POSC 443 Law in Film Final

four broad categories of reforming the american legal system

discouragement reform: procedural efficiency reform: substantive efficiency reform: replacement reform:

Personal and Political Effects on the prosecutorial system

personal: as a prosecutor you are able to determine who to go after, and who to release, there is a lot of personal discretion because there isn't a huge checks and balances procedure Political: you are an extension of the government so it is possible they will be using agendas and motives on prosecutors to take a certain political stance ex- crack down on drug crimes etc

Petit Jury v. Grand Jury

petit jury: In common law, a petit jury (or trial jury, sometimes petty jury) hears the evidence in a trial as presented by both the plaintiff (petitioner) and the defendant (respondent). After hearing the evidence and often jury instructions from the judge, the group retires for deliberation, to consider a verdict. grand jury: a jury, normally of twenty-three jurors, selected to examine the validity of an accusation before tria

Suggestions for Greater Scrutiny on Prosecutorial Discretion

remove their civil immunity and they will have to be much more careful in all their affairs and they can be open to suits and scrutiny of the public and legal system themselves

Postive Law

statutes that have been laid down by a legislature, court, or other human institution and which can take whatever form the authors want

United States vs. Leon (1984)

supreme court case about drugs in which the court created the 'good faith" exception to the exclusionary rule. Established that evidence obtained in good faith by police relying upon each warrant that subsequently is found to be deficient may be used in criminal trial

Johnson v Louisiana (1972)

the court held that the less than unanimous convictions did not violate the reasonable doubt standard embodied in the 14th amendment due process clause. Justice White argued that the minority opposing conviction does not prevent other jurors from reading their decision of beyond reasonable doubt. Johnson was convicted of armed robbery by a jury split nine to three.

Galanter "Why the Haves Come Out Ahead"

the haves or repeat players are familiar with the process and know how to work it. One timers are more likely to slip up or get taken advantage of because they don't know what they are doing

lack of checks and balances on the prosecutorial systems

they are to follow the bars canon of professionalism, however prosecutors have civil immunity and cannot be subjected to suit

United States vs. Dougherty (1972)

united states court of appeals for district of Colombia court ruled that members of the DC nine (who broke into Dow chemical company) were not entitles to a new trial on the basis of the judges failing to allow jury nullification instruction (but were given a new trial because they were denied the right to self represent)

Post-Positivism Law

unwritten laws carry weight and value to written laws. Laws are rules, principles, and policies

should juries have the right to nullify a verdict

whether or not they should they do, and that is what makes courts so unpredictable, its all up to jury decision. And once the jury delivers a verdict it cannot be challenged bc you can't try the same crime twice

Roles of courts of law vs. courts of equity

court of law: a duly instituted organ of the government that administers justice, whether on the basis of legislation, previous court decisions, or other authoritative services court of equity: a court having jurisdiction in equity or administering justice in accordance with the principles of equity

Crime Control vs. Due Process

crime control: assembly line, all about efficiency, there is presumption of guilt and the innocent are supposed to be plucked from the group due process: focus on the accuracy of the trial, wants to uncover the truth, emphasis on civil liberties, system is skeptical of all evidence presented by the state The US is a combination of the two. We have presumption of innocence, but we are not efficient and are focused on winning not the truth.

12 Angry Men

-the criminal jury -asimow and madder ch 9, nichols scheflin, us vs. dougherty readings -Following the closing arguments in a murder trial, the 12 members of the jury must deliberate, with a guilty verdict meaning death for the accused, an inner-city teen. As the dozen men try to reach a unanimous decision while sequestered in a room, one juror (Henry Fonda) casts considerable doubt on elements of the case. Personal issues soon rise to the surface, and conflict threatens to derail the delicate process that will decide one boy's fate.

The Ox Bow Incident

-Law and justice in film -In this classic Western, wanderers Gil Carter (Henry Fonda) and Art Croft (Henry Morgan) ride into a small Nevada town plagued by cattle thieves. Initially suspected of being the rustlers themselves, Carter and Croft eventually join a posse out to get the criminals, who also may be involved in a recent shooting. When the posse closes in on a group that could be the fugitives, they must decide on a course of action, with numerous lives hanging in the balance. -right to a fair trial, killing an innocent man, justice into your own hands

Breaker Morant

-Law and power -Kafka, Darrow, d'Errico readings -In South Africa during the Second Boer War, Australian Army Lieutenants Harry "Breaker" Morant (Edward Woodward), Peter Handcock (Bryan Brown) and George Witton (Lewis Fitz-Gerald) stand accused of the murders of six Boer prisoners and the assassination of a German missionary. British Commander-in-Chief Lord Kitchener is determined to see the men found guilty, which he can use as a bargaining chip in an impending peace conference with the Boers. -legal realism

Presumed Innocent

-actual innocence and the courts -Prosecuting attorney Raymond Horgan (Brian Dennehy) assigns his chief deputy, the taciturn Rusty Sabitch (Harrison Ford), to investigate the rape and murder of colleague Carolyn Polhemus (Greta Scacchi), unaware of their torrid affair. When evidence implicates Rusty, Horgan's political enemies demand his arrest, devastating Rusty's wife, Barbara (Bonnie Bedelia). In desperation, Rusty turns to crafty defense attorney Sandy Stein (Raul Julia), only to be stunned by his trial's revelations. -actual innocence, DNA evidence

Ballew vs. Georgia (1977)

-case heard by the supreme court that held that Georgia star statue authorizing criminal conviction of a jury of five was unconstitutional. The constitutional minimum size of a jury hearing petty criminal offense was her to be six

