ISU CJS 102 Exam 2

Affirmative Defenses: Infancy

-Someone under the age of 7 cannot have criminal intent and cannot be held criminally responsible for their acts -Between the ages of 7 and puberty, the child has the same status as someone who is mentally retarded

The government was formed to protect man's property and the fruits of his labor

According to John Locke, what is the function or purpose of government?

10,000

According to the best available evidence, about how many wrongful convictions happen each year?

Hudud Offenses: Slander/Defamation

Accusing someone of extramarital sex without being able to meet the necessary standard of proof

Hudud Offenses: Drinking Alcohol

At the time the Qur'an was written, the ban on alcohol appeared to refer to drinks made from grapes, but some Islamic scholars have interpreted the law to refer to any alcoholic beverage

Hudud Offenses: Armed Rebellion

Attacks against the state with the intention of overthrowing it or giving aid to its enemies

Hudud Offenses: Apostasy

Followers of Islam who voluntarily renunciate Islam or its beliefs

1. Views 2. Thoughts 3. Speech 4. Conduct 5. Livelihood 6. Effort 7. Mindfulness 8. Concentration

For Buddhists, what is involved in leading a just life?

Freedom and equality

For Reinhold Neibur, what principles must be addressed to achieve justice?

Yes. Much of the continent was actually settled by France and Spain, both of which use civil law systems

Have civil law systems ever existed in the U.S.?

The perpetrator of rape was often the significant male in women's lives. Women had to demonstrate that they truly resisted

Historically, how have many societies viewed rape?

The French police grew out of the military; were quickly armed; can interfere in the lives of ordinary citizens; have a close relationship with the judiciary

How are the French police different from those in the U.S. and England?

-Some view the treatment of women as oppressive, whereas others argue that the restrictions placed on women are for their own protection -Muslim women are forbidden from testifying in court for most crimes -Women are not to work outside the home, are not to venture outside the home without their husband or a male relative, are to cover all parts of their bodies except for their palms and faces when in public (to avoid arousing sexual desires in men), and are even to worship in a separate area of the mosque -Women are allowed to inherit only half of the value of any real estate that would have been left to a man

How are women treated under Islamic law?

Muhammad went out to meditate and fell into a semi-conscious state in which he heard a voice commanding him to "recite." Muhammad became the "messenger of God," and followers listened and memorized his teachings until it could be written down in the Quran

How did the Islamic religion come into existence?

-Blacks and Latinos are more likely to be stopped and searched -Blacks are more likely to be stopped and frisked than whites

How do minority groups differ in the extent to which they are stopped on the street and are then found to have weapons?

Graduate from university, pass a rigorous state exam, attend a special school for prospective judges, be appointed a junior judge

How does one become a judge in a civil law system?

Unlike common law and civil law, neither homicide nor battery are crimes against the state or against society. Instead, they are seen as personal matters between individuals in which the state acts only as a neutral mediator

How does the Islamic law approach to murder differ from that in common law or civil law traditions?

Past wars were a means to acquire territory, resources, wealth, women, and pride; and soldiers were a professional class who were often not even emotionally attached to the nation for whom they were waging war. Modern wars employ ordinary citizens who have more emotional interest, use total war tactics (in which the land and lives of noncombatants were swept up in the destruction), and became more mechanized and lethal with tanks, artillery, and bombs

How is modern war different from wars of the distant past?

-There are no reliable statistics to prove the technique's effectiveness -A government report concluded that black women were nine times more likely than white women to be X-rayed or forced to endure other intrusive searches

How successful has drug courier profiling on the highways been, and how have different racial groups been affected when these profiles are used?

Not well

How well has formal profiling worked to locate serial killers?

Affirmative Defenses: Mistake

If someone injures or kills another person by mistake, the person is generally not held criminally responsible for the injury or death

They are better off being tried in a common law system. In a common law system, they can offer evidence in return for a lesser punishment.

If someone is guilty, are they better off being tried in a common law or a civil law system?

A university law degree is not mandatory in order to become a barrister, a solicitor, or a judge

In England, how important is a university degree for someone who wishes to enter the field of law?

-Solicitors: legal advisers to the public; help write wills and contracts, set up land and commercial sales, and deal with divorce issues -Barristers: present cases before the court; operate under a very strict code of conduct

In England, what is the difference between solicitors and barristers?

