Term
| 2nd Amendment - Preamble and Operative Clause |
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Definition
| A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. |
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Term
| Collective Right (2nd amendment) |
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Definition
| Amendment only guarantees a collective right of the states to arm their militias. |
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Term
| Individual Right (2nd Amendment) |
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Definition
| Constitutions guarantees an individual right to keep and bear arms. |
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Term
| District of Columbia v Heller (2008) |
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Definition
| The second amendment confers an individual right to self-defense. A law banning the possession of a hand-gun is unconstitutional. |
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Term
| District of Columbia v Heller (2008) Legal Reasoning |
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Definition
| The preamble clause does not limit or expand the scope of the operative clause. Scalia uses the meaning of words version of textualism, and the meaning of the words keep and bear arms in the operative clause clearly gives people an individual right to bear arms. A right to self-defense is inherent in the second amendment, and handguns are the most popular weapons used for the self-defense of the home. Using any constitutional standard of scrutiny, banning the most popular weapon of self-defense is unconstitutional. |
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Term
| Griswold v Connecticut (1965) |
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Definition
o The right to privacy is established
o It is found in the penumbras of the Constitution, which translates that certain pieces of the Constitution/B of R together create zones that give rise to this right. However, the justices disagreed on where privacy is found
o Privacy is a fundamental right implicit in the concept of ordered liberty.
o Because it is a fundamental right, the correct test of government regulation that infringes on this right is strict scrutiny. |
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Term
| Griswold v Connecticut (1965) Legal Reasoning |
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Definition
| The right to privacy is contained in the penumbra of other rights included in the Bill of Rights. The justices disagreed on where privacy is found. Douglas said it is in the first (freedom of association), third (quartering soldiers), fourth (illegal searches and seizures), fifth (self-incrimination) and ninth amendment (just because a right is not enumerated does not mean it does not exist). Others said that only the ninth is needed, and another said that only the due process clause of the 14th is needed. This right to privacy is fundamental to the concept of ordered liberty and thus applies to the states. |
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Term
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Definition
| Abortion is protected under the right to privacy. The state can regulate abortion based on the trimester framework. |
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Term
| Roe v. Wade (1973) Legal Reasoning |
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Definition
| – A women’s right to terminate her pregnancy is protected under the right to privacy. The state has two interests when in comes to abortion – protecting the health of the pregnant women and the potential of human life. Since the right to privacy is fundamental, the strict scrutiny test is applied and the interest must be compelling. The state’s interest in the health of the mother becomes compelling at the end of the first trimester because during the first trimester taking the pregnancy to term is more dangerous than the abortion procedure. |
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Term
| Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) |
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Definition
The central holding of Roe is upheld.
The trimester framework is replaced by the undue burden test.
The spousal notification regulation is unconstitutional. |
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Term
| Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) Legal Reasoning |
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Definition
| The central holding of Roe is that a woman’s right to terminate her pregnancy before viability is the most central principle of Roe and is upheld. The trimester framework though is untenable because the viability point changes based on advances of medical technology and science. |
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Term
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Definition
Regards Abortion from Planned Parenthood of Southeastern Pennsylvania v. Casey
after viability the state can outlaw abortion except in case of the health and life of the mother. Before the viability point, regulations that place an undue burden or substantial obstacle to a women’s ability to obtain an abortion must pass the strict scrutiny test. If they do not place an undue burden, they must only pass the rational basis test. |
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Term
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Definition
| Laws against sodomy are forbidden under the right to privacy, and are unconstitutional violations of this right. |
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Term
| Lawrence v. Texas (2003) Legal Reasoning |
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Definition
| The relevant precedent is Bowers v Hardwick (1986), which said that a similar law was constitutional because the right of homosexuals to engage in sodomy is not a fundamental right protected under the constitution. The court in Lawrence said that Bowers misstates the question. This case is about the right to privacy not the right to engage in sodomy. Enforcing this law would violate the right to privacy and thus must pass strict scrutiny. It fails this test and is unconstitutional. |
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Term
| Cruzan v. Director, Missouri Department of Health (1990) |
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Definition
Missouri had a law saying that to take a person off life support when they are in a vegetative state requires “clear and convincing” evidence that the patient would have refused medical treatment
A competent person has a constitutional requirement to refuse medical treatment.
The state has a compelling interest in preserving life.
