Final exam review

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Final Exam review for CJ 202 Constitutional Law

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  • http://www.justice.gov/archive/ll/highlights.htm
  • http://www.washingtonlawhelp.org/resource/motion-to-vacate-judgmentorder-cr-60http://legal-dictionary.thefreedictionary.com/vacate
  • http://video.search.yahoo.com/video/play;_ylt=A2KLqIHqBBNRjlkA1nP7w8QF;_ylu=X3oDMTBvbXQ4Y2xxBHNlYwNzcgRzbGsDdmlkBHZ0aWQDVjEzNw--?p=14th+amendment&vid=8dae0e550c565caa836932bc63b18ec0&l=13%3A13&turl=http%3A%2F%2Fts3.mm.bing.net%2Fth%3Fid%3DV.4902010274382230%26pid%3D15.1&rurl=http%3A%2F%2Fwww.youtube.com%2Fwatch%3Fv%3DKWG8AcCty_I&tit=The+14th+Amendment+of+the+U.S.+Constitution%3A+A+History&c=0&sigr=11ard7mlm&fr=yfp-t-701-s&tt=bhttp://www.law.cornell.edu/constitution/amendmentxiv
  • In Terry, Cleveland Police Detective Martin McFadden observed two then three men “casing” a jewelry store, followed them, confronted, identified as a police officer, grabbed John Terry by coat and spun him around, felt what believed to be a revolver in coat pocket. P.212
  • p. 215
  • 1957 Cleveland, Ohio, police had a tip that a person wanted in a bomb making case was hiding in house of Dollree Mapp. She refused entry. They later returned with a paper supposed to be a warrant. She seized and stuffed it into the bosom. Officers got it back. Trial court convicted her of possessing pornography. Appeals affirmed. SCOTUS overturned. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0367_0643_ZO.html
  • Patsy Stewart and Armando Sanchez,drug dealers identified by tip to police. Began surveillance. http://www.oyez.org/cases/1980-1989/1983/1983_82_1771
  • Question-could the police stop the car, approach Wardlow, and ask him what he had in the bag?http://www.law.cornell.edu/supct/html/98-1036.ZS.htmlOfficers Nolan and Harvey gave chase when Wardlow ran upon observing a “caravan of police vehicles”“Unprovoked flight is the exact opposite of “going about one’s business.” While flight is not necessarily indicative of ongoing criminal activity, Terry recognized that officers can detain individuals to resolve ambiguities in their conduct…”
  • http://supreme.justia.com/cases/federal/us/496/444/case.html
  • In Randolph, Scott and Janet Randolph were separating prior to divorce. She had been living in Canada. After a domestic dispute regarding child custody, Janet called police to their house. On arrival, Janet allowed consent search and told police where Scott kept cocaine. Police found and seized evidence. She withdrew consent, so officers got a search warrant. Won at trial, but overturned by SCOTUS. Scott had expressly forbidden, she had no right to overturn his refusal. He was present at the time. http://www.oyez.org/cases/2000-2009/2005/2005_04_1067In Rodriquez, Gail Fisher, who had been living with Rodriquez called police having been beaten by Rodriquez. She led them to “our” apartment, let them in, police arrested him and also found him with controlled substance. He moved she had no authority to allow them in. Court ruled the police “reasonably believed” she did.http://www.law.cornell.edu/supct/html/88-2018.ZO.html
  • The judges had several contradictory reasons and comments written into their opinions, but ruled 8-0 in the end. Justice Sherman Minton abstained from the vote.
  • Gault and friend, Ronald Lewis, making obscene telephone calls. Police located and took into custody. His mother came home from work and found him missing, finally found him in juvenile detention. Ordered held in juvenile detention until age 21. No means of appeal of sentence for juveniles under Arizona law. Appeal filed with Arizona Supreme Court which referred it back to state court.
  • Justice Potter Stewart dissented saying rights of criminal trials do not apply to juvenile trials because juveniles “corrective in nature.”
