Law Exam
Law and Policy Midterm Study Guide
*Extra credit following the exam - know crimes vs torts
Marbury v Madison (Established the theory of judicial review)
Landmark United States Supreme Court case
Court formed the basis for the exercise of judicial review in the United States under Article III of the Constitution
Article III - establishes the judicial branch of the federal government
Judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress
Landmark decision helped define the boundary between the constitution and separate executive and judicial branches of government
Supreme Court announced for the first time the principle that a court may declare an act of Congress void if it is inconsistent with the Constitution
Legal principle of judicial review came from this case
Judicial review - ability of the court system to look at a law and say whether its valid or not and keeping with the constitution
Any dispute can be taken directly to the Supreme Court which gave new jurisdiction to the Supreme Court
The supreme court adopted a monitoring rule over government actions
Case details
Washington and John Adams lost election to Jefferson
Adams tried to put his people places to poison the new government
Hijacked the Judiciary Act (how judges are appointed) 1801
Adams tried to stack the bench as judges
Marbury was a Justice of the Peace
Marbury never got his appointment
Jefferson, created his Judiciary Act of 1802, that undoes everything that Adams did back to 1789
Marbury asks for his appointment because it was assigned but never delivered, court wouldn’t hear the case
Petition was denied
FINAL: Justices on the current Supreme Court:
Ruth Bader Ginsburg
John Roberts Jr (Chief Justice)
Sonia Sotomayor
Clarence Thomas
Anthony Kennedy
Samuel Alito
Elena Kagan
Stephen Breyer
Merrick Garland (proposed by Obama)
Antonin Scalia just recently died and was the best friend of Ruth Bader Ginsberg
Brief cases (IRAC):
Issue - What is the case about and the issue
Rule - The laws that were discussed
Application - How the law was applied, or not applied
Conclusion - The final outcome
FINAL: The Bill of Rights
Speech, Religion, Press, Assembly
Right to bear arms
No quartering act - can’t be forced to let troops live with you
Freedom from unnecessary search and seizure
Due process clause - right to an impartial judge, freedom from self incrimination, no double jeopardy
Right to a speedy trial and your right to counsel
Trial by jury in civil cases
No excessive bail or cruel and unusual punishment
These rights do not deny other rights
Rights that are not reserved by the federal government are reserved to the states
Amendment I – Freedom of Speech
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Amendment II – Right to Bear Arms
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Amendment III – No Quartering
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Amendment IV – Freedom from Unnecessary Search and Seizure
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants 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.
Amendment V – Due Process (no double jeopardy)
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising 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.
Amendment VI – Right to a Speedy and Public Trial
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.
Amendment VII – Right to Trial by Jury
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Amendment VIII – No cruel and unusual punishment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment IX – Do not deny other rights
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X – Rights reserved to the States
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.
The Basics of Law
FINAL: Tort – civil crimes, handled in Civil Court; Punching someone in the face; suing is the civil side/the tort. Person seeking something from a person
A tort, in common law jurisdictions, is a civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act
Although crimes may be torts, the cause of legal action is not necessarily a crime, as the harm may be due to negligence which does not amount to criminal negligence
The victim of the harm can recover their loss as damages in a lawsuit
In order to prevail, the plaintiff in the lawsuit, commonly referred to as the injured party, must show that the actions or lack of action was the legally recognizable cause of the harm
Tort law is different from criminal law in that:
Torts may result from negligent as well as intentional or criminal actions and
Tort lawsuits have a lower burden of proof such as preponderance of evidence rather than beyond a reasonable doubt.
Sometimes a plaintiff may prevail in a tort case even if the person who allegedly caused harm was acquitted in an earlier criminal trial. For example, O. J. Simpson was acquitted in criminal court of murder but later found liable for the tort of wrongful death.
Civil Court is people seeking something from people. Person seeking something from a person.
Biggest thing people sue for in civil court is “negligence.” Fail to exercise reasonable care.
Criminal court it is retribution by a grieved society. Don’t have the option of whether or not to press charges, it will happen.
Negligence: Someone owed a duty to someone else; someone breached the duty and caused damages. Parking on a hill and then the car rolled and hurt. A reasonable person would have put their parking brake on. But because there is no law, this is just negligence.