-Procurators -They seek to achieve justice and serve the interests of society

In France, what are prosecutors called, and what is their primary purpose?

They listen to appeals on the interpretation of the law by the lower courts. They also listen to issues concerning social, commercial, and criminal matters

In France, what does the Court of Cassation do?

The purpose of the code is to weaken the role of the lawyer and the judge. The code needs to have no gaps or loopholes

In civil law countries, what is the purpose of a written legal code?

-"The people's peace": a very strong local legal system in various countries and villages -"The king's peace": a national legal system based at Westminster

In early England what was the difference between "the people's peace" and "the king's peace"?

The state and its ruler are more important than the people who make up the state

In his book "The Prince" Machiavelli outlines his views of justice and the state. What are his views on rulers and the people who are ruled?

Those who govern, and individuals in their own lives, should choose the action that will produce the greatest amount of happiness for the most people

In simple terms what is the idea behind Mill's idea of utilitarianism?

Asia

In what region of the world do most Muslims live?

Hudud Offenses: Extramarital Sex

Includes both adultery and sexual relations between individuals who are not married to each other

Hudud Offenses: Highway Robbery

Includes both robbing highway travelers and, in some jurisdictions, murdering highway travelers

Affirmative Defenses: Self-Defense

Self-defense can be used to prevent a crime when it is not possible that public authorities will be able to respond and when the person claiming self-defense uses only the force necessary to stop the crime

Affirmative Defenses: Intoxication

Some Islamic scholars believe the individual is fully responsible for any acts committed while intoxicated, whereas others believe the individual is responsible only if the intoxication is voluntary, and a third group believes the intoxicated person cannot be held criminally responsible because they lack the necessary criminal intent

Affirmative Defenses: Necessity

Someone is not legally responsible for violating the law if that violation was necessary to prevent some greater harm

Affirmative Defenses: Coercion

Someone who is threatened or coerced into committing a crime will not be held legally responsible, providing the threat is real to them and the person making the threat is capable of carrying it out

Hudud Offenses: Theft

Taking the property of another in a secret manner. The object must have been in a secure place and the thief must have full possession of the property

Affirmative Defenses: Insanity

The individuals inability to distinguish right from wrong

Hudud Offenses

These are offenses against God and the public good. These offenses and their corresponding penalties are specified in the Qur'an

Quesas Offenses

These are offenses against individuals, resulting either in death or in serious physical harm. These offenses and their corresponding penalties are specified in the Qur'an and the Sunnah

Ta'zir Offenses

These are offenses that harm society or individuals but for which the punishments are not specified in the Qur'an or Sunnah. These offenses are decided by religious authorities, and their corresponding punishments are up to a judge

The criminal justice system should balance expedient justice with due process

To maximize justice, should the criminal justice system emphasize due process or expediency?

God and the individual

Under Islamic law who can be considered a victim?

There is no plea bargaining, rarely juries, no right to be protected from self-incrimination, and no right to remain silent

What about plea bargaining, juries, and the right to be protected from self-incrimination in criminal procedures?

They go after the prostitute, not the customer

What are "operation angels" and in what way are they gender biased?

These laws demanded prisoners serve substantial parts of their sentence no matter the degree of reform

What are "truth in sentencing" laws?

Qadi

What are Islamic judges called?

Fundamental rights possessed by all humans; life, liberty, and property

What are natural rights?

Whether a university should accept a white student who has worked hard, got good grades, and did well on entrance exams; or a minority student with fewer accomplishments for the sake of diversity

What are some examples that show the idea of distributive justice is relevant today?

-Authorities must obtain a search warrant based on probable cause from the minister of complaints (not from a judge), or they must obtain the consent of the owner before they may search a home, a person, or letters -The accused is innocent until proven guilty beyond a reasonable doubt -The accused are not held in confinement while waiting for trial -Authorities are forbidden from using torture to force confession from the accused

What are some key elements of criminal procedure under Islamic law?

1. Insanity 2. Intoxication 3. Infancy 4. Coercion 5. Necessity 6. Mistake 7. Self-Defense

What are some of the affirmative defenses allowed under Islamic law?