  • Murder case, Escobedo allegedly shot brother-in-law for mistreating his sister. Originally arrested without warrant and interrogated, released. Another man arrested then said Escobedo did shooting. Rearrested along with his sister. Told by police that another person had implicated in crime, he requested attorney. Finally during 14 hour interrogation stated he did know something about the crime, was charged. http://supreme.justia.com/cases/federal/us/378/478/case.html
  • http://www.huffingtonpost.com/2013/04/22/dzhokhar-tsarnaev-miranda_n_3134745.html
  • http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/february2011/legal_digest
  • http://docs.justia.com/cases/federal/appellate-courts/ca8/12-1294/12-1294-2013-03-28.pdf
  • Final exam review

    1. 1. FINAL EXAM REVIEWChapter 10-13 and Cumulative Review
    2. 2. Introduction The 8th Amendment protects three rights: That excessive bail shall not be required That excessive fines shall not be imposed That cruel and unusual punishment shall not beinflicted This Amendment has a lot of controversybecause of interpretations about whether thedeath penalty is cruel and unusual
    3. 3. Bail Also allows individuals to: Prepare a defense To continue earning income if employed Bail itself is not guaranteed Only excessive bail is prohibited which is notclearly defined Bail may be denied in capital cases and when theaccused has threatened possible trial witnesses
    4. 4. The Evolution of Legislation andCase Law on Bail The Bail Reform Act of 1984 Granted judicial authority to include specificconditions of release for the communitys safety Allows judges to consider the potential criminalconduct of those accused of serious offenses anddeny bail on those grounds Preventive Detention
    5. 5. The Evolution of Legislation andCase Law on Bail The Bail Reform Act of 1984 Jackson v. Indiana (1972) Government may detain dangerous defendants whomay be incompetent to stand trial Addington v. Texas (1979) Government may detain mentally unstableindividuals who present a public danger United States v. Salerno (1987) Pretrial detention under this act did not violate the8th Amendment
    6. 6. Asset Forfeiture and the Prohibitionagainst Excessive Fines Asset Forfeiture The seizure by the government, withoutcompensation, of money and property connectedwith illegal activity Property connected with illegal activity may beforfeited when used as a conveyance totransport illicit drugs Real estate used in association with a crimeand money or other negotiable instrumentsobtained through criminal activity also can beseized and is considered a civil sanction by
    7. 7. Asset Forfeiture and the Prohibitionagainst Excessive Fines Austin v. United States (1993) The Supreme Court ruled that the 8th Amendmentprohibition against excessive fines applies to civilforfeiture proceedings against property connectedto drug trafficking The amount seized must bear some relation to thevalue of the illegal enterprise under the 8thAmendment This is the first decision on the limitation of thegovernment’s power to seize property connectedwith illegal activity
    8. 8. Asset Forfeiture and the Prohibitionagainst Excessive Fines United States v. Ursery (1996) Forfeiture is not double jeopardy because it isconsidered a civil sanction rather than anadditional criminal action Civil Asset Forfeiture Reform Act (2000) Key changes:1. Burden of proof is “preponderance of the evidence”2. Statute of Limitations is five years3. Destruction of property to prevent seizure
    9. 9. Cruel and Unusual Punishment The final clause of the 8th Amendment What is “cruel and unusual?” Depends on what society believes it to be Coker v. Georgia (1977) Punishment is excessive and unconstitutional ifit:1. Makes no measureable contribution to acceptablegoals of punishment and hence is nothing morethan the purposeless and needless imposition ofpain and suffering2. Is grossly out of proportion to the severity of the
    10. 10. Cruel and Unusual Punishment The courts have used three inquiries inassessing constitutionality of cruel andunusual punishment:1. Whether the punishment shocks the generalconscience of a civilized society2. Whether the punishment is unnecessarily cruel3. Whether the punishment goes beyond legitimatepenal aims
    11. 11. Cruel and Unusual Punishment The Supreme Court has established threecriteria for proportionality analysis (making thepunishment fit the crime):1. The gravity of the offense and the harshness ofthe penalty2. The sentences imposed on other criminals inthe same jurisdiction3. The sentences imposed for the commission ofthe same crime in other jurisdictions.
