109 Cards in this Set
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How does Canada's distinction between a felony and a misdemeanor differ from the US'?
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In the US there is no clear cut which is which. Whether a crime is a felony or misdemeanor is subject to change overtime with societal changes. In Canada there is a distinct split - you can only be punished less than 2 years for a misdemeanor, more than that is felony.
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What institutions hold felons and those who commit misdemeanors?
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Felons go to prison - state run. Those who commit misdemeanor - regional jail local. Jails hold felons if prison is overcrowded.
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What two things do prosecutors have to prove in criminal cases? Define the two
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Act - there was a crime committed
Intent - you knew that your actions were criminal (a reasonable person does not commit certain acts)
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What does "Mala in se" mean?
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A crime that it criminal across different societies. Crimes that are inherently bad like rape, arson, and murder.
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What does "Mala prohibita" mean?
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Criminal basically because a society at a particular point in time believed they were crimes. Vice crimes: drugs, alcohol, gambling, and prostitution. Considered to be victim-less crimes.
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What are the arguments for and against Mala Prohibita crimes?
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Against - some say that you make it easier to target certain individuals when you criminalize victim-less crimes.
For - Others say that these crimes come with them morality and if not criminalized that they bring with them other crimes
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How did Germany and the Netherlands' react to the counterculture? (Sebastian's experiment)
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The Netherlands reacted by decriminalizing soft drugs. They responded with a public health and criminal approach to hard drugs instead.
Germany criminalized the use of both.
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Why did their responses differ so greatly? (3 reasons)
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cultural, political realities, and institutional structures
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What was different about Germany and the Netherlands culturally?
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Sebastian says that during this time period that the cultural explanation is a fundamental difference in terms of colonial experience. The Dutch through colonization brought colonial people back to the Netherlands so there were many minority groups - it was more culturally diverse. Althou…
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What was so different and Germany and the Netherlands' institutional structures?
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What happens is there is a fundamental difference between the views of the law enforcement and health officials in Germany and in the Netherlands. In Germany there isn't much of a debate because both groups were against it. In the Netherlands you had pros and cons on both arguments - heal…
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What was different about Germany and the Netherlands' political realities?
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SPD (Social Democratic Party -Democrats) <-> CDU (Christian Democratic Union -Republicans) from 1949-1968 Germany was represented by Christian Democrats they had lock on power because they took credit for the German miracle and they argued that the SPD were "pink" and too close to communi…
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What does the adversarial system / Anglo-American law say about criminal law?
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That because its society against one person that we have to be very careful in prosecuting the case fairly because the stakes are so high.
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What are the details of the Ashford vs. Thorton (1819) case?
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Mary Ashford is raped and murdered and it is believed that Thorton committed the crime and he is prosecuted by the crown. He was later acquitted. Her brother wants retribution for her death and a lawyer says that he can do a writ of appeal that asks the court to take the case. Thorton ple…
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What two things much law lords decide?
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Is writ of appeal and trial by battle still good law?
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What does this case show us?
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English case that shows the how common law is done away with, statutory law now trumps common law.
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What is a writ of appeal?
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Where an individual asks the court of last resort to take their case
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Why is writ of appeal severely limited?
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Because many people tried to take advantage of it and waste the courts' time
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When was the colonial period?
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From 1660-1776
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What was our criminal justice system like during the colonial period?
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New England colonies had significant impact on the criminal law system (based on religious belief) Attempt to bring in a religious protestant perspective into the law. They attempted to simplify a criminal code.
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What was the first fundamental change from English criminal law?
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It took away things like writ of appeal and attempted to make a simplified code so they can understand what rule they violated. Unlike Britain where you could face the death penalty for theft - we didn't want to encourage death penalty because the colonies were already underpopulated.
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What was our alternative to the death penalty? What did it consist of?
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Shaming for example:
1st offense burglary: they would brand the letter B on their forehead
2nd offense: you would be tied up in the village square and be whipped severely
3rd offense- execution (executed automatically for adultery, witchcraft, or murder)
If you committed on a Sunday i…
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When was the post-independent period?
