NLETC Constitutional Law 103
When does double jeopardy not apply, may be tried
-May be tried in state and federal courts for committing the same act, but this would not be double jeopardy because it is not the same jurisdiction. -Use of forfeiture laws Seizing money and property in drug cases Example: Texas law allows forfeiture of property used for dog-fighting. -Civil commitment laws Locking up sexually violent predators after they have served their prison
Statues
-More Narrow in Scope -More Problem Specific -Subordinate to constitution
What is a show-up?
-Presentation of a suspect to an eyewitness in a short time frame following commission of a crime -IF you already have PC to arrest suspect DO NOT do show up -Once 1 Witness says that's him = Arrest - DONE
5th Amendment
-Proctects against Self-incrimination -Protects against double jeopardy -Cannot be deprived of life, liberty or property without due process -Provides safe guards of those accused of crime
6th Amendment
-RIght to Counsel -Speedy Trail
What is Doctrine of Selective Incorporation? 14th Amendment (Judicial Review)
-Selection of parts of the Bills of Rights and more portions applicable to the states through the 14th Amendment - Example: 14th & applicable to the states 1st,2nd, 4th, majority of the 5th, 6th, and portions of 18th
What is a photo array?
-Showing photographs to eyes witness for the purpose of identifying or eliminating suspects
4th Amendment
-Unreasonable searches & Seizures from there persons, houses, papers & Effects, - Arrest & Search Warrants SHALL be issued only upon PC & SHALL particularly describe what or who is to be searched and/ or seized
What religious protection is offered by the First Amendment?
1. Establishment Clause: Government cant sponsor OR support a religion 2. Free Exercise Clause: Govt Cannot single out a religious group for adverse treatment 3. Officer Duties: Protect the exercise of individuals right to practice Enforce the law equally when there are clear violations of existing laws
What three areas in the criminal justice system require fair procedure?
1. Fair Procedures of Government 2. Fair Decision- Making process 3. Notice
What are the rules regarding the right to counsel at line-ups, photo arrays & show ups?
BEFORE CHARGES - Pre indictment identifications Suspect has NO right to have an attorney present AFTER CHARGES - Post - Indictment identifications Suspect DOES have a right to have an attorney present, ONLY for LINE UPS Attorney merely acts as an observer / Note Taker
What test is used to determine when officers may stop a person public speech when it is inciting others to riot?
IS the speech that incites a riot or disturbance AND Action reasonably likely to happen (Real Threat) IF YES to both - Officer May interfere
What are fighting words?
speech intended to incite violence
What is double jeopardy?
the prosecution of a person twice for the same offense.
What is Void for Vagueness? (Judicial Review)
-IF a reasonable person in the defendants situations could NOT understand what was prohibited by ordinary person -OR Common meaning of words in the law, then the law does not gave fair notice & is declared to be unconstitutional vague
Declaration of Independence
-Judicially Unenforceable -Collective Statement of peoples view -Embodiment of ideas that establish Independence -Rejected the divine right to be ruled by a King
Constitution
-Limited power to the federal government -Created central government -Establisjed legal rights -Supreme law of the land -Protections CANNOT be diminished by state law
What is a line up?
-Live presentation of individuals -Before and Eye witness -Purpose of identifying OR eliminating suspects
Purpose of the Bill of Rights
- Drafted as inducement to ratification -Served to further limit federal powe
What is the standard utilized in order to decide whether a show-up, photo array or line up is constitutional?
- Suggestivity test --IF the pretrial ID procedures are so impermissibly OR unnecessarily suggestive as to give RISE to a misidentification = Procedures are UNFAIR & VIOLATE due process
What situations would a mistrial occur?
---- Previous suppressed evidence ---- Suspect Invoking Miranda Rights ---- Mention of Previous Convictions
Which amendments utilize the Balancing Test?
-1st -8th
What is Marbury VS. Madison? (Judicial Review)
-Courts power to review laws & Actions to make sure that they conform to the constitution -Defense MUST file a motion to use it
1st Amendment
-Freedom of religion -Freedom of speech -freedom of Press -Freedom of assemble -Petition of Grievances
When does the 6th amendment right to counsel begin?
AFTER CHARGES FILED - Post indictment situations
What is a mistrial?
Declaration by a court that the trial in progress. Should be called off because of some mistake made which is so unfair to one party that it cannot be overcome by corrective instructions
What is testimonial evidence? (related to the 5th Amendment)
Evidence which is given by the accused through saying something (Oral Statements) OR Being made to write something out (Written Confession)
What is the 8th amendment?
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
What is the rule regarding an officer duty to over turn excelpatrory evidence?
Exculpatory Evidence = Evidence Favorable to accused LE should report all info & turn it over to the prosecutor's office Including notations made in field notes Required to provide to defendant for discovery purposes
What type of speech is NOT protected under the First Amendment?
Falsely causing evacuation of a building Perjury/false info Libel (Written) / Slander (Spoken) Incitement to riot Obscenity Threatening OR intimidating Unprotected speech by public employee
What is the 5th Amendment protection against self-incrimination?
Prosecuting a criminal twice for the same offense or incident
3rd Amendment
Quartering of soldiers
What is the 6th amendment?
Right to a speedy and public trial
What is the 7th amendment?
Right to a trial by jury in civil cases over $20
2nd Amendment
Right to bear arms SHALL NOT be infringed
What is the 6th Amendment as it related to Subpoenas?
Right to compulsory process for obtaining witness in his favor (Subpoena process) Court issues subpoenas commanding people to appear as witnesses at trial. Defendant asks the court to issue those commands Prosecution is also able to have witnesses subpoenaed Witnesses are entitled to a witness Fee for appearance IF witness disobeys court order - may be held in contempt of court - judge could impose penalties
What is the 6th amendment provision as they related to Subpenas?
Right to compulsory process for obtaining witness in his favor (Subpoena process) Court issues subpoenas commanding people to appear as witnesses at trial. Defendant asks the court to issue those commands Prosecution is also able to have witnesses subpoenaed Witnesses are entitled to a witness Fee for appearance IF witness disobeys court order - may be held in contempt of court - judge could impose penalties
What is the 6th amendment as it relates to Speedy Trials?
Right to speedy trial by an impartial jury of the state & district where the crime was committed Constitution does NOT specifically define what a speedy trial is. However, US supreme court stated trials SHOULD be conducted without reasonable delay Nebraska Statues (29-1205 to 1209) Have set the time limit to 6 months. Defendant has t be bought to trial no more than 6 months after he has been charged or case is dismissed
What is non-testimonial evidence? ( related to the 5th Amendment)
Tangible physical evidence which is there for anyone to see - Fingerprints - Blood types - Samples - Voice samples - Hand writing samples - Breath Samples - Clothing - Stolen items - Weapons
What is the 9th amendment?
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
What is the 10th amendment?
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