-All law ultimately flows from the Qur'an and the Sunnah and must be consistent with the teachings of Muhammad -While many passages in the Qur'an and Sunnah spell out offenses and punishments, these documents also emphasize compassion and forgiveness -Under Islamic criminal law, when judges are allowed discretion in sentencing, they must give the greatest weight to punishments that take into consideration the general public interest -There is a considerable emphasis in the rights of individuals and on fundamental fairness in the process of justice

What are some of the basic principles that guide Islamic law?

-Witnesses are mistaken -Witnesses lie -Police coerce suspects to falsely confess -Laboratory technicians falsify reports -Prosecutors conceal evidence of innocence from the defense

What are some of the factors that lead to the wrongful conviction of innocent people?

As each wave of immigration arrived, American reaction was swift and discriminatory; there has been a history of suspicion and segregation

What are some of the issues associated with racial justice?

Rape, prostitution, harassment, childbearing, domestic violence, lesbian identity, economic equality, and standards of beauty

What are some of the issues related to gender and justice?

Shiites: believe that the leader should be the leader of the government and the church Sunni: believe that the leader of the church and the leader of the government should lead together, but separately

What are some of the main differences between Sunni and Shiite Muslims?

Many procedural obstacles were set up, largely in the Bill of Rights and subsequent case law: 1. After a crime has been reported, an investigation occurs 2. The disposition of the case follows 3. A follow-up investigation might lead to surveillance and arrest 4. Interrogation 5. The case then goes to the prosecutor 6. Initial appearance before a judge occurs next 7. A grand jury or preliminary hearing occurs 8. Arraignment 9. Before the trial begins, pretrial motions are given 10. A bench or jury trial occurs 11. The judge offers instructions to the jury, and they retire to deliberate 12. If there is a finding of guilt, a pre-sentence investigation is conducted 13. Punishment 14. The convicted person might appeal

What are some of the ways in which our system of government was designed to keep the criminal justice system from being too speedy or too efficient?

1. Epistemology: concerned with the nature of knowledge 2. Metaphysics: ponders the features of reality, such as existence 3. Ethics: deals with morals 4. Political Philosophy: looks at government and its relation to individuals 5. Logic: studies the principles of correct reasoning

What are the 5 approaches to philosophy?

-The laws of Islam -"The path to follow God's law"

What are the Shari'a and what does the term mean?

-The divine unity of the universe and all life in it -Humans are trapped in a cycle of birth and rebirth, and karma determines how one comes into the next life

What are the basic beliefs about Hinduism?

1. Participates in judicial appeals that reach the House of Lords 2. Recommends all appointments to the courts 3. Performs day-to-day administration of the courts 4. Oversees the legal aid system 5. Takes an active role in law reform

What are the duties of the Lord chancellor in England?

1. Salat: prayer five times a day 2. Zakat: charitable giving 3. Sawm: month-long fasting during the month of Ramadan 4. Haji: pilgrimage to Mecca 5. Shahadah: "There is no god but Allah, and Mohammad is God's messenger"

What are the five pillars of faith under Islam?

Whether a prisoner should forgive a soldier who is begging for forgiveness, or go on thinking that he is really a demon because of his previous actions

What are the moral issues raised by the book "The Sunflower"?

The Tripitaka which contains the Sutras, the Vinaya, and the Abhidharma

What are the sacred scriptures of Buddhism?

1. Hudud Offense 2. Quesas Offenses 3. Ta'zir Offenses

What are the three categories of crime under Islamic law?

1. Orthodox Jews: maintain and abide by the traditional rituals and obligations of the ancient laws 2. Reform Jews: adhere to the ethical laws, but believe the rituals should be adapted to the modern world 3. Conservative Jews: midway between; study the ancient texts and laws but believe they need to adapt to modern conditions

What are the three main groups of Judaism today?

1. Investigative Phase: large files or dossiers of evidence are compiled by the prosecutor 2. Examination Phase: the main purpose is to see if there is sufficient cause and evidence to move into the next phase 3. Official Trial: judges, seeking a fuller understanding of the file of evidence, ask questions of the defendant and witnesses

What are the three phases or stages in the criminal law procedures in civil law systems?

1. Preliminary Stage: pleadings are submitted, and a hearing judge, usually called an instructing judge, is appointed 2. Evidence-Taking Stage: the instructing judge takes all the evidence and prepares a summary written report 3. Decision-Making Stage: new judges consider the report from the instructing judge, then they hear arguments and render a decision

What are the three stages in the preliminary procedures followed in civil law systems?