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from 1776-1860
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What was our criminal justice system like during the post-independent period?
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Our criminal justice system is very part-time and amateurish. During this time states began to differentiate levels of crime (such as homicide). The criminal justice system stated what its goals were - to punish and to deter others from committing the same crime and lastly we established …
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What were the major reforms during this time?
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Increase of power to juries and increase in the use of code law.
Attempts at jail reform - idea of a solitary confinement. (penitentiary)
Limited role by the federal government in criminal prosecution (state rights argument)
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During what time period was "post-civil war"?
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1865-1920
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What were the main developments during this time period? (6)
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1. American justice system/ law enforcement start to professionalize
2. Plea bargaining
3. More active government
4. Act + intent
5. Debate over death penalty
6. An attempt at corrections reform
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How did the American criminal justice system begin to professionalize?
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Lawyers began to specialize in criminal litigation
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How did law enforcement start to professionalize?
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you begin to see specialized jobs in law enforcement (detective and those who deal exclusive with different types of crime) and professionalization also occurred through patronage.
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Define Patronage
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Granting favors or giving contracts or making appointments to office in return for political support
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Why was plea bargaining introduced?
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There was a swamp in crime and this applied prosecutors a way to keep all cases from litigation.
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What happens as a result of a more active government?
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We see an expansion of the criminal code
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What new plea came out of act + intent being established?
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The insanity plea - arguing that the individual does not have the cognitive ability to form intent
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How did the death penalty reform?
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There were now more human acts like the chair and gas chambers, and they were no longer made public acts.
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How did corrections reform?
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Attempt to take away power of sentencing from judge to social service professionals (indeterminate sentences) , through use of probation, parole, and suspended sentences, and the establishment of a juvenile justice system
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What issues were there with the prison system during the "post-civil war" period?
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men and women were still housed together, they were dirty and still used elements of torture
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What was the juvenile justice system and where did it start?
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In Cook County, Illinois on the belief that some young people can be rehabilitated, depending on whether they are a delinquent or not (this is why judges handle these cases instead of juries)
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During what time period was crime control?
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1920-1945
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What takes place during the crime control era? (3)
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1. During this time the county experiences significant racial migration from traditionally new immigrants and an internal migration from blacks from south to the north because of new jobs in industry.
2. American failed experiment with prohibition - leads to organized crime.
3. FBI is…
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Who heads the FBI and what is its purpose?
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J. Edgar Hoover did until the 70s. It is a national police force that has two missions. 1. enforce expanding criminal code and 2. provide assistance to state and local law enforcement
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What was the time period for the post-war period?
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1945-Present
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What was the transformation of the criminal justice system during the post-war period centered around?
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Work-riots - people engage in these demonstrations because they can't find work
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What was the controversy over work-riots? What is an example of an attempted solution
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White rioters were treated better than those of any other race. CA teaches law enforcement how to deal with different races.
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What is incorporation?
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the idea that the US Constitution's Bill of Rights can be incorporated into state courts.
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Who adopted the Bill of Rights? What did he propose?
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Madison proposed an incorporation amendment that said that 1-8 are universal rights that should also be guaranteed through the state, but it failed
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What are the details of the Barron v. Baltimore (1833) case?
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A businessman owns a wharf in a harbor. He makes his money by loading and off-loading ships. The city of Baltimore decides to build roads around the wharf in this process the water gets shallow and he is out of work. He sues because of the due process clause because they denied his proper…
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14th amendment
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one of the civil war amendments says the federal government can't deny them of life, liberty, or property without due processes of the law. (equal protection)
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What are the details of The Slaughterhouse cases (1873) ?
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One of the first cases where the Supreme Court has to decide what the government meant by the civil war amendments. After Tauny (Cheif Justice) takes Marshall's place. State of Louisiana made a law that said the city of New Orleans where there were water-borne diseases were caused by slau…
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What was selective incorporation and when did it occur?