Negligence has elements:
Duty - someone owed a duty to someone else
Strict liability - something is so inherently dangerous, if something happens to someone, you’re liable/negligent. Example: own a dynamite factory and one of your employees gets hurt.
The defendant has to prove that what they did was within normal conforming laws
Breach - someone breached that duty
Causation - that breach caused damages
You were the actual cause OR
You were the proximate cause (you didn’t exercise reasonable care)
Stare decisis - is the doctrine of precedent. The definition: laws and interpretations of laws are created from prior legal cases and decisions and judges are obligated to respect the precedent.
Negligence per se - its written, its the law. Says if you violate the law or the policy its presumed that you are negligent. Its all but proved that you were negligent (i.e. drunk driving).
Negligence is owing someone a duty, i.e. providing them with a safe car ride home, if the car’s tire blew out you could be found negligent if the tires were bald. Negligence per se is drunk driving, because drunk driving is against a written law but you did it anyways.
FINAL: Criminal Law
*Assault - assault is placing someone in immediate apprehension of harmful or offensive contact, a threat. i.e. raising your fist at someone. You have to be aware of it in order for it to be assault.
*Battery - physically harming someone (if you were hit from behind this would be battery because you weren’t aware of the harm before it occurred)
Assault and battery on the criminal side and on the civil side
Robbery vs burglary - Burglary is a crime against property, robbery is a crime against the person
*Burglary - the unlawful entry into the dwelling of another with the intent to commit a larceny or felony therein (someone breaks in and steals jewelry from an empty house)
*Robbery - the unlawful taking of an item from another by force or fear. Someone commands something from you (someone steals your purse)
When the crime leaves burglary and becomes robbery – a kid breaks in and steals a bag of skittles, if left would have been burglary, but if he pushed the employee, then it is robbery.
*Theft - is the unlawful taking of an item from another (stealing items from a store)
Unlawful entry - you’re not allowed to be there. Dwelling could be residence or storage unit or wherever, to commit a larceny or felony. Intent matters and what they do once inside matters.
*Homicide - unlawful killing of a human being with malice aforethought (premeditation)
Larceny is a crime involving the unlawful taking of the personal property of another person or business.
Felony murder rule - if you were engaged in the commission of a felony and another person dies, you’re on the hook for murder too. You didn’t intend to commit the murder but you intended to commit the felony and it resulted in a death = 1st degree murder
Like if you sold drugs to someone who overdosed and died?
False pretenses- misrepresentation of a material fact with the intent to defraud
Material Fact: something a reasonable person would take into consideration before entering a transaction. i.e. Selling a car without disclosing it has transmission issues
Article III of the constitution is where judges get their power and determines the cases they can hear. At supreme court, between states and ambassadors.
New York Times v. US
The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censorship or punishment.
To exercise prior restraint, the Government must show sufficient evidence that the publication would cause a “grave and irreparable” danger
New York Times v. Sullivan (Public Official Defamation)
Established actual malice standard, which has to be met before press reports about public officials can be considered to be defamation and libel and allowed free reporting of the civil rights campaigns in the southern United States
Defamation of a public official
One of the key decisions supporting the freedom of the press
The actual malice standard requires that the plaintiff in a defamation or libel case, if he is a "public figure", prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity
Because of the extremely high burden of proof on the plaintiff, and the difficulty of proving the defendant's knowledge and intentions, such claims by public figures rarely prevail.
FINAL: Actual malice: a knowing or reckless disregard for the truth and Actual Malice must be proved against a public official
“Limited issue public official” - something individual i.e. Octomom. Actual malice has to be proven if its based on the issue they are known for. i.e. Donald Trump and accusation of filing fraudulent taxes. A normal person doesn’t have to prove actual malice.
Defamation - is false statement about another person published to a third party. Speech that is not protected. Truth is the absolute defense of defamation. Libel (written) and slander (spoken)
Free Speech – expression without restraint
The 14th amendment applies the bill of rights to the states
The 14th amendment is a very important amendment that defines what it means to be a US citizen and protects certain rights of the people.
There are three important “clauses” in the 14th amendment, each of which are still important today.
