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91 Cards in this Set
- Front
- Back
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Contrast the adversarial and inquisitorial judicial systems.
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The role of the judge.
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What constitutes a "crime"?
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An offense against the state, punishable by fine, imprisonment or death.
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What are the elements of a "crime"?
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1 - Law
2 - Actus reus 3 - Mens rea 4 - Injury or result 5 - Causal relationship |
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What are the 5 categories of a crime?
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Conventional crimes
Economic crimes Syndicated crimes Political crimes Consensual crimes |
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Name the general five procedures prior to a trial?
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The arrest, appearance before a magistrate, the grand jury/preliminary hearing, the arraignment, and plea bargaining.
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How does the 6th Amendment characterizes a criminal trial?
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It guarantees many rights of the accused. A speedy trial, a right to an impartial jury, to be confronted with witnesses against him, to have assistance of counsel for his defense.
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How does a 5th amendment characterize a criminal trial?
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Guarantees more rights like that of a right to a grand jury, double jeopardy, and excused from self-incrimination meaning he does not need to witness against himself.
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How does a 4th amendment characterize a criminal trial?
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The right of people to be secure against unwarranted searches. No warrants shall be issued without probable cause.
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List the procedures during a criminal trial.
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Jury selection, trial, sentencing, and appeal.
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What is a misdemeanor?
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Misdemeanors are regarded as petty crimes by the state, and their punishment usually consists of confinement in a city or county jail for less than a year.
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5th Amendment
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No person shall beheld to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. . . Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law. . .
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Grand jury
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Grand juries consist of sixteen to twenty-three citizens, usually selected at random from the voter registration lists, who render decisions by a majority vote.
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Plea bargaining
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At both the state and federal levels at least 90% of all criminal cases never go to trial.
Some form of leniency is promised in exchange for a guilty plea. The ever-increasing caseloads of the past several decades have made the judicial system more dependent on the quick and simple plea bargain. |
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Voir dire
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Where the venire is questioned in open court about their general qualifications for jury service.
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Batson v. Kentucky (1986)
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The court rules in this case that prosecutors may not use their peremptory challenges to exclude African Americans from serving on a criminal jury solely on the basis of race.
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Jury nullification
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Jury nullification is a constitutional doctrine which allows juries to acquit criminal defendants who are technically guilty, but who do not deserve punishment. It occurs in a trial when a jury reaches a verdict contrary to the judge's instructions as to the law.
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Deterrence
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Deterrence is a third reason to justify a punishment. It focuses on trying to prevent other from breaking the law.
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Probation
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One of the lightest punishments a judge can hand down is probation. Tends to be the punishment if crime was minor or judge believes
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Baldus study
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Baldus’ study concluded that all individuals convicted of murdering whites were far more likely to receive the death penalty, thus establishing that the application of the death penalty in Georgia was linked with the race of the victim.
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Alternative sentencing
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On the rise in recent years. Jog for an hour every day.
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Inquisitorial
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the judge (or judges) is the primary actor in the courtroom and the attorney's passively defend their clients' interests.
Under this method the judge(s) actively and aggressively conducts an inquiry into the truth of the charges that the state or a plaintiff has lodged against a defendant. |
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Ex post facto
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Lat.: after the fact
Art. I, Secs. 9 (Cl. 3) & 10 of the Constitution of the United States which provide that neither Congress nor any state shall pass an ex post facto law; these provisions have been held applicable only to criminal statutes. 3 U.S. (3 Dall.) 386, 390. |
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4th Amendment
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“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
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Arraignment
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The process in which the defendant is brought before the judge in the court where he or she is to be tried to respond to the grand jury indictment or the prosecutor's bill of information.
Accused pleads guilty, not guilty, or nolo contendere |
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6th Amendment
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“in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . to be informed of the nature and cause of the accusation; to be confronted with witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of Counsel for his defense”
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Peremptory challenges
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The right to challenge a juror without assigning, or being required to assign, a reason for the challenge.
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Sequester
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In the context of trials, the isolation of a jury from the public, or the separation of witnesses to ensure the integrity of testimony. In other legal contexts the seizure of property or the freezing of assets by court order.
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Retribution
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The moral right of society to punish those who have inflicted harm on a member of that society.
Some crimes, like property crimes, can't be met with “an eye for an eye.” |
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Rehabilitation
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With some help the unfortunate individuals can put their lives on a positive track.
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Mandatory sentencing laws
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Statutes that require automatic jail time for a convicted criminal, usually for a minimum period of time. This is often for violent crimes in which a gun was used and for habitual offenders.
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McClesky v Kemp (1987)
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Warren McCleskey, a black man, was convicted and sentenced to death for the 1978 murder of a white Atlanta police officer.
On appeal, attorneys for the Legal Defense Fund argued that the Georgia death penalty statute was being implemented in a racially discriminatory fashion in violation of the Eighth and Fourteenth Amendments. |
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Felony
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A serious crime, characterized under federal law and many state statutes as any offense punishable by death or imprisonment in excess of one year.