    12. 12. Is Capital Punishment Cruel andUnusual? Furman v. Georgia (1972) Landmark case in which Supreme Court calledfor a ban on the death penalty in Georgia Ruled its law as it stood was capricious andhence, cruel and unusual punishment The Court ruled that the states had to give judgesand juries more guidance in capital sentencing toprevent discretionary use of the death penalty It held that Georgia’s death penalty was invalid
    13. 13. Is Capital Punishment Cruel andUnusual? Due to the Furman case, executions weresuspended across the country The federal government passed a new deathpenalty law instituting a new two-step process(bifurcated trial):1. Determine innocence or guilt2. Determine whether to seek the death penalty
    14. 14. Is Capital Punishment Cruel andUnusual? Gregg v. Georgia (1976) The Supreme Court reinstated the Georgia deathpenalty by sustaining its revised death penaltylaw The death penalty itself is not cruel and unusualpunishment A capital case now requires a bifurcated trial
    15. 15. Lengthy Delays in Execution asCruel and Unusual Do long delays in carrying out executionsconstitute cruel and unusual punishment? Thompson v. McNeil (2009) The Supreme Court rejected an appeal thatclaimed a 32 year imprisonment caused by hisappeals constituted cruel and unusualpunishment
    16. 16. 8th Amendment and Corrections Due process and equal protection issues aresignificant concerns in corrections becauseviolations of these rights are unconstitutional 8th Amendment rights are divides into twocategories:1. Actions against individual prisoners2. Institutional conditions
    17. 17. 8th Amendment and Corrections Cases based on the 8th Amendment forprisoners include: Overcrowding Solitary confinement Corporal punishment Physical abuse Use of force Treatment and rehabilitation, the right not to betreated Death penalty
    18. 18. Prisoner Treatment and the 8thAmendment The Supreme Court has been called on todetermine whether conditions and actionswithin correctional institutions constitute crueland unusual punishment Rhodes v. Chapman (1981) Double-celling and crowding do not necessarilyconstitute cruel and unusual punishment Wilson v. Seiter (1991) Prisoners must prove prison conditions areobjectively cruel and unusual and show they existbecause of officials’ deliberate indifference
    19. 19. USA PATRIOT Act Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act
    20. 20. USA PATRIOT Act The Act gives federal officials greater authorityto track and intercept communications for lawenforcement and foreign intelligence gathering Improves the nation’s counterterrorism efforts It further closes our borders to foreignterrorists and allows us to detain and removeterrorists already in our country USA Patriot Act link
    21. 21. USA PATRIOT Act The Act significantly improves the nation’scounterterrorism efforts by: Allowing investigators to use the tools alreadyavailable to investigate organized crime and drugtrafficking Facilitating information sharing and cooperationamong government agencies, so they can better“connect the dots” Updating the law to reflect new technologies and newthreats Increasing the penalties for those who commit orsupport terrorist crimes
    22. 22. Increasing Penalties for Those WhoCommit or Support Terrorist Crimes Creates a new offense for knowingly harboringpeople who have committed or are about tocommit a variety of terrorist offenses Enhances the inadequate maximum penalties forvarious crimes likely to be committed byterrorists Enhances a number of conspiracy penalties It eliminates the statute of limitations for certainterrorism crimes
    23. 23. FINAL EXAM REVIEWChapter 10-13 and Cumulative Review
    24. 24. Six Basic Principles of theConstitution Popular Sovereignty “We The People” Constitutionalism or Limited Government Separation of Powers Balance of Powers or Checks and Balances Judicial Review (Is the law Constitutional?) Federalism-divided powers between federaland states (those not grated to federal arereserved to the state)
    25. 25. Reading Legal Citations Citation is the reference to the specific case Scott v. Harris, 550 U.S. 372 (2007) First name is plaintiff 550 = volume number US=United States Reports for USSC 372=page number 2007=year 42 U.S.C. 1983 Chapter 42, United States Code(federal law) Section 1983
    26. 26. Reading Case Law Court opinions, decisions, tells what is decidedand why Caption – Parties involved in a case State of South Carolina v Smith Smith v Jones
    27. 27. Trial Court Two responsibilities Determine what happened (jury tries fact) Determine which legal rules apply (judge)
    28. 28. Appellate Court Reviews written arguments, motions Transcripts of case Opinions of trial court judges No retrying of facts
    29. 29. Reading (cont) Holding Rule of law applied to particular facts of case What was the holding in Scott v Harris? What was the holding in Marbury v Madison? Affirm-appeals court agrees with lower court decision Reverse-appeals court overturns lower court decision Remand-appeals court returns to lower court forfurther action Vacate-set aside a decision Can be a motion Definition
    30. 30. 14th Amendment 14th Amendment applied the provisions of theConstitution to the states Due process of government action Citizenship, no depravation Equal protection for all citizens Video
    31. 31. Scrutiny (cont) Strict Scrutiny-any categorization of law basedon race, national origin unconstitutional Must have compelling government interest Intermediate Scrutiny-any categorizationbased on gender Must have substantial or important governmentinterest Rational-basis test-constitutional if areasonably related government interest
    32. 32. Key Rights in the FirstAmendment Religion Speech Press Assembly Redress of Grievances (against thegovernment)
    33. 33. Text of the Fourth Amendment "The right of the people to be secure in theirpersons, houses, papers, and effects, againstunreasonable searches and seizures, shall notbe violated, and no warrants shall issue, butupon probable cause, supported by oath oraffirmation, and particularly describing theplace to be searched, and the persons orthings to be seized."