Citizenship Clause – gives all Americans born in the US and African Americans the right to citizenship.
Due Process Clause - Protects the 1st amendment rights of the people and prevents those rights from being taken away by any government without “due process.”
Equal Protection Clause - This part of the fourteenth amendment states that there may be no discrimination against them by the law. The federal government enforces this protection on the states, ensuring that they do not. Remember that the Bill of Rights protects some rights for Americans. The equal protection clause extended this protection to the state governments. This clause of the 14th amendment would later be used to end discrimination and segregation in the South.
Clear and present danger rule came first in 1919, with the case of Schenck vs US then Imminent lawlessness was adopted with Brandenburg vs Ohio in 1969.
Near v Minnesota – government cannot exercise restriction of speech or restraint, except in rare circumstances
Schenck vs US (Distributed Anti-War Flyers)
Enforcement of the Espionage Act of 1917 during World War I
Defendants who distributed leaflets to draft-age men, urging resistance to induction, could be convicted of an attempt to obstruct the draft, a criminal offense
Clear and present danger rule circumstances/limits can be placed on First Amendment freedoms of speech, press, or assembly. An example of this would be yelling fire in a crowded theatre.
Brandenburg vs Ohio (KKK Leader)
Brandenburg invited a television reporter to attend and cover a KKK rally
Portions of the rally were filmed, showing men in robes and hoods, carrying firearms, burning a cross and making speeches.
Speeches made reference to possibility of re-vengeance as well as announced plans for a march on Washington
Statute as applied purports to punish mere advocacy and forbid on pain of criminal punishment, assembly with other to advocate the described action and the statute falls within the condemnation of the first and fourteenth amendments.
Imminent lawlessness is a standard used to define the limits of free speech. Under the imminent lawless action test, speech is not protected by the First Amendment if the speaker intends to incite a violation of the law that is both imminent and likely.
An example of this would be, standing in front of a crowd of people and saying let’s go shoot some people.
Shield laws – legislation to protect reporters’ privilege; involves the right for reporters to refuse to testify as to information on their sources of information obtained during the new gathering and dissemination process. Reporter cannot be subpoenaed or court ordered to testify about information contained in a news story.
No shield laws at the federal level, most of the 50 states have shield laws or other protections in place for reporters.
Exclusions to Free Speech: Obscenity
Ellis vs Ohio(Obscenity)
Semi-explicit sex scene, Justice Potter Stuart, doesn’t know what obscenity is, but knows it when he sees it.
Miller v CA – Miller Test (Definition of Obscenity)
Whether the average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest.
Whether the work depicts or describes in an offensive way sexual conduct or excretory functions specially defined by applicate state law
Whether the work, taken as a whole lacks serious literary artistic political or scientific value.
(This is not definable, that nothing can pass the miller test and you can basically get away with
OR simply put:
Is it porn?
Does it actually show sex?
Is it otherwise useless?
Anything except for child porn will fall into these questions. Therefore, the only thing considered obscene is considered child porn.
Justice Potter Stuart – obscenity, don’t know what it is but I know it when I see it
NY vs Ferber (Child Porn)
Found that child porn, had no societal value and no meaning to it and thereby not protected by the first amendment. Anything related to a depiction of a minor, is now possibly including graphic creations that depict a minor.
Intellectual Property (an example speech that isn’t protected)
Trademark – what identifies you, logos. Have to get a patent first before you can claim it as yours. You can then put the ®
Copyright – something that you create, voice over, song, book, speech, haiku, FB status. Can put the C at the end, don’t need to file. If someone steals your idea and you want to take them to court, you have to file for copyright. ©
Patent – novel idea for an actual process, a way to do something, a way to make something, new type of engine. File an application for a patent (patent pending), process – hire an engineer to identify the item and that process to get to put the item together.
Row vs Wade (Privacy/Abortion) – whether a person has a right to get an abortion. Judges inferred a right to privacy based on constitution and extending that right and found that abortions were legal.
The US supreme court found that there is an inferred right to privacy from the US Constitution, the CA Constitution article 1 section 1 gives you right to privacy
Due process: fair treatment through the normal judicial system, especially as a citizen's entitlement.