Miranda vs. Arizona (1966)

-case in the supreme court that held that both inculpatory and exculpatory statements in response to interrogation of defendants by the police can only be admissible in court if protection can pore that the defendant was informed of their right to consult an attorney to protect themselves against self incrimination. -Ernesto Miranda was arrested on circumstantial evidence lining I'm to kidnapping and rape of q8 women. he admitted to it during interrogation

Training Day

-corruption of the justice system -goldtstein, terry vs ohio, california vs. ciraolo, us vs. leon readings -Police drama about a veteran officer who escorts a rookie on his first day with the LAPD's tough inner-city narcotics unit. "Training Day" is a blistering action drama that asks the audience to decide what is necessary, what is heroic and what crosses the line in the harrowing gray zone of fighting urban crime. Does law-abiding law enforcement come at the expense of justice and public safety? If so, do we demand safe streets at any cost?

Mapp vs. Ohio (1961)

-landmark case in the criminal procedure. The united states supreme court decide that evidence obtained in violation of the 4th amendment (which protects against the unreasonable search and seizure) may not be used in court. Super court accomplished tis through selective incorporation. -Mapp was arrested due to the possession of paraphernalia obtained without a warrant on er appeal all charges were dropped

A Man for All Seasons

-law, power, and resistance -king, rawls, dworkin readings -When the highly respected British statesman Sir Thomas More (Paul Scofield) refuses to pressure the Pope into annulling the marriage of King Henry VIII (Robert Shaw) and his Spanish-born wife, More's clashes with the monarch increase in intensity. A devout Catholic, More stands by his religious principles and moves to leave the royal court. Unfortunately, the King and his loyalists aren't appeased by this, and press forward with grave charges of treason, further testing More's resolve. -civil disobedience

The Verdict

-lawyers as heroes and villains -asimow and mader ch 6. asimow, asimow readings -A boozing lawyer (Paul Newman) takes on a law-firm dean (James Mason), the Archdiocese of Boston and the system in general. -ambulance chasing

The Paper Chase

-legal education -thinking like a lawyer -asimow and mader ch 6, bonsignore, kennedy -As a first-year law student at Harvard, James Hart (Timothy Bottoms) knows he's got his work cut out for him. But things get harder than he anticipated when he runs afoul of the school's dreaded contracts professor, Charles W. Kingsfield Jr. (John Houseman). Wry and imposing, Kingsfield drives many of the lesser students to drop out, but James endures and, as if begging for more trouble, begins dating the professor's daughter, Susan (Lindsay Wagner). -socratic method

My Cousin Vinny

-reforming the legal process -cicchini and easton, galanter, johnson vs lousina -New York lawyer Vinny has never won a case. When his teenage cousin Bill and his friend Stan are accused of murder in a backwater Alabama town, it's up to the nervous Vinny to save him from jail, even though he's only ever tried personal injury cases before, and none of them successfully.

Terry vs. Ohio (1968)

-supreme court held that the fourth amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect o the street and rises them without probable cause. -terry and his buddies were acting weird and casing out a grocery store that warranted a reasonable suspicion

California vs. Ciraolo (1986)

-supreme court ruled that warrantless aerial observation of a persons backyard did not violate the 4th amendment. Naked eye observation. -Ciraolo was believed to be growing marajuana but it was shielded by two fences so Santa Clara PD flew a plane one and took photos

Minority Report

-the adversarial process -crime control vs. due process model -packer, brown vs texas, florida vs bostick readings -Based on a story by famed science fiction writer Philip K. Dick, "Minority Report" is an action-detective thriller set in Washington D.C. in 2054, where police utilize a psychic technology to arrest and convict murderers before they commit their crime. Tom Cruise plays the head of this Precrime unit and is himself accused of the future murder of a man he hasn't even met.

Ghosts of Mississippi

-the all powerful prosecutor -frank, mills, and george readings -In this film based on actual events, black activist Medgar Evers (James Pickens Jr.) is murdered in 1963, and much of the evidence points toward white supremacist Byron De La Beckwith (James Woods). However, after two trials, De La Beckwith is acquitted twice by a jury of whites. Now, decades later in 1989, Evers' widow, Myrlie (Whoopi Goldberg), thinks she has evidence to finally convict him. But no lawyer will touch the case except the young and brash Bobby DeLaughter (Alec Baldwin). -fight theory vs truth theory

Runaway Jury

-the civil jury -phil anthony -After a workplace shooting in New Orleans, a trial against the gun manufacturer pits lawyer Wendell Rohr (Dustin Hoffman) against shady jury consultant Rankin Fitch (Gene Hackman), who uses illegal means to stack the jury with people sympathetic to the defense. But when juror Nicholas Easter (John Cusack) and his girlfriend, Marlee (Rachel Weisz), reveal their ability to sway the jury into delivering any verdict they want, a high-stakes cat-and-mouse game begins. -jury consultant

To Kill A Mockingbird

-the passionate defense attorney -phil kent cohen -galanter, curtis, asimow ch 3 & ch 2 readings -Scout Finch (Mary Badham), 6,and her older brother, Jem (Phillip Alford), live in sleepy Maycomb, Ala., spending much of their time with their friend Dill (John Megna) and spying on their reclusive and mysterious neighbor, Boo Radley (Robert Duvall). When Atticus (Gregory Peck), their widowed father and a respected lawyer, defends a black man named Tom Robinson (Brock Peters) against fabricated rape charges, the trial and tangent events expose the children to evils of racism and stereotyping.