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Miranda warnings
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(1) the right to remain silent; (2) the reminder that anything said could be used against the suspect; (3) the right to counsel; and (4) the related reminder that counsel would be provided for indigents.
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Exclusionary Rule
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The principle based on federal constitutional law that evidence illegally seized by law enforcement officers in violation of a suspect's right to be free from unreasonable searches and seizures cannot be used against the suspect in a criminal prosecution.
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Nolo contendere
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[Latin, I will not contest it.] A plea in a criminal case by which the defendant answers the charges made in the indictment by declining to dispute or admit the fact of his or her guilt.
The difference is that a plea of nolo contendere cannot later be used to prove wrongdoing in a civil suit for monetary damages, but a plea of guilty can. Nolo contendere is especially popular in antitrust actions, such as price-fixing cases, where it is very likely that civil actions for treble damages will be started after the defendant has been successfully prosecuted. |
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Double Jeopardy
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means in effect that no one may be tried twice for the same crime by any state or federal government.
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Hung Jury
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A trial jury duly selected to make a decision in a criminal case regarding a defendant's guilt or innocence, but who are unable to reach a verdict due to a complete division in opinion.
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Incapacitation
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will no longer be a thereat to society.
Does not address key questions like the time of imprisonment or the evidence that prison time makes criminals worse or even more aggressive, |
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Bifurcated trial
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ne judicial proceeding that is divided into two stages in which different issues are addressed separately by the court.
A common example of a bifurcated trial is one in which the question of liability in a personal injury case is tried separately from and prior to a trial on the amount of damages to be awarded if liability is found. A bifurcated trial in such a case is advantageous because if the defendant is not found liable, there is no need to spend the money or time in the presentation of proof and witnesses on the issue of damages. |
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Reversible error
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A serious error of law made during the trial process that might have had affected the verdict of the jury.
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Contract law
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Primarily concerned with voluntary agreements between two or more people. Exchange of promises.
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Torts
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A body of rights, obligations, and remedies that is applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others.
Three elements must be established in every tort action. First, the plaintiff must establish that the defendant was under a legal duty to act in a particular fashion. Second, the plaintiff must demonstrate that the defendant breached this duty by failing to conform her behavior accordingly. Third, the plaintiff must prove that he suffered injury or loss as a direct result of the defendant's breach. |
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Tort reform
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....
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Compensatory damages
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Intended to cover the plaintiff's actual loss. Example: repair costs, doctor bills, or hospital expenses.
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Punitive damages
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Designed to punish the defendant or serve as a warning to refrain from such behavior in the future.
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7th Amendment
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The Seventh Amendment to the U.S. Constitution guarantees the right to a jury trial in most civil suits that are heard in federal court.
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Alternative Dispute Resolution
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The best known are Mediation and Arbitration.
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Mediation
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A private, confidential process in which an impartial person helps the disputing parties identify and clarify issues of concern and reach their own agreement.
The parties themselves maintain control of the final settlement. |
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Arbitration
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Similar to court. An arbitrator, impartial person, decides how the controversy should be resolved.
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Discovery
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The current legal system provides discovery tools that "take the sporting aspect out of litigation. Types of discovery are deposition, interrogatories, or production of documents.
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Burden of proof in Criminal trials
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Beyond a reasonable doubt
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Burden of proof in Civil trials
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Preponderance of evidence
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Legal subculture
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Legal Reasoning, adherence to precedent, stare decisis
Standing to sue rules, real case or controversy, direct legal injury, no political questions, deference to congress/president |
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Democratic subculture
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Popular democratic values influence judges
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Courtroom work group
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Localism influence
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"the fluidity of judicial choice"
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Based on the thesis that judges want to influence others and be on the "winning side" of the argument. Judge's positions are not written in stone and have a sense of "openness" to change.
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"cert. pool"
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The "cert. pool" is a mechanism by which the U.S. Supreme Court manages the influx of petitions for certiorari to the court.
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Discuss list
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The chief administrative device by which the Supreme Court manages its caseload. The list is also one of numerous small ways in which the chief justice influences the agenda of the Court.
chief justice now circulates a “discuss list” of cases he deems worthy of discussion; any justice may add a case to the list. Each case presented to the Court is still reviewed in each justice's chambers, but only those cases on the discuss list are talked about at the justices' regular conference. |
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Dead list
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chief justice distribute a “dead list”—cases that did not merit discussion before being denied review.
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Rule of 4
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Term that describes the Supreme Court's long‐standing practice of reviewing a case if four justices favor granting the petition for certiorari. The rule was apparently developed by the justices as a procedural device after the Courts of Appeals Act of 1891 enlarged the Supreme Court's discretionary jurisdiction (see Judiciary Act of 1869).
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Collegial court
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dont know
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Perry, "deciding to decide"
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dont know
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Cue theory
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SC have neither the time nor the desire to wade through myriad pages in the thousands of petitions presented to them each year. Researchers hypothesized that the justices must look for cues in each petition.
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danelski
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Read 13.6
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task leadership
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Role of Chief Justice
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social leadership
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Role of Chief Justice
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Stare decisis
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[Latin, Let the decision stand.] The policy of courts to abide by or adhere to principles established by decisions in earlier cases.
