IntrotoLegalResearch.pdf FORP 6102
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This 8 page Class Notes was uploaded by Ashley Blair on Monday February 2, 2015. The Class Notes belongs to FORP 6102 at George Washington University taught by Dr. Nick Xenakis in Winter2015. Since its upload, it has received 88 views. For similar materials see Psychology and Legal System 2 in Physiology at George Washington University.
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Date Created: 02/02/15
Week 1 Intro to Legal Research 11315 2 Major Research Tools in Legal Research Westlaw 0 Look for the law in the area you are presiding Ex expert witness needs to know the law for the area they are testifying O FSupp2d Federal Support 2nd Edition 0 Just because it is a law in Federal Court does not mean it is the same for Trail courts Trial courts can tweak things to their preference 0 This seems tedious however it is better than looking through books and it brings you to the specific case that set the law Lexus How the Law is Now WestlawNext Q It is becoming a lot like google 0 Still need to have a basic competency of the law The Tension wLegal Research 0 However the steps in Westlaw gives you the steps to get to the right answer Q There is never an easy answer in the law You will always have to go out and find the right answer and make sure that it is right What you are trying to find 0 How you actually apply the law in the context it is meant to be in The law sentence can go 3 different ways 0 Remanded You can find all these new ways to find research but you have to go back to the main source that it came from FBI is hiring right now Cyberterrorism Everyone goes through the same training together Fbijobsgov Q Can apply through 2 routes Knowing a second language can help Go through several different phases 0 Writing portion 0 Interview do you meet the critical skills for it 0 Fitness test 0 Then selection and then you go to the academy BSUBehavioral Science Unit C Behavioral analysts 0 Help every field without the case work load of going to trial 0 To into the field to figure out who did what or even the crime scene itself and help figure out what went down Crisis negotiators Q Can do as an agent Intelligence analyst Week 2 Criminal Competencies 12015 Defendants have 2 choices 1 Can choose guilty or not guilty lawyer has no choice in this matter Courts take into account the nature of the delusion when determining competency Ex Bond vs Batman Criminal Competency Sometimes referred to as Adjudicative Competency Essentially means the ability to rationally make required decisions 0 To stand trial 0 To waive counsel and represent oneself This is the last thing the courts want It is a complete pain for the court In a high profile case someone will be put on standby counsel 0 To decide to testify C To plead guilty 0 Pursue or abandon appeals C To be executed Constitutional requirement due process Different from insanity Deals with the defendant39s Present mental state C Somebody could be completely insane during the crime but completely competent to stand trial Is a very narrow question May be raised at any time during the proceedings Requires relatively low abilities 0 Severe mental illness does not necessarily mean incompetent 0 Developmental disability does not necessarily mean incompetent Even during sentencing they need to be competent because they have the right to allocution get up an address the court on their behalf Competency to Stand Trial Dusky v United States 0 Established the Basic Test Provides O quotTest must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceeding against himquot Per Curiam court did not sign their name to it Solicitor General argues all of the cases in the Supreme Court sometimes called the 10th justice he is an unbiased opinion that they go to for advice He says 0 quotthis case is a bad case to takequot and could be for a variety of reasonsnot enough in the record 0 quotthe defendant is not oriented to time and place and has some recollection of eventsreferred to as the crimequot gt not good because it does not reference anything to the court proceedings What if they did not do it Then they will obviously have no recollection of the events 0 New Has to have a reasonable degree of rational understandinggt but there is a level when the defendant becomes counterproductive for their lawyer to help them Ex a kid wants to take his trial to court for his possession of marijuana but the dice are loaded Rational and Factual Understanding Generally means 0 A general appreciation of how the legal system processes 0 A general understanding of the roles of the participants in the system Prosecutor defense counsel judge jury O A general appreciation of basic rights The right to plead guilty or not guilty 0 A general understanding of the charges and the reason the charges have bene brought Claimed or actual amnesia does not by itself negate this understanding Relationship with Counsel Some