Intro to American Law Exam #1

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.