For example, when you work for the government at any level, you have a due process right; before the government takes something from you, you have a right to be heard.
Due process rights have to be followed, before you can be terminated. Private employers, is done through the state’s police powers, the states apply an aversion of employee rights using police powers. Police powers, have the ability to regulate based on their residents.
State Police Power: In the United States, state police power comes from the Tenth Amendment to the Constitution, which gives states the rights and powers "not delegated to the United States." States are thus granted the power to establish and enforce laws protecting the welfare, safety, and health of the public.
Discrimination: Federal Law: employers cannot discriminate based on any of the following:
Race, sex, pregnancy, religion, national origin, disability, age, military service, bankruptcy debt or status, genetic information, or citizenship. They all fall under either the Fifth or Fourteenth amendment
Age discrimination employment act: expansion of title 7 under civil rights act, more than 20 people in the office, cannot discriminate over the age of 40
Title 7 of civil rights act: created the employment portion of the civil rights movement, by arguing the commerce clause
Commerce Clause - describes an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
Rehabilitation act of 1973: protection of people with disabilities, section 504 (guarantees rights to people with disabilities), requires reasonable accommodations. Applies to anyone that gets federal money (cities, universities, federal grant, county) has to grant reasonable accommodations.
Alteration of policy to accommodate a disability, you have to grant it if it is reasonable, there is a nexus (has to be certified by someone) between what they are asking for and their disability and if it a fundamental alteration.
Nexus – the bridge between the diagnosis and the requirement (i.e. A dr. says that the patient has anxiety, and the dog keeps them calm, so they have to have the dog with them at all times – the dog is the Nexus)
ADA (American Disabilities Act): defines a disability is a mental or physical health condition that substantially limits one or more major life activities.
ADA, expands beyond section 504. Requires reasonable accommodations, includes architectural accommodations, TTY/TTD, defines the disability.
A disability is a mental or physical health condition that substantially limits one or more major life activities.
Miranda rights: based on the fifth amendment to not self incriminate; if u have an attorney and your rights have been read to you, your confession will stand unless there is coercion
Coercion: the practice of persuading someone to do something by using force or threats
“You have the right to remain 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?”
Miranda rights came from the Miranda v. Arizona case in 1966,
The defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world.
The defendant was not given a full and effective warning of his rights at the outset of the interrogation process. The questioning elicited oral admissions and signed statements that were admitted at trial.
Miranda was found guilty of kidnapping and rape and was sentenced to 20-30 years imprisonment on each count.
On appeal, the Supreme Court of Arizona held that Miranda’s constitutional rights were violated in obtaining the confession because he was not informed of his right to counsel during questions and trial and therefore reversed the judgement.
He was then retried without his confession and convicted again on the same charges.
FINAL EXAM
Congress shall make no law establishing religion or prohibiting the free exercise thereof
Philosophical and religious views are perceived to be one and the same, regardless of what it is rooted in doesn’t matter, can’t alieve you from everything.
Free Exercise Clause: The Free Exercise Clause reserves the right of American citizens to accept any religious belief and engage in religious rituals.
What you believe and what you do (the right to believe and the right to act)
The first is absolute, you cannot change what people believe, its what you do with it that can be changed
The only time the court can change this is when the society has a compelling reason/interest to do so
For example: Animal Sacrifice (there was a compelling interest by the American people; so it was illegal)
Rule of general applicability, as long as they don’t target a single religion it is allowed.
Strict scrutiny is used in evaluating laws, burdening religious freedom and looks for compelling state interest. i.e. Anti vaccination rule
To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest.
Establishment clause: congress shall make no law in the establishment of religion. Not national religion and do not favor one or the other. No national religion.
SHORT ANSWER: Lemon Test: A law is constitutional and does not violate the constitution:
The statute must have a secular legislative purpose
Its principal or primary effect must be one that neither advances nor inhibits religion
The statute must not foster an excessive government entanglement with religion
If it passes the lemon test it is constitutional, it if doesn’t then it is isn’t constitutional
Religious Land Use and Institutionalized Persons Act (RLUIPA)
Protects individuals, houses of worship and other religious institutions from discrimination from zoning and landmarking laws.