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1884-1975 Supreme Court is now no longer ran by Tauny. Selective incorporation was where the court slowly decided that certain things like religion should be defended in the states by the federal system
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When was and what were the characteristics of the Warren court?
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1953-1969: only Supreme Court in the US that would be considered liberal. Warren applies selective incorporation. Thought there was a flawed criminal justice system, violation of rights.
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When was and what were the characteristics of the Burger court?
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1969-1986: Right of center. Burger was very conservative but there were still liberals who sat on the court that he had to balance. Thought there were too many rights for criminal defendants.
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When was and what were the characteristics of the Rehnquist court?
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1986-2005: as conservative as Warren is liberal. Argued too many rights for criminal defendants
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When was and what were the characteristics of the Roberts court?
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2005-Present most conservative of all also argued too many rights for criminal defendants
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Why do we have a protection against double-jeopardy?
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Court says because there's weight in being thought to be guilty, it's expensive, and it is more likely if they you multiple times in front of different juries they may learn how to convict a certain person not because they're guilty.
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What were the details of the Palko v. Connecticut (1937) case?
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Under Chief Justice Cardozo. Frank Palko was wanted for killing two police officers. He was suspected of robbing a jewelry store and when confronted it was accused that he shot them dead. It was alleged that some of the info gathered was done so unconstitutionally and that evidence could …
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What is the 1st step in the criminal trial process? Describe what happens in this step
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Criminal event - something criminal had to have taken place.
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Why would a victim lump their claim?
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because of fear of violence or lack of re-activeness in the court system.
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What is the 2nd step in the criminal trial process?
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Arrest
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In most cases what is the four step sequence that leads to an arrest?
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contact, detention, reasonable suspicion, and then arrest
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If it's a more serious crime what three steps are taken to get to an arrest?
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contact, detention, arrest
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What happens during the contact phase?
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a police officer begins asking questions
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What 6 things indicate a shift from contact to detention?
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1. Physical contact
2. More police officers gather around you
3. Display of officers weapon
4. Interference of departure
5. Transporting an individual from a scene to a police car
6. Demeanor and appearance (aggression)
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What happens during the detention phase?
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a police officer has the ability to detain you because he or she needs some time to determine whether or not you are an individual they may be looking for, you are no longer free to leave. Officers have the ability now to do pat-downs and ID checks.
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What is reasonable suspicion?
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More than a hunch - Hand rolled cigarette analogy.
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When can an officer arrest you?
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when a police officer sees you commit a crime or when there is probable cause
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Define probable cause
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substantial and trustworthy evidence from a credible source.
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What does the 4th amendment say about warrants? When was this incorporated into the states?
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"protection against unreasonable searches and seizures." Supreme Court did not incorporate this to the states until 1949. They have to detain you long enough to get an arrest warrant or can't search your home until they have a search warrant from a judge.
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Where does an arrest warrant have to come from? And what do the police have to show before they are permitted one?
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A detached judge. Probable cause that a crime was committed and probable cause that this is the person who committed the crime.
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What do the police have to prove to get a search warrant? (4)
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1. Crime was committed
2. There are specific items you are searching for
3. They have likely committed a crime
4. Where you expect those items to be found
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When don't police officers need a search warrant to search you/ your surrounding?
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incidental to an arrest, for safety purposes (ensure you don't have anything on you that you could use to harm the officer)
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How did the Warren and Rehnquist court differ on this concept?
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Warren Court said that a police officer could search within an arm's reach of the defendant.
Rehnquist Court said a police officer could do a protective sweep of the house (where someone could be hiding) and any evidence found can be used in a court
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What is the plain view exception when it comes to warrants?
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A police officer sees something left in plain view than they do not need a search warrant for that
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What is stop and frisk and how did the Warren and Rehnquist courts differ on this concept?
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Police officer is allowed to pat you down for safety of the officer.
Warren court says when officer does that and finds something that they can use that in court.
