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safety
evanescent
automobile |
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mootness
standing
ripeness
exhaustion of alternatives
no advisory opinions |
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a)Distinction: Must distinguish between combatants and noncombatants on the battlefield. Noncombatants, as much as possible, must be protected.
b)Military Necessity: Actions only in support of a clear military objective. Random shooting or destruction is illegal if it fails to support a valid mission.
c)Proportionality: The military benefits of an action must be weighed against the collateral damage (people, buildings, environment) likely to occur. Excessive collateral damage is unwarranted.
d)Unnecessary Suffering: Cannot engage in TTPs or use weapons that cause unnecessary suffering. Most common example of this is the use of glass bullets (can’t be detected by X-ray). |
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| Substantive criminal laws define crimes and may establish punishments. As compared with procedural law. |
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| Court ruled that the 6th Amendment right to counsel applied to states via the Due Process Clause of the 14th Amendment. |
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| Having a single member of the panel being of lesser rank doesn't mean that the case gets thrown out. Schnieder basically threw his wife out of a 7th story window. |
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| held that the Eight Amendment's Cruel and Unusual Punishment Caluse did not permit a state to punish the crime of rape of a child with the death penalty; more broadly, the power of the state to impose the death penalty against an individual for committing a crime that did not result in the death of the victim is now limited to crimes against the state |
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| Court held that UCMJ does not apply to spouses or dependents of military personnel while living overseas. |
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| Court rules that the accused’s affiliation as a servicemember constitutes the necessary “service connection” and does not require further jurisdiction. |
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| King is discharged at midnight the night prior to reenlistment the next day. He leaves and refuses reenlistment; charged with desertion and fraudulent separation. Court finds that King was never discharged because he failed to meet all the required elements of discharge (including “clearing out” processing). |
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| Military Law: disposition of an offense |
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• No Action;
• Administrative Action
• Nonjudicial Punishment (Article 15)
• Preferral of Charges for Court-Martial
• Forwarding the matter to a superior, or returning it to a subordinate. |
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| Court rules that personnel can be confined pretrial if the magistrate believes, based on evidence and testimony, that they pose a risk to themselves, the unit, the safety of the community and the morale, discipline, readiness, and welfare of the unit. |
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| Court held that units and commanders cannot unduly punish a soldier prior to trial; the only punishment or penalty allowed is confinement or those exacted due to present infractions of discipline. |
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| Unlawful Command Influence |
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Definition
| Anyone in authority may not, whether intentionally or unintentionally, influence the outcome or administration of justice, which attempts to subvert the legitimate military justice process or give the appearance of doing so. |
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| Unlawful command influence-- you can't tell subordinate commanders that you disagree with their ruling and so you want them re-examine the case. You should bring it up to your level. |
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| "I find it paradoxical..." You can't tell people not to testify on behalf of their soldiers. |
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| It is unlawful command influence to require that court members, in the middle of a trial, attend an officer professional development program where "appropriate" punishments for the defendent is discussed. |
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| Court held that so long as the individual can expect that his conversation would remain private, it is protected by the 4th Amendment. The 4th Amendment protects people, not just places. The rights of the individual may not be violated regardless of whether physical intrusion occurs. In any situation where a person has a reasonable expectation of privacy, his 4th Amendment right cannot be violated without a warrant. |
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| Court held that because the device is not commonly available to the public, Kyllo had a reasonable expectation of privacy in his home from thermal imaging. As such, a warrant was necessary for the police to use the imager against his home. |
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| Court finds that the two soldiers were performing their duty, not an investigation, therefore unreasonable search protections do not apply. Further, even if the evidence itself was unreasonable, the good faith doctrine demands that the search of his computer was conducted according to the spirit of the 4th Amendment. |
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| The Court held that these actions, and the reading Art. 31 rights to two people questioned prior to formulating the urinalysis roster, constituted subterfuge. The 1SG was clearly investigating and the urinalysis was not random. |
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| The Court specifically outlined the necessary aspects of police warnings to suspects, including warnings of the right to remain silent and the right to have counsel present during interrogations. |
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| Dickerson v. United States |
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| The Court held that Miranda governs the admissibility of statements made during custodial interrogation in both state and federal courts. “Miranda announced a constitutional rule that Congress cannot supersede legislatively.” |
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1) Subjective: when does the agent suspect the person’s committed an offense?
