Al from class; exam will be hypotheticals, true/false,multiple choice, short answer, one essay, and one bonus.
Habeus Corpus
A writ requiring a person to be brought to trial
Ex Post Facto
Having retroactive effect or force
Jurisdiction
Authority to preside over something
U.S. Constitution
Supreme law of the land
First Amendment
Freedom to association, religion, speech, assembly, petition, press, and expression
Second Amendment
Freedom to own a gun
Fifth Amendment
Right to a grand jury, No double jeopardy, right to remain silent, and due process
Grand Jury
Group of people who decide who can be charged with a crime
Double Jeopardy
A person cannot be charged for the same offense more than once
Due Process
The necessity for the system to follow the rules and procedures
Hierarchy of Law
1- U.S. Constition
2- Federal Statutes
3- Treaties
4- State Constitutions
5- State Statutes
6- Common Law
Sixth Amendment
Right to a speedy trial, Right to a jury of peers, Transparency in trials, Must be done when crimes were committed, Must be informed of charges, Clear way to mandate witnesses, Right to be confronted by the witness to the crime, and Right to a lawyer
Eighth Amendment
Right against cruel and unsual punishment and no excessive bail
Fourteenth Amendment
The U.S. Constitution appplies to the states (Incorporation)
Incorporation
Application of Constitutional laws to the states
English Common Law
Created by judges, laws based on legal precedent set in court, adversarial system
French Civil Law
Everything is written
Jury
Decider of Facts
Judge
Decider of Law
Private Practice of Law
Solo
Small Firms (2-10 pple)
Medium Firms (10-75/100 pple)
Large Firms (100+ pple)
In-House
Company Attorney’s, can have problems with company influence
Types of Practices in Government
Prosecutors (federal, state, local)
Civil Attorneys (Attorney General, etc.)
Military
Government attorneys within Agencies
Public Defenders
Judges
Non-Profits
Legal Aid (ACLU for example)
Practices of law
Private Practice
In-House
Government
Non-Profits
Legal Ethics
Know what you are doing
Don’t ignore clients
Don’t ignore cases, be diligent
Must charge reasonable fees
Don’t have conflict of interes
Duty of confidentiality
Court System
Trial Courts
Intermediate Court of Appeals
Supreme Court
U.S. Supreme Court
Trial Court
Facts are decided, evidence is presented here, this is also where you find courts of general jurisdiction and courts with limited jurisdiction, i.e., juvenile court or patent court
Intermediate Court of Appeals
Where the initial appeal goes, get a right to this level, all cases appealed at this level are heard
State Supreme Court
State level, cases are chosen on whether the court wants to hear them
Where Appeals are made
De Novo
Error at Law
Abuse of Discretion
De Novo
Appeals court addressed the case in full from the beginning
Error at Law
Appeals court is looking at any mistakes done in interpreting law
Abuse of Discretion
Appeals court is looking at whether the court took advantage of the priveledge of being able to make decisions
Textualism
Plain wording of the text
Pragmatic (Progressive)
Adapting, and applying the law to situations
Originalism
Original intent of the text, what the founding fathers were wanting or seeking in the creation of the Constitution
Types of Judicial Review
Textualism
Originalism
Pragmatic
Justiciability
Real case or controversy
Standing
Ripeness
Mootness
Jurisdiction
Abstention
Plenary
Real Case or Controversy
Something needs to be at dispute, cannot address if there is no diputed fact
Standing
Whether there is ability to bring a law suit. Need- Actual or imminent injury, Injury has to be (allegedly) caused by defendant, and there has to be judicial remedy
Mootness
Problem cannot be expired by the time the court addresses it
Types of Jurisdiction
Federally-
Diversity (pple in different states)
Federal law/federal question
States-
Concurrent jurisdiction
Abstention
To avoid something; parallel litigation, court won’t address something if it’s being addressed elsewhere
Plenary
Anything that is a question of government that needs to be reserved for another branch. (If it is a political question it is not justiciable)
Interstate Commerce Clause (Amend I, sec. 8)
Channels of Interstate commerce (ex. H2O)
Instrumentalities of interstate commerce- anything you can travel with and anything to go along with that can be regulated
Other activities- with substantial relation
Negative/Dormant Intercommerce Clause
State laws that discriminate against interstate commerce- this prevents states from doing anything that would hinder the transactional flow between states
Anything of undue burden on interstate commerce
What does the Constitution do?