decisions are made by the counsel 0 General trial strategy 0 Evidence to be introduces 0 Lines of attack on prosecution evidence Some decisions made by defendant 0 To plead guilty 0 To testify Counsel advises even defendants decisions 0 Give them the pros and cons to each situation 0 You can39t tell them what to do but you can strongly advise them There is a lot of faith put in counsel to help decide if their defendant is competent or not because they are the one spending the most time with the defendant Waive Counsel Faretta v California 422 US 806 1975 0 Defendant has a constitutional right to selfrepresent 0 Waiver must be quotknowing and intelligentquot and that the choice must be approved by the courts 0 Dusky Rule applies as to Defendant39s ability to make choice Issue is not whether defendant can be competent to representation However someone39s mental status can change throughout the court process and that is why a lot of judges appoint standby counsel because this decision to selfrepresent is made before the trial begins Competency to plead guiltydecide to testify Even though these decisions may be more difficult the Dusky Standard applies 0 Godinez v Moran 1993 Some courts will in effect look at the waiver of rights in these cases with a higher level of scrutiny C These are the tests that are applied but they want to make sure the administrative aspect runs smoothly and is not interrupted to much Drope v Missouri 1975 Due process requires a psychiatric evaluation where there is a significant indicia of incompetence Judge must order evaluation even where defense counsel does not Chief Justice Burke gave the opinion The defendant gang raped his wife shot himself and then tried to kill his wife after the gang rape but before the trial She testified about strange behavior throws a temper tantrum and rolls himself down the stairs Tried to decide what his suicide attempt impacted his competency Steps of the trial 0 Gets charged and brought it 0 His absence was voluntary because he shot himself and they moved to court without him 0 They found him guilty and sentenced him to life in prison 0 There was an unsuccessful pretrial motion footnote pg 100 0 Supreme Court denies appeal and says the decision is final 0 Drope brings a state habeas proceeding Trial was done in his absence They did not perform a psychiatric evaluation They failed to give a competence eval before trial 0 2 takeaways Judge can order a competency hearing even if cousel does not think so You need to always do one Jackson v Indiana 1972 No criminal commitment when found incompetent to stand trial and no possibility to become competent Civil commitment then required to hold with different standards and burden of proof Justice Blackmun wrote on the case Jackson was deaf and mute He stole 9 over the course of 2 robberies and they still took him to court 0 Deemed incompetent and there is little room for improvement 0 Then placed in state hospital for indefinitely 2 problems take away39s 0 Was not charged with anything 0 Was not given equal protection Feeble minded if they can get better Mentally Ill if they can get quotcuredquot they will be released but not likely Somebody can not be deemed or held to a higher standard than anybody else 0 Was not given due process Now they have to be found dangerous to not be released look out for the community Results of finding of incompetent to stand trial Charges remain intact Treatment provided to Regain Competence 0 Usually hospitalization 0 Sometimes an educational component as to the legal system Some people will never be competent 0 Charges must ultimately be dismissed But they are not required to be involved in the program 0 Separate court ruling to make them take medicine and be involved in the program Competency to be executed Mental Illness Ford v Wainwright 1986 0 quotOnly if the defendant is aware that his death is approaching can he prepare himself for his passingthe eighth amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer itquot Courts have split on forced medication solely to render someone competent to be executed 0 State v Perry based on Louisiana Constitution state cannot forcibly medicate ational is that is it punishment not treatment 0 Singleton v Norris 8th Circuit finds that forced medication may be medically necessary treatment not punishment short term benefits even if long term detriment 0 Supreme court has not ruled States are divided Developmental Disability Atkins v Virginia Left it to states to determine what constitutes mental retardation 2 Factors 0 IQ 0 Adaptive Skills Cannot care for their ADL39s Get their school records Cannot adapt to daily life Texasallows an execution if among other factors the court determines the criminal offense required forethought planning and complex execution Hall v Florida 2014 cannot have hard IQ cutoff before being allowed to present other evidence 0 Everybody with IQ above 70 can be executed 0 Federal said you could not do that