Baston vs. Kentucky (1986)

-the united states supreme court ruled that a prosecutor use of peremptory challenge in a criminal case-- dismissal of jurors without stating a valid cause for doing so exude jurors sole bases on their race. Strander v. West Virginia reaffirmed; prosecutors can't use race as a factor in peremptory challenges. Defense attorneys may only make a prima facie showing on their evidence from their case to mount a race challenge. -black man Baston was accused of burglary and prosecutors and judge composed an entire white jury by removing all six black potential jurors (based solely o the fact that they were black)

Loewy "Systematic Changes That could Reduce the Conviction of the Innocent"

1. Prosecution has the advantage. 2. Why wrong convictions? Because of misidentification and false confessions. Bad forensics and jailhouse confessions also play a role in wrong convictions. 3. Living with wrong convictions. Innocent Commissions, allowing all relevant exculpatory evidence, eliminate the death penalty, do not condition parole on professions of repentance

seven types of specific reforms for the american legal system

1. greater use of technology 2. controls over quarrier 3. control over trial 4. remove or exclude detail procedures 5. use of alternative courts 6. professional juries 7. rethink our idea of punishment

six reason why people are wrongfully convicted

1. misidentifications 2. fasse confessions 3. bad forensics 4. jailhouse confessions 5. police frame ups 6. circumstantial evidence

Legal Realism

A theory that all law derives from prevailing social interests and public policy. According to this theory, judges consider not only abstract rules, but also social interests and public policy when deciding a case. -People in power do things that benefit their position in society -its a pessimistic outlook on the law

Bonsignore "Law School: Caught in the Paradigmatic Squeeze"

Admission is difficult Therefore law school must be good for you Encompassing tendencies (Goffman): The ability to capture the time and interest of participants Believes all social institutions have encompassing tendencies Upon entering into an institution of whatever type, a person carries a home world or presenting culture A clash of cultures may occur upon entry into an institution, even when entry is voluntary Institution must develop strategies to eliminate the "home world" and replace it with the institutional world The LSAT is predictable of law school success Socratic method Process called looping, in which the students verbal responses and defenses are themselves made the objects of attack and rejected as improper and worthless A disruption in the students sense of economy of action Economy of action: the way each individual balances needs and objectives in a personally efficient way in the ordering of events It is only after discipline that students will know what questions arise from facts

Rawls "Civil Disobedience"

Civil disobedience: to break law, one must voluntarily breach the law, it must be nonviolent, and be a conscious political act with a goal of changing law or the policy of the government) Intro - Applies to "nearly just" societies with a legitimately established democratic authority - Conflict: obligation to comply with the laws enacted by the legislative majority vs. obligation to defend one's liberties and duty to oppose injustice => calls into question the nature and the limits of majority rule Three parts of the essay - What kind of dissent is civil disobedience: ranges from infractions of the law to bring it before courts to militant action and organized resistance - Grounds of civil disobedience and conditions under which it is justified - Role of civil disobedience within a constitutional system Four characteristics of civil disobedience: - Public, nonviolent, conscientious yet political, contrary to the law usually and done with the aim of bringing about a change in the law or policies or the government

Lane "Twelve Carefully Selected Not so Angry Men"

Criticizing the use of peremptory challenges as a violation of the fourth amendment right of equal protection and the right to a fair trial (how fair can a trial really be if there are jury consultants working for one or both sides). Jury consultants are commonly psychologists, sociologists, or attorneys by training. They attempt to use a variety of tools to predict jury behavior. Selection of jurors to help the case, and a the means of how to present evidence to appeal to the jury. First jury consulting was used in an anti-vietnam trial in the 1970s. Jury consultant will conduct community attitudinal surveys, Attorneys utilize the profile to remove jurors possessing characteristics that render them unsympathetic to their client's case. Consultants may also investigate potential jurors through methods such as home surveillance, hand writing analysis, and by checking credit, property, and tax records. In addition, consultants observe juror behavior during the selection process, noting body language and interaction with other jurors. Consultants may arrange for attorneys to present the case issues to a focus group or a mock jury to gage their reaction to the evidence and issues of the case. Consultants also employ "shadow juries" to observe the trial as it unfolds, thus providing attorneys with valuable insight regarding the actual jury's comprehension of the evidence and overall perception of the case. Jury consultants negatively affect the jury system, When jury consultants are given credit for the winning verdict, it makes the jury seem weak and manipulated.. The fact that jury consultants can control the outcome of a trial takes away the illusion of a fair trial.

Dworkin "The Model of Rule"

Dworkin Positivism is focused on rules Rules that are not written can be vague Unwritten principles and written rules What would sir thomas more be considered doing according to dworkin Sir thomas would be justified in that he was following his own conscious He was following the greater principles of the law according to him Law is not just what man says it is Post-positivism: unwritten laws carry weight and value to written laws Laws are rules, principles, and policies Principle: requirement of justice, fairness, or some other dimension of morality No one should profit from a wrongful act Policy: standard that sets out a social goal to be reached Positivism: The law of a community is a set of special rules used by the community directly or indirectly for the purpose of determining which behaviour will be punished or coerced by the public power The set of these valid legal rules is exhaustive of the law, so that if someone's case is not clearly covered by such a rule then that case cannot be decided by applying the law To say that someone has a legal obligation is to say that his case falls under a valid legal rule that requires him to do or to forbear from doing something A. Law consists of rules with pedigrees B. The law stops where these rules stop; cases not covered by rules must be decided through discretion. C. Legal obligations arise (only) from rules

