FINAL EXAM REVIEWChapter 10-13 and Cumulative Review

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 be inflicted

This Amendment has a lot of controversy because of interpretations about whether the death penalty is cruel and unusual

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

not clearly defined Bail may be denied in capital cases and

when the accused has threatened possible trial witnesses

The Evolution of Legislation and Case Law on Bail The Bail Reform Act of 1984

Granted judicial authority to include specific conditions of release for the community's safety

Allows judges to consider the potential criminal conduct of those accused of serious offenses and deny bail on those grounds Preventive Detention

The Evolution of Legislation and Case Law on Bail The Bail Reform Act of 1984

Jackson v. Indiana (1972) Government may detain dangerous

defendants who may be incompetent to stand trial

Addington v. Texas (1979) Government may detain mentally unstable

individuals who present a public danger

United States v. Salerno (1987) Pretrial detention under this act did not

violate the 8th Amendment

Asset Forfeiture and the Prohibition against Excessive Fines Asset Forfeiture

The seizure by the government, without compensation, of money and property connected with illegal activity

Property connected with illegal activity may be forfeited when used as a conveyance to transport illicit drugs

Real estate used in association with a crime and money or other negotiable instruments obtained through criminal activity also can be seized and is considered a civil sanction by the government

Asset Forfeiture and the Prohibition against Excessive Fines

Austin v. United States (1993) The Supreme Court ruled that the 8th

Amendment prohibition against excessive fines applies to civil forfeiture proceedings against property connected to drug trafficking

The amount seized must bear some relation to the value of the illegal enterprise under the 8th Amendment

This is the first decision on the limitation of the government’s power to seize property connected with illegal activity

Asset Forfeiture and the Prohibition against Excessive Fines United States v. Ursery (1996)

Forfeiture is not double jeopardy because it is considered a civil sanction rather than an additional 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

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 if it:1. Makes no measureable contribution to

acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering

2. Is grossly out of proportion to the severity of the crime

Cruel and Unusual Punishment The courts have used three inquiries in

assessing constitutionality of cruel and unusual punishment:1. Whether the punishment shocks the

general conscience of a civilized society2. Whether the punishment is unnecessarily

cruel3. Whether the punishment goes beyond

legitimate penal aims

Cruel and Unusual Punishment The Supreme Court has established

three criteria for proportionality analysis (making the punishment fit the crime):1. The gravity of the offense and the

harshness of the penalty2. The sentences imposed on other

criminals in the same jurisdiction3. The sentences imposed for the

commission of the same crime in other jurisdictions.

Is Capital Punishment Cruel and Unusual? Furman v. Georgia (1972)

Landmark case in which Supreme Court called for a ban on the death penalty in Georgia

Ruled its law as it stood was capricious and hence, cruel and unusual punishment

The Court ruled that the states had to give judges and juries more guidance in capital sentencing to prevent discretionary use of the death penalty

It held that Georgia’s death penalty was invalid

Is Capital Punishment Cruel and Unusual? Due to the Furman case, executions

were suspended across the country The federal government passed a new

death penalty law instituting a new two-step process (bifurcated trial):1. Determine innocence or guilt 2. Determine whether to seek the death

penalty

Is Capital Punishment Cruel and Unusual? Gregg v. Georgia (1976)

The Supreme Court reinstated the Georgia death penalty by sustaining its revised death penalty law

The death penalty itself is not cruel and unusual punishment

A capital case now requires a bifurcated trial

Lengthy Delays in Execution as Cruel and Unusual Do long delays in carrying out executions

constitute cruel and unusual punishment?

