CJ 100 EXAM 2: Module 4

Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

On what legal basis is an arrest made?

All arrests must be supported by probable cause→ they can legally be made with an arrest warrant when the existence of probable cause by the totality of circumstances in the case is demonstrated, or without an arrest warrant when officers' determine probable cause that justify the arrest. Probable cause: Reliable information indicating that evidence will likely be found in a specific location, or that a specific person is likely to be guilty of a crime→ requires that sufficient evidence exists to support the reasonable conclusion that a person has committed a crime. Arrest: The physical taking of a person into custody. Police can make warrantless arrests when they: - Determine probable cause in public places - See the criminal act themselves - Have witness accounts that provide them with sufficient information so that they believe probable cause exists - Encounter a traffic offense that would draw only a fine upon conviction - Are refused an individual's name when the state has a statute that requires self-identification during police stops - Present an affidavit to judicial officers

What rights do prisoners have, if any?

??? They have the right of the eighth amendment against cruel and unusual punishment. The United States Supreme Court has decided that the Fourth, Fifth, Sixth and Eighth Amendments apply to federal and state defendants and prisoners. The court said that through the Civil Rights Act of 1871 (referred to here as Section 1983), state prisoners were persons whose rights are protected by the Constitution. The rights of inmates include: 1. Every inmate has the right to be free under the Eighth Amendment from inhumane treatment or anything that could be considered "cruel and unusual" punishment. 2. Inmates have a right to be free from sex crimes or sexual harassment. 3. Inmates have the right both to complain about prison conditions and to voice their concerns to both prison officials and the courts. 4. Inmates with disabilities are entitled to certain reasonable accommodations under the American with Disabilities Act. 5. Prisoners are entitled to receive medical care and mental health treatment. 6. Inmates retain basic First Amendment rights (i.e., free speech and religion) only to the extent that the exercise of those rights do not interfere with their status as inmates. 7. Inmates have the right to be free from discrimination while imprisoned. This includes racial segregation, disparate treatment based on ethnicity or religion, or preferences based on age. 8. The right to due process.

Does a college educated person accused of committing a crime have a right to a jury trial consisting of other college educated persons? Why or why not?

??? Yes kinda. The Magna Carta required that juries be drawn from "peers" of the accused person who live in the area where the crime was committed. However the Supreme Court has held that the sixth amendment requires selection procedures that create a jury pool made up of a cross section of the community. But, the final group of jurors may not reflect the diversity of a particular city's or county's residents, because after the jury pool has been formed, attorneys for each side may ask potential jurors questions and seek to exclude specific jurors through the process of voir dire and by requesting a challenge for cause. In addition, a specific jury may be even less representative of the community because of the ability of lawyers to influence its composition in the selection process through the use of peremptory challenges.

Selective incorporation

A constitutional doctrine that ensures states cannot enact laws that take away the constitutional rights of American citizens that are enshrined in the Bill of Rights.

Reasonable suspicion

A police officer's belief, based on articulable facts, that criminal activity is taking place, so that intruding on an individual's reasonable expectation of privacy is necessary.

Felony

A serious crime usually carrying a penalty of incarceration for more than one year or the death penalty.

What is a writ of habeas corpus?

A writ or judicial order requesting the release of a person being detained in a jail, prison, or mental hospital. If a judge finds the person is being held improperly, the writ may be granted and the person released or granted a new trial.

Writ of habeas corpus

A writ or judicial order requesting the release of a person being detained in a jail, prison, or mental hospital. If a judge finds the person is being held improperly, the writ may be granted and the person released or granted a new trial.

Public defender

An attorney employed on a full-time, salaried basis by the government to represent indigents.

Assigned counsel

An attorney in private practice assigned by a court to represent an indigent. The attorney's fee is paid by the government with jurisdiction over the case.

Contract counsel

An attorney in private practice who contracts with the government to represent all indigent defendants in a county during a set period of time and for a specified dollar amount.