Mills "I Have Nothing To Do With Justice"

Famous defense attorney Government no longer has time and money to preserve justice You are no longer innocent until you are proven guilty Plea bargains have taken over criminal proceedings Criminals can sit and wait in jail until plea gets better and better Plea bargains only benefit the guilty Innocent are under pressure to get out (rather set guilty people free than convict one innocent person

Yarborough "The Jury Consultant: Friend or Foe to Justice"

In an ideal world, all juries would be unbiased and fair. But what does that really mean? How does one define "unbiased" and "fair"? The very strength of the American jury system is also its' biggest weakness. Moreover, the strength of the jury system invites different points of view into the deliberative process. Who uses jury consultants? High profile cases that are likely to spark high scrutiny from the community, as the damages get increasingly larger professional jury consultants are brought in. How do you know if you need a jury consultant? The decision of when to hire a jury consultant belongs to the attorney and the client. In the past, jury consultants were hired late in the trial preparation process. The role of the consultant, however, has changed from merely assisting in voir dire to involvement in virtually every stage of the litigation process. The limitations of the consultant's involvement are usually determined only by the client's ability to pay. The value of statistical accuracy? While many jury consultants may claim to be able to predict and control the outcome of a jury-no one can ensured that. Clients will ask for research about track record etc. considering the amount of money/cost of a consultant will depend on their ability to perform and deliver. What services to consultants provide? Visual aids, witness preparation, prospective juror questionnaires, jury selection, focus groups, mock trials, community surveys, and settlement discussions. How effective are jury consultants? What are the discriminiatory implications of using jury consultants?

concept of jury nullification

Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate that are charged with deciding.

Heuristic Processing

a decision making process that is is any approach to problem solving, learning, or discovery that employs a practical method not guaranteed to be optimal or perfect, but sufficient for the immediate goals -availability heuristic you call upon the information that is the most readily available in your mind

Kafka "The Problem of Our Law"

Kafka's viewpoint of the law Laws are to the benefit of the nobles (think how the Crpl. in Breaker Morant was unavailable to the Court Martial to explain the violent mindset of their specific battalion Created by the few in power, who want to maintain power, therefore institutionalize laws leaning towards their own benefit (inherent bias) Would disagree that there are "neutral" laws Paradox: any party that would repudiate both belief in the law and the nobility would be supported by all the people, yet such a party cannot come into existence, for nobody dare repudiate the nobility.

d'Errico "The Law is Terror Put into Words"

Law takes the side of the people against governmental or systemic injustice Central concern is maintaining power system - law only appears to take the side of the people System of power requires a system of civil rights - yet system of power perpetuates oppression of civil rights Instead of respecting people we respect law Law is all about power but has very little to do with the truth Legal system is not designed to find the truth, almost pushes the truth out of the conversation Legal system is dichotomous - guilty or not guilty Laws don't incorporate humanism into the way it operates, life is not dichotomous as the law is

Asimow and Mader Law and Popular Culture CHAPTER 6

Legal education in the US and Canada is considered a Graduate program, with the prerequisite of having a completed undergraduate degree After graduating and passing the Bar Exam, US lawyers can practice on their own, as a law firm employee, or gov. Agency; apprenticeship NOT required Most other countries, law is an undergraduate major; those with law undergraduate degrees in other countries typically don't practice law, unless they complete postgraduate training and have gone through apprenticeship Harvard Law School shows up in The Paper Chase, Legally Blond, Just Cause, Reversal of Fortune, Soul Man; most prestigious school, always top 3, super hard to get in The Paper Chase Adapted from novel by John Jay Osborn (1971), based on his 1L year at Harvard in the 1960s Movie actors won Oscars, also became a network television series Some think every prospective law student should watch movie before consider going to law school Big difference with real world: wearing suits to class is not a thing anymore All 1L classes are prescribed, no elective course; big classes 75-150 students; everyone takes Contract Law (Professor Kingsfield in the film teaches this class) Cold-calling in class; abuse in questioning Hart by Kingsfield Hawkins v. McGee: lawsuit based on malpractice Typically considered a torts case, but here it is a contract because the doctor stated "I will guarantee to make the hand a hundred percent perfect hand" promise = contract Remedy = measure of plaintiff's damages Contract Remedy = "the benefit of the bargain" meaning the value of what was promised The court decided that the measure of damages was the value of a perfect hand less the value of the hairy hand after the surgery Socratic Method: based on techniques Socrates use to teach his disciples; a question and answer dialogue without ever furnishing answers; developed by Harvard Dean Christopher Columbus Langdell in 1870 Law = science, obeys laws of logic; legal principles could be logically derived by studying actual legal cases Socratic Method is extreme in the movie; "seldom used in law school today and very few if any professors now berate their students" Socratic Method pro: effective way to teach students analytical skills that are essential for all practicing lawyers; fear of being called on motivates students to spend more time preparing for class than they would otherwise and therefore learn more; valuable prep for the harshness of law practice Students who bruise easily will not have the training in how to deal with the inevitable frustration of the practice; the reality is that they will face judges and opponents who care little for their feelings and will have confrontational conduct The Lost Lawyer (1993) Kronman values heavy reliance on critical study of appellate court opinions Appellate court opinions are efficient teaching vehicles because they state concisely the facts of the dispute and the applicable legal principles Tough Boundary Problems: meaning that the law is unsettled and good arguments can be made on both sides Thinking like a Lawyer: "increases a person's power of empathic understanding and relaxes the boundaries that initially restrict his sympathies to what he knows and likes" "every position is respectable" Efficiency: large class taught w/o lecturing; everyone mentally engaged; frees faculty for research Socratic Method's purpose: to teach the skill of legal analysis; figuring out the legal principles from decided cases, then applying those principles to different but related problems "Legal Realism" law is what judges actually do; what judges do is often not what the formal law in statutes and precedents would seem to require; legal principles are open-ended allow judges to do pretty much as they please in deciding individual cases, therefore demoliting the idea that legal principles and their application were derived logically and based on immutable principles Kingfieldism: symbol for the bullying approach to the Socratic method Socratic questioning can be embarrassing or traumatic for students who are unprepared, panicky, or who just don't get it Women in law school have caused more discussion about the nature of law school on the psyche and the teaching methods 2 different schools of feminist theory: Equality Women and men should be treated alike Difference Men and women are different and institutions should adhere to those differences how they are treated Women and relational feminism by Carol Gilligan The moral development of men and women are different from one another Women use ethics of care and relationships Law school is v expensive and care a lot about their rank Sound Design and Composition in The Paper Chase Sound track is made of 3 components: vocals (dialogues, voiceover narration, human sounds), music, and sound effects When all 3 components missing, then it is a dead track (no sound at all) Sound's purpose in film: conveys story information, character, sense of reality, creates mood and atmosphere, masks the transition from one scene to the next; illusion of seamlessness The Paper Chase was nominated for the Academy Award for Best Sound Kingsfield = loud, startling sound: character Begins with a dead track, no sounds for 40 seconds Sound Bridge: a sound is carried over from one shot into the next, such as instrumental music Going to the hotel to study Sound Dissolve: the sound that ends one shot fades out while the sound that begins the next scene fades in; for a brief moment they overlap, creating the sense that the two sounds are the same Hart vomiting in the bathroom Shock cuts: jarring scene transitions Hart finding out Susan is Kingfield's daughter; Hart kissing Susan and Kingsfield suitcase shutting Composition in the film related to who had command of the situation