Thompson v. McNeil (2009) The Supreme Court rejected an appeal that

claimed a 32 year imprisonment caused by his appeals constituted cruel and unusual punishment

8th Amendment and Corrections Due process and equal protection issues

are significant concerns in corrections because violations of these rights are unconstitutional

8th Amendment rights are divides into two categories:1. Actions against individual prisoners2. Institutional conditions

8th Amendment and Corrections Cases based on the 8th Amendment for

prisoners include: Overcrowding Solitary confinement Corporal punishment Physical abuse Use of force Treatment and rehabilitation, the right not

to be treated Death penalty

Prisoner Treatment and the 8th Amendment The Supreme Court has been called on

to determine whether conditions and actions within correctional institutions constitute cruel and unusual punishment

Rhodes v. Chapman (1981) Double-celling and crowding do not

necessarily constitute cruel and unusual punishment

Wilson v. Seiter (1991) Prisoners must prove prison conditions are

objectively cruel and unusual and show they exist because of officials’ deliberate indifference

USA PATRIOT Act

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act

USA PATRIOT Act

The Act gives federal officials greater authority to track and intercept communications for law enforcement and foreign intelligence gathering Improves the nation’s counterterrorism

efforts

It further closes our borders to foreign terrorists and allows us to detain and remove terrorists already in our country

USA Patriot Act link

USA PATRIOT Act

The Act significantly improves the nation’s counterterrorism efforts by: Allowing investigators to use the tools already

available to investigate organized crime and drug trafficking

Facilitating information sharing and cooperation among government agencies, so they can better “connect the dots”

Updating the law to reflect new technologies and new threats

Increasing the penalties for those who commit or support terrorist crimes

Increasing Penalties for Those Who Commit or Support Terrorist Crimes

Creates a new offense for knowingly harboring people who have committed or are about to commit a variety of terrorist offenses

Enhances the inadequate maximum penalties for various crimes likely to be committed by terrorists

Enhances a number of conspiracy penalties

It eliminates the statute of limitations for certain terrorism crimes

FINAL EXAM REVIEWChapter 10-13 and Cumulative Review

Six Basic Principles of the Constitution

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

federal and states (those not grated to federal are reserved to the state)

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

Reading Case Law

Court opinions, decisions, tells what is decided and why

Caption – Parties involved in a case State of South Carolina v Smith Smith v Jones

Trial Court

Two responsibilities Determine what happened (jury tries fact) Determine which legal rules apply (judge)

Appellate Court

Reviews written arguments, motions Transcripts of case Opinions of trial court judges

No retrying of facts

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 for

further action Vacate-set aside a decision

Can be a motion Definition

14th Amendment

14th Amendment applied the provisions of the Constitution to the states Due process of government action Citizenship, no depravation Equal protection for all citizens

Video

Scrutiny (cont)

Strict Scrutiny-any categorization of law based on race, national origin unconstitutional Must have compelling government interest

Intermediate Scrutiny-any categorization based on gender Must have substantial or important

government interest Rational-basis test-constitutional if a

reasonably related government interest

Key Rights in the First Amendment Religion Speech Press Assembly Redress of Grievances (against the

government)

Text of the Fourth Amendment "The right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Importance of the 4th to LE

Defines the powers of the police to search for evidence

Protects the rights of the citizens from unreasonable search Not all search Recognizes that the government must have

some power to police, but regulated Considers the “means” as well as the

“end”

Clauses of the 4th

Reasonableness Clause Right against unreasonable search and seizure not

violated Probable Cause Clause

No warrant without probable cause Courts have viewed as two separate clauses

since 1960s Critical concepts

Reasonableness Reasonable expectation of privacy Probable Cause

Tests of ReasonablenessBright Line

“Bright Line” A specific rule of the court Example, LE officer takes a person into

custody, begins to question about a crime, suspect makes admission of guilt, describes evidence and location

Officer did not give Miranda Warning prior to questioning about the case

Stop and Frisk

“Terry” Stop Terry v. Ohio, 392 U.S. 1 (1968) No violation of 4th if stopped by police on

reasonable suspicion Outer clothing “pat down” if reasonable

suspicion they are armed Requires articulable facts, no hunches

Exclusionary Rule

“Judge made law” Court is giving guidance in application of

Constitutional restriction (my words) Prevents evidence from being illegally

seized and used for prosecution Mapp v Ohio 367 U.S. 643 (1961

Mapp v. Ohio, 367 U.S. 643 (1961) Unreasonable search and seizure Application of 4th amendment search and

seizure to the states by the 14th amendment

United States v. Leon, 468 U.S. 897 (1984)

SCOTUS created “good faith” exception to exclusionary rule

Drug surveillance case, 1981, California Police observed homes, followed

suspicious cars, wrote search warrant Later determined PC lacking in affidavit Evidence upheld because police relied

on search warrant authority Cited Mapp

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 have

reasonable suspicion “flight at the mere sight of police is a sign that there

exists reasonable suspicion that criminal activity is afoot.”

