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101 Cards in this Set
- Front
- Back
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The Miranda Warnings (5) |
1.You have the right to remain silent. 2.Anything you say can and will be used against you in a court of law. 3.You have the right to talk to a lawyer and to have a lawyer present while you are being questioned. 4.If you want a lawyer before or during questioning but cannot afford to hire a lawyer, one will be appointed to represent you at no cost before any questioning 5.If you answer questions now without a lawyer here, you still have the right to stop answering questions at any time. |
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Waiver of Miranda Rights |
Must be voluntary, knowing, and intelligent. Silence does not count |
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Davis v U.S. (1994) |
“Maybe I should talk to a lawyer” is not requesting a lawyer |
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When Miranda is Not Required |
Not asking guilt seeking questions Police are asking question in an investigation mode and have not focused on a suspect When a person volunteers information not in response to police questioning Suspect gives information to third party During a stop and frisk, when no arrest has been made During a traffic stop Booking questions |
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>New York v Quarles (1984) |
Court created the public safety exception – police duty to protect the public is more important than a suspects Miranda rights. During pat down felt an empty holster and asked where is the gun |
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Three basic types of identification procedures: |
1.Showups 2.Photo arrays 3.Lineups |
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Showups |
Suspect who matches the description given by witnesses is apprehended near the scene of a crime within a reasonable amount of time after the crime is committed.Note:Book says suspect is usually returned to the crime scene for ID Not usually done this way! Most states do not allow the police to transport the suspect without an arrest or consent Usually in a showup situation the police transport a witness to the areawhere they have the suspect detained |
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>Photo Arrays |
Sometimes called photo lineups Occurs when no person is detained or in custody but the police have a general description of the person Witnesses/Victimis shown several (usually at least 6) photos of people matching the description of the suspect |
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>Lineups |
Lining up several physically similar people, one of whom is the suspect infront of a witness or victim |
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6th Amendment |
right to an attorney |
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U.S. v Barker (9th Cir) |
Any procedure that does not require the suspect’s presence does not require the presence of their attorney |
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Nontestimonial Evidence |
physical evidence, including very personal items that may be within or part of a person’s body, such as: Ingested drugs DNA Foreign objects Blood Medical implants |
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Schmerber v. California (1966) |
Warrants must be obtained for bodily intrusions unless fast action is necessary to prevent the destruction of evidence by natural/physiological processes |
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Body-Cavity Searches |
Strip searches of convicts in prison, including the search of body cavities, have generally been held to be permissible. |
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U.S.v. Montoya de Hernandez(1985) |
The Court upheld a four-day customs detention of a body packer (until nature took its course and evidence was passed from her body). |
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How many Judicial systems are there in the US |
There are 52 systems in the U.S. (one for each state, the District of Columbia, and the Federal Government) |
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Jurisdiction |
The authority of a court to hear and decide cases within an area of the law or a geographic territory Juris means law Diction means to speak Jurisdiction literally refers to the power to speak the law |
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Geographic Jurisdiction |
A state trial court normally has jurisdictional authority over crimes committed in a particular area of the state (county or district) The state’s highest court has jurisdictional authority over the entire state The United States Supreme Court has jurisdiction over the entire U.S. and its territories. |
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Extradition |
is the process where one jurisdiction surrenders a person accused or convicted of violating another jurisdictions law to the second jurisdiction |
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Trial Jurisdiction |
Courts of original jurisdiction are courts of the first instance or trial courts Where trial or pleas and sentencing takes place Primary concern of trial court is questions of fact |
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Appellate Jurisdiction |
Generally cases can only be brought before appellate courts by one of the parties in the trial court Do not use juries or witnesses to reach its decision Appellate judges rely on written documents and oral arguments by the attorneys They can affirm the decision (uphold it) or reverse and remand the case back to the trial court for further proceedings |
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Dual Court System |
Federalism allows the federal government and the governments of the fifty states to hold authority in many areas Each have their own court systems |