1. To address complaints about elections 2. To determine the constitutionality of legislation passed by the Parliament

What are the two main responsibilities of the "Constitutional Council"?

Primary Sources: -Qur'an: the Muslim holy book -Sunnah: Customs sanctioned by Muhammad Secondary Sources: -Consensus: agreement among members of the Muslim community -Analogical Reasoning: applying existing rules to a new situation that is similar to an existing situation

What are the two primary and two secondary sources of Islamic law?

-Utilitarians would determine punishment based upon the amount of good it would do society -Retributivists would rely upon the idea that the punishment inflicted should be in proportion to the severity of the offense

What are the utilitarian and retributivism justifications for punishment?

-The accused has the right to withdraw their confession at any time before the sentence is carried out -The accused has the right to remain silent, and their silence cannot be used against them in court -The accused and their attorney have the right to be informed of the charges and the supporting evidence, and of any evidence in the possession of the prosecution that indicates the defendant's innocence -The accused has the right of being present at all proceedings relating to the charges, is to be informed of what occurs at any proceeding that they or their attorney fail to attend, and is the be provided the opportunity to present rebuttal evidence to investigators

What basic rights does someone accused of a crime have under Islamic law?

Procedure and precedent of previous court cases

What did American law training emphasize?

The purpose or essential nature of the social practice

What did Aristotle mean by the idea of "telos"?

Morality

What did Immanual Kant believe should motivate people to do good?

He believed the capitalism and all class-oriented societies were unjust. They not only violated human rights, but because they were based upon flawed notions of economic production, they made it necessary to consider the issue of justice

What did Karl Marx believe about capitalism and economic justice?

People and states were just because it is the right thing to do

What did Plato believe about why people engage in just behaviors?

Human suffering is natural, and it is caused by the attachment to material items that do not last. Humans can eliminate this suffering by letting go of these things

What do Buddhists believe about human suffering?

They were leery of perpetuating the weaker sorts, and poverty was seen as a sign that the person was not well equipped to compete in society

What do Social Darwinists believe about economic inequality?

-That their church did not address issues of justice strongly enough -Latin America & Spanish-speaking countries

What do followers of liberation theology believe? In what part of the world is liberation theology most prevalent?

The Bill of Rights is the starting point for so much common law development in the United States

What does the Bill of Rights have to do with common law?

Empirical evidence seems to suggest that capital punishment does not deter others from committing murder

What does the evidence suggest about whether the death penalty deters others from committing murder?

-Preventive war (going to war early so as to prevent a future aggressor) is wrong -Proper prisoner of war camps and appropriate humane care need to be established -Forgiveness is not a easy thing to obtain, especially if the war was a particularly close one. However, the defeated country must be taken care of to prevent what Hitler did after WWI

What does the just war doctrine say about preventive war, prisoners of war, and the treatment of the defeated after the war has ended?

A leading proponent of the church court system, Thomas Becket, was murdered in Canterbury Cathedral by henchmen of the king. Thereafter, the power and influence of the religious courts diminished

What event in 1170 marked the decline of the influence of religious courts?

1. Egalitarianism: suggests that everyone, as part of the human family, deserves to be treated equally 2. Membership: demands a concern for the exclusion and inclusion of people who might not enjoy the benefits of society 3. Time: looks at the responsibility society has not only to those in the future, but also to those who suffered in the past 4. Scope: to include animals and nature

What four themes emerge when considering social justice?

Two separate discoveries were made: The U.S. Census Bureau announced that the frontier, the line separating civilizations from wilderness, had ceased to exist; and a group of investigative journalists, called "muckrakers," were exposing the industrial and corporate world's exploitation of the nation's natural and human resources

What happened in the 1890's that was relevant to environmental justice?

The defendant stands before a judge, told of the charges, and asked to plead not guilty or guilty

What happens at the arraignment?

The believe that orderly, predictable, fair processing will guarantee justice

What is "bureaucratic justice"?

This permanently took away many of the prisoner's rights as a citizen, such as voting or holding public office

What is "civil death"?

-"An eye for an eye" -Borrowed from the Babylonians

What is "lex talioinis"? Where did the term come from?

