Week 8 6th amendment

reasons whyt total incorporation failed

1. supreme court is limited to case or controversy court wanted to consider each clause separately

PA speedy trial

180 if defendant is in jail 365 if defendant is on bail

Federal courts amendment protection

4th 5th 6th 8th

sixth amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

what happens if defendant flees?

PA 62 allows for trial in non capital case if defendant is willfully absent without cause F 43 defendant cannot be tried if not present at the beginning of the trial but if he willfully fails to appear without cause during trial trial may continue during his absence

Distinguish "selective incorporation" from the "new federalism".

Selective incorporation the process by which the protections of the bill of rights are made applicable under in state courts the us supreme court forces the states to recofnize and enforce individual rights new federalism the tendency of state courts to provide more protections for individuals than the US supreme court does the state supreme court go further than the US supreme court does in providing protections for individuals rights

tenth 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.

PA article 1 section 11

all courts shall be open

PA article 1 section 2

all power is ingerent to the people

PA article 1 section 14

all prisoners shall be bailable by sufficient sureties unless for captial offenses when the proof is evident of presumption great

sixth amendment pneumbras

attorney client privilege

Why does the Ninth Amendment disturb "textualist" judges?

because it is subject to discretion and does not provide specific instruction

speedy trial elements

bill of rights (6th amendment) charges to the beginning of the trial dismissal of charges

right to counsel

citizens have the right to consel at all critical stages of the prosecution

total incorporation

counsel argued that federal court provided more rights than state courts therefore violating the 14th amendment they wanted the 4th 5th 6th 8th amendment protected under the 14th amendment of due process that should be honored by the state courts did not work.

courts have determined that citizens have the right to

counsel in any case that results in imprisonment effective counsel and that indigents have the right to free counsel

PA juries

defendant has the right to choose as few as 6 or as many as 12

pro se

defendants have the right to waive counsel and represent themselves

excludable time

delays caused by the defendant

violation of speedy trial results in

dismissal of all charges

eighth amendment

excessive bail shall not be required nor excessive fines imposed nor cruel and unusual punishment inflicted

US vs Lopez

federal law criminalizing possession of a firearm near a school. US Supreme court held that the law was unconstitutional under the tenth amendment

not selectively incorporated

grand jury clause- 5th amendment prohibition against excessive bails and fines 8th amendment

PA article 1 section 9

in all criminal prosecutions the accused hath a right to be heard by himself his counsel to demand the nature and cause of the accusation against him to meet the witnesses face to face to have compulsory process for obtaining witness in his favor

What is "selective incorporation"?

incorporating specific rights as the pertain to the specific elements of the crime being tried.

filing of charges

indictment note that the date of the arrest is irrelevant

James madison on 9th amendment

insurance policy. Madison did not want to have the rights of people restricted merely to the by laws and text present in the Constitution itself

speedy trial

is measured by the filing of charges to the beginning of the trial

What is the history and meaning of the Ninth Amendment?

it was James Madisons insurance policy that granted citizens rights that were not directly written down in the bill of rights

bail

its purpose is to ensure appearance not supposed to be punitive should not amount to prevent detention

arbiter of law

judge interprets the law decides what law applies determines the admissibility of evidence

textualists

judges should rule according to the literal meaning of the laws and regulations consitutions should only change through the amendment process

trier of fact

jury determines the credibility of the witnesses determines the weight of the evidence renders the verdict

beginning of the trial

jury is sworn or first witness sworn

application of bill of rights in juvenile courts

juveniles have the right to bail jury trial speedy trial

compulsory process

means by which defendant can use power of government to secure witnesses on their behalf

extendable time

no fault delays

14th amendment

nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny any person within its jurisdiction equal protection of the laws

venire

population from which the jury is selected

voire dire

process of jury selection strikes for cause (unlimited in number) motion by the prosecution or defense discretionary decision by the judge judge orders potential juror struck for cause peremptory challenges (limited in number)

third amendment pneumbras

proscrption against quartering soldiers

fourth amendment pneumbras

protection from unreasonable searches and seizures

peremptory challenges

race ethnicity? no gender? no religion? maybe sexual orientation? lower courts are divided 8th circuit- yes 9th- no

6th amendment elements

right to a speedy trial right to a public trial right to an impartial jury right to be informed of charges right to compulsory clause right to counsel

confrontation clause

right to confront witnesses and individuals accusing defendant right to cross examine right to be present at trial

first amendment pneumbras

right to peacefully assemble

fifth amendment pneumbras

right to remain silent

powell vs alabama

ruling stated that citizens have the right to have counsel present during critical stages of the prosecution

statute of limitations

state and federal statutes crime to arrest or indictment dismissal of charges no statute of limitations for murder

state courts protection

state constitutions 14th amendment due process clause

9th amendment

the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by other people

selective incorporation

the process by which the protections of the bill of rights are made applicable in the state courts the us supreme court forces all states to recognize and enforce individual rights

State constitutions vs federal constitutions

the us constitution provides the minimum rights guaranteed to all individuals in the US the US constitution is the threshold below which we cannot go however states may add rights and protections to individuals in that state through the enactment of laws or through the interpretations of state laws by the state supreme courts

considerations in the setting of bail

ties to the community income net worth assets prior record severity of charges inclination or ability to flee danger to the community no right to bail for capital offense

Pa article 1 section 25

to guard against the transgressions of higher powers which we have deelegated we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate

PA constitution article 1 section 6

trial by jury shall be heretofore and the right to remain inviolate

non textualist

udges may interpret the laws and regulations in light of the times and evolution of society the consititution can evolve through judicial interpretations

ninth amendment pneumbras

unenumerated rights