Misdemeanor

An offense less serious than felonies and usually punishable by incarceration of no more than one year, probation or intermediate.

What are the sources of the criminal law? Of these sources, which ones are recognized as being the main sources of the criminal law?

Because we cannot compile a single, complete document that provides all the details of criminal law, we rely on four sources law: 1. Constitutions→Constitutional Law: The Constitution of the US and the state constitutions define the structure of government and the rights of the citizens. Constitutions: The basic laws of a country or state defining the structure of government and the relationship of citizens to that government→ they contain basic principles and procedural safeguards. Most state constitutions also contain protections against actions by state and local governments. 2. Statutes→Statutory Law: The substantive and procedural criminal laws are found in laws passed by legislative bodies such as the US congress and the state legislatures. Statutes: Laws passed by legislatures/ legislative bodies. Statutory definitions of criminal offenses are found in penal codes*→ the substantive and procedural rules of most states are found in their statutes. *Penal codes: This code clearly specifies the acts that constitute a crime and the penalty to be imposed. State legislatures write the bulk of criminal law dealing with local problems (including minor offenses), and Congress and local governments play a role in shaping it. Federal criminal laws passed by Congress deal mainly with violations that occur on the property of the US government, or with actions that involve the national interest or more than one state. National, state, and local rules governing certain kinds of criminal conduct do overlap, in these situations law enforcement agencies must decide which one will prosecute the offender. 3. Court decisions→Case Law: Consistent with the common-law heritage, legal opinions by judges in individual cases have the status of law. Case Law: Court decisions that have the status of law and serve as precedents for later decisions→ the main characteristic of the common law system is that judges look to earlier decisions to guide their rulings. Although statutes have replaced much of the common law of crime, precedent remains an important aid to lawyers and judges in interpreting penal codes. 4. Administrative regulations→Administrative Law: Also having the status of law are some decisions of federal and state governmental agencies that have been given the power to regulate such areas as health, safety, and the environment in the public interest. Administrative Regulations: Laws and rules made by government agencies (federal, state, and local agencies) to implement specific public policies in areas such as public health, environmental protection, and workspace safety→ most regulations deal with modern concerns. Many of the rules are part of the criminal law, and violations are processed through the criminal justice system. AMERICAN CRIMINAL LAW IS SHAPED MAINLY FROM THE COMMON LAW OF ENGLAND (with a few tweaks to it)→ State legislatures often formalized the definitions of crimes and punishments in the English common law by enacting statutes that placed these definitions into the penal code. These statutes then became subject to interpretation by judges. American judges still create precedents when they interpret statutes, state constitutions, the U.S. Constitution, and prior judicial opinions. Their judicial rulings guide the decisions of other courts on issues concerning both substantive and procedural criminal law. So, out of the 4 sources: CASE LAW AND STATUTES ARE THE MAIN SOURCES OF THE CRIMINAL LAW.

What is the difference between an arrest and a stop?

Both are forms of a "seizure." But, because arrests involve a more significant intrusion on liberty, the necessitate a higher level of jurisdiction. Unlike stops, which require only reasonable suspicion, all arrests must be supported by probable cause→ an arrest requires probable cause and involves taking someone into custody for prosecution, whereas a stop is a brief deprivation of freedom of movement based on reasonable suspicion.

What are the differences between criminal law and civil law?

