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UW-Milwaukee CRMJST 275 - History of Law, Amendments, and Incorporation

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CRM JST 275 1st Edition Lecture 3Procedural Law and Individual Law (Ch. 2)I. Sources of Lawa. Legislationi. Statutes, ordinancesb. Common Lawi. “judge-made” interpretation and applicationc. Administrative regulationsi. Agencies of executive branch1. i.e. common council, OSHA2. violation results in civil punishment, such as a fineII. Sources of Individual Rightsa. The U.S. Constitutioni. Federalists vs. states’ rightsii. 3 individual rights mentioned:1. Habeas Corpus-right for an individual to challenge the government authority (appeals)2. Bills of Attainder-outlaw people who are found guilty without the right to a trial3. Ex Post Facto laws-a current law cannot be used to charge a person if they committed the crime when the law was not effectiveb. The Bill of Rights (BOR): 1st ten amendmentsi. Wanted clearer protection of individual rightsii. Initially applied only to federaliii. Those associated with CJS: amendments 4, 5, 6, and 8 (important for exam)c. Federal and state legislation cannot violate the BOR (a total of 23 individual rightsIII. Amendments 1-3These notes represent a detailed interpretation of the professor’s lecture. GradeBuddy is best used as a supplement to your own notes, not as a substitute.a. 1st amendment: establishment clausei. Freedom of religion, speech, press, and assemblyii. History behind this amendment: freedoms are not absolute (i.e. obscenity, such as pornography, and polygamy)b. 2nd amendmenti. The right to keep and bear arms shall not be infringedii. History behind this amendment: regulationc. 3rd amendmenti. Cannot force the quartering of soldiersIV. Amendments 7, 9, and 10a. 7th amendment (not incorporated)i. Right to trial by jury in federal civil trialsb. 9th amendmenti. Not an exhaustive list of all citizen’s rights1. Pathway to right of privacy (Griswold v. Connecticut, 1965)c. 10th amendmenti. Federal government authority granted by constitutionii. Anything not granted is states’ rights (federalism)V. 4th Amendmenta. Right against unreasonable searches and seizuresi. History… particularityb. Probable Cause that the person engaged in criminal activityi. Warrants signed by judgewhat and whereii. Searches of private property and seizures of items/personc. Effect on evidence admissible in court; arrestsVI. 5th Amendment (not incorporated)a. Right to indictment by grand juryi. Check of power, level of proofb. Prohibition against double jeopardyi. After acquittal, conviction, or dismissed with prejudice for the same crimeii. Establish dual sovereignty1. Federal and state: person can be tried by both, as well as state lines (if crime occurred in multiple states)c. Privilege against self-incriminationi. Does not apply to line-up, other evidence, or DNAii. To police, at triald. Establishes due process and compensation for property taken (imminent domain)VII. 6th Amendmenta. Right to a speedy trial, without unnecessary delay (statute time limit)b. Right to a public trialc. Right to notice of the chargesi. Ability to prepare defensed. Right to trial by impartial juryi. Impartial from the community and mediae. Right to effective counseli. Any “critical state;” if indigent lawyer providedf. Right to confront, witness, and compel witnessesVIII. 8th Amendment (not incorporated; denial to bail)a. Prohibition against excessive bailb. Prohibition against cruel and unusual punishmenti. Bans torture, inhumane conditions, excessive finesii. Death penalty controversy; Tent CityIX. 14th Amendmenta. Originally the BOR applied only federallyi. Concern regarding the 13th amendment and the Southii. Process of incorporationb. Forbids state violation of citizens’ rightsi. Due process and equal protectionii. No arbitrary distinctions between groupsX. Incorporation of the Bill of Rightsa. Barron v. Baltimore (1833)i. Just compensation: SCOTUS dismissed appealb. 3 theories of incorporation of the BORi. Total Incorporation: (DP = all BOR applicable)1. Not actually undertaken (since this isn’t practiced, the course will not focus on it)ii. Total Incorporation Plus (all BOR plus new rights)1. Penumbracreation of new rights2. Undertaken at timesa. Griswold v. Connecticut (1965) right to privacyiii. Selective Incorporation1. A gradual methodas brought on appeal to SCOTUS2. i.e. right to counsela. initially capital cases, then felony, then certain


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