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Precedent
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A court decision that is cited as an example or analogy to resolve similar questions of law in later cases.
The use of precedent has been justified as providing predictability, stability, fairness, and efficiency in the law. Reliance upon precedent contributes predictability to the law because it provides notice of what a person's rights and obligations are in particular circumstances. A person contemplating an action has the ability to know beforehand the legal outcome. It also means that lawyers can give legal advice to clients based on settled rules of law. |
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Legal reasoning
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1) Similarities are seen between the two cases
2) The rule of law inherent in the first case is announced 3) The rule of law is made applicable to the second case |
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Ratio decidendi
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Latin, The ground or reason of decision.] The legal principle upon which the decision in a specific case is founded.
The ratio decidendi is also known as the rationale for a decision. |
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Obiter dicta
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[Latin, By the way.] Words of an opinion entirely unnecessary for the decision of the case. A remark made or opinion expressed by a judge in a decision upon a cause, "by the way," that is, incidentally or collaterally, and not directly upon the question before the court or upon a point not necessarily involved in the determination of the cause, or introduced by way of illustration, or analogy or argument. Such are not binding as precedent.
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5 treatments of precedent
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Distinguishing, Limiting, Ignoring, Overruling, and Extending
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Smith v. U.S. (1993)
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Smith v. United States, 508 U.S. 223 (1993), is a United States Supreme Court case that held that the exchange of a gun for drugs constituted "use" of the firearm for purposes of a federal statute imposing penalties for "use" of a firearm "during and in relation to" a drug trafficking crime.
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Plain meaning
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A principle used by courts in interpreting contracts that provides that the objective definitions of contractual terms are controlling, irrespective of whether the language comports with the actual intention of either party.
The plain meaning of the contract will be followed where the words used — whether written or oral — have a clear and unambiguous meaning. Words are given their ordinary meaning; technical terms are given their technical meaning; and local, cultural, or trade usage of terms are recognized as applicable. |
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Public Choice Theory
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Studies the behavior of actors in political systems using models of individual maximizing behavior. James Buchanan and Gordon Tullock are generally credited with establishing the subfield with their book The Calculus of Consent (1962). Buchanan and Tullock Broke with the assumption that politicians are driven primarily by ideological motivations or are concerned with the welfare of society as a whole. Rather, they assumed a primary self-interest, operating in situations of complex and often contradictory objectives—fund raising, satisfying competing interest groups, reelection, and so on.
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Legislative intent
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A determination to perform a particular act or to act in a particular manner for a specific reason; an aim or design; a resolution to use a certain means to reach an end.
Intent is a mental attitude with which an individual acts, and therefore it cannot ordinarily be directly proved but must be inferred from surrounding facts and circumstances. Intent refers only to the state of mind with which the act is done or omitted. It differs from motive, which is what prompts a person to act or to fail to act. |
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Legislative purpose
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Purpose: refers to “an object to be attained”
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Dynamic interpretation
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Dworkin, compares judges deciding cases to authors writing a sequential novel; statutory interpretation as an evolving process
Eskridge (M&P 11.8) – should read the statute in light of the climate of the times |
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United steelworkers v. weber
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Brennan majority opinion: purposivism
Blackmun concurring opinion: dynamic approach Rehnquist dissent: intentionalism |
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Executive privilege
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The right of the president of the United States to withhold information from Congress or the courts.
Historically, presidents have claimed the right of executive privilege when they have information they want to keep confidential, either because it would jeopardize national security or because disclosure would be contrary to the interests of the executive branch. |
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Positivism
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A school of jurisprudence whose advocates believe that the only legitimate sources of law are those written rules, regulations, and principles that have been expressly enacted, adopted, or recognized by a government body, including administrative, executive, legislative, and judicial bodies.
Positivism sharply separates law and morality. |
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Judicial activism
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The theory of judicial behavior that advocates basing decisions not on the judicial precedent but on achieving what the court perceives to be for the public welfare, or what the court determines to be fair and just on the facts before it.
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Judicial restraint
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The theory of judicial behavior that advocates basing decisions on grounds that have been previously defined by judicial precedent rather than on the basis of achieving some public good, which is viewed as the proper role of the legislature.
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Original intent
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The theory of interpretation by which judges attempt to ascertain the meaning of a particular provision of a state or federal constitution by determining how the provision was understood at the time it was drafted and ratified.
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Structural analysis
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Attempt to understand individual constitutional provisions by looking at the whole of the constitutional text
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Griswold v. CT
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right to privacy, penumbras
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Purposive analysis
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“teleological jurisprudence”
What are the general aims/purposes of the Constitution? |
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11th Amendment
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Chisolm v. Georgia (1793), suits against a state in federal court
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14th Amendment
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Scott v. Sanford (1857), African Americans are citizens of the US, legality of slavery
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16th Amendment
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Pollock v. Farmers Loan and Trust Co. (1895), federal income tax
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26th Amendment
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Oregon v. Mitchell (1970), 18-year-olds the right to vote
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