George "Prosecutorial Discretion: Whats Politics Got to Do with it?"

Part I Prosecutor has most control over life, liberty and reputation than anyone else in the criminal defense process. His discretion is tremendous Part II- examining the role and responsibilities of prosecutors seeking justice and deterring crime Part III-examines the broad discretion given to prosecutors in their investigatory and charging decisions. Part IV-Role of politics in prosecutorial decision-making Part V- assesses if DiBlagio, Spitzer and Christie appropriately used their prosecutorial discretion to rein in political corruption, or just used their discretion as a means to their political ends. Conclusion: Ps are political. There are some safeguards to depoliticize Ps role but it is hard to reprimand Ps and prove that they lack 'probable cause' under judicial review

Darrow "Address the Prisoners in the Cook Country Jail"

People don't deserve to be in jail, they don't have different moral conditions than those outside jail, they just can't avoid ending up in jail. Many people end up in jail because they cannot afford a good lawyer Laws are organized for the protection of the men who rule the world Fix laws so fellows on the outside cant get in Fellow who controls the earth makes the law Because of how laws are crafted, people are affected by negative circumstances in their lives and they're almost not responsible for their actions Argues that circumstances force people into world of crime Systematic, social oppression of capitalism Many more go to jail in the winter because they cannot afford the high price for coal Hard times see increase in incarceration - increased food price for example The more that is taken from the poor by the rich, the more reason there is compelling the poor to resort to means of crime for livelihood Cannot stop crime through punishment - crimes stem from industrial conditions, new ways to make money To curb crime you must give people a chance to live All laws are focused on protecting property Law is not created to incorporate these circumstances In order to abolish crime Abolish private ownership and monopoly, Allow for a chance to live - necessary pay Jail represents the lack of charity

Asimow and Mader Law and Popular Culture CHAPTER 4

Public Opinion of Lawyers 2012 Gallup poll data suggests that 37% of respondents rated lawyers as unethical professionals Dislike of lawyers is deep rooted in literature and history ex. Bleak House (most anti-lawyer novel of all time) Criminal lawyers are always resented by public for protecting criminals whom the public fears and detests. 2nd reason people dislike lawyers: People deal with them during stressful times Bad Lawyers in the Movies Films after 1970s began depicting lawyers negatively 2 Test approach to determining a "good" or "bad" lawyer 1. What kind of human being does the lawyer seem to be? Does the lawyer have a balanced life; both professionally and personally 2. Is the lawyer professional? Meaning does he or she practice law ethically...are they dedicated to their clients A good lawyer must pass both conditions Example of a "bad lawyer" depicted in The Verdict. Cultivation Effect If filmmakers believe that most people dislike lawyers then they will make movies about unlikeable and dishonest lawyers. The cultivation effect is a theory that explains how pop cultural images affect the way people view reality. Heuristic reasoning: a decision making where there is no reward for a right answer or penalty for wrong answer - such as answering on a poll. Heuristic reasoning allows us to take mental shortcuts, rather than taking the time to research our decision. Availability heuristic is the information we have readily available. We tend to store away fictitious pop culture stories in film and TV, and we treat this information as if it were true. Example: TV show 24 led the public to believe that torture was necessary and effective in preventing terrorist threats. The strength of the cultivation effect depends on the frequency, recency, and vividness of exposure to particular representations (films, tv shows). ABA Model Rules & Ambulance Chasing Galvin tries to hustle business by handing out business cards at a funeral to strangers. When doing so, he falsely states that he knows the deceased person. Bates v State Bar of Arizona: USSC held that a blanket prohibition on truthful advertising violated freedom of speech rights of lawyers. This decision led to an abundance of advertising by lawyers as seen on TV, newspapers, etc. ABA Model Rule 7.1 states that advertising messages must be truthful. However, The 5th amendment's protection for truthful attorney advertising does not extend to "ambulance chasing," which refers to signing up clients (usually victims of an accident) by directly soliciting the victims or their surviving relatives (Ohralik v. State Bar of Ohio). Legal Errors in The Verdict Judge Hoyle's bias towards Kaitlin Costello's copy of the admission form & Galvin's closing argument which asked the jury to consider evidence that was dismissed by the judge (Kaitlin's copy of the admission form).