    34. 34. Importance of the 4th to LE Defines the powers of the police to search forevidence Protects the rights of the citizens fromunreasonable search Not all search Recognizes that the government must have somepower to police, but regulated Considers the “means” as well as the “end”
    35. 35. Clauses of the 4th Reasonableness Clause Right against unreasonable search and seizure notviolated Probable Cause Clause No warrant without probable cause Courts have viewed as two separate clausessince 1960s Critical concepts Reasonableness Reasonable expectation of privacy Probable Cause
    36. 36. Tests of ReasonablenessBright Line “Bright Line” A specific rule of the court Example, LE officer takes a person intocustody, begins to question about a crime,suspect makes admission of guilt, describesevidence and location Officer did not give Miranda Warning prior toquestioning about the case
    37. 37. Stop and Frisk “Terry” Stop Terry v. Ohio, 392 U.S. 1 (1968) No violation of 4th if stopped by police onreasonable suspicion Outer clothing “pat down” if reasonable suspicionthey are armed Requires articulable facts, no hunches
    38. 38. Exclusionary Rule “Judge made law” Court is giving guidance in application ofConstitutional restriction (my words) Prevents evidence from being illegally seizedand used for prosecution Mapp v Ohio 367 U.S. 643 (1961
    39. 39. Mapp v. Ohio, 367 U.S. 643(1961) Unreasonable search and seizure Application of 4th amendment search andseizure to the states by the 14th amendment
    40. 40. United States v. Leon, 468 U.S.897 (1984) SCOTUS created “good faith” exception toexclusionary rule Drug surveillance case, 1981, California Police observed homes, followed suspiciouscars, wrote search warrant Later determined PC lacking in affidavit Evidence upheld because police relied onsearch warrant authority Cited Mapp
    41. 41. Illinois v. Wardlow, 528 U.S. 119(2000) Runnin’ from the Po-Po Facts Chicago Police patrolling high crime/drug area Sam Wardlow holding a bag. Trial court convicted, state appeals reversed SCOTUS held fleeing in “high crime” area enough to havereasonable suspicion “flight at the mere sight of police is a sign that there existsreasonable suspicion that criminal activity is afoot.” “must be at least a minimal level of objective justification forthe stop.” 5-4 decision
    42. 42. Michigan Dept. of State Police v.Sitz, 496 U.S. 444 (1990), DL check points 4th amendment seizure at checkpoint-is itreasonable? "substantial government interest" to advancein stopping drunk driving Interference with other drivers “negligible” 126 drivers, avg 25-30 seconds, 2 DUI arrests 6-3 ruling,
    43. 43. Elements of Arrest Intent Authority Detain or Restraint (not free to leave) Understanding SC Code of Laws 17-13-10 Includes citizen arrest
    44. 44. CONDUCTINGCONSTITUTIONAL SEARCHESChapter 10
    45. 45. Tenets of 4th Amendment SearchAnalysis Cases involving the 4th Amendment begin withtwo basic questions:1. Have the fundamental constitutional rules beenmet?2. Does the search fit within one of thepermissible realms?