Land Use Regulation:
No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person
Including a religious assembly or institution unless the government can demonstrate threat imposition of the burden on that person, assembly or institution
Is in furtherance of a compelling governmental interest; and
Is the least restrictive means of furthering that compelling governmental interest
Church gets a use permit, wanted to expand services to operate a food kitchen, showers, meals, for homeless shelter (but if you asked the church they weren’t operating a shelter). Neighbors were upset, city said exceeding use of the permit, took permit away. Homeless were using drugs, some were mentally ill, etc. when the church was closed they went to the park next door. (in a neighborhood with a school and homes). Kid comes down slide at the park and gets poked by a needle. I.e. Harbor Church in Ventura
BROWN ACT
Promote transparency and public trust through:
Public access to meetings
Public attendance and participation
Receipt of public comment
Closed meetings
Allowed for
Real property negotiations
Labor related items
Personnel issues
Litigation
Must make announcement of closed meeting and describe purpose on agenda
Report out of closed meeting
Public Comment: If there was a subcommittee that accepted public comment, then at the full meeting of the board, there is not a subcommittee meeting.
Did the chair violate the brown act, answer is no as long as there no significant change to the item. If there is, then you have to reopen public comment.
California public records, any item is available for review. You can get copes if you pay for them.
Sue the Government: If you are suing a government entity, requirement gov’t doc number 954.4, have to make a claim within 6 months of injury for your damages in writing.
Death Penalty: California Superior court must review every case where the death penalty has been opposed
Federal Court: Why do you want to be in federal court?
Defendants want to be in federal court, plaintiffs want to be in state court.
Federal court is more proper, more controlled and the rules are easier than state civil court. Less regulations/rules in federal court
Statute of limitations
How long after something happens you have before you cannot sue
Evidence diminishes (witnesses, evidence, etc.).
Based on the gravity of the crime, not the propensity to disappear.
Before you file a law suit, statute of limitations:
Which statue of limitations applies (the tort you are suing for )
When does the action accrue
Are there any tolling provisions (pauses the statute of limitation (minor under 18, lack of capacity, incarceration)
You can shorten/lengthen the statue of limitations, cannot extend past 4 years past its end date.
Jurisdiction: What can be heard? CA courts have 2 jurisdictional (subject matter jurisdiction and personal jurisdiction).
Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter.
Example: bankruptcy court only has the authority to hear bankruptcy cases.
Personal jurisdiction: is the power of a court over the parties in the case. Before a court can exercise power over a party, the constitution requires that the party have certain minimum contacts with the forum in which the court sits.
Court can hear cases as long as the defendant had resided in CA at the time of the injury/accident (reside with the intent to remain)
If the defendant is personally served while in CA, includes flying in a plane over CA
If the defendant consents to CA jurisdiction (contracts cases).
When the defendant has made an appearance and realizes that the court can adjudicate an answer; defendant has minimal contacts with the forum state – can expect to me hailed into court there.
Everything regarding jurisdiction you are looking at the defendant, because the plaintiff already submitted to the courts jurisdiction
Serving Someone:
The person who is serving, has to be over 18 and not a party to the case
You can serve someone by any means that are allowed.
Have to make 3 attempts, in person, then 2 others.
Venue to file your action: Venue, refers to the county where the action may be filed; give the defendant control of where the action may be filed.
General rule: venue is proper in the county where any of the defendants reside at the commencement of the action. If the defendant doesn’t reside in CA you can file in any county.
Permissive counter claims: Litigate multiple claims all at once
Pleadings – complaint is the document that starts your lawsuit.
Plead Doe’s 1-10 – the purpose is to add later parties to the case.
Can amend your complaint 1 time before it is filed ,otherwise you have to ask the court permission
Motion for judgment on the pleadings: there is no case here
Motion to strike: Oral: remove from the record; Written: get it out of the public record because there is no proof.
Most common place used, Strike Punitive damages (damages to punish, make an example out of something)
Anti-slapp motion: the whole reason you are suing is to crush my first amendment right. Newspapers file these. Strategic lawsuit against public participation (SLAPP). There is a slap back motion.
Example: If I was to write a Yelp review, the business could try to sue me (SLAPP), I would file an Anti-SLAPP motion, the business would file a Slapp Back.