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State Court System |
1.Lower courts of limited jurisdiction 2.Trial courts of general jurisdiction 3.Appellate Courts 4. Highest (supreme) court |
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State Limited Jurisdiction Court |
Try minor criminal matters, traffic violations Usually decided by a judge not a jury In Missouri we have municipal courts (city) and associate circuit judges who handle misdemeanor trials and preliminary hearings |
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Specialty Courts |
Problem-solving courts Very narrow jurisdiction Examples: Drug courts, Juvenile Courts, Family Law Courts, Mental Health Courts |
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Trial Courts |
Courts of original jurisdiction or general jurisdiction have authority to hear and decide cases involving most types of subject matters |
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State Appeals Courts |
Every state has at least one court of appeals ¾ of states have an intermediate appellate court as well as the highest court (most often called the State Supreme Court) |
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Federal Courts |
District Courts U.S. Courts of Appeal U.S. Supreme Court |
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Federal Judges |
Appointed by the President and confirmed by the Senate and serve for life Called Article III judges |
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Federal Limited Jurisdiction Courts |
Bankruptcy Courts Court of Federal Claims Court of International Trade Tax Court |
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District Courts |
Federal Trial Court Every state has at least one federal district court and there is one in the District of Columbia Currently 94 judicial districts |
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U.S.Courts of Appeals |
Referred to as U.S. Circuit Courts of Appeals Eleven numbered Circuits and one called the D.C. Circuit Hear appeals from the district courts The 13th Circuit (called the Federal Circuit) has national jurisdiction MO is 8th Circuit |
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U.S. Supreme Court |
Created by Article III of the U.S. Constitution |
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Marbury v. Madison |
Supreme Court gave itself the power of judicial review – power to declare an act of Congress unconstitutional |
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Writ of Certiorari |
request from a higher court asking the lower court for the record of a case |
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Rule of Four |
at least four judges of the Supreme Court must approve the granting of a writ of certiorari |
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The U.S. Supreme Court consists of: |
nine justices: Eight Associate Justices One Chief Justice |
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Opinions of the Court |
Majority—Justices agree in outcome and reasoning. This is the opinion of the court. Concurring—Agree with outcome, but for different reasons. Dissenting—Disagree with outcome.
Supreme Court decisions are rarely unanimous. |
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Judge Responsibilities include: |
Ruling on most matters of the law Weighing objections Deciding the admissibility of evidence Sentencing offenders Disciplining disorderly courtroom attendees Deciding guilt or innocence (for bench trials) |
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Judicial Selection |
Federal Judges: Article III Judges are nominated by President Confirmed by senate State Judges Options: Popular election Gubernatorial appointment Missouri Plan (combines appointment and election) |
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Missouri Plan |
“Non-partisan”committee creates a list of possible candidates. Final list sent to governor’s office.The governor appoints from the list. After a specified time period, the appointed judge stands for retention election. |
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Removal of Judges |
Vote them out of office - Most states have a judicial conduct commission that investigates charges of judicial misconduct and can recommend the removal if warranted – State Supreme Court has final say Impeachment–federal judges can be removed from office only if found guilty oftreason, bribery or other high crimes and misdemeanors |
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Judges: Qualifications |
Be a member of the state bar Be a licensed attorney Hold a law degree (in most states) Attend professional training |
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Courtroom Participants Professional(Courtroom Work Group) |
Judge, Prosecuting Attorney, Defense Attorney, Bailiff, Court reporter, Clerk of the court, Expert witnesses |
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Courtroom Participants Non-Professional(Outsiders) |
Lay witnesses, Jurors, Defendant, Victim, Spectators, Press |
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Bailiff Duties |
Charged with ensuring order in the courtroom Announces judge’s entry Calls witnesses Maintains control over the defendant if person has not been released on bail Maintains physical custody of and supervises jury during deliberations and sequestering |
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Prosecutor decides: |
Whether or not to charge someone with a crime Which charges are to be filed against the defendant Whether multiple charges should be filed together or separately When to schedule cases for trial Whether or not to accept a negotiated plea What evidence to present, including witnesses What sentencing recommendations to make |
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Brady v. Maryland(1963) |