Goldstein "Confronting the Complexity of the Policing Function"

a police officer should be ablate respond efficiently and effectively to a wide variety of community problems

Process to challenge the use of peremptory challenges based on race

according to bastion v kentucky you cannot peremptory challenge solely based on race. as a party you can ask questions to make sure you don't have anyone who won't listen and keep and open-mind. but you also have a few that you can just remove without a cause. NOT ANYMORE

Phil Kent Cohen

criminal defense attorney, believes that its not about whether or not they are guilty or what the truth is but making sure that the system isn't taking advantage of them. to get them the best outcome. They are there because of circumstance, if the roles were reversed they could be exactly where we are

Asimow and Mader Law and Popular Culture CHAPTER 2

Substantive justice Persons receive what they are due meaning that the truth has been discovered and that the correct results have been delivered Procedural justice The proper procedures have been followed, whether or not the trial reaches the correct results or reveals the truth about what happened Lawyers prefer talking about procedural justice The adversary system Visualizes the dispute as a contest between two sides (prosecution and defense in a criminal case, plaintiff and defendant in a civil case) Depends on the lawyers to investigate the case before trial and to present the strongest possible argument for their side at the trial Best ways to find out the truth is to have two skilled lawyers battle it out Used in english speaking and commonwealth countries; United States, Australia, Canada, South Africa, and India Inquisitorial system Used by european,asian and Latin American countries The goal under this system is to find the truth and not to settle a dispute between the two sides This system does not employ juries Prosecutors do not see themselves as adversaries of the defense but rather as impartial officials whose job is to assist the magistrate judge to determine the truth No plea bargains or guilty pleas; all criminal defendants are tried unless the judge has dismissed the case

Exception to the Warrant Requirements

Terry Stop: from Terry v ohio-- stop and frisk is allowed if there is reasonable suspicion that something is going to happen. Plain sight:No warrant is required to seize evidence in plain view if the police are legitimately in the location from which the evidence can be viewed Good Faith: The exemption allows evidence collected in violation of privacy rights as interpreted from the Fourth Amendment to be admitted at trial if police officers acting in good faith relied upon a defective search warrant — that is, they had reason to believe their actions were legal (measured under the reasonable person test).

Exclusionary Justice and Fruit of the Poisonous Tree

The "fruit of the poisonous tree" doctrine is an extension of the exclusionary rule, which, subject to some exceptions, prevents evidence obtained in violation of the Fourth Amendment from being admitted in a criminal trial

difference between an appeal and writ of habeas corpus

appeal: first avenue to attack a conviction. Court reporters take down every word of the trial and you challenge a legal error and have to be able to point to it on the transcript writ of habeas second avenue of attack. Allows defendants to bring back into evidence that wasn't in the original trial. can included new, changed evidence but can't reevaluate legal claims.

Curtis "The Ethics of Advocacy"

The loyalty of a Lawyer runs first to their client and then afterward to the court. The court actually enforces the idea that a lawyer must devote themselves to their client. According to Curtis, a lawyer must treat their clients well but owes nothing to their clients adversary or anyone else. Makes the claim that one of the functions of a lawyer is to lie for their client when it is in their best interests and that a lawyer is required to be disingenuous. On that note, they cannot lie to the court but they can choose not to speak. A Lawyer's obligation is not to the truth but rather to justice which means the satisfaction of those involved at the end of a case. The problem of having to defend someone that is guilty is only a problem to the layman because lawyers only see their cases as having to persuade people that their side should win as best as possible. The Bar's cannon of ethics states that it is "improper for a lawyer to assert in argument his personal belief in his client's innocence or in the justice of his cause." It is up to a lawyer to take bad cases and as always there is two sides. Neither side is bad in the eyes of the law until a lawyer argues that it is and wins. Curtis relates the Stoic faith to the practice of law and makes the claim that the better the stoic, the better the lawyer. Basically, to do their best to represent their client but to remained detached from their client. Lawyers can treat the practice of law like a game but as they continually rely on their craftsmanship they can turn it into art.

Cultivation Effect

The primary proposition of cultivation theory states that the more time people spend 'living' in the television world, the more likely they are to believe social reality aligns with reality portrayed on television

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.

Nichols "The Unseen Jury"

The theme of "the wrong man" focus on the importance of jury deliberation, sheds a light on the fact that regardless of what was said by the prosecuting or defense attorney the decision comes down to the jury and it can be an unforeseen decision at that ex. OJ Simpson and Rodney King. The jury is supposed to be a buffer between the accused and the power of the state. Sense of justice >>> conclusive truth. In Twelve Angry Men Henry Fonda works to make a verdict of not guilty serve justice when guilt initially seemed beyond doubt. He instigates a process, resisted by the others, of throwing the evidence back into doubt, dissolving the argumentative cohesiveness of the prosecution's case, and catalyzing the discovery of another story, another point of view, unveiling what haste and bias - in essence, the failure to scrutinize apparent facts with sufficient rigor - had hidden. Consensus emerges. The power of the jury to go its own way is inherent in our legal system. Some fear this power may be abused and work against justice. This may happen if jurors ignore evidence and allow racial or class prejudice to determine their verdicts. But so-called runaway juries have played an important part in our history. They defied the fugitive slave laws and later helped overturn Prohibition. Today, in some political sanctuary and marijuana cases, defense attorneys are asking juries to ignore the letter of the law and follow their conscience. To do so is not easy as this jury discovered.