Competency to waive Miranda Rights For a confession to be admissible it must be quotvoluntaryquot After miranda warnings are given 0 The interrogation must stop UNLESS the defendant 0 quotknowingly and intelligentlyquot waives his privilege against selfincrimination and his right to be retained or appointed counsel Special Issues with Juveniles Trial competence in juvenile courts has not been addressed by the supreme court 0 Some states have passed statutes following Dusky some with more restrictive standards O In the absence of statutes most courts follow Dusky Dusky Standard may be operationally different for juveniles 0 Age state of dev and context are important Juvenile Miranda Waiver Fare v Michael C 442 US 701 1979 0 Juvenile waivers of miranda rights must be viewed in the totality of circumstances 0 Attorneys have a specific role to fulfill 0 Asking to speak to probation office not sufficient to require interrogation to stop 0 Some states hold that a request to see a parent is sufficient Week 3 Insanity Defense 12615 US v Brawner Uncontrollable Impulse We feel guilty about sentencing someone if they had no control over their actions 0 They had no choice we feel they are less culpable The Law is ALL about Free Will and the rational being 0 There is no determinism part Actus Reus O The actual act Ex Murderthe shooting Mens Reus O Intent 0 There are varying degrees of intent InsanHy Is a Legal not a clinical term Different from competence to stand trial Deals with defendants PAST mental state C The defendant is not questioned and interviewed the day it happened by a clinician Is a RELATIVELY narrow question 0 Only focusing on a specific mental state at a specific time Is a difficult defense to make ls different for the Concept of Diminished Capacity which is not a complete defense Affirmative defense defendants job to show evidence that he or she was insane at the time of the offense Major CasesTests McNaughton O A person is not responsible for criminal conduct at time of offense due to mental disorderdefect that he lacks substantial capacity to appreciate wrongfulness O A quotdefect of reasonquot 0 At the time of the crime a person must be suffering from quota disease of the mindquot 0 quotNot knowing the nature and quality of the act he was doingquot 0 Started back in the 180039s 0 Primarily cognitive test 0 Essentially is a Knowledge of right from wrong test 0 Based on the Law39s premise that Humans are rational beings 0 Makes little room for emotional disturbances Q Is still the standard in some states Durham v United States 0 The Test is An accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect D quotproductquot is a problem word it is too linear It infers a 39cause39 and 39effect39 relationship D However some disorders can be 39Iinear39 or easy to infer O Takes into account emotional as well as cognitive difficulties 0 Comes from the idea that humans are not necessarily fully rational Refers to emotional aspect free from emotion 0 Includes but is not limited to irresistible impulse 0 Easy to make out insanity defense 0 Durham excessively overruled ALI Rule 0 Heshe as a result of mental disease or defect did not possess substantial capacity either to appreciate the criminality of his conduct or to conform is conduct to the requirements of the law quotcriminalityquot to understand the concept of doing a behavior that is considered criminal quotconductquot are they capable of acting within the bounds of the law Two Pronged Tests 0 Some states have incorporated the McNaughton test with another loosely termed quotirresistible impulsequot eg Virginia 0 Similar to ALI test 0 Defendant can be found to be criminally insane if he either meets the McNaughton standard or it is found that he acted due to an irresistible impulse Insanity Defense Reform Act lDRA Q It is an affirmative its responsibility of the defendant to put on defense to a prosecution under any federal statute that at the time of the commission of the acts constituting the offense the defendant as a result of a severe mental disease of defect was unable to appreciate the nature and quality or the wrongfulness of his acts Mental disease or defect does not otherwise constitute a defense 18US Code 17 Federal Test 0 Test passed after John Hinckley Verdict Reagan assassination attempt O Burden on the defendant to prove by quotclear and convincing evidencequot 0 Basically restates the McNaughton rule except there is a necessity of severe mental illness 0 This puts a lot of responsibility in the hands of the experts Q What determines a quotseverequot mental illness There are varying types you can t just limit severe to a type of illness 0 Less hard to prove than you think it may be Andrea Yates June 202001 Took her out the back door to avoid her husband Battling a mental illness says Husband She said quotshe wanted to receive punishment for being a bad motherquot Consumed by religious beliefs
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