-Writ of Mandamus: requires public servants to do their jobs -Injunction: an order to prevent harm that would occur if the case went through the system -Writ of Habeas Corpus: requires the government to present someone before the courts

What is a writ of mandamus, an injunction, and a writ of habeas corpus?

Church law

What is canon law?

People should do the right thing simply because it is the right thing, not for rewards

What is categorical thinking?

Giving people what they deserve

What is distributive justice?

-The killing of a female who has harmed the family name by having sex outside of marriage or by marrying a man unacceptable to the father or male guardian -Some argue it is required by the Qur'an, whereas others argue the Qur'an prohibits the practice

What is honor killing and how does Islamic law respond to honor killing?

When a jury, in spite of overwhelming evidence of guilt, refuses to convict

What is jury nullification?

When, in spite of overwhelming evidence to the contrary, the jury finds the defendant not guilty. This might be done out of collective ignorance or because they believe the person should not have been charged

What is jury nullification?

The idea that evidence obtained in wrongful ways, taints that evidence

What is meant by the "fruit of the poisonous tree"?

A system of rules and principles of human conduct that were independent of enacted law or of the systems particular to one people

What is natural law?

Law comes from those in power; laws change as those in power change; those who came into power did so with the agreement of the citizens

What is positivism?

A duty to restore imbalances or to make up for the past wrongs

What is rectificatory justice?

Witnesses or, for slander/defamation, failure to prove adultery

What is required for a conviction for Hudud offenses?

Changing conditions altered the law no matter who was in power; the evolving conditions of human society demanded laws to change

What is sociological jurisprudence?

-Precedent: decisions in court are made by past court decisions -Literally, "let the decision stand"

What is stare decisis?

As seductresses, women are ever ready to exploit the sexual weakness of males

What is the "Eve Problem"?

The central religious text of Islam

What is the Qur'an?

Only principles that everyone can accept serve the purpose of giving us fair distribution of goods and privileges

What is the basic principle underlying John Rawls's notion of justice?

-Factual Guilt: whether or not someone actually committed a crime -Legal Guilt: whether or not it can be proved that someone committed a crime

What is the difference between "factual guilt" and "legal guilt"? Which is emphasized in common law systems?

Conservationists wanted to protect natural resources, such as timber, minerals, and land, to ensure the quality of future generations. Preservationists wanted to protect the environment for its own value

What is the difference between conservationists and preservationists?

Libertarians: place the highest values on liberty even at the expense of equality. They want unlimited liberty and freedom even if it results in inequality of conditions Egalitarians: regard equality of conditions as the supreme value and are willing to achieve this by infringing upon the liberty of others

What is the difference between libertarians and egalitarians?

-Negative rights protect people from the government. -Positive rights are basic things that humans should have access to, such as food, clothing, medical care, education, and housing

What is the difference between positive rights and negative rights?

-National Police: the largest, responsible for policing the cities and towns with populations of more than 10,000 people -National Gendarmarie: acts as the military police for the French army, navy, and air force; provides law enforcement services for the French overseas territories; provides policing in France for all those communities with populations of fewer than 10,000 people

What is the difference between the National Police and the National Gendarmerie in France?

Crime Control: people believe that a major problem of modern society is crime Due Process: people believe that along with criminals, the criminal justice system itself is a potential threat to justice

What is the difference between the crime control and due process models of criminal justice?

Social justice focuses on the redistribution of resources to ensure fairness in meeting the basic needs of people

What is the focus of social justice?

To prevent people from corrupting the earth by falling into decadent ways

What is the goal of the Quran?

Eyewitness Error

What is the most common reason why an innocent person is wrongfully convicted?

Common law originated from England which developed from three historical sources: Feudal practices, custom, and equity

What is the origin of common law?

Punishment is to reform and rehabilitate the offender

What is the purpose of punishment for ta'zir offenses?

The judge is a civil servant, a functionary of the government

What is the role of a judge in a civil law system?

Judicial decisions set the framework for the development of most statutes, and legislators still think in terms of judge-made law and make their statutes in the language of judges

What is the role of judges regarding statutes in England?

There is no concept of precedent in a civil law country

What is the role of precedent in a civil law system?

Scholars look at the law in high levels of abstraction, relegating the facts to a minor place

What is the role of the legal scholar in a civil law system?