Cicchini and Easton "Reforming the Law on Show-Up Identification"

This article discusses the flaws of the show up procedure and how alarmingly easy it is for law enforcement to bypass the minority rules that were tried to be put in place. Being that a show up procedure would only be admissible in court if (1) exigent circumstances prevented the use of a less suggestive procedure, such as a lineup or photo array; or (2) the police lacked probable cause to arrest the defendant and, therefore, could not have legally detained him long enough to conduct a lineup or photo array. Because of the show up identification procedure a lot innocent people have been put in prison because of false or incorrect eyewitness testimony. The biggest flaws with show up identification are (1) eyewitnesses and misidentifications (2) increasing misidentifications (3) the admissibility of show up identification in court (4) the majority rule and supreme court framework (5) revolution of the minority rule (6) exigent circumstances (7) probable cause to arrest

Asimow and Mader Law and Popular Culture CHAPTER 3

To Kill A Mockingbird by Harper Lee Atticus Finch = Lee's Father, A.C. Lee, lawyer in Monroeville, AL Scout = young Harper Lee Dill = writer Truman Capote Atticus & Tom Robinson case = Lee representing 2 African Americans who killed a merchant and were hanged Won best screenplay, art direction, and actor Scottsboro Boys: nine African American teenagers accused in Alabama of raping two White American women on a train in 1931. The landmark set of legal cases from this incident dealt with racism and the right to a fair trial. The cases included a lynch mob before the suspects had been indicted, all-white juries, rushed trials, and disruptive mobs. Powell v. Alabama trial: Alabama failed to provide adequate legal counsel in death penalty case, violating due process clause in 14th Amendment American Film Institute named Atticus Finch the greatest hero in there history of movies 2003 Others don't see him as a hero: cannot see beyond law books, scared, plays along with the system, childlike Similar themes as Young Mr. Lincoln (1939) Things that could have been done differently in movie trial Change of venue Dismiss jury Negotiate a plea bargain Force cross-examination/control witness: Mayella Robinson not taking the stand Argue for a lesser charge Challenge all white jury pool Less confrontational closing argument Colloquial language Ask jury for mercy and justice Issue of covering for Boo Radley, who could have been acquitted for murder by acting in the defense of another ABA Model Rule 4.1 obligates lawyers to be truthful Movie Themes Father-child relationship Childhood Child's perspective on the world Shifting perspectives and styles between childhood and adult Scout...counterpoints Childs exaggerated perspective due to oblique angles, closeups, and low-key lighting to depict darkness and shadows...limited perspective of a child Filmed objectively...not filtered through anyone's conscious Melodrama: heightened emotions = reveal of moral virtue; narrative form that seeks to establish moral clarity Situating the struggle between villain and hero within a social context, in which villain and hero are unrecognized at first due to social standing Villain typically respected member of a dominant group, whereas hero is a member of the subordinate social group Melodrama & race: Toms and anti-Toms (derives from Uncle Tom's Cabin) Toms: depiction of cross-racial sympathy Anti-Toms: african americans are victimizers, victim is white Modern day example of conflict: OJ Simpson's trial Mockingbird victim role split between passive victim (Tom Robinson) and active hero (Atticus Finch); Robinson's moral virtue derives from victimization at the hands of whites, whereas Atticus Finch's derives from sympathy and willingness to fight for Robinson

Reasons why juries composed of less than 6 members are not constitutional

ballew vs. ____ ruled that unconstitutional. Not enough people to have a representation of all ideas. Six people easily fall victim to group think, easy to convince six people--not so easy convince 12

Packer "Criminal Control Model vs. Due Process Model"

crime control: assembly line, all about efficiency, there is presumption of guilt and the innocent are supposed to be plucked from the group due process: focus on the accuracy of the trial, wants to uncover the truth, emphasis on civil liberties, system is skeptical of all evidence presented by the state The US is a combination of the two. We have presumption of innocence, but we are not efficient and are focused on winning not the truth.

Frank "The Fight Theory vs The Truth Theory"

Truth Theory Men who compose trial courts, judges, juries, in each lawsuit conduct an intelligent inquiry into all practically available evidence, in order to ascertain, as near as may be, the truth about the facts of that suit Fight Theory Our mode of trials is commonly known as "contentious" or " " No important consideration will escape notice if two sides get to equally argue in favor of that side Frequently partisanship of opposing lawyers blocks uncovering of vital evidence → this article shows that we have allowed the fighting spirit to become dangerously excessive Witnesses are made to look untrustworthy because of how they are interrogated upon cross examination Lawyers plays on witness weakness to confuse them and make them look like they're lying Lawyers also help cover up defects of their witness Lawyers will rarely concede to the existence of facts if they don't think the adversary lawyer can prove it If a lawyer knows a witness testified inaccurately but it helps them, they will try to hinder cross examination Don't educate opponent of surprise elements Lawyers aim at victory, not helping court get to the truth The court represents government, organized society, in action. All other government entities must check before ruling things (ie. giving a disabled person money -- must check), but do the courts check? Are lawyers just fooling the courts? In criminal yes, there is an investigation and you are given PD People are compensated if they are wrongly imprisoned In civil no because someone may not have the money to hire a diligent lawyer who will collect sufficient evidence No one is compensated if their verdict is unfair and they lose money, job, etc

