law and politics - post midterm

due process analysis

fundamental rights analysis; when there is a question of the state seeking to deprive a person of a right

prenumbra

umbrella; creates a zone of protection underneath it

equal protection

when the gov seeks to discriminate against a particular group - deals with classifications (of people)

tiers of scrutiny

the gov attempting to balance your liberties against the authority of the gov to limit them when necessary - not all right are the same and not all classifications of people are the same

strict scrutiny

state must show a compelling interest and law concerning that interest must be narrowly tailored/least restrictive (law is so slight that it only touches that concern and nothing else); gov has burden

intermediate scrutiny

the gov must have an important interest and law has to be substantially related to that; gov has burden

rational basis

individual had to prove legitimate interest and the law they chose was rationally related

free exercise clause

provision of the First Amendment guaranteeing the free exercise of religion - constrains the national government from prohibiting individuals from practicing the religion of their choice

prior restraint

restraining an activity before it has actually occurred

symbolic speech

given substantial protection - articles of clothing, gestures, and other forms of nonverbal expressive conduct

commercial speech

advertising statements which increasingly have been given first amendment protection

imminent lawless action test

the current standard established by the Supreme Court for evaluating the legality of advocacy speech; such speech can be forbidden only when it is “directing to inciting…”

defamation of character

a statement that the declarant knows to be false to harm the reputation of the target

slander

public uttering of a false statement that harms the good reputation of another - the statement must be made to, or within the hearing of, person other than the defamed party

libel

a written defamation of a person’s character, reputation, business, or property rights

actual malice

declarant has a reckless disregard for the truth

arraignment

first act in a criminal proceeding which the defendant is brought before a court to hear the charges against him or her and enter a plea of guilty or not guilty

white primary

state primary election that restricted voting to whites only; outlawed by Supreme Ct in 1944

grandfather clause

device used by southern states to disenfranchise African Americans - restricted voting to those whose ancestors had voted before 1867

poll tax

special tax that had to be paid as a qualification for voting

literacy test

test administered as a precondition for voting, often to prevent African Americans from exercising their right to vote

de facto segregation

racial segregation that occurs because of the past social and economic condition and residential racial patterns

high value speech

pure, political, and symbolic

pure speech

any type of regular conversation

political speech

discussion concerning your gov

hate speech

considered high value speech

low value speech

commercial speech, fighting words, obscenity/pornography, profanity and defamation of character

limits to commercial speech

seeks to implement a substantial gov interest, directly advances that interest, goes no further than necessary to accomplish that interest

slander

verbally state wrong thing

libel

write down false statements about another person

gag order

order of the court prohibiting the press from printing certain info

miller obscenity test

average person finds that it violates acceptable community standards, the work taken as a whole appeals to a prurient interest in sex, shows clearly offensive sexual conduct, the work lacks serious redeeming literary, artistic, political, or scientific merit

civil rights act of 1964

title VII prohibits employment discrimination based on race, color, religion, sex and national origin

civil rights act of 1965

voting rights act; prohibited gov from preventing groups from voting

civil rights act of 1968

cannot deny individuals the right to housing

African-American

term used to denote land, history, and culture

Black

used when talking about a shared experience by people of color - representing the cultural experience of the Black Diaspora

culture

history of a people and their response to that history

nulla crim sine lege

no crime without the law - if not statutorily prohibited, it is legal for you to do

crime

any prohibited offense against the state, society, community

felonies

crimes punishable by a yr or more

misdemeanors

crimes punishable by less than yr or fined

crime

felony

mala in se

evil in and of itself (felonies)

mala prohibita

wrong because public declares them wrong (misdemeanors)

over breath

law goes beyond prohibiting illegal behavior to prohibiting constitutionally protected behavior

purposely

same level as intent, but can be interchanged with specific intent

knowingly

general intent - practical certainty of producing a result; you know because you’ve handled it before

recklessly

general intent; conscious disregard of a substantial and unjustifiable risk - you know there is a consequence to your actions, but you say screw it imma do it anyway