The answer in a pleading:
Allege why things are wrong, they didn’t do anything wrong
For each cause of action they have to give an answer, either admin or deny.
Have to plead any defenses they have; if the don’t plead then they lose their ability to. If u don’t file demurrer, motion to strike, then they have 30 days to answer.
Discovery: the formal exchange of information between both sides of the law suit.
Production of documents – request for production of documents
Interrogatories – written deposition; questions and facts about the incident (CA can ask 35 questions).
Deposition – out of court examination, similar to what you would have at trial, sworn under oath; illicit testimony and hear attorney’s objections – see the testimony and lock it in
You can ask almost anything at a deposition, except for things that are privileged. Privileged information; patient/dr; clergy, sexual assault victim/counsellor;
Written Deposition: they have 30 days to file an answer after default judgment.
Subpoenas – this is the exception – this is for people that are not parties
Default Judgment: You have 30 days to file an answer
Default motion is when you file a complaint and you serve the party and they don’t file a motion in 30 days, you file for default which locks them out of the case.
Civil code section 473 – if in 6 months, you can file this to show there was an inadvertence or mistake to set it aside
Settlement Negotiations: You can never talk about in court is discussions during settlement negotiations. Not allowed to bring up any information, because you bring it all out on the table.
Exception to Confrontation Clause: Witness unavailable or refuse to testify and the statement needs to be non-testimonial. Right to confront witnesses that will testify.
Crawford case (911 tape, this is not testimony), tape was used.
Testimonial evidence is not allowed unless you have the right to cross examine the witness.
Domestic violence where there is a 911 call, the call is asking for help, not testimony.
Heresay: An out of court statement offered for the truth of the matter asserted.
Heresay is not allowed in court, unless there is an exception, due to the unreliability of the statement, don’t have the ability to prove it was true.
If you are looking at a statement to determine it was heresay: Out of Court / Statement / Offer for the Truth of the Matter Assertive (OTMA).
Exceptions where heresay is allowed:
Admission by a party (because voracity is presumed);
dying declaration – Guy with his last breath makes statement (because voracity is presumed);
Excited Utterance – it’s what falls out of your mouth when you hear something;
Statement against pecuniary interest – a statement that would hurt you (retelling what a third party told you).
5th amendment: You cannot be forced to testify against yourself; your spouse cannot be compelled to testify against you. Miranda rights. Spouse could waive these rights.
4th amendment – protected from unreasonable search and seizure. Employed via warrants.
If you want to search something or someone, you need a warrant.
If an officer sees a felony in front of them, they can arrest without a warrant.
If the police officer doesn’t see a misdemeanor, a citizen’s arrest can help this along.
The search requirement of the 4th amendment, you can only look where you are allowed to look.
Warrant: A warrant is a judicial order to effectuate something, arrest, seize, return.
Included in a warrant, must be supported by probable cause, has to be issued by a neutral and detached magistrate (a judge), has to be an oath or affirmation (by the person applying for the warrant), has to plead particularity (plead the small thing you can, which will allow you to search the smallest of areas)
Valid arrest warrant and have probable cause that the person is there, the house can be searched.
Finite scope, can only look where the person could be hiding, nothing smaller than the size of a human.
Fruit of the poisonous tree, all the seizures, if I don’t have a lawful right or take something unlawfully, everything that comes from this is inadmissible.
Exceptions: Found independently, then it could still be used. At whichever point the contact of the seizure is unlawful, it cannot be used as evidence against you.
Warrant Exceptions
SILO (Search Incident to a Lawful Arrest) – been arrested at your house and now the police can search your house.
Under this exception to the search warrant requirement, an arresting officer may search only the person arrested and the area within which that person might gain possession of a weapon or might destroy or hide evidence.
Elements: Search incident to a lawful arrest, custodial arrest in cuffs. Has to be lawful and has to happen at that moment:
Scope: Can search your person, can search anything within your wingspan or anywhere you reasonably were when you were arrested. If you are arrested in your car and then search your car, so long as you are not restrained, but you are not free to go.
