Chapter 3 & 5 - ACC 747

What is the purpose of the United States Constitution

Purposes:

1) Set up our Federal system of government and establish enumerated

powers granted to each branch of the Government.

2) Provide individual rights to the citizens of the Country and restrict the

Government’s ability to restrict or inhibit those rights.

Article 3 Judiciary

Purpose of the Federal Judiciary is to address questions and disputes of involving Federal law and to serve as a Constitutional “check” by hearing cases involving the alleged unconstutionality of enacted legislation or other Federal action.

Means-End Tests

The Federal Courts use Means-End tests to apply to many alleged disputes as to Constutionality of federal action. The result is to ascertain if the protection afforded by the government action justifies the methods taken to implement that protection.

These Means-End tests apply in Substantive Due Process cases, Speech issues, Equal Protection matters and many more.

Strict Scrutiny

Is the Government Action necessary to meet a compelling Government interest?

Intermediate Scrutiny

Is the Government Action substantially related to an important Government interest?

Rational Basis

Is the Government Action rationally related to a legitimate Government interest?

Freedom of Speech

Whether speech can effectively be regulated by the Government depends on the kind of speech that the Government is effectively trying to restrict. Any speech regulation must be no more restricting than necessary.

Political Speech

receives the highest level of protection (Strict Scrutiny). Applies to both individual speech and entity-level speech.

Non-Commercial, non-political speech

Includes all artistic speech. Also receives Strict Scrutiny protection.

Commercial Speech

broken down into 2 categories: Non-misleading and misleading speech.

Non-Misleading Commercial Speech

receives Intermediate Scrutiny protection.

Misleading Commercial Speech

receives no protection and is freely regulated by the government.

Commerce Clause

• Article 1 of the Constitution specifically provides that Congress shall regulate all commerce among the several states.

• Formerly interpreted by the Supreme Court to include all interstate activities as well as any intrastate activity that would “touch and concern” interstate commerce.

• Now, with the advent and development of national commerce, the Court has expanded its interpretation to allow Congress to regulate any commercial activity that “may impact” interstate commerce.

Substantive Due Process

includes all of the individual rights we enjoy under the Constitution: Free speech, religion, right to travel, right to bear arms, right to vote, etc.

Procedural Due Process

Required procedures that must be afforded to anyone whose substantive due process rights are being threatened or taken away. Government must provide everyone the right to two specific items: 1) Notice, and 2) a Hearing/Trial

Discriminatory legislation based on race

national origin must meet the Strict Scrutiny test to be deemed Constitutional.

Discriminatory legislation based on gender

must meet the Intermediate Scrutiny test to be deemed Constitutional.

Discriminatory legislation based on tax, public protection, safety issues

must meet the Rational Basis test to be deemed Constitutional.

Four requirements exist for a Constitutional taking of privately owned property by the Government:

1) The taking of privately owned property must yield a net public benefit

2) Notice of the taking in advance (PDP Right)

3) Opportunity for a hearing by the owner of the property (PDP Right)

4) Fair market value paid to the owner for the property taken

Three levels of offense

Violations: Punishable by fines, administrative suspensions, community service, minimal jail time.

Misdemeanors: Punishable by up to one year in jail and/or up to $1,000 in fines.

Felonies: Punishable by over one year in prison and/or over $1,000 in fines.

Deterrence

– serves to prevent crimes from happening.

• General Deterrence – Society as a whole is deterred from committing criminal acts because of the known punishment associated with those acts.

• Special Deterrence – Actual punishment of a criminal defendant deters that person from committing the same act again.

General Deterrence

Society as a whole is deterred from committing criminal acts because of the known punishment associated with those acts.

Special Deterrence

Actual punishment of a criminal defendant deters that person from committing the same act again.

Rehabilitation

Make the criminal defendant a better person through punishment.

Retribution

Punishment solely for having violated the state’s prohibition on particular acts.

Restitution

Provide reimbursement to victims of crimes for injuries/damages they suffered during the criminal act.

Actus Reus

The defendant violated a criminal statute or criminal law, a prohibited act.

Mens Rea

At the time of the actus reus, the defendant acted with the mental state identified by the criminal law.

• Intentional – Intent to cause certain consequences or a substantial certainty that the consequences will occur.

• Reckless – Conscious indifference to a known and substantial risk of harm.

• Negligent – Failure to use reasonable care to prevent foreseeable harm when a duty exists to do so.

Intentional

Intent to cause certain consequences or a substantial certainty that the consequences will occur.

Reckless

Conscious indifference to a known and substantial risk of harm.

Negligent

Failure to use reasonable care to prevent foreseeable harm when a duty exists to do so.

Intoxication

• Voluntary Intoxication – generally only serves to reduce the mens rea and may reduce the class of crime as a result. Unable to establish the requisite mental state of a higher-level crime due to

intoxicated state. Must be severe to be an effective defense.

• Involuntary Intoxication – May serve as a total bar to prosecution, but will require significant medical testimony to show the actions as well as the intoxication were both involuntary on the part of the defendant.

Voluntary Intoxication

generally only serves to reduce the mens rea and may reduce the class of crime as a result. Unable to establish the requisite mental state of a higher-level crime due to intoxicated state. Must be severe to be an effective defense.

Involuntary Intoxication

May serve as a total bar to prosecution, but will require significant medical testimony to show the actions as well as the intoxication were both involuntary on the part of the defendant.

Infancy

defendant is too young to comprehend the criminal nature of his or her actions

Insanity

Because of a mental illness at the time of the actus reus, the defendant was unable to comprehend the criminal nature of his or her actions.

Self-Defense

when faced with a likelihood/threat of physical harm, a person may use force to defend himself or herself to prevent that harm from happening.

Criminal Procedure

Investigation by law enforcement —> Summons/Arrest Custody of the defendant —> Information or Indictment – formal charging of a crime —> Arraignment – Initial appearance before the Court for a plea (guilty, not guilty, nolo contendere) and disposition if entering a guilty or nolo plea. —> Bail Hearing – Cash bail or bond serving as incentive to attend all court appearances. —> Probable Cause Hearing – Felonies and jailable misdemeanors only —> Trial/Plea Agreement

4th Amendment

• Right to be free from unreasonable search and seizure.

• 4th Amendment requires a warrant to search a person or that person’s property for evidence of a crime where there is a reasonable expectation of privacy.

• Warrants are judge-signed instruments that allow law enforcement to search private property. Must be petitioned to the court and must be supported by affidavit of a sworn witness with actual knowledge of the presence of evidence of criminal behavior.

• What determines a reasonable expectation of privacy depends largely on how someone takes steps to protect that evidence and make it private.

Exceptions to the 4th Amendment Warrant Requirement

• Search Incident to an arrest (curtilage - immediate area of control)

• Hot pursuit of an armed suspect

• Motor vehicles and containers therein (very

state-specific)

• Plain view

• Stop and Frisk

• Consent

• Customs searches

• Administrative inspection of a closely

regulated business/activity

• Evanescent evidence

5th Amendment

Right to be free from self-incrimination in criminal cases

6th Amendment

Right to a speedy trial, trial by jury, right to confront all witnesses, right to counsel (in certain circumstances)