    46. 46. Tenets of 4th Amendment SearchAnalysis What are the fundamental rules?1. There must be governmental action2. The person making the challenge must havestanding, that is, the conduct violates thechallenger’s reasonable expectation of privacy a situation in which (1) a person has exhibited actual(subjective) expectation of privacy and (2) thatexpectation is one that society is prepared torecognize as reasonable Often an implied right that falls within the shadow ofother specified rights (penumbra)3. General searches are unlawful and restrictgovernment from going beyond what isnecessary
    47. 47. The Scope of Searches Unrestrained general searches offend oursense of justice All searches must be limited in scope General searches are unconstitutional andnever legal
    48. 48. Searches with a Warrant All searches with a warrant must be based on: Probable cause Supported by oath and affirmation Particularly describing the place to be searched,and The persons or things to be seized
    49. 49. Searches without a Warrant The 4th Amendment prefers a warrant becauseit necessitates judicial review of governmentaction The Supreme Court has defined somesearches without a warrant to be reasonableunder the 4th Amendment guidelines: Consent search, frisks, plain feel/plain view,incident to arrest, automobile exception, exigentcircumstances, open fields, abandoned propertyand public places
    50. 50. Searches with Consent If an individual gives voluntary consent for thepolice to search, the police may so without awarrant Any evidence found will be admissible in court The person may revoke the search at anytime
    51. 51. Searches with Consent Georgia v. Randolph (2006) When both occupants are present and oneobjects to a search, the other cannot “override”the co-occupants refusal Illinois v. Rodriguez (1990) There is not 4th Amendment violation if thepolice reasonably believed at the time of theirentry that the third party possessed theauthority to consent
    52. 52. Searches with Consent Courts typically justify the consent exceptionby two separate tests: Voluntariness test- The consent was obtained without coercion orpromises and was reasonable Considers the totality of the circumstances to determine isthe consent was voluntary Waiver test- Citizens may consent to waive their 4th Amendmentrights, but only if they do so voluntarily, knowingly, andintentionally
    53. 53. Frisks If an officer suspects a person is presently armed anddangerous, a frisk may conducted without a warrant(Chapter 8) A frisk is authorized by the circumstances of aninvestigative stop, only a limited pat-down of thedetainee’s outer clothing for the officer’s safety isauthorized Factors contributing to the decision to frisk include: Suspect that flees A bulge in the clothing Suspect’s hand concealed in a pocket Being in a known high crime area and suspect crimewould likely involve a weapon
    54. 54. Searches Incident to LawfulArrest Chimel v. California (1969) Searches after an arrest must be immediate andmust be limited to the area within the person’swingspan The area within a person’s reach or immediate control Schmerber v. California (1966) Absent the exigent circumstances, a searchintrusive as drawing blood would not bepermissible without a warrant
    55. 55. Use of Force in Searching an ArrestedPerson When government agents search a personincident to arrest, they may use as much forceas reasonably necessary to Protect themselves, To prevent escape, Or the destruction or concealment of evidence The reasonableness of the police actiondetermines the lawfulness of it
    56. 56. The Automobile Exception Carroll v. United States (1925) Established that vehicles can be searched withouta warrant provided1. There is probable cause to believe the vehicle’scontents violate the law2. The vehicle would be gone before a search warrantcould be obtained For officer to search a vehicle without awarrant, the must have probable cause tobelieve that the vehicle contains contrabandor evidence
    57. 57. Exigent Circumstances The courts have recognized that sometimessituations will arise that reasonably requireimmediate action before evidence may bedestroyed These circumstances include: Danger or physical harm to officer or others Danger or destruction of evidence Driving while intoxicated Hot-pursuit situations Individuals requiring rescuing
    58. 58. Special Needs Searches These are limited searches that the courtconsiders reasonable because societal needsare thought to outweigh the individual’s normalexpectation of privacy: Prison Probation and parole searches Drug testing for certain occupations Administrative searches of closely regulatedbusinesses Community caretaking searches Public school searches
    59. 59. THE 5TH AMENDMENT:DUE PROCESS AND OBTAININGINFORMATION LEGALLYChapter 11
    60. 60. Text of the 5th Amendment No person shall be held to answer for a capital, orotherwise infamous crime, unless on a presentment orindictment of a Grand Jury, except in cases arising in theland or naval forces, or in the Militia, when in actualservice in time of War or public danger; nor shall anyperson be subject for the same offense to be twice put injeopardy of life or limb; nor shall be compelled in anycriminal case to be a witness against himself, nor bedeprived of life, liberty, or property, without due processof law; nor shall private property be taken for public use,without just compensation.