U.S. Supreme Court held that the prosecution is required to disclose to the defense any exculpatory evidence in its possession that directly or indirectly relates to claims of either guilt or innocence. |
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U.S. v. Bagley(1985) |
The Court ruled that prosecution must disclose any evidence in its possession that the defense requests.To withhold evidence, even when it does not directly relate to issues of guilt or innocence, may mislead the defense into thinking that such evidence does not exist. |
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Imbler v. Patchman (1976) |
“State prosecutors are absolutely immune from liability…for their conduct in initiating a prosecution and in presenting a State’s case.” |
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Burns v. Reed (1991) |
A “state prosecuting attorney is absolutely immune from liability for damages…for participating in a probable cause hearing, but not for giving legal advice to the police.” |
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Abuse of Prosecutor's Discretion |
Not prosecuting friends Accepting guilty pleas or reduced charges for personal consideration Overzealous prosecution to gain visibility for possible reelection Scheduling activities to make life difficult for defendants, in an attempt to put pressure on them to plead guilty Discrimination against minorities |
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Three Major Categories of Defense Counsel |
Private attorney - Have their own legal practices or work for law firms Court-assigned counsel - Lawyers drawn from a roster of all practicing attorney Public defender - Relies on full-time salaried government staff |
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U.S. v Zolin (1989) |
Court ruled that lawyers may disclose the contents of a conversation with a client if the client has provided information concerning a crime that has yet to be committed Another exception is the lawyer can defend himself if the client sues him |
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Powell v. Alabama(1932) |
The Court required that states provide defense counsel for those defendants who are unable to employ their own counsel and are charged with a capital (death penalty) offense. |
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Johnson v. Zerbst(1938) |
U.S. Supreme Court established the right of indigent offenders to have legal counsel appointed for them in all federal cases. |
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Gideon v. Wainwright(1963) |
This case extended the right to appointed counsel for indigents in all felony cases. |
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Argersinger v. Hamlin(1972) |
The U.S. Supreme Court extended the right of indigent offenders to have legal representation in any case where they could lose their liberty (including misdemeanor cases). |
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In re Gault(1967) |
The U.S. Supreme Court extended the right to legal counsel for juveniles charged with a delinquent act. |
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Alabama v. Shelton(2002) |
Defendants in state courts who are facing relatively minor charges must be provided with an attorney at government expense even when they face only the slightest chance of incarceration. |
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Faretta v. California(1975) |
Indigents are not required to accept counsel. They may waive their right and represent themselves. |
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Strickland v. Washington (1984) |
Defendant claimed ineffective assistance of counsel Court set up a two prong test: 1.The attorney’s performance was deficient 2.The attorney’s performance more likely than not caused thedefendant to lose the case |
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The Adversary System is Characterized by three basic features |
1.Neutral and passive decision maker (judge and/or jury) 2.Presentation of evidence by both parties 3. A highly structured set of procedures that must be followed in the presentation of that evidence |
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Types Of Bail |
Property Bond– money returned as long as defendant shows up to court Cash–(all or 10%) money will be returned if shows up to court Bail Bond Agents– get a % of bail as their fee, will not be returned |
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Preventive Detention |
Some states allow a judge to hold a defendant without bond if they would pose a danger to the community |
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Pretrial Release |
Release on own recognizance is used more than any other form of pretrial release Defendant just promises to return and is released at no cost |
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Nolle Prosequi |
Latin for unwilling to pursue Dismissal by prosecutor once filed |
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Santobello v New York |
Supreme Court held that plea bargaining is not only an essential part of the process but a highly desirable part. |
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Barker v Wingo |
Unreasonable Delays Created a four factor balancing test: 1.Length of delay 2.Reason for delay 3.The defendant’s assertion of his/her right 4.The prejudice resulting from the delay |
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Duncan v Louisiana |
the Supreme Court held that defendants have a right to a jury trial in all felony cases |
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Williams v Florida |
the Supreme Court ruled there is no constitutional right to a 12 person jury |
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Ballew v Georgia |
the Supreme Court held that a jury could not be less than 6 persons Federal courts the juries are 12 and in about half the states the juries are 12 |
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Adamson v California |