Differences in definition: Criminal Law: The law of crimes and their punishments→ Criminal laws are the rules that apply when someone commits a crime, such as assault, robbery, murder, arson, rape and other kinds of crimes. After a person is arrested and charged with a crime, that person goes to a Criminal Court. English common law and the laws found in such written sources as constitutions, statutes, case law, and administrative regulations all contribute to what most people call "criminal law." Civil Law: The law of civil or private rights that regulates the relationships between or among individuals, usually involving property, contract, or business disputes→ Civil laws are the rules that apply when one person sues another person, a business or agency. Civil law includes tort lawsuits* (for example, personal-injury cases), property law, contracts, and other disputes between two private parties. All of these cases go to a Civil Court. *Torts: Area of civil law which deals with compensation for damage to property or for people's injuries. Differences in violations: A violation of criminal law = an offense against society as a whole (governments power to punish) A violation of civil law = an offense against an individual (individuals power to punish) Differences in focus: Criminal law focuses on: the intent of the wrongdoer→ intentional acts are most worthy of punishment, but sometimes criminal charges are given even when a harmful event was an "accident" Civil Law focuses on: fixing the blame for the damage or harm→ civil law regulates relations between individuals. So it focuses on who's fault was it out of the two individuals? Although criminal and civil law are distinct, both attempt to control human behavior by steering people to act in a desired manner and by imposing costs on those who violate social rules.

Which Chief Justice of the United States Supreme Court is credited with the due process revolution?

Earl Warren became chief justice in 1953, and led the Supreme Court in the due process revolution that changed the meaning and scope of constitutional rights for criminal justice/law by imposing detailed procedural standards on the police and courts, through the method of incorporation.

In which country did the idea that juveniles should be treated differently from adults originate?

England

In which country did common law originate?

England.

Stop

Government officials' interference with an individual's freedom of movement for a duration that typically lasts for a limited number of minutes and only rarely exceeds one hour.

Sixth Amendment

Guarantees a citizen a speedy trial, a fair jury, an attorney if the accused person wants one, and the chance to confront the witnesses who is accusing the defendant of a crime.

In the United States, the judicial system operates according to which type of system of justice?

In the US, the judicial system (courts) operates according to the dual court system. Dual court system: A system based on a separate judicial system for each state, and a court system under the national government. Each case is tried in a court of the same jurisdiction as that of the law(s) allegedly broken→ Each system has its own series of courts. The US Supreme Court can correct certain errors made in all other court systems, but cannot provide a final interpretation of all state laws. The US Supreme Court can review cases from both state and federal courts, but will only hear criminal cases involving federal law or constitutional rights. Each state's supreme court can define its own laws as long as they aren't inconsistent with the Constitution. The law may be interpreted differently from state to state, as state courts have the power to interpret and define their own laws for application within their states.

Substantive criminal law

Law defining acts that are subject to punishment and specifying the punishments for such offenses.

What is substantive criminal law?

Law defining acts that are subject to punishment and specifying the punishments for such offenses→ answers the question "what is illegal?" It is often called the penal code. Defined by legislatures through statues: Elected officials in Congress, state legislatures, and city councils write the substantive criminal laws, and decide which kinds of behaviors are so harmful that they deserve to be punished. They also decide whether each violation should be punished by imprisonment, a fine, probation, or another kind of punishment. Substantive criminal laws can also be created and changed through statewide voting/ballot issues in some states. This usually requires a petition with a mandatory number of signatures for a proposal on the ballot, and often concerns areas of gambling and drug use, or sentencing. It is is one of the two categories of criminal law.

Procedural criminal law

Law defining the procedures that criminal justice officials must follow in enforcement, adjudication, and corrections.

What is procedural criminal law?

Law defining the procedures/rules that criminal justice officials must follow in enforcement, adjudication, and corrections→ answers the question "how shall the law be enforced?" Defined by courts through judicial rulings: Legislatures define many aspects of procedural criminal law, such as how bail will be set and which kind of preliminary hearing will take place before a trial. However, the U.S. Supreme Court and state supreme courts also play a key role in defining procedural criminal law, based on their interpretations of constitutional provisions. These courts define the meaning of rights in the U.S. Constitution and in state constitutions. It is is one of the two categories of criminal law.

Have the federal courts always made decisions respecting the rights of prisoners?

No

Can a defendant be forced to reveal that he or she committed a crime? Why or why not?