Search for an arrestee: when a police officer enters a dwelling for someone to arrest. Elements: need a valid warrant, must have probable cause the the subject is in the dwelling. If they something that is evidence to the crime for you are there, they can seize unlawful items from the house.
Exigent circumstances (an emergency): you must have probable cause and it has to be an emergency. Have to prove that if you didn’t seize or do what you did that it would have been destroyed. Seize the items until you get a warrant to open it, to preserve the evidence. Hot pursuit, you can chase someone into a house, if the person is suspected of convicting a felony.
Cars: If they have probable cause to search your car, they have to have a lawful reason to be at your car. If they pull you over and they believe your car has evidence to the crime, they can search your car. If they want to pull the compartments and door panels off, they need to have a warrant. Elements: car is stopped on a car or highway and is readily able to be used on the highway and the officer believes it is part of the crime or contains contraband they can search the car.
Can only search the car when the person is not handcuffed, unless the search if for an arrestee.
Plain view Doctrine, if the cop sees it and knows it’s illegal they can seize it.
3 elements
Must observe from a lawful vantage
Must have a right of physical access
Nature of the object has to be apparent for search and seizure
This doesn’t work when a cop is in a house looking for a missing person, and knows the person who owns the house is a stereo thief, the stereo cannot be seized because it is not illegal, must have a warrant for that.
Inventory search, either your car is impounded or your arrested for a crime involving your car. Searched for contraband and to protect the entity that arrested you, so that when you get your car back, everything is inventoried for proof so you cannot say something is missing. Same as when you arrested, all items are inventoried.
Consent searches, when you consent to a search. You don’t need to know that you have a right to say no to a search. There has to be actual consent and it has to be voluntary. Cannot coerce someone, can lean on someone but no coercion, based on the totality of the circumstances. You can set the scope of the search.
Apparent Authority Doctrine: you appear to have the authority to let them do the search. Someone who the police believe the person has the the authority to grant access.
Stop and frisk doctrine: you have to have a reasonable suspicion. Specific and articulable facts when taken together with rational inferences from those facts that reasonably warrant an intrusion.
Have right to council for both 5th and 6th amendment
The 5th amendment applies when you are about to be arrested
The 6th applies once you have been charged. Once you initiate that right, the police cannot interrogate you unless your attorney is there, however this doesn’t not stop the investigation.
Exceptions: they can come to your cell and try to talk to you about a separate case, in which you need to invoke the 5th amendment right. They can ask you if you want to waive that right. If they waive that right under the 6th, they can invoke it at any time, in which all questioning will stop.
Vicarious liability is where you are responsible for the torts of another person. Someone will try to show that you are responsible or have some level of responsibility over the person who committed the tort. Example, employee runs over a person during working hours, the business can be sued.
Respondeat Superior – whenever some one is on the clock and they hurt someone, the employer is always sued.
At what point is the employer still responsible for the employee – still responsible, even if they made a mere deviation from their scope of work.
Not responsible if person has abandoned duties and completed tortious acts.
i.e. Tortiously injuring someone while on lunch break (not a deviation).
Tortiously injuring someone when you abandon work to go to a Dodgers game, the employer is not covered.
The 3/5ths compromise – slaves were counted as 3/5 of a person for the representative process.
Voting Rights Act
Shelby County v Holder:
Voting rights acts passed in 1965
Section 5 (added to the act to freeze any discriminatory requirements to cover jurisdictions, to guarantee the 14th and 15th amendments)
Section 4b (jurisdiction or states that included certain tests or devices to make citizens eligible for voting).
Supreme Court determined it was unconstitutional to continue with using the formula that was passed under congress under section 4b.
Didn’t rule on section 5, just concentrated on section 4b.
Section 2: Can’t do anything discriminatory
Section 4b: Here’s a formula to determine if you are
Section 5: If you are subject to 4b you have to get approval before you make changes to your laws
15th amendment (1870) is enacted, says you cannot stop people from voting based on their race, servitude, religion
19th amendment – women’s right to vote in 1920
24th amendment no poll taxes, 1964
26th amendment – set the age to 18 years to vote
Voter ID Laws, very controversial – democrats don’t want it, republicans want it. To maintain voter integrity, Voter ID Laws is valid. Department of justice review.
