CON LAW 305 FINAL EXAM REVIEW

Know all of the fair trial rights an accused has under the Sixth Amendment and when those rights have been violated(Pretrial publicity):

- A fair and impartial tribunal is one that reaches its decision solely from the evidence presented at the trial, rather than from information learned elsewhere. Moreover, to help ensure that no one with independent knowledge finds his way onto the jury, trial counsel will be allowed to examine prospective jurors to learn whether they know the defendant or the victim or have some other connection to the case that might provide a source of independent knowledge.

WAIVER OF THE PRIVILEGE AGAINST SELF INCRIMINATION (5th amd):

- A waiver occurs when a person who has a Fifth Amendment privilege voluntarily testifies without invoking it. Under Miranda, a valid waiver requires a fourfold warning. - Scope: Criminal defendants who take the witness stand waive their Fifth Amendment privilege, but only concerning the matters about which they have testified.41 They cannot waive the privilege for the sake of putting forth their version of the facts and then invoke it to block cross-examination.

Know the Fifth Amendment right against self-incrimination immunity:

- Absolute immunity: (also called transactional immunity) bars the government from prosecuting the witness for crimes revealed through compelled testimony.30 Because the government no longer can prosecute the person, it may compel testimony without risking self-incrimination. - Use immunity: Fifth Amendment is satisfied if the government grants the witness immunity from the government's use of the testimony and its fruits in any potential subsequent prosecution. Use immunity is constitutional because it grants legal protection equivalent to the "fruit of the poisonous tree" remedy given for evidence procured in violation of constitutional rights.

Invoking the Fifth Amendment right against self-incrimination :

- Criminal defendants have the right to remain silent at their trial. They invoke this right by not taking the witness stand. A defendant's decision not to testify is final; prosecutors may not call the defendant as a witness. Defendants take a risk when choosing to invoke the right to remain silent at trial, because jurors tend to assume that they would be willing, even eager, to take the stand if innocent. - Witnesses invoke the privilege by stating in response to a specific question: "I refuse to answer on the grounds that it might incriminate me." When a witness invokes the privilege, the judge must determine whether a truthful answer would, in fact, have this tendency.

Know what is required for an officer's speech to be protected under the 1st Amendment and when it is not:

- First Amendment protection means protection against adverse employment action for speech that annoys superiors. - Police officers are entitled to First Amendment protection for work-related speech only when they: 1. speak in their capacity as a private citizen (rather than as an employee) 2. about a matter of public (as opposed to private) concern - Whether speech involves a matter of public or private concern is determined by the: - Content. Speech alleging official misconduct, waste of public funds, systematic discrimination, and hazards to public health or safety is always a matter of public concern. Speech that deals with personnel grievances and internal office affairs are almost never a matter of private concern. - Form, including whether the speech was addressed to a public or private audience. - Context, such as whether the communication was made against the background of an employment dispute or had a broader public purpose. 3. the value of the speech outweighs its adverse effect on the police department.

Identify the critical stages in the criminal process when it is mandatory for counsel to be present:

- First, it must take place after the initiation of criminal prosecution. This is the point at which the suspect officially becomes the "accused" and the Sixth Amendment right to counsel attaches. The initiation of a criminal prosecution generally occurs in one of four ways: a preliminary hearing, the filing of an information by the prosecutor; the return of an indictment by a grand jury, an arraignment during which the court reads the charges against the defendant and asks him or her to enter a plea. - Second, the event must involve an adversarial confrontation between the government and the accused or, in other words, an encounter in which the accused and a representative of the government both are present. - Finally, the encounter must be of such a nature that important rights may be lost, defenses waived, or the fairness of the trial placed in jeopardy if the defendant is forced to proceed without the assistance of counsel.

Know when a suspect can waive his right to counsel (i.e. during in custody interrogations under Miranda, when court satisfied a defendant can represent himself):

- Police must administer Miranda-type warnings and secure a knowing, intelligent, and voluntary waiver of the right to counsel. If the defendant invokes the right to counsel, police must postpone the proceedings until counsel is present. They must adhere to the same procedures during critical stage interrogations as during Miranda custodial interrogations. - If the lawyer the defendant retains fails to arrive after a reasonable waiting period or if urgent circumstances require immediate action, police may secure appointed counsel to provide temporary representation and go on with the procedure. - Suspects also are entitled to have counsel present during critical stage interrogations. The purpose of counsel's presence is to ensure that the client understands his or her rights, participates voluntarily, and does not say things that will invalidate a reasonable defense of the case.

Understand when an officer can be sued under section 1983 of the US Code and when they have qualified immunity:

- Police officers are civilly liable under § 1983 when they: 1. act under color of state law 2. in depriving an individual of a constitutional right Ex: women stopped for traffic violation, officer says i will not give you a ticket if you have sex with me, she has sex with him because of it - Police are immune from liability for violating a constitutional right if: 1. the right was not clearly established at the time of the challenged action or 2. a reasonable public official, faced with these facts, could have believed that the action taken complied with the existing constitutional standard.