No, a defendant cannot be forced to reveal that he or she committed a crime because they have protection against self-incrimination under the Fifth Amendment. Self-incrimination: The act of exposing oneself to prosecution by being forced to respond to questions whose answers may reveal that one has committed a crime. The Fifth Amendment protects defendants against compelled self-incrimination. In any criminal proceeding, the prosecution must prove the charges by the means of evidence other than the involuntary testimony of the accused.

Do juveniles and adults have the same due process rights? If not, which one(s)?

No, juveniles and adults do not have the same due process rights. Juveniles do not have the right to trial by jury or the right to a speedy and public trial.

Fifth Amendment

Part of the bill of rights, it imposes restrictions on the government's prosecution of persons accused of crimes. It prohibits self-incrimination and double jeopardy and mandates due process of law.

Fourth Amendment

Prohibits unreasonable searches and seizures.

Which type of counsel represents most criminal defendants?

Public defenders.

Probable cause

Reliable information indicating that evidence will likely be found in a specific location or that a specific person is likely to be guilty of a crime.

Under common law, which public officials were responsible for defining behaviors as crimes?

State Legislators. In the English common law, state legislators often formalized the definitions of crimes and punishments by enacting statutes that placed these definitions into the penal code. The statutes are then subject to the interpretation of judges.

Common law

The Anglo-American system of un-codified law, in which judges follow precedents set by earlier decisions when they decide new but similar cases. The substantive and procedural criminal law was originally developed in this manner but was later codified—set down in codes—by state legislatures.

The Bill of Rights includes which Amendments to the United States Constitution?

The Bill of Rights includes the first ten amendments to the constitution which were added in 1791: 1. Freedom of religion, speech, press, assembly, and petition. 2. Right to keep and bear arms in order to maintain a well regulated militia. 3. No quartering of soldiers. 4. Freedom from unreasonable searches and seizures. 5. Right to due process of law in criminal cases, freedom from self-incrimination, double jeopardy. 6. Rights of accused persons in criminal cases: right to a speedy, fair, and public trial by an impartial jury & right to counsel. 7. Right of trial by jury in civil cases. 8. Freedom from excessive bail or fines, cruel and unusual punishments. 9. Other rights of the people. 10. Powers reserved to the states. The Constitution of the US was written in Philadelphia in 1787 and went into effect in 1789 after the required number of states ratified it. Most of these amendments provide protections against government actions that would violate basic rights and liberties. Several (4) of the amendments affect criminal law and concern criminal justice processes, because they guarantee: - Rights of due process: 5th - Rights of jury trial, and representation by counsel: 6th - Protection against unreasonable searches: 4th - Protection against cruel and unusual punishments: 8th

Which Amendment to the United States Constitution prohibits cruel and unusual punishment?

The Eighth Amendment of the Bill of Rights.

Which Amendment to the United States Constitution prohibits the police from conducting an unreasonable search and seizure?

The Fourth Amendment of the Bill of Rights.

Which Amendment to the United States Constitution provides defendants with the right to counsel?

The Sixth Amendment of the Bill of Rights.

Which Amendment to the United States Constitution provides defendants with the right to trial?

The Sixth Amendment of the Bill of Rights.

What is common law?

The common law of England was a system of unwritten/un-coded law, in which judges follow precedents set by earlier decisions when they decide new but similar cases. The substantive and procedural criminal law was originally developed in this manner but was later codified—set down in codes (written down)—by state legislatures. The common law of England was not a written list of rules, rather it was the collected opinions of the judges, who relied on past practices to guide their decisions. The judges created law when they ruled on specific cases, their rulings were known as precedents, which established legal principles to be used in making decisions on similar cases. The use of a common set of precedents made the application of law more stable and consistent. Also, the judges' ability to adjust legal principles when faced with new situations made the common law flexible enough to respond to changes in society. American judges still create precedents when they interpret statutes, state constitutions, the U.S. Constitution, and prior judicial opinions. Their judicial rulings guide the decisions of other courts on issues concerning both substantive and procedural criminal law.