Some individual rights must be given up for the benefit of the whole group

What is the social contract?

-Between 1994 and 2000, there was a 25% increase in the number of mosques in America and a 300% increase in the number of Muslims participating in religious activities in mosques -It has been projected that the number of Muslims in the United States will more than double between 2010 and 2030 to 6.2 million

What is the trend for the size of the Muslim population in the U.S.?

1. Apostasy 2. Armed Rebellion 3. Theft 4. Highway Robbery 5. Extramarital Sex 6. Slander/Defamation 7. Drinking Alcohol

What offenses are considered Hudud offenses?

Western Europe, all of Central and South America, many parts of Asia, and a few places in North America (Louisiana, Puerto Rico, and Quebec)

What parts of the world operate under a civil law system?

-It placed law in written and codified form and became the sole authority on the law for hundreds of years -Emperor Justinian in Constantinople

What was Corpus Juris Civillis, and who created it?

"The retribution for an injury is an equal injury, but those who forgive the injury and make reconciliation will be rewarded by God"

What was Muhammad's thinking about the idea of forgiveness?

Very harsh and ranked; "an eye for an eye and a tooth for a tooth"

What was justice like under the Hammurabi Code?

Theocratic and tribal; just as harsh as the Hammurabi Code

What was justice like under the early stages of the Old Testament?

New constitutions placed greater emphasis on law making in popularly elected institutions called legislatures. This movement led the United States to drift away from a pure common law system and to draw in the elements of a civil justice system

What was the "republican code movement"?

A social contract was necessary to protect humans from themselves. To ensure a modicum of liberty and tranquility, man had to give up total liberty

What was the Hobbes's view of the social contract, as outlined in his book "Levithan"?

An attempt to halt the erosion of local baron's and clergy's power in the local courts; contained certain guaranteed rights for ordinary citizens, and later it took the force of a fundamental document in legal history

What was the Magna Carta?

-Elite law schools: give students a grounding in legal logic and principles, and leave the practical stuff to be learned on the job -"Sundown schools": taught students to pass the local bar, and emphasized courtroom techniques and tactics

What was the difference between elite law schools and "sundown schools" (also known as proprietary law schools)?

The king was thought to act under the guidance of God, and, as a representative of God, the monarch had considerable leeway to draw the lines of justice

What was the divine right of kings?

A set of practices developed to help people bring their grievance before a court without using the complex common law system

What was the equity system?

She said that pesticides were ruining the environment; public health and the environment were inseparable

What was the significance of Rachel Carson's books about the environment?

-Focused on the poor workers in the industrial revolution -Addressed the injustice of a rampant capitalist system

What was the social gospel movement?

He believed that humans had feelings and sympathies for the suffering of others that held in check any desire to exploit or harm; justice is the desire not to harm others, a desire for approval from others, and above all a useful way to make society stable

What were Adam Smith's views on economic justice?

Such inequality can be moral as long as sizable portions go to help the less advantaged

What would John Rawls say about people who make a great deal of money while other valuable members of society make comparatively less?

The city of Mecca, Arabia, where the word of God was revealed to the prophet Muhammad in 622 AD

When and where was Islam formed?

-1960's -Commercial airline piracy and hijackers taking planes to Cuba

When did formal profiling begin in the U.S. and for what kind of crime was it used?

Hudud Offenses

Which category of crime is considered the most serious?

House of Lords

Which level of English court acts as the Supreme Court of the land?

The Magistrates' Courts

Which level of English court handles nearly all of the criminal cases in England?

-Procurators: prepare and present the case to court; determine appropriate charges against the accused, prosecute minor crimes, and direct the judicial police -Advocates: defense lawyers; meet with clients to give advice and representation in court

Who are "procurators" and "advocates" in civil law systems?

Gautama Siddhartha (Buddha)

Who founded Buddhism?

There is no founder but is instead a fusion of various beliefs

Who founded Hinduism?

Knights commissioned to keep the peace in their local areas

Who were the "Keepers of the Peace" in early England?

13 individuals on death row were released because of new evidence of their innocence

Why did Illinois Governor George Ryan declare a halt to the death penalty in Illinois?

It made way for profound changes in the law with the creation of the Napoleonic code

Why was the French Revolution important for civil law?