Rehnquist court expanded it to say that when an officer does a pat down and thinks he finds something that could be criminal…
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What is stop and frisk a good example of when it comes to the court?
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It matters who sits on the court because they interpret your rights and depending on who is on the court you may have more or less.
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What is the automobile exception when it comes to warrants?
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As early as 1925 court recognizes that thinks that can be moved as a means of transportation are different. Officers will need a search warrant but they have the ability to make you stop until that warrant can be received.
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How did the Rehnquist court expand on this concept?
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Expanded what the police could do in this respect. Sobriety check-points were legitimate under Rehnquist because his court ruled that that violated the 4th amendment but the loss is so small and the benefit to society is so large that it's okay
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What is the weekend rule?
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Supreme Court ruled in 1991 police could arrest you and detain you without probable cause for up to 48 hours if there weren't magistrates available. This is significant because you are more likely to talk to the police although it is not to your benefit.
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What does the self-incrimination clause of the 5th amendment mean?
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You are not required to or you do not have to be a party to your own prosecution (not your responsibility to defend yourself).
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What were the details of Miranda v. Arizona (1966)
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Dealt with a defendant who was charged with kidnapping and rape. He had some cognitive delay issues, he was brought in and put into a police line - victim picks him out of the lineup so he is interrogated for 2 hours by the police. He is convicted and appeals it arguing he was coerced bec…
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What are your Miranda rights?
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you have a right to remain silent, anything you say can and will be used against you in a court of law, you have a right to an attorney, if you cannot afford one then one will be provided to you by the courts, if at any time you want interrogation to seize it must do so. Do you understand…
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What does the 6th amendment's right to council clause mean?
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You have a right to counsel, at first that meant that if you wanted to hire counsel than you could. As early as 1790 that an unrepresented person facing a capital case said that if you are charged with a capital offense. In 1938 they said they must provide free legal council too all feder…
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When was a right to council incorporated to the state and why?
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As a result of Gideon and Wainwright (1963)
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9 stages of criminal law when you have a right to council?
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1. You are being questioned by the police without charges
2. You are made a target of the investigation
3. preliminary hearings
4. indictments
5. arraignments
6. lineups
7. Appeals
8. Probation hearings
9. Revoking probation or parole
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What is the exclusionary rule? How did Warren and Rehnquist react to it?
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If evidence is obtained unlawfully than it cannot be used in court. It is not in the constitution but it is a principle that was developed in 1914 in 1961 the SC applied this to the states, defense attorneys can plea to the judge to throw out certain parts of the case against their client…
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What is the good faith exemption?
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If the prosecution for the officer can prove they made a mistake but it was in good faith then it didn't have to be excluded.
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Whats the 3rd step in the criminal trial process? What happens here?
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Booking - administrative process where you are put in the criminal justice system. Photo, finger print, DNA sample. Stage where you don't have a right to council because it's administrative.
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Whats the 4th step in the criminal trial process? What happens here?
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Initial Court Appearance - you must go before a lower-level judicial officer after arrest. Judge will make sure you've been Mirandize, determine if there was probable cause for your arrest, make determinations of bail, will you wait in jail or out, and do you need council (income)
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Whats the 5th step of the criminal trial process and what happens here?
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Preliminary Hearing - prosecutor must go before a judge and present enough of his or her evidence that proves they have probable cause. First time defense gets a crack at them with the evidence they have to convict the defendant.
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What is the purpose of this step?
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Purpose: make sure there is probable cause that the defendant has committed a crime.
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What is the 6th step of the criminal trial process? What happens here?
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Grand Jury Hearing / Information - Prosecutor alone holds the grand jury hearing. Prosecutor has no opposition. Witnesses are introduced and Grand jurors are allowed to ask questions of the witnesses.
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What are the two purposes of the grand jury?
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1. to investigate if a crime was committed.
2. Decide whether or not there is probable cause the defendant committed a crime
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What does the 5th amendment's presentment clause mean?
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in the federal system that a prosecuting attorney must present their case to the grand jury, in order to convince them they have probable cause which then yields and indictment (in information you skip this step)
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What's the 7th step of the criminal trial process and what happens here?