Be able to identify and apply the constitutional protections in pretrial identification procedures:

- Pretrial identification procedures have two primary purposes: to verify that the police have apprehended the right person, and to generate evidence for use at trial. - The Fourth Amendment requires grounds for a seizure. When police have probable cause for arrest, they may conduct either a lineup or a showup. When they only have reasonable suspicion for a detention, only showups are allowed. - The due process clause regulates the manner in which photographic identifications, lineups, and showings are conducted. They must be conducted in a manner that avoids unnecessary suggestiveness conducive to a misidentification. - Sixth Amendment right to counsel applies to lineups and showups that take place after the prosecution has been initiated. Police must observe warning and waiver requirements and abstain from interfering with the attorney-client relationship

Know all of the fair trial rights an accused has under the Sixth Amendment and when those rights have been violated (speedy trial):

- Speedy trial: the trial protects the accused, the sole remedy for a Sixth Amendment violation of the right to a speedy trial is absolute dismissal of the charges with prejudice. A.) attachment of the right to a speedy trial: criminal trials represent the process that begins with the commission of a crime and then processes through the discovery of the crime, investigation, the defendant's arrest, indictment, arraignment, and beyond. B.) determining whether the right has been denied: there is no set period in which a trial must take place after the prosecution has begun. Rather, in determining whether the right to a speedy trial has been denied, the supreme court balances four factors: the length of the delay, the reasons for the delay, whether the defendant asserted his or her right to a speedy or sat idly by and whether the delay prejudiced the defendant's case. Length of delay: operates as a red flag signaling the need to inquire into the other three factors. What contributes to prejudicial delays varies with the nature of the case itself. - Reasons for the delay: the second factor in a speedy trial is who or what is responsible for the delay. The sixth amendment does not protect an accused against delays he has requested or for which she is responsible. For example, an accused cannot delay by complaining of delays resulting from the government's inability to locate him while a fugitive, of trial postponements caused by his own illness, or due to defense motions seasonably acted upon. The only delays relevant to the sixth amendment purpose are those attributed to the government. - Defendants assertion of rights: a majority of federal courts asheared to the "demand-wavier". This rule required the court to disregard any delays occurring before the accused demanded that his case be docketed for trial. - Prejudice for the defendant: lastly, whether the defendant was damaged by the delay is the last and most important factor. Some delays can have a more serious consequence for defendants who are subjected to lengthy pretrial confinement when compared to those who are free on bail. For defendants that are free on bail, a delay can be harmful because job opportunities and important relationships may be strained, and anxieties over the future can be overwhelming.

Know the Fifth Amendment protections against Double Jeopardy. When it applies and when it does not:

- The double jeopardy clause of the Fifth Amendment mandates that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb" This clause prohibits the government from twice prosecuting or punishing a criminal defendant for the same offense. (The double jeopardy safeguard prevents the government from using its vast resources to imprison innocent people by repeatedly trying them until they are too worn out, psychologically and financially, to put forth an adequate defense. - Three conditions are necessary to acquire double jeopardy protection against reprosecution: 1. An earlier prosecution must progress to the point of jeopardy attachment 2. The subsequent prosecution must involve the same offense 3. Both prosecutions must be brought by the same government entity. - When a defendant is tried before a jury, jeopardy attaches as soon as the jury has been empaneled and sworn.18 In nonjury trials, jeopardy attaches when the first witness is sworn and the judge has begun hearing testimony.

Understand an officer's limits to personal liberty under the 14th Amendment:

- Standard of Conduct: Members and employees shall conduct their private and professional lives in such a manner as to avoid bringing the department into disrepute. - Debts—Incurring and Payment: Members and employees shall pay all just debts and legal liabilities incurred by them. - Persons and Places of Bad Reputation: Members and employees shall not frequent places of bad reputation, nor associate with persons of bad reputation, except as may be required in the course of police duty. - Liquor: Employees of the department shall refrain from drinking intoxicating beverages for a period of at least four (4) hours before going on duty. - Smoking While on Duty: Members shall not smoke on duty while in direct contact with the public nor when in uniform in public view, except that smoking is permitted in public view at mealtimes and while patrolling in police automobiles, at which times it shall be as inconspicuous as possible. - Grooming: Hair shall be evenly trimmed at all times while on duty. The hair shall at no point extend down over the shirt collar in normal posture. Sideburns shall not extend below the bottom of the ear. The maximum width at the bottom of the sideburns shall not exceed 1¾ inches. A clean-shaven appearance is required except that mustaches are permitted. Mustaches shall be neatly trimmed and shall not extend more than ¼ inch beyond the corners of the mouth nor more than a ¼ inch below the corners of the mouth. Remainder of the face shall be clean-shaven. - Use of Derogatory Terms: Members and employees shall neither speak disparagingly of any race or minority group nor refer to them in insolent or insulting terms of speech, whether prisoners or otherwise.

