be used in murder casesItis emotional evidence and somewhat irrelevant to the actual crime that wascommitted.

Front 318

What was the factual situation in Furman v. Georgia? What was the primary issue before the Court?

Back 318

Situation is whether the death penalty is crueland unusual punishment. States need torewrite their laws to be more specific. Issue:Is the death penalty cruel and unusual punishment?

Front 319

Was there a majority opinion in Furman? How does this affect the meaning of the case?

Back 319

Majority says that it is unconstitutional andthat the states need to rewrite their death penalty laws.It affects the meaning because people sent to death row were then justput to life and prison which cannot be overturned. (Charles Manson)Andstates need to rewrite their laws.

Front 320

What did Douglas say about the constitutionality of the death penalty? Did he think the men werethe victims of racial discrimination? What did he have to say about the jury's discretion to apply thedeath penalty?

Back 320

He says that it violates the 8thamendment cruel and unusual punishment He believes that is was totally discriminatory and not compatible withthe idea of equal protection of laws.Hebelieves that leaving it up to the juries is that the penalty is selectivelyapplied, feeding prejudices against the accused.

Front 321

What did Brennan say about the constitutionality of the death penalty? What does he have to sayabout the fact that the death penalty was clearly thought to be constitutional by the framers?

Back 321

He says that the punishment is unusually severeand degrading punishment, there is a strong probability that it is inflictedarbitrarily, its rejection by contemporary society is virtually total, andthere is no reason to believe that it serves penal purpose more effectivelythan the less severe punishment of imprisonment. Hesays that we need to draw the meaning of the constitution from the evolvingstandards of decency that mark the progress of a maturing society.

Front 322

What did Stewart say about the constitutionality of the death penalty? What does he mean that thedeath penalty differs in kind, not just degree from other punishments? Did he think the impositionof the death penalty in these cases was cruel? Unusual? What is his basic concern about thesecases?

Back 322

He says that it is clear that these sentencesare cruel in the sense that they excessively go beyond, not in the degree butin kind, the punishments that the state legislatures have determined to benecessary. It is a corporal punishment?He thought that they were cruel and unusual.Hesays that people who commit murder are basically selected at random.

Front 323

What did White say about the constitutionality of the death penalty? What does he think is theproblem in these cases?

Back 323

It is permissible for murder and rape, thelegislature does not itself mandate the penalty in any particular class or kindof case, and judges and juries have ordered the death penalty with suchinfrequency that the odds are now very much against imposition and execution ofthe penalty with respect to any convicted murder or rapist.Hesays that there is not enough consistency.

Front 324

What did Marshall say about the constitutionality of the death penalty? What does he have to sayabout the fact that the death penalty was clearly thought to be constitutional by the framers? Whatdoes he say about public opinion on the death penalty?

Back 324

A penalty that was once permitted at one time isnot necessarily permissible today.He also believes that there are evolving standards of decency. Thepublic opinion polls indicate that many Americans do not condone the deathpenalty and that the people would not support this vengeance.

Front 325

Who dissented in Furman? What did they have to say about the constitutionality of the deathpenalty? What role does judicial restraint play in their decisions? What does Powell say about thefive opinions of the justices in the majority?

Back 325

Powell, Rehnquist, Blackmun, Chief Justice,Burger. They believe that is not cruel and unusual and that the majority issaying that it is unconstitutional because the frequency of how much it isimposed.They say that that appointed people are changing the laws that thelegislative branch made who are the ones who are actually voted into office bypopularity with the people.Powellsays that none of these opinions provides a constitutionality adequatefoundation for the Court’s decision.

Front 326

What was the factual situation in Gregg v. Georgia? What was the basic issue before the Court? Whatwas the Court's decision? Was there a majority opinion?

Back 326

Facts- Death Penalty is back and legal sinceGeorgia changed their laws and made them more specific and followed certainguidelines. Issue- How can one impose the death penalty only 4 years after it wasdeclared unconstitutional? Decision- made the death penalty legal and constitutional. Yes.

Front 327

What were the new features of the Georgia death penalty statute? What procedures had to befollowed? What role did aggravating and mitigating circumstances play?

Back 327

The jury must find 1 of the 10 aggravatingcircumstances to be true beyond a reasonable doubt before the death penalty canbe imposed.

Front 328

Did Stewart, Powell, and Stevens hold the death penalty to be unconstitutional per se? Whatoccurred since Furman that undercut the "standards of decency" argument?