negligently

general intent; fail to appreciate a substantial and unjustifiable risk - any reasonable person could see you probably shouldn’t engage in that behavior

malice

person wants to make someone suffer

mayhem

you want to maim or disfigure someone in advance of causing someone’s suffering

strict liability

need not prove men’s rea - statutory rape

causation

consequence in actus rea - the actual harm (proximate cause)

mens rea, actus rea, causation

three elements of a crime

principles and accessories

parties to a crime

accessories

aid and abet - give support, material or otherwise

principle

commits the crime

accessory before the fact

assist principle in actually carrying out the crime in someway

accessory after the fact

aided and abetted through helping principle remain free

alibi

individual denies prosecutors facts - typically person was not where the prosecutor said they were at the time

lack of capacity

could not be me bc i lack the requisite mental state or to carry out the actus rea

Infancy

Too young to be said to have committed this crime

Intoxication

Too inebriated to form mens rea

Settled insanity

Individuals neurotransmitters no longer fire due to intense drug abuse and they are constantly in impaired state

Insanity

At the time they committed the crime they did not have the mens rea

Mcnaughton test

If individual knew the difference between right and wrong

Irresistible impulse test

Person just couldn’t stop themselves to commit crime - serial killers

Substantial capacity test

Didn’t understand right from wrong or they lack the ability to control their behavior - must prove both

Automotism

condition that makes someone do something automatically

Excuse or justification

Duress, necessity, consent, mistake of law, and mistake of fact

Duress

Person placed you under extreme coercion

Necessity

had to commit crime to avoid a more dire circumstance; must have been to preventevil, no adequate alternative, and harm cause could not have been disproportionate to the harm avoided

Consent

Other person gave me the authority to do what I did

Mistake of law

Honest misunderstanding of the law

Mistake of fact

Reasonably mistaken as to the facts

Deadly force

Person is in a place they have the right to be, they act without fault, act im reasonable fear or apprehension of imminent death or serious bodily injury

self defense

Only for necessary to repel the actual crime

Battered woman syndrome

Even though not in imminent danger of death or bodily injury - acted out of extreme mental pressure caused by my spouses continued abuse

Castle doctrine

They have the right to defend their home

Defense of property

Reasonable force to repel someone from taking your things

Constitutionql/statutory authority

Legislature has laid out certain defenses may use in order to claim not guilty

Use immunity

If you agree to testify on behalf of the prosecution they will not use any part of your testimony against you

Transactional immunity

Keeps an individual from being prosecuted for any activity that was related to the crime for which they are charged

Contractual immunity

prosecutor, with consent of the court, offers immunity to a suspect to waiver their 5th amendment right

Diplomatic immunity

Operating in another country you are supposed to be immune from having committed offenses

Statute of limitations

Government failed to bring the case in time and failed to establish guilt or not

Entrapment

Only committed act being tried bc a government official ensnared defendant - was rhe criminal intent formed in the mind of government agent or defendant

Sorel v us

Selective prosecution

Prosecutor is abusing their discretion by treating similarly situated individuals differently

Specific deterence

Perp should be punished so that that person will not commit that crime again

General deterence

Assigns punishment thaats meant to be a warning to the public so they don’t commit similar acts

Incapacitation

Assigned to solitary confinement - imprisoned in prison

Rehabilitation

Given treatment so they don’t have the desire to commit the same crime again in the future

Retribution

Gaining revenge for you crimes against society

Domestic violence

Pattern of physical, mental, or sexual which includes threats, intimidation, isolation, and or financial control

PEPSV

physical, economic, psychological, sexual, verbal

Temporary restraining order

Tro; prohibits person from having contact etc for 10 days; can be obtained ex parte (abuser is not in court)

Final restraining order

permanent - can only be removed by consent of both parties and judge bless it; specific, clear

how to get restraining order

Family Court division of superior court house 8:30 - 3:30 mon-fri, municipal ct house, sheriffs station; judge on call at all times waiting to hear

RO requirements

prove they committed one of the offenses listed in the prevention of domestic violence 1921; pattern or history of that behavior (unless one shocks conscience; credible fear it will happen again