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Arraignment - Judges exerts her power as a judge and considers motions, takes your plea (guilty, not guilty, or no contest)
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Where does the 5th amendment's double jeopardy clause apply and not apply?
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Applies to anyone who is convicted or acquitted in a particular jurisdiction, it protects against charges in adult court that have already been handled in the juvenile system. Doesn't apply to a mistrial/ hung jury or when a defendant appeals a decision
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What are the two loopholes to double jeopardy?
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1. you can be tried in federal and state court
2. in some jurisdictions you can we charged with a crime and if found not guilty, the conspiracy to commit that crime
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What are the two types of plea bargaining?
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charge bargaining and sentence bargaining.
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What is a popular complaint against plea bargaining?
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If you cannot afford counsel, the lawyer isn't getting paid much and will encourage you to settle and plead because they probably think you did it.
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What are the details of the Santobello v. New York (1971) case?
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test the constitutionality of plea bargaining. Santobello strikes a deal with defense attorney. Assistant defense attorney tries to take it back because it is like a contract. Burger allowed plea bargaining because he was concerned with swamping the prison system. Santobello got to keep h…
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What are the details of the Alaska study?
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Plea bargaining study in 1975 the attorney general of Alaska forbade plea bargaining. Law was implemented They then went to prosecutors and they said their workload went up dramatically but they liked it because they got to go to trial more often. Defense council hated it but they had to …
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What are the details of the Alaska v. Bucklen (1977) case?
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2nd year law student at the UoA. Arrested for pot possession and dealing. Alaska had a law that allowed personal consumption. He could have been sentence to 20 years. Judge said to the defense attorney that if he plead guilty he would be sentenced to 90 days in prison. He could serve thos…
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When plea bargaining was banned, what 4 things happened?
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1. Number of trials went up significantly
2. System didn't come to a halt
3. Impact on sentences- almost null. Felons served the same amount of time. High misdemeanor crimes got longer sentences.
4. New attorney general let plea bargaining again.
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What is step 8 in the criminal trial process?
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Trial
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6th amendment - How speedy is a speedy trial?
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Anything less than 5 years is speedy. Speedy trial act says that trial has to be 100 days from indictment except if the defendant asks for a delay, later dropped to 70 days.
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What does the 6th amendment's right to a jury trial clause mean? How has it changed over time?
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Jury of 12 peers in the federal system. Harder to get a conviction the more people you have to prove it to. In 1968, it was incorporated to the states. States challenged this, there is nothing constitutionally required about this. Can't go below 6 - if it's 6 it must be unanimous. If it's…
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How did the Warren and Rehnquist courts feel about being able to ask jurors if they could find an individual guilty and sentence them to death?
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Warren court threw this out because when an individual says they favor the death penalty it's more likely to be a "hanging jury"
Rehnquist court reversed this and they said it was legitimate because they had a right to know if someone was capable of this conviction.
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What does the 6th amendments confrontation clause mean and when was it incorporated?
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right to confront a witness against you. They have to do so in front of you and you can challenge it. Incorporated in 1965.
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What were the details of the Maryland v. Craig (1990) case?
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Defendant has been accused of child molestation. Set up a system where the alleged victim couldn't hear anything than those people who were authorized to ask them questions. SC ruled it was a minor violation but it was okay because they victim is sensitive.
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What does the 8th amendments Cruel and Unusual Punishment clause mean?
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Basically means barbaric punishments are banned. SC ruled that punishment that are grossly disproportionate to the crime are unconstitutional.
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What rule contradicted cruel and unusual punishment?
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Contradiction with 3 strikes and you're out.
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What happens in Furman v. Georgia?
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SC was asked to rule that the death penalty was unconstitutional because it was racist. In Furman they said the way the death penalty system was unconstitutional but it could be made constitutional. They had to move to a two stage trail to prevent these. Trial 1 found guilty or innocent. …
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POLS 210: Exam 1