Which constitutional right is least likely to be given to prisoners?

The first amendment right of freedom.

Bill of Rights

The first ten amendments.

What are the various ways in which indigent defendants are provided counsel?

There are three main ways of providing counsel to indigent defendants (those who are too poor to afford their own lawyers) in the US: 1. Assigned counsel: An attorney in private practice assigned by a court to represent an indigent. The attorney's fee is paid by the government with jurisdiction over the case→ a system in which a court appoints a private attorney to represent the accused. This system is widely used in small cities and in rural areas. Assigned counsel systems are organized on either an ad hoc system or a coordinated basis - ad hoc system: In ad hoc assignment systems, private attorneys tell the judge that they are willing to take the cases of indigent defendants. The judge then assigns lawyers in rotation from a list, or choses one of the attorneys who are known and present in the court room→ critics question this system's loyalties. - Coordinated basis: In coordinated assignment systems, a court administrator oversees the appointment of counsel. Fees paid to assigned defenders are often low compared to what they might charge otherwise. The average hourly overhead cost for attorneys (amount they must make to pay secretaries, office rent, and bills) is $64, if their hourly fees fall short of this they are actually losing money by spending time on cases. Low fees discourage skilled attorneys from taking criminal cases and induce attorneys to persuade clients to plead guilty to a lesser charge so they make more profit. Many organizations of judges and lawyers lobby to increase fees for assigned counsel, but it still remains a problem. 2. Contract counsel: An attorney in private practice who contracts with the government to represent all indigent defendants in a county during a set period of time and for a specified dollar amount→ a system in which an attorney, a nonprofit organization, or a private law firm contracts with a local government to provide legal services to indigent defendants for a specified dollar amount. This system is used in a few counties, mainly in western states that do not have large populations. There are several kinds of contracts: - The most common contract provides for a fixed yearly sum to be paid to the law firm that handles all cases. - Fixed price contracts/ flat fee contracts: follow a fixed price per case or per hour of work. The amount may vary depending on the specific tasks undertaken by the attorney, which can cause issues with motives and efforts. - Cost-plus contracts: in which a new contract is negotiated when the estimated cost of counsel is surpassed. 3. Public defender: An attorney employed on a full-time, salaried basis by the government to represent indigents→ programs which are public or private nonprofit organizations with full-time or part-time salaried staff. This system is the most widely used and public defenders represent most criminal defendants. The public defender system is often viewed as better than the assigned counsel system because public defenders are specialists in criminal law. Because they are full-time government employees, public defenders do not sacrifice their clients' cases to protect their own financial interests. They may have trouble gaining the trust and cooperation of their clients though, and may face heavy caseloads. Public defender programs are most effective when they have enough money to keep caseloads manageable, but they do not control their own budgets and usually are not seen as high priorities by state and local governments making funding difficult.

Arrest

The physical taking of a person into custody on the grounds that probable cause exists to believe that he or she has committed a criminal offense. Police may use only reasonable physical force in making an arrest. The purpose of the arrest is to hold the accused for a court proceeding.

Which terms are used to distinguish criminal offenses based upon their seriousness and possible punishment?