“must be at least a minimal level of objective justification for the stop.”

5-4 decision

Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990),

DL check points 4th amendment seizure at checkpoint-is

it reasonable? "substantial government interest" to

advance in stopping drunk driving Interference with other drivers

“negligible” 126 drivers, avg 25-30 seconds, 2 DUI

arrests 6-3 ruling,

Elements of Arrest

Intent Authority Detain or Restraint (not free to leave) Understanding SC Code of Laws 17-13-10

Includes citizen arrest

CONDUCTING CONSTITUTIONAL SEARCHES

Chapter 10

Tenets of 4th Amendment Search Analysis

Cases involving the 4th Amendment begin with two basic questions:

1. Have the fundamental constitutional rules been met?

2. Does the search fit within one of the permissible realms?

Tenets of 4th Amendment Search Analysis

What are the fundamental rules?1. There must be governmental action2. The person making the challenge must

have standing, that is, the conduct violates the challenger’s reasonable expectation of privacy a situation in which (1) a person has exhibited

actual (subjective) expectation of privacy and (2) that expectation is one that society is prepared to recognize as reasonable

Often an implied right that falls within the shadow of other specified rights (penumbra)

3. General searches are unlawful and restrict government from going beyond what is necessary

The Scope of Searches

Unrestrained general searches offend our sense of justice

All searches must be limited in scope General searches are unconstitutional

and never legal

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

Searches without a Warrant

The 4th Amendment prefers a warrant because it necessitates judicial review of government action

The Supreme Court has defined some searches without a warrant to be reasonable under the 4th Amendment guidelines: Consent search, frisks, plain feel/plain view,

incident to arrest, automobile exception, exigent circumstances, open fields, abandoned property and public places

Searches with Consent

If an individual gives voluntary consent for the police to search, the police may so without a warrant

Any evidence found will be admissible in court

The person may revoke the search at anytime

Searches with Consent

Georgia v. Randolph (2006) When both occupants are present and one

objects to a search, the other cannot “override” the co-occupants refusal

Illinois v. Rodriguez (1990) There is not 4th Amendment violation if

the police reasonably believed at the time of their entry that the third party possessed the authority to consent

Searches with Consent

Courts typically justify the consent exception by two separate tests: Voluntariness test-

The consent was obtained without coercion or promises and was reasonable

Considers the totality of the circumstances to determine is the consent was voluntary

Waiver test- Citizens may consent to waive their 4th

Amendment rights, but only if they do so voluntarily, knowingly, and intentionally

Frisks

If an officer suspects a person is presently armed and dangerous, a frisk may conducted without a warrant (Chapter 8)

A frisk is authorized by the circumstances of an investigative stop, only a limited pat-down of the detainee’s outer clothing for the officer’s safety is authorized

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

crime would likely involve a weapon

Searches Incident to Lawful Arrest Chimel v. California (1969)

Searches after an arrest must be immediate and must be limited to the area within the person’s wingspan The area within a person’s reach or immediate

control

Schmerber v. California (1966) Absent the exigent circumstances, a search

intrusive as drawing blood would not be permissible without a warrant

Use of Force in Searching an Arrested Person

When government agents search a person incident to arrest, they may use as much force as reasonably necessary to Protect themselves, To prevent escape, Or the destruction or concealment of

evidence

The reasonableness of the police action determines the lawfulness of it

The Automobile Exception

Carroll v. United States (1925) Established that vehicles can be searched

without a warrant provided1. There is probable cause to believe the

vehicle’s contents violate the law2. The vehicle would be gone before a search

warrant could be obtained

For officer to search a vehicle without a warrant, the must have probable cause to believe that the vehicle contains contraband or evidence