Missouri can apply a “clear and convincing” evidence threshold to take someone off life-support. |
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Term
| Cruzan v. Director, Missouri Department of Health (1990) Legal Reasoning |
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Definition
| The constitution grants a competent person a constitutionally protected right to refuse lifesaving treatment. In this case, the person is not competent, and Missouri puts in safeguards to make sure that the surrogates are acting in the best interest of the patient. The state’s compelling interest in preserving life justifies heightened evidentiary standard used by Missouri. |
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Term
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Definition
–Searches and seizures
–Warrants |
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Term
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Definition
–Grand Jury
–Double jeopardy
–Self-incrimination
–Due-process |
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Term
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Definition
–Speedy trial
–Impartial jury
–Confront witnesses
–Right to counsel |
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Term
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Definition
–No excessive bail
–Cruel and unusual punishment |
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Term
| Searches incident to a valid arrest |
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Definition
Exceptions to the Warrant Requirement
• An example of this is searching a lawfully apprehended suspect for weapons or anything else that may put the officer in danger or facilitate escape. |
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Term
| Loss of evidence searches |
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Definition
Exceptions to the Warrant Requirement
• Officers may need to conduct a search to prevent the disposal of evidence such as drugs or guns. Faced with a situation where evidence may be lost, it is not reasonable to require officers to seek a judge to get a warrant. |
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Term
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Definition
Exceptions to the Warrant Requirement
• Police are allowed to search a person or property if they are given consent. |
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Term
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Definition
Exceptions to the Warrant Requirement
• Even if there is not enough evidence to justify arrest or a search and seizure, the Court has allowed officers to conduct safety searches if they believe a suspicious person may be armed. |
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Term
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Definition
Exceptions to the Warrant Requirement
• A police officer does not have to seek a warrant to follow a fleeing suspect into a house or building. |
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Term
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Definition
Exceptions to the Warrant Requirement
• If an officer is lawfully present in an area they may legally seize without a warrant any contraband that is openly visible. |
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Term
| Katz v United States (1967) |
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Definition
The fourth amendment protects people not places.
The physical penetration rule is obsolete.
If an individual expects privacy, and society views that expectation as reasonable, then the Fourth Amendment governs any police searching or seizing activities. |
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Term
| Katz v United States (1967) Legal Reasoning |
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Definition
| The fourth amendment protects people not places. The idea of a constitutionally protected area will no longer be used. If a person has a reasonable expectation of privacy, then a search falls under fourth amendment protection and requires a warrant, unless it falls under one of the warrant exceptions. Katz had a reasonable expectation of privacy inside the phone booth and thus the recording of the phone converstation violated the fourth amendment. Under the exclusionary rule, the evidence must be excluded from any court proceedings. |
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Term
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Definition
Chicago police in Bloomingdale received an anonymous tip. It was partly corroborated by a detective. The police obtained a warrant to search their car and home based on the anonymous tip and corroboration of the essential facts included in that tip.
(1) A judge may issue a search warrant pursuant to a partially corroborated anonymous informant’s tip.
(2) To issue a warrant under an anonymous informant’s tip, a judge simply must determine whether the factual circumstances—veracity and basis of knowledge of the anonymous tip—offer a fair probability that evidence of a crime will be found in a particular place. |
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Term
| Illinois v. Gates (1983) Legal Reasoning |
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Definition
- The tip had to reveal adequately the informant’s basis of knowledge
2 - The tip had to provide facts sufficiently establishing either the veracity of the affiant’s informant, or, alternatively, the reliability of the informant’s report.
The Aguilar-Spinelli test said that each of these two conditions had to be met. The court in this case said that this should be abandoned. These should no longer be considered as entirely separate and independent requirements. Instead they should be understood as relevant considerations using a totality of circumstances approach. |
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Term
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Definition
Used in Illinois v. Gates (1983)
1 - The tip had to reveal adequately the informant’s basis of knowledge
2 - The tip had to provide facts sufficiently establishing either the veracity of the affiant’s informant, or, alternatively, the reliability of the informant’s report. |
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Term
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Definition
| • Police may only search a car incident to arrest if the arrestee is within reaching distance of the passenger area at the time of the search and it is reasonable to believe the vehicle contains evidence of the offense. |
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Term
| Arizona v Gant (2009) Legal Reasoning |
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Definition
| The justification needed to search a car is lower than to search other places. A search incident to an arrest allows an officer to search the area in immediate control of the arrested person to make sure the arrested person has no weapons. It is for the protection of the police officer. In this case, the court said that when it comes to automobiles police can search a car for two reasons. One reason is for the safety of the officer. This search is allowed if the car is within reaching distance of the arrested person. The other justification is if the police expect to find evidence related to the crime the arrested person is accused of. |
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Term
| Safford United School District #1 v. Redding (2009) |
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Definition
• Savana Redding was a 13 year old student in Arizona in 2003 when she was called into the assistant principal’s office and questioned about distributing pills to other students.
