Law Exam

Lecture Notes 10-18-16

Briefings

Civil Law use and

6th Amendment has the Confrontation Clause: no testimony can be used against you

When the statements were not made in the purposes of convicting you then the statements can be used (911 tape) because this is ongoing

When the abused person made the 911 tape they were calling to procure emergency services then they can use the tape in court

This is the largest area with the Confrontation Clause

The witness needs to be unavailable or refuse to testify

The witness statement needs to be non-testimonial (procuring emergency services)

Hearsay:

• Out of court statement offered for the truth of the matter asserted (this is HEARSAY) OTMA

• Out of Court

• Hearsay is not allowed in courts of law as a general rule

• OTMA: offer for the truth of the matter asserted

• If what you are saying is being used to prove what you are saying then it is OTMA

• If what you are saying is used to prove your statement

• Not hearsay if you are showing a state of mind

• As a general rule Hearsay is not allowed

• Veracity the potential for truth of the statement is questionable due to the introduction of a third statement

Hearsay EXCEPTIONS:

• Admission by Party

• Dying Declaration (veracity is presumed)

• Excited Utterance

• Statement against pecuniary interest (SAPI)

The Sixth Amendment guarantees the rights of criminal defendants, including the right to a public trial without unnecessary delay, the right to a lawyer, the right to an impartial jury, and the right to know who your accusers are and the nature of the charges and evidence against you. It has been most visibly tested in a series of cases involving terrorism, but much more often figures in cases that involve (for example) jury selection or the protection of witnesses, including victims of sex crimes as well as witnesses in need of protection from retaliation.

Amendment VI:

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 defense.

The right to confront witnesses really just the right to cross examine witnesses

Pleading the Fifth you can’t testify against yourself

The spousal privilege

Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall be violated, and no Warrant’s shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Protection against unreasonable search and seizure

Warrants

Basic General Rule: you need to have a warrant to search someone, something

Smaller misdemeanors you have a right to do a citizen’s arrest for smaller things

Need a warrant

If you work for the government you a representative of the government

Warrant: judicial order to effectuate something (Arrest this person, seize this thing, search) and must include the following:

• Must be supported by probable cause

• Must be issued by a neutral and detached magistrate

• Oath or affirmation—by the person applying for the warrant swearing by penalty of perjury etc. they are swearing that

• Particularity they must plea particularity

Warrants in general

Exceptions to the warrant requirement: rules baseline

Know what the elements are and what the scope is

• Search Incident to a Lawful Arrest (SILA)

  • Elements:

    • Custodial arrest/detention

      • If you aren’t free to go

    • Lawful

    • Right after you arrest someone it has to be done at that moment

  • Scope:

    • Can search your person

    • Anything that you were or had immediate access to immediately prior to that

    • Your wingspan

• Search for an Arrestee: you

  • Elements:

    • Valid arrest warrant

    • Probable cause that the subject of that warrant is in that location

    • Evidence of a crime for which you are there or if something is found that is unlawful then you can seize anything that is found in the house

    • Doing the

• Exigent Circumstances—an emergency

  • You must have probable cause and you must have exigent circumstances—if you didn’t do what you did at that moment then the evidence would have been destroyed

  • Commonly happens during a hot pursuit

  • It has be someone suspected of committing a felony

• Cars

  • The car is stopped on a road or highway

  • Readily able to be used on a road or highway

  • If they have reasonable belief that anything in the car is contraband or used for contraband

  • Then they have probable cause to search within reason

• Plainview doctrine—if the cop can see it and see that its illegal then they can seize it

  • The object must have been observed from a lawful vantage

  • Must have a right of access to it

  • The nature of it as an object subject to seizure must be immediately apparent

  • Need a lawful right to be there

  • This doesn’t work when a police officer is in a residence searching for something and knows ahead of time that the person may always be stealing electronics and picks up a stereo and radios in the vin number and finds out that it was stolen that is not allowed to be seized

• Inventory Search

  • Your car is now in an impound lot

  • You can search the car

  • You are going to a complete inventory of everything that is in the car

  • You do it for the protection for the person

  • If anything is found in the vehicle that is unlawful then the police officer gets to keep it

  • Any illegal contraband you have on you can charge them for

• Consent Searches

  • You don’t need to know that you have the right to say no to a search

  • Elements:

    • There has to be actual consent

    • Has to be voluntary

    • You can lean on a person a little bit but you are going to be looking at everything that was leading up to the consent the totality of the circumstances

  • Scope:

    • You haven’t restricted them on anything then they can search anything

    • You can tell them what they can and can’t look into

• Stop and Frisk doctrine: to seize a person or a thing you need to have a warrant based on probable cause ON EXAM

  • You have to have a reasonable suspicion

  • You can stop another human being and kind of pat them down with their pockets

  • Specific and articulable facts when taken together with rational inferences of those facts that reasonably warrant that intrusion

    • Example you get a call about the offender with a description and then a person as you are pulling up and you can stop them and pat them down to reasonably seize the person until you get more information

    • Has been blown up to have any reason to stop and come into contact with a person

    • With a stop and frisk you have a lawful right to be there

• Confessions cannot be coerced

Doctrine: Fruit of the Poisonous Tree

• If you don’t have a lawful right at the very beginning of something then everything that comes after that is excluded

• Exceptions:

  • If it would have been found independently then they can

  • You look at the very first encounter and see if they can get all the evidence

  • At whatever point in the first encounter that something is unlawful

Fifth amendment:

While waiting to be charged

Sixth amendment:

Once charges have been drafted against you—once you have been charged you have the right to an attorney

If you have asserted your right to counsel (Sixth Amendment)

The police cannot talk to you about that case and the can talk to you about another case

You can waive and reassert that right as you please the police can come in and ask you once a day if you want to waive your right

Once you initiate that right the police cannot interrogate you unless your attorney is there but that does not stop the investigation (while you are in custody)

Doing the least restrictive thing you can until you get a warrant

Once you have “jail bird informant”

• The person needs to be a government agent

• Has to be acting at the behest of the government

• They have deliberately elucidate the statements

  • It can be used if they can deliberately illicit it from you

  • At the point they do it’s the government questioning you without the attorney present

  • If they need to question you to stop any further or subsequent terrorist attacks then they can ask you about anything

Tort side

• Vicarious liability (ON THE TEST)

  • Tort: a wrongful act or infringement of a right (other than under contract) leading to a civil legal liability

• Vicarious liability: When you are responsible for the torts of another person

  • When a person is responsible for another who committed the tort

• Respondeat Superior

  • Any time someone is on the clock and they hurt someone or have some other tortious conduct the employer is always sued for negligent hiring of employees and vicarious liability

  • The Doe’s in California

  • If the person is under reasonable control of the employer

    • The employer is on the hook while still under work hours for example driving from one location to another and then they have lunch they employer is liable

    • The employee takes a four hour break to a bar then the employer is no longer on the hook

  • Mere deviation doctrine

    • At the point where they are still under the control of the employer

    • The abandonment—if they have deviated from their job duties and abandoned their job duties

• When you are responsible for the tort of another is vicarious liability

Compelling interest when you are looking at violation of Bill of Rights

They need to be published in the state prior and they have a brief amount of time to search until it becomes

If they have probable cause that your car or anything within your car contains evidence or contraband

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Miranda Rights:

You have the right to remains silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?

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.

Against it:

Presidential election

Both candidates are so horrible and their favorability on both sides are 13%

And then a new

Candidate A, B, or none of the above

If none of the above gets more votes then any other candidate

Judicial economy and legislative economy

In the current system with a lack of majority vote in the electoral college then the law stipulates that the speaker of the house becomes president