    61. 61. Major Clauses Grand Jury Double Jeopardy Self-Incrimination Due Process Eminent Domain
    62. 62. Due Process of Law Police actions that would shock theconscience were found to violate due process Rochin v. California (1952) Three deputies entered Rochin’s home throughan unlocked door and saw Rochin putting twocapsules into his mouth-no search warrant The officers took him to the hospital and had hisstomach pumped Two morphine capsules were recovered and usedas evidence 8-0 ruling (1 abstained)
    63. 63. Due Process of Law Another found violation of the 5th amendmentwere laws lacking due process for juveniles-must have same due process as adults In re Gault (1967) 15 yr. old on probation was taken into custody During his hearing the next day, a generalallegation of “delinquency” was made with nospecific facts stated The witness was not present, no one was swornin, no attorney was present and no record wasmade of the proceeding
    64. 64. Due Process of Law In re Gault-SCOTUS found No parental notification of specific charges No notice of hearings No provision for legal representation No means of appeal No due process Overturned 8-1
    65. 65. Voluntariness of Confessions Brown v. Mississippi (1936) First confession case decided by the SupremeCourt The Court ruled that confessions obtainedthrough brutality and torture by law enforcementofficials are violations of due process rights 3 black tenant farmers charged, whipped untilconfessions 9-0 ruling, evidence obtained in violation of dueprocess clause self incrimination
    66. 66. Voluntariness of Confessions The Courts have identified two factors inassessing the voluntariness of a confession:1. The police conduct involved2. The characteristics of the accused
    67. 67. Police Conduct What are some conduct that violates dueprocess? Threats of violence Confinement under shockingly inhumane conditions Interrogation after lengthy, unnecessary delays in obtaining astatement between arrest and presentment before a neutralmagistrate Continued interrogation of an injured and depressed suspect in ahospital intensive-care unit Deprivations of food, drink and sleep
    68. 68. Police Conduct What are examples of police action thatdo NOT violate due process? Promises of leniency (careful here-hope ofbenefit), confidential informant purchase Encouraging a suspect to cooperate Promises of psychological treatment Appeal to religious beliefs Trickery and deceit
    69. 69. Characteristics of the Accused Factors such as the defendant’s: Age education Intelligence level Mental illness Physical condition Will be considered in determining whether aconfession was voluntary If it has not been coerced, then the confession ispresumed to have been voluntary
    70. 70. A Standard for Voluntariness There is a totality of circumstances test Was the admission truly voluntary? Were the individual’s constitutional guaranteesprotected? Was the good of the people balanced with thegovernment’s and the accuseds freedoms?
    71. 71. Standard for Voluntariness Escobedo v. Illinois (1964) When the process shifts from investigatory toaccusatory 14 hour interrogation by police Repeated denial to see attorney Repeated denial of attorney to see client When its focus is on the accused and its purposeis to elicit a confession-no longer general inquiry The accused must be permitted to consult withhis lawyer
    72. 72. False Confessions Three types Voluntary confessions People claim responsibility for crimes they did not commit withoutprompting from police Compliant confessions The suspect will confess to escape a stressful situation, to avoidpunishment or to gain a promised or implied reward Internalized false confessions Innocent but vulnerable suspects who are exposed to highlysuggestive interrogation techniques They come to confess and believe they committed the crime
    73. 73. Florida v. Jardines, 569 U.S.___ (2013) (concl) Held: The investigation of Jardines’ home wasa “search” within the meaning of the FourthAmendment. Different from other K9 open air “sniffs” Different from other K9 sniffs of luggage,packages What is different? This occurred on the “curtilage” of the home “But when it comes to the Fourth Amendment, thehome is first among equals.” II A
    74. 74. The Miranda Warning This decision actually directs police officerswhat to say to individuals that are in custody,before questioning them The Constitution requires that I inform youthat: You have the right to remain silent Anything you say can and will be used against you incourt You have the right to talk to a lawyer now and havehim present now or at any time during questioning If you cannot afford a lawyer, one will be appointed foryou without cost
    75. 75. The Miranda Warning Duckworth v. Eagan (1989) The Miranda warning does not have to be givenword for word Some officers have a “soft Miranda warning”which is less harsh This version is permissible as long as all theelements of the warning are present
    76. 76. Custody When is a person in custody?1. Has the person been told by police that theyare under arrest?2. Has the person been deprived of freedom in asignificant way so that they do not feelreasonably free to leave the situation, based onthe totality of the circumstances?
    77. 77. Other Factors Indicating a CustodialSituation People v. Shivers (1967) If a police officer holds a gun on a person, thatperson is in custody and not free to leave If the person also has a gun, they would unlikelybe in custody
    78. 78. Interrogation Must be present to trigger Miranda Usually thought of as the formal, systemic,often intensive questioning by lawenforcement of a person suspected of criminalactivity Also the functional equivalent of expressquestioning Any words or actions by the police, other than thosenormally attendant to arrest and custody, that thepolice should know are reasonably likely to elicit anincriminating response from the suspect
    79. 79. Waiving the Rights To waive their rights, they must state orally orin writing1. They understand their rights2. They will voluntarily answer questions without alawyer present Suspects may revoke the waiver at any pointin the interrogation
    80. 80. Right to Counsel After a defendant invokes the right to counsel,police may not interrogate him If the suspect’s statement is not anunambiguous or equivocal request for counsel,the officers have no obligation to stopquestioning him When can questioning continue? “I just don’t think that I should say anything.” “I don’t got nothing to say.” “Could I call my lawyer?”