jury cannot use the fact the defendant did not testify against him |
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Presumption of Innocence |
A defendant is presumed innocent until proven guilty in a court of law Prosecutor has the burden to prove guilt beyond a reasonable doubt |
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Batson v Kentucky |
Cannot use peremptory challenges to strike possible jurors on the bases of race. The defendant must raise the Batson challenge then the Prosecutor must give a race neutral reasons for excluding the potential juror |
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Powers v Ohio |
The defendant may contest race-based peremptory challenges even if the defendant is not the same race as the excluded juror |
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Georgia v McCollum |
A prosecutor can challenge a defense attorney peremptory challenge based on race |
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JEB v Alabama |
Civil paternity case Court extended the principles of Batson to include gender |
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Evidence |
Anything that is used to prove the existence or nonexistence of a fact Testimony Real Evidence – anything admitted into evidence and viewed by the jury Must be relevant, reliable and not unfairly prejudicial against the defendant |
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Two types of witnesses: |
Lay witness Expert witness |
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Lay Witness |
only allowed to testify about what they have personal knowledge of. What they saw What they heard What they smelled What they felt They cannot give an opinion |
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Expert Witness |
Has no personal knowledge of the crime They provide information to help the jury understand the evidence Provide expertise on scientific, medical or technical information Requires education or skill in the area testifying about |
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Direct Evidence |
Evidence that establishes the existence of a fact that is in question without relying on inference |
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Circumstantial Evidence |
Indirect evidence offered to establish, by inference, the likelihood of a fact that is in question |
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Hearsay Evidence |
Start with a presumption that hearsay evidence is unreliable and not admissible An oral or written statement made by an out of court speaker that is later offered in court by a witness other than the speaker concerning a matter before the court offered as true It deprives the defendant of the opportunity to cross-exam the person who made the statement |
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Hearsay Evidence Exeptions |
Witness unavailable Dying declaration Statement is inconsistent Excited utterance Business records exception Statement Against Penal Interest |
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Habeas Corpus |
Latin meaning “produce the body” Judicial order that commands a corrections official to bring the prisoner before a court so the court can determine if they are being held wrongfully Current federal law requires the motion to be filed no later than one year after the conviction date |
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Punishment Goals or strategies: |
Restoration Rehabilitation Incapacitation Deterrence Retribution |
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Two Types of Deterrence |
Specific Deterrence: Aimed at a convicted person to make the punishment bad enough that they won’t do it again General Deterrence: Aimed to deter the general population from committing a crime. |
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Presentence investigation |
Report completed by probation officer that includes the background of the defendant Judge uses this info in making his/her sentencing decision |
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Capital punishment |
Hanging was the primary method in early America in 1890 the electric chair was adopted as a more humane method |
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Probation/Parole |
Serve Sentence in community Conditions must be reasonable Judge controls probation Parole Board controls parole Can be revoked |
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first state to adopt lethal injection as a method of capital punishment |
Oklahoma |
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Bifurcated process |
Today all capital cases must be tried in this |
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Prison (v Jail) |
run by state or federal government; sentence of a year or more on a felony |
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Jail (v Prison) |
majority are run by county; usually sheriff of the county is in charge of the jail |
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Jails are full of innocent persons because |
they hold persons awaiting trial and a person is innocent until proven guilty |
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Juvenile is a person under a certain age – set by: |
State Statute (In MO, the age is 17) |
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Types of computer crime (3) |
1. The computer is the object of a crime – Computer or software is stolen 2. The computer is the subject of a crime – Breaking into a computer to steal info 3. Computer is the instrument of a crime - Using the computer to commit a crime. |
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Cyber Crime |
any criminal activity that occurs online |
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Judicial Dispositions |
Sentencing judges have a number of options which include: Death penalty (if it applies) Imprisonment Probation Fines Suspended Imposition of sentence |