Brown vs. Texas (1979)

US supreme court case in which court detrained that the defendants arrest (for not identifying himself) when stopped and questioned in a high crime area was unconstitutional and violated his 4th amendment

Florida vs. Bostick (1991)

US supreme court overturned a per se rule imposed by the florida supreme court that held consensual teaches of passengers on buses were always unreasonable. A search of a passenger on a bus is not unreasonable simply because the search takes place on a bus. The reach is reasonable if under the circumstances the suspect felt free to decline the officers request for a search and leave the scene. -as a part of Florida drug interdiction project officers boarded a bus and ask bostick to identify himself/search him

Burdens of Proof

beyond reasonable doubt: standard required by the prosecution in most criminal cases within the adversarial system . Its the highest level of burden of proof-- presented that there is no reasonable doubt in the mind of a reasonable person that the defendant is guilty. clear and convincing: higher level of proof in the US courts civil procedure. Party with the burden of proof must convince the trier of facts is substantially more likely than the other facts. preponderance: balance of possibilities, is the standard required in most civil cases, Proposition is most likely to be true than not, greater than 50% chance its true. reasonable suspicion: lowest standard of proof to dermic when a stop and frisk is warranted by police. Must be a brief search and limited to amount of evidence found. To do a more thorough search must have a search warrant.

Common Law vs. Civil Law

common law: law that is derived from custom and judicial precedent rather than statutes. Often contrasted with statutory law. civil law: the system of law concerned with private relations between members of a community rather than criminal, military, or religious affairs

Natural Law

a body of unchanging moral principles regarded as a basis for all human conduct

Advantages that repeat players have over one-shooters

familiar with the system so they have advantages over there newbies

appropriateness of jury nullification in the american legal system

good bc its part of the checks and balances, prevents too much of abuse of power

Roles in the Inquisitorial Systems

judge: controls the entire process. search for the truth, all cases will go to trial unless the judge dismisses it. lawyers: The lawyers have no side affiliation, they are there to assist the judge in uncovering the truth. Truth theory jury: there is no jury in a inquisitorial system

Roles in the Adversarial System

judge: oversee the back and forth between the two parties. Acts a mediator and makes small rulings. Will deliver the verdict. lawyers: fight theory, their loyalty lies only with their clients and they owe nothing to anyone else. Not about truth but it is about winning and justice for their client. jury: have the power to determine the final verdict, guilty or not guilty.

problems associated with jury trials

jury biases, jurors are stupid, misled by evidence, misled by attorneys, don't that time to deliberate, affected by evidence outside the courtroom

Scheflin and Van Dyke "Merciful Juries"

jury resilience. the power of the jury often soften the blow of the law and reflects more a representation of the sentiments of the community. Recognizes society's sense of moral justice

inherent problems associated with the american legal system

litigant activism: formal contestation: highly unpredictable system:

Socratic Method

method of question and looping used in law schools during your 1L year it is designed by Harvard Dean based on the teachings of Socrates. It teaches quick, analytic thinking.

One Shooters vs. Repeat Players

one shooter: first time (probably only time) unfamiliar with process, contracts etc.. at a disadvantage repeat players: frequently involved in arbitration or mediation, understands the system and the processes

King "A Letter from Birmingham Jail"

wrote a letter after being arrested for peacefully demonstrating against segregation and a racial terror in Birmingham Alabama 1963 (Compare to Man of All Seasons, how Sir Thomas More stood on his principles (not taking the oath) and accepted his punishment - letter defends strategy of nonviolent resistance to racism - most important written document of civil rights era - argues that we should resist injustice everywhere with nonviolent disobedience - says that we're all responsible for justice across the nation - when there are unjust laws that people suffer from, individuals should nonviolently protest against these laws ("time is always now for justice") - laws that are unjust should not be obeyed 2 types of laws: just and unjust MLK suggests to obey the laws: moral upright duty of citizens Inverse: one has a duty to disobey unjust laws. (Laws that aren't protecting, equating all citizens). Distinguish the two: just law is a moral law or law of God while unjust law is out of harmony with the moral or divine law. MLK suggests to the Supreme Court to disobey segregation for it is morally wrong. Unjust law: a majority enforces this unjust law on minority but isn't expected to uphold the law itself. Just law: a majority enforces this unjust law on minority and upholds the law itself Once again unjust law making: when minority had no part in constructing the law that is being enacted. Sometimes a law is just on its face but unjust in application. Example: MLK Jr obtained a permit to take part in a peaceful assembly/protest which is granted through the 1st amendment; however, this superficially "just law" becomes unjust when segregation is used to prevent certain minority groups from obtaining this right. MLK condemns breaking the laws, he thinks this leads to anarchy...mob rule However, anyone who decides to break the law must accept the consequences. Anyone who breaks an unjust law for the sake of enlightening and raising awareness for the general public is enacting the highest respect for the law. He goes on to explain how during WWII aiding Jews was illegal while Adolf Hitler's Nazi Germany was legal. 2 confessions: one of which is that the extremists don't play a huge role in the fact that a law is unjust but rather the white moderates who try to maintain peace rather than practice justice. They contribute to the prevention of social progress. MLK concludes with "now is the time to end injustice and implement justice for all"