Know when a strip search can occur:

- Strip searches are permitted only when police have reasonable suspicion that the person arrested has evidence of the crime or contraband hidden beneath his or her clothing. - they must be performed by an officer of the same sex as the suspect, in an enclosed area away from the view of all persons except those conducting the search. - In order for a roadside strip search to pass constitutional muster, there must be ... exigent circumstances that show some significant government or public interest would be endangered

Know the Fifth Amendment right against self-incrimination the three prerequisites:

- Testimony includes words or actions that disclose things a person knows. - Compulsion occurs when the disclosure is obtained by threatening serious consequence if the information is withheld. - Information is self-incriminating when it exposes the person who discloses it to the risk of criminal prosecution.

Know the Fifth Amendment right against self-incrimination

- The Fifth Amendment includes the only constitutional provision that explicitly addresses compulsory self-incrimination, but its coverage is limited to testimony. The Fifth Amendment declares: "No person ... shall be compelled in any criminal case to be a witness against himself." Witnesses provide testimony. - A person is considered to be a "witness against himself in a criminal case" when he or she is compelled to disclose information information that later could be used against him or her in a criminal case, no matter where or when the compulsion occurs. - The government may not compel Guilty to disclose knowledge of his own criminal activities, whether inside or outside a courtroom. However, the Fifth Amendment does not protect Guilty against being forced to assist the government in other ways. 1. Suspects have the right to remain silent during custodial interrogations. 2.Criminal defendants have a right to remain silent at their criminal trial. 3. In all other legal contexts, citizens have a right not to answer specific questions that might incriminate them, but are not exempt from testifying.

Know when an officer is protected from illegal search and seizure under the Fourth Amendment and when he is not:

- The Fourth Amendment protects police officers against workplace searches only if: 1. they have a reasonable expectation of privacy in the location searched and 2. the department's decision to search was not justified Whether police officers have a reasonable expectation of privacy in their work space and equipment depends primarily on whether they have exclusive use and control or the use is shared; whether supervisors, co-workers, or other third parties have access to or a right to enter; and whether employment regulations reserve a right of inspection. - officer has a reasonable expectation of privacy, the department is justified in performing a work-place search whenever it has: (1) a legitimate noninvestigatory work-related reason or (2) reasonable suspicion that the search will turn up evidence of work-related misconduct. - Mandatory drug testing is considered a search, but is permitted if: (1) the department has a reasonable suspicion that an officer is abusing drugs or (2) the testing is conducted as part of a systematic drug-screening program

Know all of the fair trial rights an accused has under the Sixth Amendment and when those rights have been violated (The requirement that the tribunal be fair and impartial):

- The Sixth Amendment guarantees the right to an impartial jury, but impartiality is also an ingredient of due process of law and applies in bench trials as well. More specifically, the elements of an impartial tribunal do not have a stake in the outcome of the case, not bear any personal animosity toward the specific defendant, be able to set aside any general prejudice toward a class to which the defendant belongs, and be able to set aside any preconceived notions about the proper outcome of the case and be able to render a verdict based solely on the evidence presented at trial.

Know when and how a body cavity search can occur:

- The courts regard manual body cavity searches as medical procedures, and so they must be performed by a trained medical professional, not by a police officer, under sanitary conditions. - require compliance with the requirements laid down in Schmerber

Know the three types of discrimination under Title VII of the Civil Rights Act of 1964 and what each entail:

- Title VII of the Equal Employment Opportunities Act of 1964114 prohibits employment discrimination based on race, color, religion, gender, or national origin. There are three types of discrimination claims: (1) disparate treatment, (2) disparate impact, and (3) harassment. - Disparate treatment discrimination occurs when an employer intentionally treats some people less favorably than others because of their race, color, religion, sex, or national origin. - Disparate impact discrimination occurs when an employer uses selection criteria that disproportionately eliminate members of a protected class without being valid predictors of the knowledge, skills, or traits necessary for the job in question. - Quid pro quo sexual harassment occurs when a superior threatens to take a negative action or to withhold a positive action unless a subordinate acquiesces in his or her sexual demands. Hostile work environment sexual harassment occurs when unwelcome sexual behavior becomes so pervasive or severe that it alters the conditions of a person's employment and creates a hostile, intimidating, abusive, or offensive work environment.