The Constitution protects people (business) from any government entity
State Actions
Private Action Entangled
Private Action done in Concert with the state
Public function performed by a private actor
Private Action Done in Concert with the State
State action done through a private enitity and actions compelled through state laws
Equal Protection
Suspect (mainly race)
Middle (Gender)
Economic/Market (commercial activities)
Levels of Scrutiny
Strict Scrutiny
Middle Level Scrutiny
Lax Scrutiny
Strict Scrutiny
Compelling government purpose, and done with the least restrictive alternative
Middle Level Scrutiny
Substantially related to an important government purpose
Lax Scrutiny
Rationally related to a legitimate government purpose
Government Action on Right to Expression
Needs to be viewpoint neutral and content neutral
Not Protected Speech
Threats of harm, Incitement, Fighting words, Obscenity
Obscentity Test (Miller v. California)
1-Average person applying contemporary community standards would find that the work as a whole appeals to the prurient interests in sex
2-The work depcts in an impatently offensive way, sexual conduct specifically defined by the applicable state law
AND
3- The work taken as a whole lacks literary, artistic, political, or scientific value
Time, Place, Manner Restrictions
Government can regulate the time, place, and manner, but not the content of the speech
Forums Where Speech Take Place
Traditional Public Forum
Designated Public Forum
Limited Public Forum
Nonpublic Forums
Tests on Traditional and Designated Public Forums
Reasonable restriction on time, place, and manner
Unrelated to the content
Narrowly created to serve important government interest
Leave suitable alternative
Test on Limited Public Forums
Viewpoint can be regulated
Tests on Symbolic Expression
To further an important government interest
Unrelated to the idea of free expression
Limited to achieving government interest
Prior Restraint
Government regulation beforehand
Freedom of Association
Implied in the First Amendment, cannot restrict or compell
Commercial Speech
Substantial Government interest
*Whether the activity is lawful and not misleading
Connection between regulation and government interest
Limited to achieve that interest
Pro Se
Representing oneself
Lemon Test of the Establishment Clause
The law or action must have a secular (neutral religious) purpose
The primary effect must be that if neither advances nor inhibits religion
Cannot involve excessive government entanglement with religion
Probable Cause
Based on the totality of the circumstances there is a reasonable belief that a crime has been committed and a specific person committed the crime
Trial Information or Grand Jury
Decides what the charges are
Arraignment
Where the defendant is formally presented their charges and where the initial plea is entered
Pretrial Litigation
Discovery happens, disposition, and pretrial motions
Trial
Consists of jury selection, an opening statement, the state’s case-in-chief, the defendant’s case-in-chief (if any), closing statements, and verdict
Initial Appearance
May consist of an initial plead, asking for an attorney, sentencing, or bond
Categories of Searches
Searches with probable cause and a warrant
Searches with probable cause and no warrant
Searches with out probable cause and no warrant
Searches without probable cause and no warrant
Can be inventories, with consent, or search incident to arrest
Curtilage
The exterior boundary of a property that might prevent a view; the police can survey, but cannot cross
Affadavit
This is swearing something to be true
Exigent
Extenuating circumstances; Includes the automobile exception and preventing someone from further fleeing
Automobile Exception
Because of the mobility of a vehicle, in some circumstances, the police have exigency to search
Plain View Doctrine
Officer has to be in a place they can lawfully be
Must have lawful access to the item
AND
Officer has to immediately understand the nature or character of the item
Miranda Rights
You have the right to remain silent (5th Amendment) and Right to an Attorney (5th and 6th Amendment)
When Miranda Applies
In custody
Attempting to obtain incriminating information
Types of Custody
Temporary
Permanent/Ongoing
Degree to which the movement is curtailed
Motion to Suppress
A motion or request to the court to prohibit the state using evidence that was obtained against either constitutional or statutory rights
Exclusionary Rule
requirement for any evidence that is obtained illegally to be excluded in court (typically applied to constitutional rights-4th Amend)
Fruit of the Poisonous Tree
Any evidence that was derivative of evidence that was obtained in violation of an individual’s rights
Independent Source and Inevitable Discovery
If the police would have been able to find the evidence through an independent source or inevitability, illegaly obtained evidence is still allowed
Good Faith Exception
If police make a mistake of fact or acts in good faith and obtain something illegally it is still admissable
Reasonable Suspicion
Ability to articulate specific facts that criminal activity is afoot.