Exigent Circumstances

The courts have recognized that sometimes situations will arise that reasonably require immediate action before evidence may be destroyed

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

Special Needs Searches

These are limited searches that the court considers reasonable because societal needs are thought to outweigh the individual’s normal expectation of privacy: Prison Probation and parole searches Drug testing for certain occupations Administrative searches of closely

regulated businesses Community caretaking searches Public school searches

THE 5TH AMENDMENT:DUE PROCESS AND OBTAINING INFORMATION LEGALLY

Chapter 11

Text of the 5th Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Major Clauses

Grand Jury Double Jeopardy Self-Incrimination Due Process Eminent Domain

Due Process of Law

Police actions that would shock the conscience were found to violate due process

Rochin v. California (1952) Three deputies entered Rochin’s home

through an unlocked door and saw Rochin putting two capsules into his mouth-no search warrant

The officers took him to the hospital and had his stomach pumped

Two morphine capsules were recovered and used as evidence

8-0 ruling (1 abstained)

Due Process of Law

Another found violation of the 5th amendment were 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 general

allegation of “delinquency” was made with no specific facts stated

The witness was not present, no one was sworn in, no attorney was present and no record was made of the proceeding

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

Voluntariness of Confessions Brown v. Mississippi (1936)

First confession case decided by the Supreme Court

The Court ruled that confessions obtained through brutality and torture by law enforcement officials are violations of due process rights 3 black tenant farmers charged, whipped until

confessions 9-0 ruling, evidence obtained in violation of due

process clause self incrimination

Voluntariness of Confessions The Courts have identified two factors in

assessing the voluntariness of a confession:1. The police conduct involved 2. The characteristics of the accused

Police Conduct

What are some conduct that violates due process? Threats of violence

Confinement under shockingly inhumane conditions

Interrogation after lengthy, unnecessary delays in obtaining a statement between arrest and presentment before a neutral magistrate

Continued interrogation of an injured and depressed suspect in a hospital intensive-care unit

Deprivations of food, drink and sleep

Police Conduct

What are examples of police action that do NOT violate due process? Promises of leniency (careful here-hope

of benefit), confidential informant purchase

Encouraging a suspect to cooperate Promises of psychological treatment Appeal to religious beliefs Trickery and deceit

Characteristics of the Accused Factors such as the defendant’s:

Age education Intelligence level Mental illness Physical condition

Will be considered in determining whether a confession was voluntary

If it has not been coerced, then the confession is presumed to have been voluntary

A Standard for Voluntariness There is a totality of circumstances test

Was the admission truly voluntary? Were the individual’s constitutional

guarantees protected? Was the good of the people balanced with

the government’s and the accused's freedoms?

Standard for Voluntariness

Escobedo v. Illinois (1964) When the process shifts from investigatory

to accusatory 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 purpose is to elicit a confession-no longer general inquiry

The accused must be permitted to consult with his lawyer

False Confessions

Three types Voluntary confessions

People claim responsibility for crimes they did not commit without prompting from police

Compliant confessions The suspect will confess to escape a stressful situation, to

avoid punishment or to gain a promised or implied reward

Internalized false confessions Innocent but vulnerable suspects who are exposed to highly

suggestive interrogation techniques They come to confess and believe they committed the

crime

Florida v. Jardines, 569 U.S. ___ (2013) (concl) Held: The investigation of Jardines’ home

was a “search” within the meaning of the Fourth Amendment. 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,

the home is first among equals.” II A

The Miranda Warning

This decision actually directs police officers what to say to individuals that are in custody, before questioning them

The Constitution requires that I inform you that: You have the right to remain silent Anything you say can and will be used against

you in court You have the right to talk to a lawyer now and

have him present now or at any time during questioning

If you cannot afford a lawyer, one will be appointed for you without cost

The Miranda Warning

Duckworth v. Eagan (1989) The Miranda warning does not have to be

given word for word Some officers have a “soft Miranda

warning” which is less harsh This version is permissible as long as all the

elements of the warning are present

Custody

When is a person in custody?1. Has the person been told by police that

they are under arrest?2. Has the person been deprived of freedom

in a significant way so that they do not feel reasonably free to leave the situation, based on the totality of the circumstances?