The two terms used to distinguish criminal offenses based upon their seriousness and possible punishment are: 1. Felony: A crime, typically one involving violence, regarded as more serious than a misdemeanor, and usually punishable by imprisonment for more than one year or by death. 2. Misdemeanor: A minor criminal offense less serious than a felony, punishable by a fine or short jail time of one year or less. If someone is convicted of multiple misdemeanors, they can receive a sentence of one year for each crime and thereby serve a longer sentence. Some states define the seriousness of the offense according to the place of punishment: Felony→prison Misdemeanor→jail Whether a defendant is charged with a felony or a misdemeanor determines also how the criminal justice system will process the defendant, and certain rights and penalties follow from this distinction: The seriousness of the charge determines, in part, the conditions under which the police may make an arrest and the court level where the charges will be heard. Sixth Amendment states criminal defendants are entitled to a right to trial by jury— but this only applies to people accused of serious offenses (usually felonies). People who face less than 6 months in jail from petty charges are not entitled to a jury trial, unless state law grants it, they are only required a trail in front of a judge (bench trial). The distinction between types of crimes also can affect a person's future: People with felony convictions may be barred from certain professions or occupations. Felony convictions may also keep people from voting, serving on juries, or running for election to public office.

By which method did the United States Supreme Court apply the Bill of Rights to the states?

Through the process of incorporation the US Supreme Court applied the Bill of Rights to the states, requiring them to abide by it's specific provisions. Incorporation: The extension of the due process clause of the Fourteenth Amendment to make binding on state governments the rights guaranteed in the first 10 amendments to the US Constitution (the Bill of Rights). Up to this point, states could design their own criminal justice procedures, so long as those procedures passed the fairness test.

On what legal basis is a stop made?

To be permissible under the fourth amendment, stops must be justified by reasonable suspicion, except in situations/locations where preventing illegal activities is especially important. Officers cannot legally make stops based solely on hunches Reasonable suspicion: A police officer's belief based on articulable facts (capable of being expressed, explained, or justified) that criminal activity is taking place, so that intruding on an individuals reasonable expectation of privacy is necessary→ a situation in which specific aspects of the person's appearance, behavior, and circumstances lead the officer to conclude that the person should be stopped in order to investigate the occurrence of a crime. Stop: Government officials' interference with an individuals freedom of movement for a duration that typically lasts for a limited number of minutes, and only rarely exceeds one hour→ when a seizure is very brief and can be measured in minutes.

Can a defendant be tried in both state and federal court for the same criminal act? Why or why not?

Yes, a defendant can be tried in both state and federal court for the same criminal act because the courts are not of the same jurisdiction, therefore it does not fall under the act of double jeopardy. Double jeopardy: The subjecting of a person to prosecution more than once in the same jurisdiction for the same offense; prohibited by the Fifth Amendment→ as interpreted by the Supreme Court, the right against double jeopardy does not prevent a person from facing two trials or receiving two sanctions from the government for the same criminal acts. Because a single criminal act may violate both state and federal laws, for example, a person may be tried in both courts because they are under different jurisdiction. The protection against double jeopardy does not prevent two different trials based on the same criminal acts as long as the trials are in different jurisdictions and based on different charges.

Are states required to provide counsel to all indigent defendants? If not, which ones?

Yes, all states are required to provide counsel to all indigent defendants according to the Sixth Amendment→ the Court has also required that attorneys be provided early in the criminal justice process to protect suspects' rights during questioning and pretrial proceedings. However, attorneys need not be provided for discretionary appeals or for cases in which the only possible punishment is a small fine However the quality of counsel provided is not specified by law so the quality of counsel received by the poor may vary from courthouse to courthouse, depending on the quality of the attorneys, conditions of defense practice, and administrative pressure to reduce the caseload. If they lack the time, resources, or desire to interview clients and prepare their cases carefully, government-paid attorneys may simply persuade defendants to plead guilty. In previous cases the Court, applying the doctrine of fundamental fairness, had ruled that states must provide poor people with counsel only when this was required by the special circumstances of the case. A defense attorney had to be provided when conviction could lead to the death penalty, when the issues were complex, or when a poor defendant was either very young or mentally handicapped. After the Gideon decision and the later case of Argersinger v. Hamlin (1972), all indigent defendants facing the possibility of a jail or prison sentence were entitled to be provided with attorneys. Beginning in 1963, the Court extended the right to counsel to preliminary hearings, initial appeals, post-indictment identification lineups, and children in juvenile court proceedings.