The court reaffirms that school officials need to meet a lower threshold to conduct a search. This threshold is “reasonable suspicion.” However, the intrusiveness of the search must meet the content of the suspicion. The drugs in this case were not dangerous and the school officials had no reason to expect Redding to hide the drugs in her underwear. Because of this, the degree of suspicion did not justify the intrusiveness of the search, making the search an unconstitutional invasion of privacy. |
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Term
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Definition
(1) Do officers have the right to stop and frisk without probable cause?
(1) Terry stops do not require probable cause, only reasonable suspicion.
(2) Stops are authorized by the government’s interest of crime prevention and detection
(3) Frisks are authorized by the officer and other’s interest in safety. |
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Term
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Definition
(1) Yes, officers have the right to stop with reasonable suspicion and the right to frisk when they believe their lives are in jeopardy.
Legal Reasoning – The state has an interest in an escalating set of flexible responses, graduated in relation to the amount of information they possess. Thus it is argued the police should be allowed to stop a person and detain him briefly for questioning under suspicion that he may be connected with criminal activity. A stop and frisk has two components.
A stop is allowed to question someone when they have a “reasonable suspicion” that criminal activity is happening or about to happen.
A frisk is allowed in the interest of the safety of the police officer to make sure the person he is questioning has no dangerous weapons. |
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Term
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Definition
| If evidence is obtained using an illegal search, it cannot be used against someone in court. |
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Term
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Definition
(1) Does the Exclusionary Rule apply to the several states?
(1) Exclusionary Rule applies to the several States
(2) Without the exclusionary rule, the rights of the Fourth would be less secure.
(3) The purpose of the exclusionary rule is to act as a deterrent. |
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Term
| Mapp v. Ohio (1961) Legal Reasoning |
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Definition
Yes, the exclusionary rule applies to the states.
Legal Reasoning – The purpose of the exclusionary rule is to deter violations of the fourth amendment. Without this rule, police have no incentives to follow the fourth amendment limitations and rules. |
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Term
| United States v. Leon (1984) |
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Definition
Police received a tip from a person of unproven reliability, identifying two individuals as drug dealers. First, please note that this is after Illinois v. Gates (1983). It did not meet the totality of the circumstances test.
(1) Does the exclusionary rule dictate exclusion of evidence seized from searches where officers were acting in good faith but the warrant was improvidently granted?
(1) Yes, there is a good faith exception to the exclusionary rule.
(1) The exclusionary rule is not infinite
(2) There exists an exemption for officers acting in good faith that a warrant was properly granted due to a neutral magistrate’s assessment that there was probable cause. |
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Term
| United States v. Leon (1984) Legal Reasoning |
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Definition
| The goal of the exclusionary rule is to act as a deterrent against illegal searches and seizures. In this case, the judge issued a illegal warrant and the police acted on the good-faith that it was a valid warrant. THe exclusionary rule will not have a deterrent effect on judges because they have no stake in the outcome of particular criminal prosecutions. Because of this, the exclusionary rule should not apply when the mistake is made by a judge and not a police officer. |
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Term
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Definition
• Michigan police properly obtained a warrant to search the home of Booker T. Hudson for drugs and firearms. At the home, they knocked and announced their presence, but waited only 3 to 5 seconds before entering. They found both drugs and guns in the house.
The goals of the knock and announce rules are
Prevention of escalated violence from a surprised resident.
o Give residents a chance to comply with the police and prevent the destruction of property.
o Give residents a chance to prepare themselves and get decent. |
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Term
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Definition
| The application of the exclusionary rule is not automatic. The benefits of the exclusionary rule must be weighed against the consequences. The consequences of this rule are that criminals go free even when there is evidence supporting their guilt. |
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Term
| Herring v. United States (2009) |
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Definition
o Coffee County (Alabama) Sheriff’s Department contacted a neighboring county to see if there was a warrant out for Bennie Dean Herring’s arrest. When Dale County said there was a warrant, the Sheriff arrested Herring while awaiting a fax of the copy of the warrant.
o They found meth in Herring’s pocket and a gun in his vehicle, but afterward received notice that Dale County had made a mistake – the warrant for Herring had been cancelled 5 months earlier but the computer system had not been updated.
