Ch. 3 Part 2 and Ch. 4 Part 1
Ch. 3 Part 2 and Ch. 4 Part 1 CJ 341
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This 5 page Class Notes was uploaded by Nicole Wolfe on Thursday September 8, 2016. The Class Notes belongs to CJ 341 at University of North Dakota taught by Kristi Venhuizen in Fall 2016. Since its upload, it has received 26 views. For similar materials see Criminal Law in Criminal Justice at University of North Dakota.
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Chapter 3 continued Freedom of Expression Includes freedom of the press and freedom of speech First Amendment does not give absolute protection to speak whenever, wherever, or whatever you want Courts must strike a balance between freedom of expression and society’s interest in maintaining peace and order Speech lacking in value is not protected: obscene, profane, libelous, and insulting or “fighting words” Clear and present danger doctrine – public speechmaking can only be prohibited when there is imminent lawless action Symbolic speech is protected o Ex: wearing symbols, sit-ins, civil wearing military uniforms, picketing o Flag burning – upheld as protected speech US Supreme Court has struck down federal statutes that impose criminal punishment for this act Maintaining public order o State can take action to protect public order and safety and prevent riots o “Fighting words” – words that are likely to provoke a violent reaction Hate speech – refers to any instance of hateful expression, whether verbal, written, or symbolic that is based on racial, ethnic, or religious prejudice o Generally protected unless conducted with an intent to intimidate Obscenity – not protected by the First Amendment o Difficult to define what is obscene Profanity – protected unless becomes “fighting words” o Cohen v California (1971) – “Fuck the Draft” o People v Boomer (Mich. App. 2002) – cussing canoeist o City of Bismarck v Schoppert, 469 N.W.2d 808 (N.D. 1991) – Schoppert was a defense attorney. He flipped the bird at a cop and he said “fucking bitching cop”. He said “fuck you” multiple times to the cop and was intoxicated. Detained for disorderly conduct and was found guilty. He appealed. Freedom if Assembly First Amendment protects the right of people to peaceably assemble Government can limit the right to assemble to make sure it does not impede the operations of government or other citizens o Reasonable time, place, and manner regulations o Cannot be unnecessarily burdensome Free exercise of religion Deeply rooted belief and legislatures rarely try to interfere o Sometimes the unpopular religious beliefs will get attention Examples: o Door to door solicitation without a permit (protected) o Polygamy (not protected) o Amish education (protected) o Use of peyote (mixed) o Use of poisonous snakes (not protected) o Animal sacrifice (protected) Refusal to give medical treatment for religious reasons: o Protected for adults o Does not typically apply to treatment for children Examples: o Minnesota boy denied treatment for lymphoma o Philadelphia couple lose two children to faith-healing Right to Keep and Bear Arms Second Amendment provides for “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.” United States v Miller (1939) – related to Militia DC v Heller (2008) – not related to Militia State courts tend to give wide latitude to state and local gun control laws Vagueness and Overbreadth Fifth Amendment provides that “no person… shall be deprived of life, liberty or property without due process of law.” Two elements of due process: o Fair notice – right to know whether a conduct is illegal o Fair hearing Vagueness doctrine is designed to limit the discretion of police and prosecutors in how a law is enforced o Secondary issue to make sure public understands the proscribed activity Supreme Court has said that statutes can be clarified through judicial interpretation Doctrine of overbreadth – applies to criminal laws that are written so broadly it may infringe upon First Amendment freedoms Anyone who believes their First Amendment rights might be so infringed upon can challenge a statute for overbreadth o Do not need standing Coates v City of Cincinnati (1971): o Supreme Court struck down a law making it unlawful for “three or more persons to assemble… on any sidewalks and there conduct themselves in a manner annoying to persons passing by.” o Found to be vague and overbroad Freedom from Compulsory Self-Incrimination Fifth Amendment states that no person “shall be compelled in any criminal case to be a witness against themselves.” o Right not to testify in a criminal trial o Right to remain silent when faced with police interrogation Also limits legislature’s ability to require parties to report information to the police that can place them in jeopardy of criminal prosecution The Prohibition against Cruel and Unusual Punishments Eighth Amendment o Applies to both procedures by which a criminal sentence is imposed and the substantive laws that define punishment In most Eighth Amendment cases the Supreme Court focuses on the constitutionality on the constitutionality