Other Factors Indicating a Custodial Situation

People v. Shivers (1967) If a police officer holds a gun on a person,

that person is in custody and not free to leave

If the person also has a gun, they would unlikely be in custody

Interrogation

Must be present to trigger Miranda Usually thought of as the formal,

systemic, often intensive questioning by law enforcement of a person suspected of criminal activity Also the functional equivalent of express

questioning Any words or actions by the police, other than

those normally attendant to arrest and custody, that the police should know are reasonably likely to elicit an incriminating response from the suspect

Waiving the Rights

To waive their rights, they must state orally or in writing1. They understand their rights2. They will voluntarily answer questions

without a lawyer present

Suspects may revoke the waiver at any point in the interrogation

Right to Counsel

After a defendant invokes the right to counsel, police may not interrogate him

If the suspect’s statement is not an unambiguous or equivocal request for counsel, the officers have no obligation to stop questioning 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?”

When Miranda Warnings Generally Are Not 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

and videotaping 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

The Public Safety Exception

An important exception to the Miranda requirement involves public safety

New York v. Quarles (1984) A young woman stopped police and told

them she had been raped, she described the rapist and his location 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, the suspect told him that “the gun was over there”

The Public Safety Exception

New York v. Quarles (1984) At trial, the statement “the gun is over

there” and the discovery of the gun were ruled inadmissible

The U.S. Supreme Court ruled that if Miranda warnings had deterred the response to the officer’s question, the result would have been more than the loss of evidence

As long as the gun was concealed in the store, it was a danger to public safety

The Public Safety Exception

Public Safety Exception Allows police to question suspects without

first giving the Miranda warning if the information sought sufficiently affects the officer’s and the public’s safety

FBI Publication

Entrapment

Whether entrapment exists may be determined by subject analysis Was the suspect predisposed to commit the

crime, or were they an unwary innocent party?

Was the innocent person induced by the police to commit a crime they never would have otherwise?

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 is ambiguous or equivocal…reasonable officer understood he might be invoking counsel

“I don’t have a lawyer. I guess I need to get one, don’t I?” This question is insufficient to trigger an obligation to cease questioning.

Havlik (finish)

The phrase “I guess” is “used to indicate thatalthough one thinks or supposes something, it is without any great conviction or strength of feeling.”

In sum, Havlik’s statements to the interrogating officers were not an unequivocal or unambiguous request for counsel, and the police were not required to ask clarifying questions.

The Right to a Grand Jury

Grand jury A group of citizens that determine whether

sufficient evidence exists to send an accused to trial

The outcome of a grand jury is to indict or not

Indictment A formal accusation of a defendant, usually

by a grand jury, that send the defendant on to trial for prosecution

Double Jeopardy

Has been incorporated in the 14th Amendment to apply to the states

Double jeopardy is a prohibition against the government from trying someone twice for the same offense

Double jeopardy requires all three elements: Successive prosecution, same offense,

same jurisdiction

USA PATRIOT Act

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act

USA PATRIOT Act

The Act gives federal officials greater authority to track and intercept communications for law enforcement and foreign intelligence gathering Improves the nation’s counterterrorism

efforts

It further closes our borders to foreign terrorists and allows us to detain and remove terrorists already in our country

USA PATRIOT Act

The Act significantly improves the nation’s counterterrorism efforts by: Allowing investigators to use the tools already

available to investigate organized crime and drug trafficking

Facilitating information sharing and cooperation among government agencies, so they can better “connect the dots”

Updating the law to reflect new technologies and new threats

Increasing the penalties for those who commit or support terrorist crimes

Increasing Penalties for Those Who Commit or Support Terrorist Crimes

Creates a new offense for knowingly harboring people who have committed or are about to commit a variety of terrorist offenses

Enhances the inadequate maximum penalties for various crimes likely to be committed by terrorists

Enhances a number of conspiracy penalties

It eliminates the statute of limitations for certain terrorism crimes

Questions?