Back 328

Yes?Ajury cannot reach a finding of the defendant’s guilt and then, without guidanceor direction, decide whether he should live or die.

Front 329

What purposes are served by the death penalty? Are these legitimate purposes

Back 329

To make sure that when someone deliberatelytakes the life of another then they get a severe punishment. Sure.

Front 330

For what crimes can the death penalty be imposed? Is it disproportionate for these crimes? Whatabout other crimes?

Back 330

First degree murder.It is not disproportionate for these crimes because it is the most severepunishment for the most severe crime. Forother crimes it would be disproportionate.

Front 331

What weight to these justices place on statistical attempts to evaluate the deterrent effect of the deathpenalty?

Back 331

The dissenter played on the polls.

Front 332

How did the voting lineups of the justices differ between Furman and Gregg?

Back 332

There was only one dissenter in this. Justice Marshall.

Front 333

What was the basic holding of the Court in Penry regarding the execution of the mentally retarded?Did the Court hold that the execution of the mentally retarded was prohibited by the EighthAmendment?

Back 333

In this case, you are allowed to execute thementally retarded. Ruledin this case that it does not violate the 8th amendment.

Front 334

What types of prohibitions are prohibited by the Eighth Amendment's cruel and unusualpunishment clause? Where does mental retardation fit into the recognized criteria?

Back 334

To execute a persons who are profoundly orseverely retarded and wholly lacking in the capacity to appreciate thewrongfulness of their actions.Probablyfit in the place where it talks about insanity and a “mental defect” portion.

Front 335

What's the difference between a categorical prohibition against executing the mentally retarded andthe use of mental retardation as a mitigating factor?

Back 335

Categorical prohibition would be the banning ofall mentally retarded in generalAsa mitigating factor it would be specific to your case?

Front 336

Why did the Court decide to revisit the issue of executing the mentally retarded in Atkins? Whatseemed to have changed in the time since Penry?

Back 336

It seems as if the opinion was that a retarddoes not act with the level of moral culpability that characterizes the mostserious adult conduct and the impairment can jeopardize the reliability andfairness of capital proceedings.

Front 337

What standards does the Atkins Court use to determine whether a particular punishment isprohibited by the Eighth Amendment?

Back 337

Evolving standards of decency

Front 338

What's the difference between punishments that are "cruel and unusual" and those that are"excessive"?

Back 338

Excessive is about how proportional thepunishment is to the crimeCrueland unusual is about what specific task is being done.

Front 339

What is the significance of the states that had enacted legislation on the issue?

Back 339

It emulated the Federal Government by expresslyexempting the mentally retarded from the death penalty.

Front 340

How does the Court determine what constitutes an evolving standard of decency?

Back 340

By opinion polls?????

Front 341

How do the laws of other countries, the positions of various organizations, and opinion poll datafigure into the Court's decision?

Back 341

They used them in attributing to making thedeath penalty constitutional

Front 342

What does mental retardation have to do with culpability? Why is this important to the deathpenalty?

Back 342

If they cannot determine right or wrong it makesthem almost insane and if they are insane then they cannot form the mental partof a crime and will not be able to stand trial or be punished to death.

Front 343

What does the Court say about retribution and deterrence in relation to the execution of thementally retarded?

Back 343

Retribution- Retards cannot reflect aconsciousness materially more depraved than that of any person guilty of murder.

Deterrence- They likely do not know what theydid wrong morally and they cannot learn from experience or control theirimpulses.

Front 344

What are Rehnquist's main criticisms of the Court's opinion?

Back 344

Most criticisms are from the Court’s decision toplace weight on foreign laws, the views of professional and religious organizations,and opinion polls in reaching its conclusion.

Front 345

What are Scalia's main criticisms of the Court's opinion? What does he say about the majority's viewof national consensus, including the number of states that have passed legislation prohibiting theexecution of the mentally retarded? What does he have to say about the reasons for the deathpenalty as applied to the mentally retarded? Why does he feel that the Court's decision is anexercise in raw judicial power?

Back 345

Find no support in the text or history of the 8thamendment, does not have support in current social attitudes regarding theconditions, the decision rests upon nothing but personal views of the justices. There is not really a national consensus because so few states agree?It rests on a national consensus and that it’s totally an opinion. Hesays this because the people that made the laws (the legislative branch) isbeing overridden by people who were not even voted in or really even vote inthe sense that there is no national voting or state awareness in theissue. Basically the states may not evenwant this.