of the sentence, not the validity of the underlying statute Right of Privacy Privacy is not mentioned in the text of the US Constitution Supreme Court has held that personal privacy is protected from legislative interference Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Griswold v Connecticut (1965) – Supreme Court invalidated a law proscribing the use of birth control for married couples o First explicit recognition of the right to privacy Roe v Wade (1973) – right of privacy extends to a women’s decision to terminate a pregnancy o Affirmed in 2000 and 2007 – cannot prohibit a woman from having an abortion prior to fetal viability Extend this rational to the issue of sexual conduct between consenting adults o Applied primarily to laws prohibiting homosexual sodomy o Concern about what this means for criminal offenses such as bestiality, incest, and bigamy Privacy rationale applies to matters concerning “the right to die” o Adults with terminal illnesses have the right to refuse medical treatment Washington v Glucksberg (1997) – Supreme Court upheld law criminalizing doctor-assisted suicide o Courts are unwilling to extend the right to privacy in these situations Equal Protection Fourteenth Amendment forbids states from denying persons equal protection of the laws o Fifth Amendment due process clause imposes the same duty on the federal government Used to challenge the validity of criminal laws o Ex: interracial marriages, birth control for singles versus married couples, different drinking ages for men and women Standards of Judicial Review Criminal law that touches on constitutionally protected interest must further a legitimate government interest Rational basis test – does the law provide a rational means of advancing the state’s legitimate interest in public health and safety Strict judicial scrutiny – standard of review when the law infringes upon a fundamental right o Presumed to be unconstitutional o To survive the challenge, the government must show that the law furthers a “compelling government interest” and is narrowly tailored to that purpose o Test applies when a criminal law infringes on a fundamental right (ex: freedom of speech) Importance of State Constitutions Highest court of each state gets to determine the constitutionality of the state’s constitution and statutes o States can give more (but not less) protection under their state constitutions than are awarded under the US Constitution Typically, a state decision is not subject to US Supreme Court review o If the state implicates a federal law, then the federal courts can get involved Chapter 4 Elements of crime and parties to crime Actus Reus “The act of a criminal” o Willfully commit a proscribed physical act, or o Intentionally fail to act where the law requires action Prevents a person from being guilty based on thought or intent alone What is an act? Bodily movement whether voluntary or involuntary Crime requires a voluntary act o Only act made from free choices should be criminally punished N.D.C.C. 12.1-01-04(1) Words can be an “act” o Ex: yelling “fire” in a crowded theatre; making a threat against the president o It will often depend on the manner in which the words as spoken Who committed the act John strikes Tom John picks up a gun and fires it John gives a poisoned glass of water to Tom, Tom gives the glass to Bob John, a passenger on a bus, suffers and epileptic seizure and kicks Tom John, the driver of the bus, suffers an epileptic seizure, crashes bus, and injures Tom John committed the act in all the examples Failure to Act as Actus Reus Act of omission – a person’s failure to act Must be a legal duty to act o Relationship of the actor to the victim o Statutory duty o Contract between the actor and the victim N.D.C.C. 12.1-01-04(23) Examples Mark, an expert swimmer, hears someone drowning and does nothing. (NO) If a lifeguard the yes. Mark inherits $100,000 and forgets to file taxes. (YES) A surgeon stops in the middle of a procedure he agreed to perform for a fee and the patient dies. (YES) A husband rapes his underage daughter. The wife knows of the illegal sexual relationship. (YES) Murder of Kitty Genovese Kitty Genovese was murdered in NYC. The attack started at 3:20 am and continued for 35 mins. Thirty-seven citizens watched the attack and saw the killer stab Kitty three times. Not one of the thirty-seven called the police or attempted to help. When asked why, one witness claimed “I was tired”. Did the citizens have a duty to act? o No duty to act so no failure to act People v Beardsley Beardsley spent the weekend at home with a female friend, Blanche Burns, while his wife was away. Ms. Burns took a fatal dose of morphine, and Beardsley failed to call a physician to help her. She died Did Beardsley have a duty to act? o No duty to act so no failure to act Case of David Cash Jeremy Strohmeyer hauled seven year old Sherrice Iverson into a bathroom stall, began to assault her, and threatened to kill her. David Cash was there and saw it happen but did nothing. Did David Cash have a duty to act? o No duty to act so no failure to act