    81. 81. When Miranda Warnings Generally AreNot Required When an officers asks no questions During general on the scene questioning When a statement is volunteered When asking a suspect routine identification questions Questioning witnesses who are not suspects Stop-and-frisk cases When asking routine questions of drunken-driving suspects andvideotaping the proceedings During lineups, showups or photo identifications When the statement is made to a private person When a suspect appears before a grand jury When there is a threat to public safety When an undercover officer poses as an inmate and asks questions
    82. 82. The Public Safety Exception An important exception to the Mirandarequirement involves public safety New York v. Quarles (1984) A young woman stopped police and told them shehad been raped, she described the rapist and hislocation and that he was armed with a gun Officers located suspect and the suspect ran When the suspect was apprehended and frisked,he was wearing an empty shoulder holster When the officer asked where the gun was, thesuspect told him that “the gun was over there”
    83. 83. The Public Safety Exception New York v. Quarles (1984) At trial, the statement “the gun is over there” andthe discovery of the gun were ruled inadmissible The U.S. Supreme Court ruled that if Mirandawarnings had deterred the response to theofficer’s question, the result would have beenmore than the loss of evidence As long as the gun was concealed in the store, itwas a danger to public safety
    84. 84. The Public Safety Exception Public Safety Exception Allows police to question suspects without firstgiving the Miranda warning if the informationsought sufficiently affects the officer’s and thepublic’s safety FBI Publication
    85. 85. Entrapment Whether entrapment exists may be determinedby subject analysis Was the suspect predisposed to commit thecrime, or were they an unwary innocent party? Was the innocent person induced by the police tocommit a crime they never would haveotherwise?
    86. 86. Havlik (concl) Havlik claimed Entrapment Violation of Miranda, right to counsel Edwards v.Arizona, 451 U.S. 477 (1981), “if a suspect makes a reference to an attorney that isambiguous or equivocal…reasonable officerunderstood he might be invoking counsel “I don’t have a lawyer. I guess I need to get one, don’tI?” This question is insufficient to trigger an obligationto cease questioning.
    87. 87. Havlik (finish) The phrase “I guess” is “used to indicate thatalthough one thinks or supposes something, it is withoutany great conviction or strength of feeling.” In sum, Havlik’s statements to the interrogatingofficers were not an unequivocal orunambiguous request for counsel, and thepolice were not required to ask clarifyingquestions.
    88. 88. The Right to a Grand Jury Grand jury A group of citizens that determine whethersufficient evidence exists to send an accused totrial The outcome of a grand jury is to indict or not Indictment A formal accusation of a defendant, usually by agrand jury, that send the defendant on to trial forprosecution
    89. 89. Double Jeopardy Has been incorporated in the 14th Amendmentto apply to the states Double jeopardy is a prohibition against thegovernment from trying someone twice for thesame offense Double jeopardy requires all three elements: Successive prosecution, same offense, samejurisdiction
    90. 90. USA PATRIOT Act Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act
    91. 91. USA PATRIOT Act The Act gives federal officials greater authorityto track and intercept communications for lawenforcement and foreign intelligence gathering Improves the nation’s counterterrorism efforts It further closes our borders to foreignterrorists and allows us to detain and removeterrorists already in our country
    92. 92. USA PATRIOT Act The Act significantly improves the nation’scounterterrorism efforts by: Allowing investigators to use the tools alreadyavailable to investigate organized crime and drugtrafficking Facilitating information sharing and cooperationamong government agencies, so they can better“connect the dots” Updating the law to reflect new technologies and newthreats Increasing the penalties for those who commit orsupport terrorist crimes
    93. 93. Increasing Penalties for Those WhoCommit or Support Terrorist Crimes Creates a new offense for knowingly harboringpeople who have committed or are about tocommit a variety of terrorist offenses Enhances the inadequate maximum penalties forvarious crimes likely to be committed byterrorists Enhances a number of conspiracy penalties It eliminates the statute of limitations for certainterrorism crimes
    94. 94. Questions?

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