This is a further reduction of the exclusionary rule.
Exclusionary rule only applies if the police conduct is “deliberate, reckless or grossly negligent.” |
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Term
| Herring v. United States (2009) Legal Reasoning |
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Definition
| The exclusionary rule is not an individual right and should only apply where it has appreciable deterrence. The exclusionary rule only has this appreciable deterrence effect when the behavior is “reckless or grossly negligent conduct.” The record-keeping behavior in this instance does not rise to that level, and thus the exclusionary rule does not apply. |
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Term
| Escobedo v. Illinois (1964) |
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Definition
Escobedo asked to see his attorney and was denied this request. His attorney came to the police station and repeated asked to see his client, but was refused access.
(1) When the investigation shifts from general inquiry of an unsolved crime to a focus on a particular suspect that has been taken into custody, the Sixth Amendment kicks in.
(2) A lack of police informing him of his absolute right to remain silent and denial to the suspect of consulting with an attorney upon request, would be in violation of the Sixth Amendment,
(3) which is applicable to the several states via the Fourteenth Amendment. |
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Term
| Escobedo v. Illinois (1964) Legal Reasoning |
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Definition
The fifth amendment guarantees someone the right to not be coerced into a self-incriminating statement. The guiding hand of counsel is essential to helping prevent that. THe advice and assistance of counsel is also essential during the interrogation phase because that is when most confessions are elicited. When Escodado requested a lawyer but was denied the assistance of one, that violated his sixth-amendment right to counsel. Thus, the self-incriminating statement cannot be used against him.
Someone has a right to an attorney whenever the investigation shifts from general inquiry of an unsolved crime to a focus on a particular suspect that has been taken into custody |
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Term
| Miranda v. Arizona (1966) |
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Definition
(1) Can the prosecution use statements stemming from a custodial interrogation of the defendant without demonstrating that procedural safeguards to secure the protection of self-incrimination had been satisfied?
(1) When an individual is taken into custody or otherwise deprived of his freedom by authorities in any significant way and is subjected to questioning, the Fifth and Sixth safeguards kick in.
(2) When person is taken into custody, he must be read or read his Miranda rights.
(3) If a person is interrogated without having been read his Miranda rights, any confession that is obtained is per se unconstitutional. |
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Term
| Miranda v. Arizona (1966) Legal Reasoning |
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Definition
| Police have a history of using psychological coercion to trick people into confessing of crimes. For the right against self-incrimination to be protected, the accused must be made adequately and effectively aware of his rights and the exercise of those rights must be fully honored. To protect this right, the court said police must inform someone of their rights before they can be questioned. This has come to be called Miranda rights. Here are the steps that police must follow: |
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Term
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Definition
Riding in a open car of a freight train, nine black men, seven white men and two white women got into an altercation. The white men were thrown off the train and the white women claimed that they had been raped by the black men. A sheriff’s posse arrested the blacks, ranging in age from 12 to 20, and jailed them in the county seat of Scottsboro.
(1) Do indigents have the right to counsel at the government’s expense?
The state must provide an attorney for people who cannot afford one in capital cases. The decision though explicitly refuses to say whether this applies to lesser offenses. |
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Term
| Gideon v. Wainwright (1963) |
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Definition
Please note that the dominant precedent is Betts v. Brady (1942). Betts was a poor and uneducated but literate man indicted for robbery in Maryland. Because his crime did not constitute a capital offense, he was not appointed counsel at the expense of the state. He attempted to defend himself and was found guilty. In the opinion, the Court decided that the right to counsel was not a fundamental guarantee intended by the Framers. It only applied in extreme cases such as the capital offenses in Powell.
Gideon is a carbon-copy of Betts. Florida officials charged Gideon with breaking and entering a poolroom. The trial court refused to appoint him counsel because Florida did not provide free lawyers to those charged with anything less than a capital offense.
(1) The right to counsel is a fundamental right; it is thereby incorporated to apply to the several states via the due process clause of the Fourteenth Amendment.
(2) If the accused cannot afford counsel, one must be appointed to him at the government’s expense.
Betts is overturned |
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Term
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Definition
| It establishes that indigents charged with a crime that upon conviction could possibly lead to incarceration for even one day is entitled to representation by counsel at the government’s expense. |
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