Know what ineffective assistance of counsel means and the effect of being represented by counsel ineffectively:

- a defendant's counsel also must be reasonably effective. (do their job) - The Court affirmed that the Sixth Amendment right to assistance of counsel required that appointed counsel must be reasonably effective and that ineffective assistance rendered a conviction vulnerable to constitutional challenge. - the defendant must prove not only that (1) counsel's performance was deficient (i.e., fell below reasonable professional standards), but also that (2) the outcome probably would have been different had the representation been adequate.

Know the difference between appearance evidence and bodily evidence and the legal requirements before each can be compelled:

- appearance evidence: Appearance evidence refers to evidence deriving from body characteristics that, on a routine basis, are on public display. Fingerprinting, photographing, lineups, handwriting and voice samples, and field sobriety tests53 are examples of procedures that yield appearance evidence.54 Because a person's physical appearance, voice, handwriting, fingerprints, and body coordination are external characteristics that are exposed to public view, police are not violating privacy or bodily integrity when compelling a suspect to use these characteristics to produce evidence. - bodily evidence: Bodily evidence refers to physical evidence obtained by searching areas of a suspect's body not normally exposed to the public, penetrating the body surface or removing biological materials or foreign substances. Ex: searching Guilty's naked body for evidence of a gunshot wound, taking a blood sample for analysis,58 or surgically removing the bullet.

Know what is required to impose the death penalty:

- death is a constitutionally acceptable punishment only for crimes that involve the actual death of another human being; - To be constitutional, death penalty sentencing laws must incorporate all six of the following safeguards: 1. The death penalty may be imposed only for crimes that involve the taking of a human life. 2. The sentencer must have the discretion to decide whether the death penalty is appropriate. 3. Sentencing discretion must be channeled by establishing statutory aggravating factors that must be present to warrant imposition of the death penalty. 4. Defendants must be afforded an unrestricted opportunity to offer evidence that might convince the tribunal to show compassion and withhold the death penalty. 5. The trial must be conducted in two phases, with the sentencing phase kept separate from the guilt phase. 6. The death penalty may not be imposed on offenders who are under the age of 18, mentally retarded, or criminally insane.

Know the Fourth Amendment right against bodily self-incrimination:

- freedom of movement: In order to use Guilty's body as a source of evidence, the police must gain physical control over him. Consequently, police must have constitutional grounds for seizing and detaining him long enough to obtain evidence, or the evidence will be inadmissible in court. - bodily privacy: This interest does not reach parts that are exposed to the public,4 such as his voice, handwriting, physical appearance, and fingerprints,5 but it does reach the parts that are not. Examining Guilty's nude body for evidence of a bullet wound will intrude on his privacy. - bodily integrity: Finally, Guilty has an interest in his bodily integrity. Drawing blood and performing surgery to retrieve the bullet will intrude on this interest.6 When the police perform procedures that invade a suspect's privacy or bodily integrity, the Fourth Amendment requires that they have grounds for the initial seizure, and also for any further invasion of privacy or bodily integrity that compulsory production of the evidence entails.

Know all of the fair trial rights an accused has under the Sixth Amendment and when those rights have been violated(trial by jury):

- the constitutional right to trial by juries entitlement is only for offenses carries a penalty of six months or more in jail, the required number of jurors are twelve in federal courts and no fewer than six in state courts, the selection process must be drawn from a source that is fairly representative of the community. Peremptory strikes may not be used to exclude potential jurors solely because of their race or gender. This is required in federal trials, but not in state trials unless the jury comprises only six persons.

Know when a suspect has a right to court appointed counsel and when he can represent himself:

- the judge must make sure that the defendant is mentally competent to make this decision and that he or she has made the decision knowingly, intelligently, and voluntarily. - the defendant must be advised of his or her Sixth Amendment rights and warned of the dangers and disadvantages of self-representation. - Defendants must make this choice with full awareness of its consequences, but they need not have the knowledge and skills of a lawyer in order to do so. - When deciding whether a judge's warning was sufficient to enable the defendant to make an intelligent choice, courts will consider the defendant's education, prior experience with the criminal justice system, and the complexity of the charges against him or her.

Know all of the fair trial rights an accused has under the Sixth Amendment and when those rights have been violated(The right to confront and cross-examine adverse witnesses):

- the sixth amendment also guarantees an accused the right to confront witnesses who testify against him or her in open court. The courtroom confrontation enhances the reliability of testimony in several ways. First, testimony in court is given under oath and on penalty of perjury. Second, jurors have an opportunity to observe the witness's demeanor and decide whether the witness is telling the truth. Finally, the most crucially of all is the testimony given in open court with cross-examination. Cross-examination gives the accused an opportunity to challenge a witness's veracity and expose weakness in her testimony.

Know that a suspect can hire his own lawyer at any time in the criminal process, before or after charges, or even before an arrest, and have that lawyer advise him.

Know that a suspect can hire his own lawyer at any time in the criminal process, before or after charges, or even before an arrest, and have that lawyer advise him.