2) Objective: when should have the agent believed the person committed an offense?
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| On a C-130, Loukas's superior asked himwhether or not he was on something. Segreant Dryer should have asked him his rights because he was acting officially. |
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| Summary, Special, BCD Special, General |
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Mens rea: criminal mind
actus reus: the criminal act |
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| The result/injury was the natural and probable result of the accused's actions (or failure to act). |
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Crimes in which the injury was not complete.Literally means “incomplete”.Often receives the same penalty as the crime itself.
1) Solication
2) conspiracy
3) attempt |
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| “Fruit of the Poisonous Tree” Doctrine: |
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| The rule that anything stemming from an illegal act is illegal too. Evidence obtained due to information gained illegally is also inadmissible |
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| Inspections are different because... |
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Definition
• Can be conducted for reasons of Morale, Welfare, Good Order, and Readiness
• Must be random, someone cannot be singled out
• INSPECTIONS ARE NOT 4th AMENDMENT SEARCHES
• Purposes: Security, Fitness, Good order, Discipline |
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Definition
subterfuge (targeting a knowingly criminal soldier during inspection) is prohibited, increases the government’s burden of proof if:
a) Purpose was to locate weapons/contraband; AND
b) Singled people out, OR
c) Followed the report of a specific instance |
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| Three Places where the 5th Amendment can be invoked |
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Definition
| By a defendant on the witness stand at trial; by a witness at trial (if criminally implicated); and suspects/accused persons during questioning |
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| In instances where public safety is of immediate concern, 5th Amendment rights during custodial interrogation can occur. |
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| Listing of the basic rights afforded to soldiers during all legal proceedings. Similar to Miranda and utilizing the 5th Amendment, affords accused the ability to not answer questions, to seek counsel, and even if waiver granted, stop answering at any time. |
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| 10 commandments of unlawful command influence |
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Definition
1. order a subordinate to dispose of a case in a certain way
2. no inflexible policies on disposition or punishment
3. if the accuser, may not refer the case
4. may not manipulate the panel selection to obtain a particular result
5. no outside pressures on judge or court members
6. witnesses may not be intimidated or discouraged from testifying
7. court decides punishment. an accused may not be punished before trial
8. subordinates and staff may "commit" command influence that will be attributed to the commander regardless of his intentions
9. may not have an inflexibily attitude towards clemency
10. if a mistake is made, raise the issue immediately |
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| Custodial interrogation is inherently coercive. |
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| Being in the military makes it seem that you are coerced. Anyone in authority asking questions who suspects you of a crime must warn and also tell you what specific crime they are accused of. |
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| Alibi, entrapment, self defense, lack of mental responsibility, obedience to orders. |
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1)Does this statute have a secular purpose?
2)Do the statute’s principal effects neither advance nor inhibit religion?
3)Does the statute not foster an excessive government entanglement with religion? |
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| Modern Test of Free Exercise |
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| Employment Division v. Smith:If religious practice goes against neutral and generally applicable criminal prohibition, it has no protection |
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| Compelling; narrowly tailored. Applies to religion, national origin, content-based speech. |
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| Important; substantially related. Applies to gender, time/place/manner restricted speech. |
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| Legitimate, rationally related. Applies to age, weight, disability, anything. |
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| Article I, Section 8; 17 powers |
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1) What is the legitimate end?
2) What is the questionable mean?
3) Is there a rational relationship between the two?
4) Is the questionable mean prohibited by the Constitution? |
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| 3 Areas Congress Can Regulate Under the Commerce Clause |
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Definition
Under Lopez:
1) Channels
2) Instrumentality
3) Activities that have a substantial relation |
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1) If Congress agrees with President on his implied power, the action is legal
2) If the President and Congress disagree on his implied power, Congress wins
3) If Congress doesn’t have an opinion on an implied power that the President claims, the Court will review information and make a determination. |
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